United States District Court, D. Maryland
REPORT AND RECOMMENDATION
WILLIAM CONNELLY, UNITED STATES MAGISTRATE JUDGE
Report and Recommendation addresses Plaintiffs Griselda
Medrano and Oscar Ivan Ravelo Ramirez's (hereinafter
“Plaintiffs”) Motion for Entry of Default
Judgment, filed on November 29, 2016. ECF No.
Defendants Elmer's Painting and Remodeling, Inc. and
Elmer Melgar (hereinafter “Defendants”) have not
filed a response and the deadline for their response elapsed
on December 13, 2016. See D. Md. Local R. 105.2.a
(2016). Having reviewed the filings, no hearing is deemed
necessary. See D. Md. Local R. 105.6. For the
reasons stated herein, the undersigned recommends that,
following the time to object to this Report and
Recommendation, Plaintiffs' Motion for Entry of Default
Judgment be GRANTED.
FACTUAL AND PROCEDURAL HISTORY
Griselda Medrano (“Medrano”) is an adult resident
of the District of Columbia. Plaintiff Oscar Ivan Ravelo
Ramirez (“Ramirez”) is an adult resident of
Maryland. ECF No. 1 at 2 (Compl. ¶¶ 3-4). Defendant
Elmer's Painting and Remodeling, Inc. (“Elmer's
Painting”), a Maryland corporation, has forfeited its
status and presently is not in good
standing. See Maryland Business Express,
https://egov.maryland.gov/businessexpress (last visited Apr.
24, 2017). Elmer's Painting is owned by Defendant Elmer
Melgar (“Melgar”). ECF No. 1 at 2 (Compl. ¶ 6).
Melgar controlled the daily operations of Elmer's
Painting. He supervised directly or indirectly the
Plaintiffs. He had the power to hire, suspend, discipline, or
fire the Plaintiffs. The Plaintiffs' work schedules were
directly or indirectly set and controlled by Defendant
Melgar, or he had the power to do so. The rate and method of
the Plaintiffs' pay were directly or indirectly set and
determined by Defendant Melgar, or he had the power to do so.
Id. ¶¶ 11-15.
Melgar and Elmer's Painting are employers within the
meaning of the Fair Labor Standards Act of 1938
(“FLSA”), 29 U.S.C. § 201, et seq.,
the Maryland Wage & Hour Law (“MWHL”), Md.
Code Ann., Lab. & Empl. § 3-401, et
seq., and the Maryland Wage Payment and Collection Law
(“MWPCL”), Md. Code Ann., Lab. &
Empl. § 3-501, et seq. At all times
relevant, the Defendants had at least two or more employees
engaged in commerce or “handling, selling, or otherwise
working on goods or materials that have been moved in or
produced for commerce by any person[.]” 29 U.S.C.
§ 203(s)(1)(A)(i). At all times relevant, the
Defendants' annual gross volume of sales made or business
done is not less than $500, 000.00. ECF No. 1 at 2 (Compl.
¶ 6). Further, at all times relevant, the Defendants
constituted an “enterprise” as defined by 29
U.S.C. § 203(r). See ECF No. 1 at 2-3 (Compl.
Medrano was employed as a painter, remodeler, and cleaner by
the Defendants from September 1, 2012 through January 20,
2015. Medrano was paid a regular hourly rate of $10.00 from
September 1, 2012 through June 30, 2013. For the remainder of
her employment, she was paid a regular hourly rate of $12.00.
Medrano worked approximately sixty-six (66) hours per week.
She was never paid the required overtime rate of one and a
half times her regular hourly rate for those hours in excess
of forty (40) per week. See ECF No. 1 at 4 (Compl.
Ramirez was employed as a painter, remodeler, and cleaner by
the Defendants from January 1, 2012 through January 20, 2015.
He was paid a regular hourly rate of $15.63 throughout this
employment period. Ramirez worked approximately sixty-six
(66) hours per week. He was never paid the required overtime
rate of one and a half times his regular hourly rate for
those hours in excess of forty (40) per week. See
ECF No. 1 at 4 (Compl. ¶¶ 18, 23-25).
5, 2015, the Plaintiffs filed a Complaint against the
Defendants alleging the Defendants willfully violated clear
and well-established overtime provisions of the FLSA, MWHL,
and MWPCL. ECF No. 1 at 2. The Plaintiffs seek compensatory
and statutory damages for all unpaid overtime compensation as
well as attorneys' fees and costs.
Court's jurisdiction is based on federal question, 28
U.S.C. § 1331, as this civil action arises under
“the Constitution, laws, or treaties of the United
States.” See 29 U.S.C. § 216(b)
(“An action to recover the liability prescribed . . .
may be maintained against any employer . . . in any Federal
or State court of competent jurisdiction by any one or more
employees for and in behalf of himself or themselves and
other employees similarly situated.”). This Court
exercises supplemental jurisdiction over the state (Maryland)
claims in accordance with 28 U.S.C. § 1367(a) (“in
any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article
III of the United States Constitution.”).
6, 2015, a summons and a copy of the Complaint were issued by
the Clerk of Court. ECF No. 2. The summonses were served on
May 17, 2015 and returned to the Court as executed on May 19
and 29, 2015. ECF Nos. 3, 6. The Defendants' Answers were
due June 8, 2015. Id. Neither Defendant filed an
Answer by this deadline. Defendant Melgar however filed a
June 1, 2015 notice disputing the case, which was received by
the Court on June 15, 2015. ECF No. 7. Defendant Melgar noted
he lacked sufficient funds to hire an attorney. Id.
16, 2015, Judge Chuang ordered the Plaintiffs to “file
and serve by mail on Defendants a Motion for Entry of Default
by the Clerk and a Motion for Default Judgment, or show cause
as to why such motions would be inappropriate, within 14 days
of this Order.” ECF No. 8. Eight days later, on June
24, 2015, the Plaintiffs moved for Clerk's entry of
default for want of answer or other defense against the
Defendants. ECF No. 9. Meanwhile, in light of Defendant
Melgar's notice disputing the case, on July 1, 2015,
Judge Chuang granted the Defendants an additional 21 days
from the date of the Order to file an Answer or responsive
pleading. ECF No. 10. No Answer or responsive pleading was
filed. On July 29, 2015, the Clerk's Entry of Default was
docketed against the Defendants. ECF No. 11.
fifteen (15) months elapsed without any apparent activity. On
November 15, 2016, Judge Chuang issued an Order stating in
A default was entered on July 29, 2015. ECF No. 10. To date,
Plaintiffs have not moved for a judgment of default, nor have
they made any additional filings since the June 24, 2015
Motion for Clerk's Entry of Default. This action has
therefore been dormant for more than nine months.
Accordingly, it is hereby ORDERED that within 14 days of the
date of this Order, Plaintiffs must show cause as to why this
case should not be dismissed without prejudice for want of
prosecution. See D. Md. Local R. 103.3(b) (2016).
ECF No. 12.
days later, on November 29, 2016, the Plaintiffs moved for
default judgment. ECF No. 13. On March 28, 2017, Judge Chuang
referred the case to the undersigned for a report and
recommendation. ECF No. 14.
Rule of Civil Procedure 55(b) governs the entry of default
judgments. Pursuant to Rule 55(b), the clerk may enter a
default judgment “[i]f the plaintiff's claim is for
a sum certain or a sum that can be made certain by
computation, ” and the defendant is in default for
failing to appear and is “neither a minor nor an
incompetent person.” Fed.R.Civ.P. 55(b)(1).
Additionally, when a defendant is an individual, the
plaintiff must certify or declare to be true under penalty of
perjury whether the defendant is in military service. 50
U.S.C. app. § 521(b)(1) (“In any action or
proceeding covered by this section, the court, before
entering judgment for the plaintiff, shall require the
plaintiff to file with the court an affidavit-(A) stating
whether or not the defendant is in military service and
showing necessary facts to support the affidavit; or (B) if
the plaintiff is unable to determine whether or not the
defendant is in military service, stating that the plaintiff
is unable to determine whether or not the defendant is in
entry of default judgment is a matter within the discretion
of the Court. SEC v. Lawbaugh, 359 F.Supp.2d 418,
421 (D. Md. 2005) (citing Dow v. Jones, 232
F.Supp.2d 491, 494 (D. Md. 2002)). As the Court noted in
Disney Enterprises, Inc. v. Delane, 446 F.Supp.2d
402 (D. Md. 2006), “[t]he United States Court of
Appeals for the Fourth Circuit has a ‘strong policy
that cases be decided on the merits.'” Id.
at 405 (quoting United States v. Shaffer Equip. Co.,
11 F.3d 450, 453 (4th Cir. 1993)). Nonetheless,
“default judgment is available when the
‘adversary process has been halted because of an
essentially unresponsive party.'” Id.
(quoting Lawbaugh, 359 F.Supp.2d at 421).
determining whether to award a default judgment, the Court
takes as true the well-pleaded factual allegations in the
complaint, other than those pertaining to damages. Ryan
v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir.
2001) (“The defendant, by his default, admits the
plaintiff's well-pleaded allegations of fact, is
concluded on those facts by the judgment, and is barred from
contesting on appeal the facts thus established.”
(citation and internal quotation marks omitted));
see Fed. R. Civ. P. 8(b)(6) (“An
allegation-other than one relating to the amount of
damages-is admitted if a responsive pleading is required and
the allegation is not denied.”). It remains, however,
“for the court to determine whether these unchallenged
factual allegations constitute a legitimate cause of
action.” Agora Fin., LLC v. Samler, 725
F.Supp.2d 491, 494 (D. Md. 2010); 10A Charles Alan Wright,
Fed. Prac. and Proc. Civ. § 2688 (3d ed. 1998)
(“[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.”); id.
(explaining that the court must “consider whether the
unchallenged facts constitute a legitimate cause of action,
since a party in default does not admit mere conclusions of
Court finds that “liability is established, [it] must
then determine the appropriate amount of damages.”
Samler, 725 F.Supp.2d at 494 (citing Ryan,
253 F.3d at 780-81). This is so because “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.” Hartford Fin. Servs.
Grp. Inc. v. Carl J. Meil, Jr., Inc., No. WDQ-10-2720,
2011 WL 1743177, at *7 (D. Md. May 5, 2011) (quoting
Fed.R.Civ.P. 8(b)(6)); Trs. of the Elec. Welfare Trust
Fund v. MH Passa Elec. Contracting, LLC, 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.”); Int'l
Painters & Allied Trades Indus. Pension Fund v. Metro
Glass & Mirror, Inc., No. ELH-11-2389, 2012 WL
893262, at *2 (D. Md. Mar. 14, 2012) (“The court does
not accept factual allegations regarding damages as true, but
rather must make an independent determination regarding such
the Court must make two determinations. First, the Court must
decide “whether the unchallenged facts in
plaintiff['s] complaint constitute a legitimate cause of
action[.]” Samler, 725 F.Supp.2d at 494.
Second, if the Court finds that liability is established, it
must “make an independent determination regarding the
appropriate amount of damages.” Id.
than two years have elapsed since Defendants Melgar and
Elmer's Painting were served with the Plaintiffs'
Complaint, yet the Defendants have not pleaded or otherwise
asserted a defense by filing an Answer. As a result, all of
the factual allegations made in the Plaintiffs' Complaint
not pertaining to damages are deemed admitted. Fed.R.Civ.P.
8(b)(6); Ryan, 253 F.3d at 780.
Plaintiffs moved for a default judgment on November 29, 2016
and the Defendants have not responded. It is within the
Court's discretion to grant default judgment when a
defendant is unresponsive. See Park Corp. v. Lexington
Ins. Co., 812 F.2d 894, 897 (4th Cir. 1987) (upholding a
default judgment awarded where the defendant lost its summons
and did not respond within the proper period); Disney
Enterprises, 446 F.Supp.2d at 405-06 (finding
appropriate the entry of default judgment where the defendant
had been properly served with the complaint and did not
respond, despite repeated attempts to contact him).
Accordingly, the Court should grant default judgment on the
Complaint if the Plaintiffs establish the Defendants'
accepting as true the Plaintiffs' well-pleaded
allegations, the undersigned finds the ...