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Sweeney v. Khan

United States District Court, D. Maryland

June 30, 2017

HEZEKIAH SWEENEY, III Plaintiff,
v.
KHURRAM M. KHAN, Defendant.

          MEMORANDUM

          Ellen L. Hollander, United States District Judge

         Plaintiff Hezekiah Sweeney, III filed suit on March 22, 2016, against defendant Khurram M. Khan, asserting wage claims under the Fair Labor Standards Act ("FLSA"), as amended, 29 U.S.C. § 201 et seq.; the Maryland Wage And Hour Law ("MWHL"), § 3-401 et seq. of the Labor and Employment Article ("L.E.") of the Maryland Code; and the Maryland Wage Payment and Collection Law ("MWPCL"), L.E. § 5-301, et seq. ECF 1.[1] In particular, plaintiff seeks compensation for hours he worked as a cook at defendant‘s "Pizza Boli‘s" restaurant in the Federal Hill neighborhood of Baltimore City. He claims that he was not paid the required minimum wage or overtime during his employment, from early October of 2014 to January 31, 2016. ECF 1, ¶¶ 4, 8, 11, 12.

         The docket reflects that defendant was served on June 20, 2016. ECF 17. However, he never responded to the suit. Therefore, pursuant to a motion filed by Sweeney (ECF 19), the Clerk entered an Order of Default against defendant on February 10, 2017. ECF 20.

         On February 17, 2017, plaintiff filed a "Motion For Default Judgment, Attorneys‘ Fees And Costs" (ECF 21), supported by exhibits (collectively, the "Motion").[2] The exhibits include the Affidavit of Sweeney (ECF 21-1); the Affidavit of Bradford Warbasse, Esquire (ECF 21-2); and the Declaration of Howard Hoffman, Esquire. ECF 21-4. Defendant has not responded to the Motion, and the time to do so has expired. See Local Rule 105.2(a).

         No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall GRANT the Motion, as modified.

         DISCUSSION

         A.

         Rule 55(b) of the Federal Rules of Civil procedure governs default judgments. In particular, 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."[3] But, "[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. Monge v. Portofino Ristorante, 751 F.Supp.2d 789, 794 (D. Md. 2010) (Grimm, M.J).[4]

         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); see Tazco, Inc. v. Director, Office of Workers' Compensation Program, 895 F.2d 949, 950 (4th Cir. 1990); Disney Enters. v. Delane, 446 F.Supp.2d 402, 405 (D. Md. 2006). That policy is not absolute, however. Default judgment "'is appropriate when the "adversary process has been halted because of an essentially unresponsive party.‘" Entrepreneur Media, Inc. v. JMD Entertainment Group, LLC, 958 F.Supp.2d 588, 593 (D. Md. 2013) (quoting SEC v. Lawbaugh, 359 F.Supp.2d 418, 421 (D. Md. 2005)).

         As noted, defendant did not respond to the suit. Therefore, plaintiff‘s factual allegations, other than those pertaining to damages, are deemed admitted. See Fed. R. Civ. P. 8(b)(6); see also Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001) (stating that the court accepts as true the well pleaded factual allegations in the Complaint as to liability). But, the court must determine whether the undisputed factual allegations constitute a legitimate cause of action. Id. at 780-81; see also 10A Wright, Miller & Kane, Federal Practice and Procedure § 2688 (3d ed. 2010 Supp.) ("[L]iability is not deemed established simply because of the default . . . and the court, in its discretion, may require some proof of the facts that must be established in order to determine liability.").

         If the court is satisfied that liability has been established, it must then determine the appropriate amount of damages. Ryan, 253 F.3d at 780-81. Allegations "relating to the amount of damages" are not deemed admitted based on a defendant‘s failure to respond to a suit. Fed.R.Civ.P. 8(b)(6); see Ryan, 253 F.3d at 780 ("'[D]efault is not treated as an absolute confession by the defendant of his liability and of the plaintiff‘s right to recover‘") (citation omitted); Monge, 751 F.Supp.2d at 794; Trs. 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.").

         Rather, the court must make an independent determination regarding allegations as to damages. See Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 154 (2d Cir. 1999). In so doing, the court may conduct an evidentiary hearing. Fed.R.Civ.P. 55(b)(2). However, the court may also make a determination of damages without a hearing, so long as there is an adequate evidentiary basis in the record to support an award of the requested damages. See Adkins v. Teseo, 180 F.Supp.2d 15, 17 (D.D.C. 2001) ("[T]he court may rely on detailed affidavits or documentary evidence to determine the appropriate sum."); see also Trustees of the Nat'l Asbestos Workers Pension Fund v. Ideal Insulation, Inc., Civil No. ELH-11-832, 2011 WL 5151067, at *4 (D. Md. Oct. 27, 2011) (determining that, in a case of default judgment against an employer, "the Court may award damages without a hearing if the record supports the damages requested"); Monge, 751 F.Supp.2d at 795 (same); Pentech Fin. Servs., Inc., Civ. No. 6:09cv00004, 2009 WL 1872535, at *2 (concluding that there was "no need to convene a formal evidentiary hearing on the issue of damages" after default judgment because plaintiff submitted affidavits and records establishing the amount of damages); JTH Tax, Inc. v. Smith, Civil No. 2:06CV76, 2006 WL 1982762, at *3 (E.D. Va. June 23, 2006) ("If the defendant does not contest the amount pleaded in the complaint and the claim is for a sum that is certain or easily computable, the judgment can be entered for that amount without further hearing.").

         Notably, under Fed.R.Civ.P. 54(c), "[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings." See In re Genesys Data Techs, Inc., 204 F.3d 124, 132 (4th Cir. 2000) ("When a Complaint demands a specific amount of damages, courts have generally held that a default judgment cannot award additional damages."). This is meant to enable the defendant to decide whether to expend the resources to defend the action. Monge, 751 F.Supp.2d at 796.

         B.

         Plaintiff claims that defendant violated the provisions of the FLSA and the MWHL, because he was not paid the required minimum wage throughout his employment as a cook at defendant‘s Pizza Boli‘s restaurant. ECF 1, ¶¶ 8-11; see 29 U.S.C. § 206; L.E. § 3-413. Further, plaintiff claims that defendant violated the provisions of the FLSA and the MWHL by failing to pay him overtime compensation when he worked in excess of forty hours per week. ECF 1, ¶12; see 29 U.S.C. § 207; L.E. § 3-414.

         The FLSA provides that, for any hours worked in excess of forty hours per week, an employee shall "receive[] compensation for his employment . . . at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207. Similarly, L.E. § 3-415(a) provides that "each employer shall pay an overtime wage of at least 1.5 times the usual hourly wage, " and L.E. § 3-420(a) provides that overtime wages shall be computed "on the basis of each hour over 40 hours that an employee works during 1 workweek."

         Further, 29 U.S.C. § 216(b) states:

Any employer who violates the provisions of . . . section 207 of this title shall be liable to the employee . . . affected in the amount of . . . their unpaid overtime compensation, . . . and in an additional equal amount as liquidated damages. . . . The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.

         Maryland law is to the same effect. If states that "[i]f an employer pays an employee less than the wage required under this subtitle, the employee may bring an action against the employer to recover the difference between the wage paid to the employee and the wage required under this subtitle, " as ...


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