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Kubinski v. Tuv Rheinland Industrial Solutions Inc.

United States District Court, E.D. Tennessee, Chattanooga

February 6, 2017

CHAD KUBINSKI, Plaintiff,
v.
TUV RHEINLAND INDUSTRIAL SOLUTIONS, INC., and BUFFALO STAFFING, INC., Defendants.

          REPORT AND RECOMMENDATION

          SUSAN K. LEE, UNITED STATES MAGISTRATE JUDGE

         Before the Court is the second motion for default judgment against Defendant Buffalo Staffing, Inc. (“Defendant Buffalo Staffing”) filed by Plaintiff Chad Kubinski (“Plaintiff”) [Doc. 37].[1] Plaintiff's attorney, Adam U. Holland, (“Attorney Holland”), has filed a second affidavit [Doc. 37-1] and an amended affidavit along with his invoices [Doc. 42] in support of Plaintiff's motion. Plaintiff has also filed proposed findings of fact and conclusions of law as ordered by the Court [Doc. 47] and his affidavit [Doc. 48]. Plaintiff seeks to recover damages totaling $42, 840.00 for breach of contract and fraudulent inducement claims asserted against Defendant Buffalo Staffing [Doc. 47 at Page ID #251-53].[2] In his proposed findings of fact and conclusions of law, Plaintiff states that he is withdrawing claims for attorneys' fees as there is no longer any statutory or contractual basis for the claims [Doc. 47 at Page ID #253, ¶ 7]. The District Court has referred this matter to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and Fed.R.Civ.P. 55(b)(2) to prepare a report and recommendation.

         An evidentiary hearing was duly noticed and held on January 11, 2017 [Doc. 41]. Present at the hearing was Attorney Holland for Plaintiff. Upon Plaintiff's request, the hearing was continued until February 1, 2017 [Doc. 44]. Attorney Holland attended the February 1, 2017 evidentiary hearing, and Plaintiff elected not to attend the hearing and instead provided sworn testimony by affidavit [Doc. 48]. Despite having been given notice of the January and February hearings [Docs. 41 & 44], no representative of Defendant Buffalo Staffing was present at either hearing or made any contact with the Court.

         I. BACKGROUND

         In the second amended complaint [Doc. 16], Plaintiff has brought claims for breach of contract, retaliatory discharge pursuant to Tenn. Code Ann. § 50-1-304, fraudulent inducement, promissory fraud, and civil conspiracy against Defendant Buffalo Staffing. Defendant Buffalo Staffing has failed to answer or otherwise respond to the second amended complaint after being served.[3] The Clerk entered default in favor of Plaintiff against Defendant Buffalo Staffing pursuant to Fed.R.Civ.P. 55(a) on June 23, 2016 [Doc. 25].

         Taking the allegations in the second amended complaint [Doc. 16] as true, the undisputed facts are:

1. Plaintiff is a resident of the State of Illinois and resides with his family at 25612 Chipwood Dr. Minooka, IL, 60447 [Doc. 16 at Page ID # 95, ¶ 3].
2. Defendant Buffalo Staffing is a New York entity with a principal place of business located at 155 Summer Street, Buffalo, New York, 14222 [id. at Page ID # 95, ¶ 4].
3. Defendant TUV is a foreign entity with a principal place of business located at 8181 Broadmoor Avenue SE, Caledonia, MI 49316 [id. at Page ID # 96, ¶ 5]. Plaintiff's claims against Defendant TUV were dismissed pursuant to a Stipulation of Dismissal entered on October 25, 2016 [Doc. 36].
4. Plaintiff is a highly skilled welding inspector with many years of experience and holds various industry certifications including certification as an RT Level II [Doc. 16 at Page ID # 96, ¶ 8].
5. On June 19, 2015, Plaintiff responded to an online advertisement by Defendant Buffalo Staffing [id. at Page ID # 96, ¶ 9].
6. Defendant Buffalo Staffing was advertising a contract position at Wacker Industries in Bradley County, Tennessee [id. at Page ID # 96, ¶ 10]. Defendant Buffalo Staffing's ad was seeking individuals with Plaintiff's skills and experience to work on the Phase I construction project as Wacker (“Project”) [id.]. The job posting also promised substantial overtime available for interested applicants [id.].
7. Plaintiff responded to Defendant Buffalo Staffing's ad via email and began contract negotiations with Defendant Buffalo Staffing [Doc. 16 at Page ID # 96, ¶ 11].
8. From the outset, Plaintiff made it clear to Defendant Buffalo Staffing that he needed a guarantee of no less than 60 to 70 hours a week before he was willing to relocate from Florida to take the job in Bradley County, Tennessee [id. at Page ID # 96-97, ¶¶ 12, 13, 14].
9. Defendant Buffalo Staffing's CEO Joe Bella (“Mr. Bella”) assured Plaintiff that he would be able to work 60 to 70 hours a week and over “3, 000 hours per year” if he wanted [id. at Page ID # 97, 98, ¶¶ 14, 19].
10. On June 29, 2015, Plaintiff and Defendant Buffalo Staffing entered into an employment contract for a 6-month term with the option to renew upon the conclusion of the initial term [id. at Page ID # 98, ¶ 22]. The contract is attached as Exhibit 1 to the second amended complaint [Doc. 16-1].[4]
11. Under the terms of the employment contract, Plaintiff was guaranteed to be paid $32.00 per billable and collectable hour worked, overtime compensation at time and a half for each billable and collectable hour over forty hours per week worked, and a per diem of $95 a day [Doc. 16 at Page ID # 98, ¶ 23; Doc. 16-1 at page ID # 111-12].
12. Plaintiff relied on Defendant Buffalo Staffing's representations regarding the availability of substantial overtime hours to his detriment when he entered into the employment contract with Defendant Buffalo Staffing [Doc. 16 at Page ID # 98-99, 101, ...

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