Flores v. Rababeh

• Decision Date: 15 June 2016
• Docket Number: Civil Action No. 1:15cv1415
• Court: U.S. District Court — Eastern District of Virginia
• Parties: REYNA ISABEL AVILA FLORES Plaintiff, v. KHEDER RABABEH Defendant.

REYNA ISABEL AVILA FLORES Plaintiff, v. KHEDER RABABEH Defendant.

Civil Action No. 1:15cv1415

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

June 15, 2016

REPORT AND RECOMMENDATION

THIS MATTER comes before the Court on plaintiff's Motion for Default Judgment (Dkt. 15.) After a representative for defendant Kheder Rababeh failed to respond to plaintiff's Motion, appear at the hearing on March 18, 2016, or file an appropriate responsive pleading within the additional time granted by order of this Court, the undersigned Magistrate Judge took this matter under advisement.¹

I. INTRODUCTION

A. Background

Plaintiff Reyna Isabel Avila Flores ("plaintiff") is an adult resident of Fairfax County, Virginia. (Am. Compl. ¶ 2.)Defendant Kheder Rababeh ("defendant") is also an adult resident of Fairfax County, Virginia and is the owner and operator of the Mount of Lebanon Restaurant. (Id. at ¶ 3.) Defendant employed plaintiff from about 2011 through August 17, 2015, during which time plaintiff's duties included preparing food, cleaning the restaurant, kitchen maintenance, and dishwashing. (Id. at ¶ 9.) During plaintiff's employment, defendant paid plaintiff at a flat rate of $650.00 per week. (Id. at ¶ 15.) Although plaintiff worked approximately 72 hours per week, defendant did not pay plaintiff at a rate of one-and-one-half times her regular hourly wage for those hours she worked above 40 hours per week. (Id. at ¶¶ 13, 16-17.) Defendant also did not pay plaintiff for her last five weeks of work, except for a single payment of $265.00. (Id. at ¶ 18.) On October 30, 2015, plaintiff filed suit against defendant and his son, Imad Rababeh, alleging overtime and minimum wage violations of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq. (Id. at ¶ 1; Dkt. 1.) Plaintiff now seeks her unpaid overtime and minimum wages, liquidated damages, and attorneys' fees. (Mem. Supp. Mot. Default J. 12-13; Dkt. 25; Mot. Attorney's Fees.)

B. Jurisdiction and Venue

Before the Court can render default judgment, it must have both subject matter and personal jurisdiction over the defaulting party.

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, which provides that district courts shall have original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States. This dispute arises under the FLSA, 29 U.S.C. § 201 et seq., which provides relief for an action to recover unpaid minimum wages, unpaid overtime compensation, liquidated damages, and attorneys' fees and costs. See 29 U.S.C. § 216(b). Therefore, federal question jurisdiction exists for this action.

This Court also has personal jurisdiction over defendant because defendant is a Virginia resident. (Am. Compl. ¶ 3.) Pursuant to 28 U.S.C. § 1391(b), venue is proper in this judicial district because defendant resides in this district and the acts and omissions giving rise to this action occurred in this district. (Am. Compl. ¶ 1.)

C. Service of Process

As a general rule, a defendant must be served with the summons and complaint filed with the court. Fed. R. Civ. P. 4. On December 23, 2015, Deputy U.S. Marshal Desmond Proctor left the summons and amended complaint at defendant's residence with Rehab Jebrah Alfroukh, a person of suitable age and discretion who resides there. (Dkts. 8 and 9.) Therefore, service was proper under Federal Rule of Civil Procedure 4(e).

D. Grounds for Default Judgment

Defendant has not appeared, answered, or otherwise filed any responsive pleadings in this case. On January 21, 2016, the Clerk of this Court entered default as to defendant Kheder Rababeh and his son, Imad Rababeh, pursuant to plaintiff's Request for Entry of Default and Federal Rule of Civil Procedure 55(a). (Dkt. 13.) On February 17, 2016, the Honorable T.S. Ellis, III ordered that plaintiff file a prompt Motion for Default Judgment. (Dkt. 14.) Plaintiff filed a Motion for Default Judgment on March 1, 2016. (Dkt. 15.) The undersigned held a hearing on plaintiff's Motion on March 18, 2016, at which defendant's son and co-defendant Imad Rababeh appeared pro se. (Dkt. 18.) Interpreting Imad Rababeh's actions as a Motion for Leave to File a Late Answer, the Court gave defendants Kheder Rababeh and Imad Rababeh until April 8, 2016, to file an appropriate responsive pleading that accorded with the Federal Rules of Civil Procedure. (Dkt. 19.)

On April 7, 2016, Imad Rababeh filed a letter with the Court, attaching a letter from his attorney that sought a further extension to file a responsive pleading. (Dkt. 21.) This Court again granted Imad Rababeh an extension, giving him until May 2, 2016 to file an appropriate responsive pleading. (Dkt. 22.) However, the Court did not grant defendant Kheder Rababeh any further extension. Defendant Kheder Rababeh then failed tofile any responsive pleading by the April 8, 2016 deadline.

On April 29, 2016, plaintiff filed a notice of voluntary dismissal as to all claims against Imad Rababeh, having settled her claims against him. (Dkt. 23.) That same day, Judge Ellis approved the dismissal of plaintiff's claims against Imad Rababeh. (Dkt. 24.) However, plaintiff's claims against defendant Kheder Rababeh remain pending. (Dkts. 23 and 25.) As such, having never filed any responsive pleading, defendant Kheder Rababeh remains in default and the undersigned proceeds to consider plaintiff's Motion for Default Judgment against him.

II. FINDINGS OF FACT

Based upon a full review of the pleadings and the record in this case, the undersigned Magistrate Judge makes the following findings.

Plaintiff and defendant are both adult residents of Fairfax County, Virginia. (Am. Compl. ¶¶ 2-3.) Defendant is the owner and operator of the Mount of Lebanon Restaurant ("the Restaurant"), which is located in Fairfax County, Virginia. (Id. at ¶¶ 3, 5.) At one time, the Restaurant was organized as an LLC, and defendant was a member of the LLC. (Id. at ¶ 5; Mem. Supp. Mot. Default J. Ex. C.) However, the Restaurant's LLC status was cancelled on November 30, 2013 for failure to pay the annual registration fee. (Am. Compl. ¶ 5; Mem. Supp. Mot. Default J. Ex. C.) Since that date, the Restaurant has continuedto operate, apparently being ran as a partnership between defendant and his son, Imad Rababeh. (Am. Compl. ¶¶ 6-7.)

At all times relevant to plaintiff's claims, the Restaurant had an annual gross volume of sales made in an amount exceeding $500,000, and the Restaurant ordered and received supplies from other states or that had traveled through interstate commerce. (Id. at ¶ 8; Mem. Supp. Mot. Default J. 6-7.) Defendant controlled the day-to-day operations of the Restaurant, supervised plaintiff, and had the power to hire, fire, and discipline employees, including plaintiff. (Am. Compl. ¶¶ 10, 12; Avila Decl. ¶¶ 6-7.) Defendant also set and determined plaintiff's work schedule and rate of pay and exercised the ability to dock plaintiff's pay. (Am. Compl. ¶¶ 10, 12; Avila Decl. ¶¶ 6-7.)

Defendant employed plaintiff at the Restaurant from about 2011 through August 17, 2015. (Am. Compl. ¶ 9; Avila Decl. ¶¶ 2, 11.) Plaintiff's duties included preparing food, cleaning the Restaurant, doing kitchen maintenance, and dishwashing. (Am. Compl. ¶ 9; Avila Decl. ¶ 3.) During plaintiff's employment, defendant paid plaintiff a wage of $650.00 per week. (Am. Compl. ¶ 15; Avila Decl. ¶ 4.) Plaintiff usually worked six days per week, 12 hours per day, totaling 72 hours per week. (Am. Compl. ¶¶ 13, 16; Avila Decl. ¶ 4.) Thus plaintiff's regular hourlywage was approximately $9.02.² (Mem. Supp. Mot. Default J. Ex. D.) However, defendant did not pay plaintiff at a rate of one-and-one-half times her regular hourly wage for those hours she worked above 40 hours per week. (Am. Compl. ¶ 17; Avila Decl. ¶ 9.) Therefore, plaintiff was not paid the additional half of her regular hourly rate for her overtime hours. Defendant also did not pay plaintiff for her last five weeks of work, except for a single payment of $265.00. (Am. Compl. ¶ 18; Avila Decl. ¶ 10.)

III. EVALUATION OF PLAINTIFF'S COMPLAINT

Where a defendant has defaulted, the facts set forth in the plaintiff's complaint are deemed admitted. Before entering default judgment, however, the Court must evaluate the plaintiff's complaint to ensure that the complaint properly states a claim. GlobalSantaFe Corp. v. Globalsantafe.com, 250 F. Supp. 2d 610, 612 n.3 (E.D. Va. 2003). As such, it is appropriate to evaluate plaintiff's claim against the standards of Federal Rule of Civil Procedure 12(b)(6).

Plaintiff moves for the Court to grant default judgment pursuant to her allegations that defendant violated the overtime compensation and minimum wage provisions of the FLSA, 29 U.S.C.§§ 206 and 207.

A. Unpaid Overtime Wages

In order to establish a violation of the FLSA for non-payment of overtime wages, a plaintiff must show that (1) she was employed by the defendant, (2) plaintiff was engaged in interstate commerce or in the production of goods for interstate commerce, (3) plaintiff worked over 40 hours per work-week, (4) plaintiff was not compensated at a rate of one-and-one-half times her regular rate for each hour worked in excess of 40 hours per work-week, and (5) none of the exemptions in 29 U.S.C. § 213 applied to plaintiff's position. See 29 U.S.C. § 207(a); Davis v. Food Lion, 792 F.2d 1274, 1276-77 (4th Cir. 1986). Here, the Amended Complaint and plaintiff's declaration set forth each element of the claim.

First, plaintiff was employed by defendant. The FLSA defines "employer" to include "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). "Employ" is defined to include "to suffer or permit to work." 29 U.S.C. § 203(g). Furthermore, individual defendants can be held liable as employers under the FLSA. See Brock v. Hamad, 867 F.2d 804, 808 n.6 (4th Cir. 1989). Under the majority rule, an...