United States District Court, D. Maryland
Lipton Hollander United States District Judge.
McFadden, plaintiff, filed suit against defendants L&J
Waste Recycling, LLC ("L&J"); Lenzie M.
Johnson, III ("Johnson III"); and Lenzie M.
Johnson, Jr. ("Johnson Jr."), alleging violations
of the Fair Labor Standards Act ("FLSA"), as
amended, 29 U.S.C. §§ 201, et seq.; the
Maryland Wage and Hour Law ("MWHL"), as amended,
Md. Code (2016 Repl. Vol.), §§ 3-401 et
seq. of the Labor and Employment Article
("L.E."); and the Maryland Wage Payment and
Collection Law ("MWPCL"), as amended, L.E.
§§ 3-501 et seq. ECF 1. In particular,
plaintiff claims that he was not paid time and a half for
hours worked in excess of 40 hours a week during the period
of his employment, from October 28, 2014, to January 14,
2016. Id. ¶¶ 21-23; ECF 32-2 (McFadden
Affidavit), ¶ 4.
counsel, Johnson III and L&J moved to dismiss, or in the
alternative, for summary judgment. ECF 5. And, through
counsel, Johnson Jr. also filed a motion to dismiss, or in
the alternative, for summary judgment. ECF 7. By Memorandum
(ECF 19) and Order (ECF 20) of January 10, 2017, I denied
both motions. In my Order, I directed the defendants to
answer the Complaint on or before January 31, 2017. ECF 20.
interim, on January 27, 2017, counsel for defendants moved to
withdraw from the case. ECF 21. The motion reflected
compliance with Local Rule 101.2(a) and 1012(b). Therefore, I
granted the motion to withdraw by Order of the same date. ECF
letter dated January 27, 2017, the Clerk notified defendants
of the implications of counsel‘s withdrawal. ECF 24.
Then, by Order of February 7, 2017, I advised the defendants
of the requirement that corporate entities, including limited
liability companies, appear in court only through counsel.
See ECF 25; see also Local Rule 101.1(a);
101.2(b). And, I granted L&J until March 13, 2017, to
obtain counsel. ECF 25. Further, I directed all defendants to
answer the Complaint by March 13, 2017. Id. at 2.
March 27, 2017, no lawyer had entered an appearance for
L&J, nor had defendants answered the Complaint.
Therefore, on that date, I directed plaintiff to file a
motion for clerk‘s entry of default as to each
defendant, pursuant to Fed.R.Civ.P. 55(a), or show cause why
such action is not appropriate. ECF 26. Plaintiff filed a
Motion for Entry of Default as to all defendants on April 10,
2017. ECF 27. And, on April 20, 2017, the Clerk entered an
order of default as to all defendants. ECF 29.
plaintiff filed a motion for default judgment (ECF 32,
"Motion"), supported by several exhibits. ECF 32-1
through ECF 32-6. The exhibits include the Affidavit of
George E. Swegman, Esq. (ECF 32-1); the Affidavit of Alphonso
McFadden (ECF 32-2); "Plaintiff‘s Attorneys‘
Fees and Costs Affidavit" (ECF 32-3); and two
"Non-Military" Affidavits signed by Mr. Swegman,
concerning Johnson III (ECF 32-5) and Johnson Jr. (ECF 32-6).
Defendants have not responded, and the time for them to do so
has expired. See Local Rule 105.2.
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall grant
the Motion for Default Judgment as to liability and statutory
damages. But, I shall defer entry of an order awarding
attorney‘s fees, pending the submission of a proper
motion for such fees.
Standard of Review
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, M.J).
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.
noted, defendants did not answer the suit after the Court
denied their motions to dismiss. See Fed. R. Civ. P.
12(a)(4)(A); ECF 20. 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); see also Monge, 751 Supp. 2d at 794
(same); 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.").
a 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."); 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" 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 defendants violated the provisions of the FLSA,
MWHL, and MWPCL because he was not paid required overtime
wages during his employment as a "Plant Foreman"
for defendants. ECF 1, ¶¶ 19, 21-24; see
29 U.S.C. § 207; L.E. 3-415; L.E. 3-508. In particular,
McFadden states that he was paid "straight time"
for all hours worked, including weekly hours in excess of
forty hours. ECF 1, ¶ 23.
enacted the FLSA in 1938 "to protect all covered workers
from substandard wages and oppressive working hours,
‗labor conditions [that are] detrimental to the
maintenance of the minimum standard of living necessary for
health, efficiency and general well-being of
workers.‘" Barrentine v. Arkansas-Best Freight
Sys., Inc., 450 U.S. 728, 739 (1981) (quoting 29 U.S.C.
§ 202(a)) (alterations in Barrentine). Thus,
the FLSA is now "best understood as the ‗minimum
wage/maximum hour law.‘" Trejo v. Ryman
Hospitality Properties, Inc., 795 F.3d 442, 446 (4th
Cir. 2015) (citation omitted); see also Monahan v. County
of Chesterfield, Va., 95 F.3d 1263, 1266-67 (4th Cir.
1996) ("The two central themes of the FLSA are its
minimum wage and overtime requirements . . . . The FLSA is
clearly structured to provide workers with specific minimum
protections against excessive work hours and substandard
wages.") (internal quotations omitted).
relevance here, the FLSA "'establishe[s] a minimum
wage and overtime compensation for each hour worked in excess
of 40 hours in each workweek‘ . . . ." Perez
Bankers Ass'n, ___ U.S.___ , 135 S.Ct.
1199, 1204 (2015) (quoting Integrity Staffing
Solutions, Inc. v. Busk, 574 U.S.___ , 135
S.Ct. 513, 516 (2014)) (alterations in Perez). In
particular, it established the "general rule that
employers must compensate each employee ‗at a rate not
less than one and one-half times the regular rate‘ for
all overtime hours that an employee works." Darveau
v. Detecon, Inc., 515 F.3d 334, 337 (4th Cir. 2008)
(quoting 29 U.S.C. § 207(a)(1)). 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.
MWHL is the State‘s equivalent of the FLSA. See
Newell v. Runnels, 407 Md. 578, 650, 967 A.2d 729, 771
(2009). Generally, the MWHL governs minimum wages and
overtime under Maryland law. See L.E. §§
3-413, 3-415, 3-420. Under L.E. § 3-415(a), "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
MWHL also authorizes an employee to bring an action against
an employer to recover unpaid wages due under the statute.
L.E. § 3-437. See generally Friolo v. Frankel,
373 Md. 501, 819 A.2d 354 (2003). It provides 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 well as for costs and
attorney‘s fees. L.E. §§ 3-427(a) & (d).
MWPCL "protects employees from wrongful withholding of
wages upon termination." Stevenson v. Branch Banking
and Trust Corporation, t/a BB & T,159 Md.App. 620,
635, 861 A.2d 735, 743 (2004) (citing L.E. § 3-505).
"The principal purpose of the Act ‗was to provide
a vehicle for employees to collect, and an incentive for
employers to pay, back wages.‘" Medex v.
McCabe,372 Md. 28, 39, 811 A.2d 297, 304 (2002)
(citation omitted). The MWPCL does not focus on "the
amount of wages payable but rather the duty to pay whatever
wages are due on a ...