United States District Court, D. Maryland, Southern Division
W. Grimm United States District Judge.
Marquita Paige filed suit against Defendant CD#15CL2001, Inc.
to recover unpaid wages. Defendant has not responded to the
pleadings, and Plaintiff has now filed a Motion for Default
Judgment, ECF No. 9. Having reviewed the filing, I find that a
hearing is unnecessary. See Loc. R. 105.6. Plaintiff
has shown Defendant's liability and established some of
the damages she seeks. Accordingly, Plaintiff's Motion
for Default Judgment will be granted in part and denied in
AND PROCEDURAL HISTORY
Inc. is a Maryland corporation that operates two exotic dance
clubs, Bazz & Crue Hall and X4B Luxury Club. See
Compl. ¶ 2, ECF No. 1. Defendant employs exotic dancers
to perform at its two locations “for the benefit of
Defendant and Defendant's customers.” Id.
¶ 12. In September 2013, Paige successfully auditioned
to work for Defendant as an exotic dancer. See
Pl.'s Mot. 6. Paige remained employed by Defendant until
May 2015. Id. at 3. Typically, she would work
“about four (4) shifts per week, ” from 9:00 PM
to 5:00 AM. Id. at 4. As an exotic dancer, she
performed “dances on stage and privately for
Defendants' clients in exchange for tips or
‘donations.'” Paige Aff. ¶ 5, Pl.'s
Mot. Ex. 1, ECF No. 9-1. Paige asserts that while employed by
Defendant she was never paid in wages at all. Id.
¶ 11. In fact, she was required to pay Defendant a
“‘tip in' kickback as a condition precedent
of starting any shift.” Id. ¶ 13. The
kickback fee was typically $50.00. Id. ¶ 14.
Defendant justified its compensation method by categorizing
Paige as an “independent contractor.”
Id. ¶ 15.
December 2, 2015, Paige filed a Complaint in this Court
against Defendant for violations of the FLSA; the Maryland
Wage and Hour Law (“MWHL”), Md. Code Ann., Lab.
& Empl., § 3-401 et seq., and the Maryland
Wage Payment and Collection Law (“MWPCL”), Lab.
& Empl., § 3-501 et seq. On March 2, 2016,
Plaintiff filed a Motion for Clerk's Entry of Default.
ECF No. 6. Based on Defendant's failure to respond or
otherwise defend in this proceeding, on March 30, 2016,
pursuant to Rule 55(a) of the Federal Rules of Civil
Procedure, the Clerk issued an Entry of Default as to the
Defendant. ECF No. 7.
of the Federal Rules of Civil Procedure establishes a
two-step process when a party applies for default judgment.
First, the rule provides that “when a party …
has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the
party's default.” Fed.R.Civ.P. 55(a). Following the
Clerk's entry of default, “the plaintiff [then may]
seek a default judgment.” Godlove v. Martinsburg
Senior Towers, LP, No. 14-CV-132, 2015 WL 746934, at *1
(N.D. W.Va. Feb. 20, 2015); see Fed. R. Civ. P.
55(b). “The Fourth Circuit has a ‘strong
policy' that ‘cases be decided on their
merits.'” S.E.C. v. Lawbaugh, 359
F.Supp.2d 418, 420 (D. Md. 2005) (citing Dow v.
Jones, 232 F.Supp.2d 491, 494 (D. Md. 2002)). However,
“default judgment may be appropriate when the adversary
process has been halted because of an essentially
unresponsive party.” Id. at 420-22.
determining whether to grant a motion for default judgment,
the Court takes as true the well-pleaded factual allegations
in the complaint, other than those pertaining to damages.
See Ryan v. Homecomings Fin. Network, 253 F.3d 778,
780 (4th Cir. 2001). If the Court finds that “liability
is established, [it] must then determine the appropriate
amount of damages.” Agora Fin., LLC v. Samler,
725 F.Supp.2d 491, 484 (citing Ryan, 253 F.3d at
780-81). In order to do so, “the court may conduct an
evidentiary hearing, or may dispense with a hearing if there
is an adequate evidentiary basis in the record from which to
calculate an award.” Mata v. G.O. Contractors Grp.,
Ltd., No. TDC-14-3287, 2015 WL 6674650, at *3 (D. Md.
Oct. 29, 2015); see Fed. R. Civ. P. 55(b).
Employee Determination Under the FLSA, MWHL, and
order to recover under the FLSA, the MWHL, or the MWPCL,
Plaintiff must first show that she was an
“employee” of the Defendant. See Butler v. PP
& G, Inc., No. WMN-13-430, 2013 WL 5964476, at *2
(D. Md. Nov. 7, 2013). The FLSA defines an employee as
“any individual employed by an employer” and it
defines “employ” as “to suffer or permit to
work.” 29 U.S.C. §§ 203(e)(1), (g).
Though these definitions deliberately are broad, the FLSA
recognizes a difference between employees, which it covers,
and independent contractors, which it does not. See
Schultz v. Capital Int'l Sec., Inc., 466 F.3d 298,
304 (4th Cir. 2006). Nevertheless, the Supreme Court has
noted that “where the work done, in its essence,
follows the usual path of an employee, putting on an
‘independent contractor' label does not take the
worker from the protection of the [FLSA].”
Rutherford Food Corp. v. McComb, 331 U.S. 722, 729
determine whether a worker is an employee under the FLSA,
courts look to the ‘economic realities of the
relationship between the worker and the putative
employer.'” McFeeley v. Jackson St. Entm't,
LLC, 825 F.3d 235, 241 (4th Cir. 2016) (quoting
Schultz, 466 F.3d at 304). The “economic
realities” test examines six factors, none of which is
dispositive on its own:
(1) the degree of control that the putative employer has over
the manner in which the work is performed; (2) the
worker's opportunities for profit or loss dependent on
his managerial skill; (3) the worker's investment in
equipment or material, or his employment of other workers;
(4) the degree of skill required for the work; (5) the
permanence of the working relationship; and (6) the degree to
which the services rendered are an integral part of the
putative employer's business
Id. (quoting Schultz, 466 F.3d at 304-05).
These factors first were discussed in United States v.
Silk, 331 U.S. 704, 715 (1947), and therefore often are
referred to as the Silk factors. “Rather than
looking at one particular factor or applying these factors
‘mechanically, ' courts look at the totality of the
circumstances in applying them.” Herman v.
Mid-Atlantic Installation Servs., Inc., 164 F.Supp.2d
667, 671 (D. Md. 2000). Application of the test answers
“whether the worker is economically dependent on the
business to which he renders service or is, as a matter of
economic [reality], in business for himself.”
Schultz, 466 F.3d at 304 (citing Bartels v.
Birmingham, 332 U.S. 126, 130 (1947)).
Degree of Control
regard to the first factor, when determining the degree of
control an employer club has over an individual dancer at the
club, courts “generally look not only to the guidelines
set by the club regarding the entertainers' performances
and behavior, but also to the club's control over the
atmosphere and clientele.” Butler, 2013 WL
5964476, at *4 (finding economic dependence where, even
though club did not control the “day-to-day
decisions” of its dancers, it still exercised
significant control by regulating “the advertising,
location, business hours, maintenance of facility, [and]
aesthetics”). Courts also have found significant
control where clubs establish conduct policies and control
performance pricing. See McFeeley v. Jackson St.
Entm't, LLC, 47 F.Supp.3d 260, 269 (D. Md. 2014),
aff'd, 825 F.3d 235 (4th Cir. 2016) (finding