UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MELBIN JAVIER OCHOA, et al.,

Plailitiffs,

v. C.A. N0. 1:14cv02072 RJL/DR
DAVID NUYEN, et al.,

Defendants.

DEFENDANTS’ MOTION TO DISMISS FOR LACK
OF SUBJECT MATTER JURISDICTION

Defendant, David Nuyen ("Nuyen"), comprising the companies owned by the
Defendant, in the District of Columbia ("District") and where the Plaintiffs, Melbin
Javier Ochoa and Cesar Gaytan Rodriguez ("Plaintiffs") worked, does hereby file a
Motion for Lack of Subject l\/latter Jurisdiction [first raised in his Verified Answer of
March l4, 20l4 in the "Defendants Motion for Reconsideration to Set Aside Entry of
Default Pursuant to FRCP 5 5 (c)"] which was denied by the court.

Noteworthy, as to timeliness of raising jurisdictional matters, Subject l\/latter
Jurisdiction cannot be forfeited or waived based on the federal court’s limited jurisdiction
in which to adjudicate. See Insurance Corp. v. Compagnie Des Bauxites, 456 U.S. 694,
702 (198 l):

[N]o action of the parties can confer subj ect~matter jurisdiction

upon a federal court.  and a party does not waive the requirement
by failing to challenge jurisdiction early in the proceedings.

Plaintiffs in their Amended Complaint, Par. 18, allege that this court is

empowered to adjudicate this case through U.S.C. Sec. 203(s)(l) that "Defendants were
engaged in commerce or in the production of goods for com1nerce. . .".

Also, under Par.. 20, that

"during Plaintiffs’ employment [they] engaged in [] employment
duties, handled, sold, and otherwise worked on goods and materials
that were moved in or produced for commerce thus  engaged in
commerce or the production of goods for commerce as required by
29 U.S.C. Secs. 206-207."

Nowhere in its allegations, or during the Da1nages Hearing, have the Plaintiffs
facially shown that their jurisdictional allegations are supported by facts to justify this
court’s Subject l\/latter Jurisdiction constituting interstate commerce. lnstead, the parties
activities are shown to merely a]j”ect commerce. An important distinction constraining
Subject l\/latter Jurisdiction.

Similarly, at Par. 22, of the Amended Complaint, Sec. 29 U.S.C. 2l6(b); 28
U.S.C. Sec. 1337, represents no basis that this action relates to "any civil action or
proceeding arising under any Act of Congress regulating commerce."

Defendants have provided no legally sustainable basis on how workers living and
working in the District, and being supplied material and supplies in the District, are
involved in interstate commerce to satisfy the Federal Question needed to confer Subject
l\/latter Jurisdiction on this Court. Neither the Plaintiffs, nor the Defendants, have been
shown in the repair and maintenance of District only housing projects how they were
engaged in the movement or things in interstate commerce as required under the FSLA..

See Navarro v. Broney Automotive Repairs, lnc., 533 F.Supp.2d l223,l226

(S.D.Fla. 2008.) (auto parts manufactured outside Florida were ordered from local stores

in Florida and taken to defendant’s auto shop to be installed in customer’s cars.)

To establish a claim for overtime compensation under the FLSA

Mr. Navarro has to show that either he was engaged in commerce

or in the production of goods for commerce-individual coverage-

or that Broney Automotive is an enterprise engaged in commerce

or in the production of commerce - enterprise coverage

Similarly here, Nuyen contracted for the Plaintiffs to travel from their nearby
residences in the District to do repair work and inaintenance on his locally owned
buildings with supplies purchased at a local Home Depot’s or similar local shops. Neither
party was engaged in the "actual movement of person or things in interstate commerce."

The phrase "engaged in commerce" reflects Congress’s intent to regulate "only
activities constituting interstate commerce not activities merely affecting commerce."
Thorne v. All Restoration Serv., Inc., 448 F.3d 1264, 1266 (ll“‘ Cir. 2006) (citing
McLe0d v. Threlkeld, 319 U.S. 49l, 497 (l943) (Congress did not intend to exercise
the full scope of it power under the Commerce Clause in the FLSA.) See also, Walling v.
Jacksonville Paper Co., 317 U.S. 564, 570-71 (1943).

Based on the failure of the Plaintiffs to assert any factual underpinning that
interstate commerce is involved in the case of their workers, except for conclusory
allegations to this effect in their Amended Complaint, there is no Federal Question under
28 U.S.C. Sec. l33 l, which must be proven to exist for this Court to assert Subject
Matter Jurisdiction over this case.

For such reasons, and based on longstanding legal interpretation from the nation’s

highest court, this case must be remanded to the local court of the District of Columbia

for jurisdiction based on the District’s Wage and Hour Law as it may pertain to Overtime.

ectful s` ' 
 @z:%%"( 

niel Wemhoff, Esq. #4»,'2'0233
4600 s. F@ui~ Mii@ Run %331
Arliiigton, VA 22204
(703) 589-2199
e-mail:danwem@yahoo.com

CERTIFICATE OF SERVICE

l hereby certify that l have filed the above Motion by Electronic Filing to
opposing counsel, Jason D. Friedman at Zipin, Amster & Greenberg, LLC on this date,

the 24"‘ of August 2014.
@W,// l»/MW{~,¥ /

Daniel Wemhoff

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MELBIN JAVIER OCH()A, et al.,
Plaintiffs,
v. Case No. l:12-cv-02072-RJL/DB
DAVID NUYEN, et al.,
Defendants.

DEFENDANTS’ MOTION FOR ENTITLEMENT T 0 CONTEST

DAMAGES AND PARTICIPATE IN THE DAMAGES HEARING

Pursuant to Fed. Rules Civ. Proc. 8(d); 26(b)(1) and 55(b)(2), 28 U.S.C.A.,

a defaulting defendant has the legal right, according to the above Rules of the Federal
Court, to contest and participate in a damages hearings, where he has made an
appearance, and the damages are unliquz`datea'. Thus, the defendant may appear and offer
proof to assist the court in ascertaining the legal amount of damages See 10 Moore’s
Federal Practice 3D, Sec. 55.32[2][f_|, at 55-50. ("A defaulting party is entitled to contest
Damages, and to participate in a hearing on damages, should one be held.") Cit. Bonilla
v. Trebol Motors Corp., 150 F.zd 77, 82 (i“ Cir. 1993).

With this understanding, a District Court opinion here has held: "Default does not,
however, establish liability for the amount of damages that the plaintiff claims." Wondie
v. Mekuria, 742 F.supp.2d 118, 122 (D.D.C. 20l0) (emphasis added) (cits.om.)

Understandably then, while a default may constitute an admission of liability, the
quantum of damages does not, and must be established by proof where the amount is

unliquidated This meaning has particular application where the defaulting party has

made an appearance, as occun'ed here. Not only has Defendant, Nuyen, appeared by
counsel, to file a Motion to Vacate the Default (which was denied on liability only),
but once he received notice of the Damages Hearing held on August 22, 2014, he
appeared with counsel and witnesses, but was denied participation.

While, Rule 8(d) requires only that "averments in a pleading to which a

responsive pleading is required, other than those as to the amount of damages, are

admitted when not denied in the responsive pleading." (emphasis added)

Similar'ly, Rule 26(b)(2) provides that "parties may obtain discovery regarding
any matter not privileged, which is relevant to the subject matter involved in the pending
action." Although, Rule 55(b)(2) is silent on the subject of granting the defaulting
defendant discovery, it does authorize the court to conduct a hearing to determine the
amount of damages to be assessed against the defaulting defendant.

Presumptively, if such a hearing is held, where the damages are uncertain, only
fairness and the court’s search for damages to a legal certainty, the cited Rules would
favor the defaulting party’s ability to contest damages and have the court assess their
proof of such.

Particularly controlling here is, that unlike Rule 55(b)(1) where the clerk may
"[e]nter[] a Default Judgment if the "claim is for a sum certain. . ." the court makes the
detennination of the amount of unliquidated damages to a legal certainty.

Without delving into the merits of the Defendants’ proof of damages here, it
can be proffered that the Plaintiffs "employment" proof is decidedly different than would
be the Defendants proof, if allowed to be presented at a Damages Hearing. Defendants

would offer proof that the Plaintiffs were "piece workers", paid a predetermined and

agreed to sum, based on hours which were self-determined, and at a rate of pay for each
project completed calculated on the basis of: Payment per project performed ~ divided by
the hours worked = the hourly payment = any overtime owed based on time-and-a-half.
Further, the Defendants have a number of the time sheets from the years that the
Plaintiffs were paid for their piece work and should be granted the opportunity under the
Rules and case precedent, to offer these into evidence through the supervisor of the
Plaintiffs (Dang Sung) who was a potential witness on the date of the Damages Hearing

on August 22, 2014.

e ectfully mitte ', '» 
nrel Wemhoff, Esq. #4202'&3/
4600 S. Four Mile Run #83'1
Arlington, VA 22204
(703) 589-2199

e-mail: danwem@yalroo.com

CERTIFICATE OF SERVICE

l hereby certify that I have electronically and mailed a copy of the foregoing
Motion for Errtitlemerit to opposing counsel, Jason D. Friedman at Zipin, Amster &
Greenberg, on this date, the 24“° of August, 2014.



daniel w@mh@rf

 

