United States District Court, D. Maryland
L. Hollander, United States District Judge
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. 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.
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.
February 17, 2017, plaintiff filed a "Motion For Default
Judgment, Attorneys‘ Fees And Costs" (ECF 21),
supported by exhibits (collectively, the
"Motion"). 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
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall GRANT
the Motion, as modified.
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." 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,
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)).
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.").
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.").
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.").
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.
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.
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."
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.
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 ...