Monge v. Ristorante

• Decision Date: 25 May 2010
• Docket Number: Civil No. WDQ–09–3144.
• Citation: 751 F.Supp.2d 789
• Parties: Elsa Olimpia MONGE, Plaintiff,v.PORTOFINO RISTORANTE, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

751 F.Supp.2d 789

Elsa Olimpia MONGE, Plaintiff,

v.PORTOFINO RISTORANTE, et al., Defendants.

Civil No. WDQ–09–3144.

United States District Court, D. Maryland, Northern Division.

May 25, 2010.

Allan E. Feldman, Ari Taragin, Michael J. Snider, Snider and Associates LLC, Baltimore, MD, for Plaintiff.

ORDERWILLIAM D. QUARLES, JR., District Judge.

Upon de novo review of Chief Magistrate Judge Paul W. Grimm's May 3, 2010 Report and Recommendation, to which no objections have been filed, it is, this 25th day of May 2010, ORDERED that:

1.Judge Grimm's Report and Recommendation (PaperNo. 10) BE, and HEREBY IS, ADOPTED AS AN ORDER OF THE COURT;

2.Monge's motions for default judgment(PaperNos. 7 and 8) BE, and HEREBY ARE, GRANTED;

3.JUDGMENT BE ENTERED for Monge in the following amounts:

a. $2,400.00 in unpaid regular wages;

b. $94,080.00 in unpaid overtime wages;

c. $4,160.00 in attorney fees; and

d. $440.00 in costs.

4.The Clerk of the Court shall send copies of this Order to the parties.

REPORT AND RECOMMENDATION

PAUL W. GRIMM, United States Magistrate Judge.

This Report and Recommendation addresses PlaintiffElsa Olimpia Monge's Motions for Default Judgment as to DefendantsPortofino Ristorante and Atae Zamini.¹PaperNos. 7 & 8.On March 11, 2010, in accordance with 28 U.S.C. § 636 and Local Rules 301and302, Judge Quarles referred this case to me to review Plaintiff's Motions and to make recommendations regarding damages.PaperNo. 9.I find that a hearing is unnecessary in this case.SeeFed.R.Civ.P. 55(b)(2); Local Rule 105.6.For the reasons stated herein, I recommend that Plaintiff's Motions for Default Judgment be GRANTED and that damages be AWARDED, as set forth herein.

I.Factual and Procedural History

Defendant Zamini is the “sole proprietor or corporate officer and/or manager of Portofino Ristorante with executive authority.”Compl.¶ 6, PaperNo. 1.Defendants hired Plaintiff on July 2, 2007 to perform cooking, cleaning, and other similar services at Defendants' restaurant, Portofino Ristorante.Compl.¶¶ 8–9, PaperNo. 1;MongeAff. ¶¶ 2–3, PaperNos. 7–3 & 8–3.²

On November 23, 2009, Plaintiff³ filed a complaint against Defendants, alleging that Defendants failed to pay Plaintiff overtime and other wages in violation of the Fair Labor Standards Act,29 U.S.C. §§ 201– 219(1998& Supp. 2007)(“FLSA”); the Maryland Wage and Hour Law, Md. Code Ann., Lab. & Empl. §§ 3–401– 3–431(2008)(“MWHL”); and/or the Maryland Wage Payment Collection Law, Lab. & Empl. §§ 3–501– 3–509(“MWPCL”).Compl.¶¶ 17, 33, 40, & 45.According to Plaintiff, she worked for Defendants an average of 68 hours per week from July 2, 2007, until she left in August 2009.Compl.¶¶ 8, 12, & 20;MongeAff. ¶ 4.Plaintiff claimed that Defendants did not “pay Plaintiff her proper overtime wages” and “unjustifiably withheld wages in the amount of $1,200 from Plaintiff's paycheck.”Compl.¶¶ 17 & 19.She sought “compensation in an amount consistent with [her] entitlement under the FLSA,” MWHL, and MWPCL; “additional compensation in the form of ... mandated liquidated damages” under the three statutes; costs; attorney's fees; and “any amounts necessary to compensate [her] for breach of contract” and “Defendants' unjust enrichment.”Compl.¶¶ 6–7.

The Clerk of Court issued a Summons to Defendants on November 24, 2009.PaperNo. 2.The Summons and Complaint were served on Atae Zamini on December 16, 2009, by leaving copies with Karim Zamini, his father, at Defendant Zamini's place of abode.PaperNo. 3–1.Because Portofino Ristorante had “closed,” the Summons and Complaint were served on Portofino Ristorante on December 16, 2009, by leaving copies with Karim Zamini at Defendant Zamini's place of abode.PaperNo. 3–2.Defendants did not respond.

Plaintiff filed Motions for Entry of Default as to DefendantsPortofino Ristorante and Zamini on January 20, 2010.PaperNos. 4 & 5.The Clerk entered an Order of Default as to both Defendants on January 27, 2010.PaperNo. 6.

Plaintiff filed Motions for Default Judgment as to both Defendants on March 10, 2010.Plaintiff's Motions do not state an amount of damages, and Plaintiff failed to file a supporting memorandum.Nonetheless, Plaintiff's affidavits and proposed Order for Default Judgment state that Plaintiff is “owed $101,460.00 ... for overtime wages and the work [she] did on behalf of Defendants and was not compensated for,” as well as attorney's fees, MongeAff. ¶¶ 10–11, or put another way, “the sum of $109,159.20 which is inclusive of full compensation to Plaintiff under the FLSA, MWHL, and MWPCL, including FLSA mandated liquidated damages and MWPCL treble damages, costs of these proceedings, and reasonable attorneys' fees.”Pl.'sAff. ¶ 5;see proposed Order, PaperNos. 7–4 & 8–4(same).Specifically, by Plaintiff's calculations, for unpaid overtime wages, Defendants owe her liquidated damages of $94,080.00, which represents a doubling of overtime payments at a rate of $15.00 per hour (that is, time and a half, with a base pay of $10.00 per hour) for 28 hours of overtime per week for the 112 weeks of her employment from July 2, 2007 through August 28, 2009.MongeAff. ¶¶ 4–5 & 7.Further, she alleges that Defendants owe her treble damages under the MWPCL for the three weeks in August 2009 in which she received no pay, although she worked 120 regular hours at $10.00 per hour and 84 overtime hours at $15.00 per hour, and therefore should have received $2,460.00.MongeAff. ¶¶ 8–9.Trebled, the damages for hours worked during those three weeks total $7,380.00.MongeAff. ¶ 9.Of import, Plaintiff includes her unpaid overtime wages for the last three weeks in both of her calculations, doubling them in one instance and trebling them in the other.MongeAff. ¶¶ 4–5, 7, & 9.Plaintiff's counsel identifies court costs and fees totaling $440, plus attorney's fees in the amount of $7,259.20 for 20.8 hours at a rate of $349.00 per hour.Aff. of Counsel Fees¶¶ 16–17.

II.DiscussionA.Default Judgment

Rule 55(b) of the Federal Rules of Civil Procedure governs default judgments.Rule 55(b)(1) provides that the clerk may enter a default judgment if the plaintiff's claim is “for a sum certain or a sum that can be made certain by computation.”A plaintiff's assertion of a sum in a complaint does not make the sum “certain” unless the plaintiff claims liquidated damages; otherwise, the complaint must be supported by affidavit or documentary evidence.SeeMedunic v. Lederer,64 F.R.D. 403, 405 n. 7(E.D.Pa.1974)(concluding that clerk could not enter default judgment where damages were not liquidated), reversed on other grounds,533 F.2d 891(3d Cir.1976).

If the sum is not certain or ascertainable through computation, Rule 55(b)(2) provides:

[T]he party must apply to the court for a default judgment....The court may conduct hearings or make referrals—preserving any federal statutory right to a jury trial—when, to enter or effectuate judgment, it needs to:

(A) conduct an accounting;

(B) determine the amount of damages;

(C) establish the truth of any allegation by evidence; or

(D) investigate any other matter.

As the Court noted in Disney Enters. v. Delane,446 F.Supp.2d 402, 405(D.Md.2006):

The United States Court of Appeals for the Fourth Circuit has a “strong policy that cases be decided on the merits.”United States v. Shaffer Equip. Co.,11 F.3d 450, 453(4th Cir.1993).However, default judgment is available when the “adversary process has been halted because of an essentially unresponsive party.”SEC v. Lawbaugh,359 F.Supp.2d 418, 421(D.Md.2005).

As noted, Defendants received the Complaint on December 16, 2009, but did not respond.⁴Thus, all of Plaintiff's allegations—other than those pertaining to damages, as discussed infra—are deemed admitted.Fed.R.Civ.P. 8(b)(6).Plaintiff moved for an entry of default on January 27, 2010, and a default judgment on March 10, 2010, and Defendants still did not respond.It is within the court's discretion to grant default judgment when a defendant does not respond or defend its case.SeePark Corp. v. Lexington Ins. Co.,812 F.2d 894, 896(4th Cir.1987)(upholding a default judgment when the defendant lost its summons and did not respond within the proper period);Disney Enters.,446 F.Supp.2d at 405–06(holding that entry of default judgment was proper because defendant had been properly served with complaint and did not respond, even after plaintiffs tried repeatedly to contact him);see alsoS.E.C. v. Lawbaugh,359 F.Supp.2d 418, 422(D.Md.2005)(concluding that default judgment was appropriate because defendant was “unresponsive for more than a year” after denial of his motion to dismiss, even though he was properly served with plaintiff's motions for entry of default and default judgment).Four months have passed since Defendants received the Complaint, yet they still have not responded.Thus, the Court should grant default judgment.

B.Damages

An allegation “relating to the amount of damages” is not deemed admitted based on a defendant's failure to deny in a required responsive pleading.Fed.R.Civ.P. 8(b)(6);seeTrs. of the Elec. Welfare Trust Fund v. MH Passa Elec. Contracting, Inc.,No. DKC–08–2805, 2009 WL 2982951, at *1(D.Md.Sept. 14, 2009)(“Upon default, the well-pled allegations in a complaint as to liability are taken as true, although the allegations as to damages are not.”);Pentech Fin. Servs., Inc. v. Old Dominion Saw Works, Inc.,No. 6:09cv00004, 2009 WL 1872535, at *1(W.D.Va.June 30, 2009)(“Upon default judgment, Plaintiff's factual allegations are accepted as true for all purposes excluding determination of damages.”);see alsoRyan v. Homecomings Fin. Network,253 F.3d 778, 780(4th Cir.2001)(“[D]efault is not treated as an absolute confession by the defendant of his liability and of the plaintiff's right to recover”).

Therefore, on default judgment, the Court may only award damages without a hearing if the...