United States District Court, E.D. Tennessee, Chattanooga
REPORT AND RECOMMENDATION
K. LEE, UNITED STATES MAGISTRATE JUDGE
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]. 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]. 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.
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.
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. 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].
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,
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].
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, ...