Gutierrez v. Mariscos El Puerto, Inc.

Full title: AYDE AZUCCERA PEREZ GUTIERREZ, et al., Plaintiff(s), v. MARISCOS EL…

Court: UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Date published: Nov 15, 2019

Facts

This action arises from defendants Mariscos El Puerto, Inc., La Catrina, LLC, La Catrina Entertainment, LLC, Manuela Hernandez, Julian Hernandez, Hector Moreno, and Danny Hernandez’ (collectively “defendants”) purported violations of Nevada labor law and various sections of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (“FLSA”). (ECF No. 1).

Defendants are engaged in the operation of two restaurants—the “La Catrina Bar & Grill” and “Mariscos El Puerto”—for which plaintiffs are all current or former employees. (ECF No. 4). Plaintiffs allege that the defendants failed to pay them minimum wage, withheld overtime wages, and retaliated against them for filing the instant action. Id

On November 5, 2019, plaintiffs filed a complaint alleging seven causes of action: (1) violation of FLSA minimum wage and overtime provisions under 29 U.S.C. § 201 et seq.; (2) retaliation in violation of 29 U.S.C. § 215; (3) failure to pay all wages due and owing upon termination under NRS 608.020-608.050; (4) failure to pay minimum wages in violation of Article 15, Section 16 of the Nevada Constitution; (5) failure to pay wages for all hours worked in violation of NRS 608.140 and 608.016; (6) failure to pay overtime wages in violation of NRS 608.140 and 608.018; and (7) civil conspiracy. (ECF No. 1). Plaintiffs bring this suit under 29 U.S.C. § 216(b), which provides in relevant part that “[a]n action to recover the liability prescribed in [sections 206, 207, or 215(a)(3) of the FLSA] may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.”

Now, plaintiffs request that the court issue a temporary restraining order enjoining defendants from retaliating against plaintiffs and other similarly situated employees. (ECF No. 4). Plaintiffs request that the court either order defendants to read aloud or order the defendant to permit a representative of plaintiffs to read aloud, a prepared statement to all employees employed by the defendants informing them of their rights under the FLSA. Id. In addition, plaintiffs request that defendants be required to post a copy of the aforementioned statement at each restaurant and provide a written copy of the statement to all employees with their next paycheck. Id. Plaintiffs also request all costs and expenses incurred in maintaining this action.

Issue

Decision

IT IS HEREBY ORDERED that the plaintiffs’ motion for a temporary restraining order (ECF No. 4) be, and the same hereby is, GRANTED.

IT IS FURTHER ORDERED that defendants shall appear for a preliminary injunction hearing on November 222019at 10:00 a.m. in courtroom 6A and SHOW CAUSE why a preliminary injunction should not be granted that restrains and enjoins defendants from retaliating against or terminating any plaintiff, or any other employee of defendants, and from preventing plaintiffs, or any other employee of defendants, from participating in plaintiffs’ investigation or from exercising their rights under the FLSA. 

IT IS FURTHER ORDERED that pending the preliminary injunction hearing, defendants are temporarily restrained from terminating or threatening to terminate, cutting hours or wages, reporting or threatening to report to immigration authorities, inflicting or threatening to inflict bodily harm on, or retaliating or discriminating against their employees in any other way, based on their belief that such employee participated, or intends to participate, in the present action, whether as a witness or a plaintiff. Defendants are also temporarily restrained from instructing any of their employees not to speak to representatives of the plaintiffs, otherwise coercing employees to make false statements regarding the terms and conditions of their employment, and from encouraging their employees or other parties to harass, threaten, or harm the plaintiffs or any other persons participating in this lawsuit, whether as a witness or a party plaintiff.

IT IS FURTHER ORDERED that defendants shall post at each worksite—”La Catrina Bar & Grill” and “Mariscos El Puerto”— a statement, in both English and Spanish and in an open location easily visible to defendants’ employees, that states:

You are protected by the Fair Labor Standards Act. Your employer is prohibited from retaliating against you because of your participation in the lawsuit against them, including any statements you may make as part of the case.

The United States District Court for the District of Nevada has ordered Defendants MARISCOS EL PUERTO, INC.; LA CATRINA, LLC; LA CATRINA ENTERTAINMENT, LLC; MANUELA HERNANDEZ; JULIAN HERNANDEZ; HECTOR MORENO; and DANNY HERNANDEZ, and anyone acting on their behalf, not to coerce, retaliate against, threaten to retaliate against, intimidate, or attempt to influence or in any way threaten employees of La Catrina Bar & Grill and Mariscos El Puerto for participating in this lawsuit.

IT IS FURTHER ORDERED that the defendants shall file their response to the plaintiffs’ motion for preliminary injunction (ECF No. 5) on or before November 18, 2019. Any reply shall be filed on or before November 20, 2019.

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