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De Zavala v. Tortilleria El Volcan, LLC

United States District Court, D. Maryland, Southern Division

June 5, 2019

DIGNA OSORIO DE ZAVALA, et al., Plaintiffs,
v.
TORTILLERIA EL VOLCAN, LLC, et al., Defendants.

          REPORT AND RECOMMENDATION

          CHARLES B. DAY UNITED STATES MAGISTRATE JUDGE.

         This Report and Recommendation addresses Plaintiffs' Motion for Default Judgment (the “Motion”). ECF No. 14. Plaintiffs Digna Osorio de Zavala (“Osorio de Zavala”) and Elsa Juarez (“Juarez”) (collectively “Plaintiffs”) filed a complaint against Defendants Tortilleria El Volcan, LLC (“Tortilleria El Volcan”), Raul Chicas Ramos (“Chicas Ramos”), and Olga Chicas (“Chicas”) (collectively “Defendants”), alleging Defendants violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., 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”), Md. Code Ann., Lab. & Empl. §§ 3-501, et seq. Pls.' Compl., ECF No. 1. Plaintiffs seek damages, including liquidated and treble damages, from Defendants. Id. at 8-9. Pursuant to 28 U.S.C. § 636 and Local Rules 301 and 302, the Honorable Theodore D. Chuang referred this matter to the undersigned for the making of a Report and Recommendation concerning default judgment and/or damages. For the reasons stated herein, I recommend the Court GRANT Plaintiffs' Motion and award a total of $56, 629.64 to be divided as follows:

1. $27, 034.82 to Plaintiff Osorio de Zavala (representing two times her unpaid minimum and overtime wages);
2. $28, 894.82 to Plaintiff Juarez (representing two times her unpaid minimum and overtime wages);
3. $700.00 in costs and expenses.

         I further recommend that the Court DENY WITHOUT PREJUDICE Plaintiffs' request for attorneys' fees with instructions to include additional information as outlined below should they refile their request or, in the alternative, award Plaintiffs a total of $7, 778.50 in attorneys' fees.

         II. Factual Background

         On October 23, 2017, Plaintiffs commenced this action against Defendants, alleging that Defendants violated provisions of the FLSA, the MWHL, and the MWPCL. Pls.' Compl. ¶¶ 43- 66. The Complaint states that Defendant Tortilleria El Volcan is “a tortilla factory located at 18068 Georgia Avenue, Olney, MD 20832.” Id. at ¶ 10. Plaintiffs were employees at the factory where they worked mostly making tortillas by hand. Id. at ¶¶ 10, 13. Defendants Chicas Ramos and Chicas are owners of Defendant Tortilleria El Volcan and “exercise[] . . . control over the operations of Tortilleria El Volcan . . . including its pay practices.” Id. at ¶¶ 8-9. At all relevant times, Defendants Chicas Ramos and Chicas had the power to hire and fire Plaintiffs, to set Plaintiffs' rate and manner of pay, controlled Plaintiffs' work schedule, and supervised and controlled Plaintiffs' work. Id. at ¶¶ 31-36.

         Plaintiff Osorio de Zavala was employed “from approximately April 1, 2014 through approximately April 3, 2017.” Id. at ¶ 11. Plaintiff Juarez was employed “from approximately June 21, 2013 through approximately April 3, 2017.” Id. at ¶ 12. Throughout their employment, Plaintiffs state that they were paid hourly rates ranging between $7.50 and $8.00.[1] Id. at ¶¶ 21- 23. During the period in question, the minimum wage for Maryland increased and was on average more than what Defendants were paying their employees.[2] Id. at ¶ 27. Plaintiffs further state that they worked “typically and customarily” six (6) days a week for 8 to 12 hours a day with a one-hour break for lunch. Id. at ¶¶ 14-15. Despite “typically and customarily” working more than 40 hours per workweek, Plaintiffs state that they were never paid overtime wages. Id. at ¶¶ 16, 25. According to the Complaint, Defendants paid their workers by the hour and in cash. Id. at ¶¶ 19-20.

         According to Plaintiffs, “[a]t all relevant times, Defendants were aware that they were legally required” to timely pay Plaintiffs the applicable minimum wage and overtime rates and failed to do so. Id. at ¶¶ 31-41. As a result, Plaintiff Osorio de Zavala alleged that Defendants owed her approximately $25, 396.45 in minimum and overtime wages (excluding enhanced damages) and Plaintiff Juarez claimed Defendants owed her approximately $27, 614.34 in minimum and overtime wages (excluding enhanced damages).[3] Id. at ¶¶ 29-30. Plaintiffs state that they “have had difficulty maintaining a minimum living standard” because of Defendants' failure to pay minimum and overtime wages and that “[a]t various points, [Plaintiffs] have been unable to purchase adequate food, housing, utilities, and other basic necessities.” Id. at ¶ 42.

         On November 16, 2017, Plaintiffs served Defendants Tortilleria El Volcan and Chicas Ramos with process. ECF No. 4; ECF No. 5. On March 6, 2018, Plaintiffs moved to reissue a summons for Defendant Chicas and for the time to serve her to be extended. Pls.' Mot. to Reissue Summons, ECF No. 6. Judge Chuang granted that motion on May 9, 2018. Order, Chuang, J., ECF No. 7. On May 22, 2018, Plaintiffs served Defendant Chicas with process. ECF No. 9.

         Because Defendants did not file an answer to Plaintiffs' Complaint, Plaintiffs moved for a default against them on June 19, 2018. ECF No. 10; see Fed. R. Civ. P. 55(a). On June 20, 2018, the Clerk entered a default against all Defendants. ECF No. 11; ECF No. 12. On December 12, 2018, Plaintiffs filed their instant Motion seeking judgment by default to be entered in their favor and against all Defendants for the sum of One Hundred and Fifty-Seven Thousand, Five Hundred and Thirty-Three Dollars and Fifty Cents ($157, 533.50) to be divided as follows: (1) $73, 150.50 to Plaintiff Osorio de Zavala (representing three times her unpaid minimum and overtime wages); (2) $75, 040.50 to Plaintiff Juarez (representing three times her unpaid minimum and overtime wages); and (3) $9, 342.50 in attorneys' fees, expenses, and costs. Pls.' Mot. 5-6.

         On May 14, 2019, this Court entered an order denying Plaintiffs' Motion without prejudice. ECF No. 16. Plaintiffs were ordered to provide “supplemental information regarding the attorneys' fees and service costs requested in compliance with Appendix B of the Local Rules of the Court. This include[d], but [was] not limited to, time logs detailing the tasks completed during the hours requested.” Id. at 1. The Court indicated that in any event, it would vacate its order and address the merits of the case after May 27, 2019. Id. at 2. To date, Plaintiffs have failed to submit any supplemental information regarding attorneys' fees as requested by the Court. Accordingly, the Court now VACATES its May 14th Order and will address the merits of Plaintiffs' Motion.

         III. Legal Background

         Rule 55 of the Federal Rules of Civil Procedure governs entries of default and default judgments. Rule 55(a) provides that “[w]hen 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). In considering a motion for default judgment, the Court accepts as true the well-pleaded factual allegations in the complaint as to liability. See Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001) (citation omitted); see also 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.”). However, the entry of “default is not treated as an absolute confession by the defendant of his liability and of the plaintiff's right to recover.” Ryan, 253 F.3d at 780 (citations omitted). The Court “must, therefore, determine whether the well-pleaded allegations in [the] complaint support the relief sought.” Id.; 10A Charles Alan Wright, Arthur R. Miller & Mary K. Kane, Federal Practice & Procedure Civil § 2688.1 (4th ed. 2019) (“Liability 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.”).

         The Fourth Circuit has repeatedly expressed a “strong policy that cases be decided on the merits.” United States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993); Colleton Preparatory Acad., Inc. v. Hoover Univ., Inc., 616 F.3d 413, 417 (4th Cir. 2010) (“We have repeatedly expressed a strong preference that, as a general matter, defaults be avoided and that claims and defenses be disposed of on their merits.”). However, default judgment “may be appropriate when the adversary process has been halted because of an essentially unresponsive party.” S.E.C. v. Lawbaugh, 359 F.Supp.2d 418, 421 (D. Md. 2005).

         Still, “acceptance of [the] undisputed facts does not necessarily entitle [the non-defaulting party] to the relief sought.” Ryan, 253 F.3d at 780-81. If the plaintiff establishes liability, the Court then turns to the determination of damages. CGI Finance, Inc. v. Johnson, No. ELH-12-1895, 2013 WL 1192353, at *1 (D. Md. Mar. 21, 2013). In determining damages, the Court cannot accept Plaintiffs' factual allegations as true and must make an independent determination. See id.; see also Lawbaugh, 359 F.Supp.2d at 422. Rule 54(c) of the Federal Rules of Civil Procedure limits the type and amount of damages that may be entered as a result of a party's default, stating that a “default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed.R.Civ.P. 54(c); Diaz v. Mi Mariachi Latin Restaurant Inc., No. GJH-18-636, 2019 WL 528185, at *2 (D. Md. Feb. 11, 2019) (quoting In re Genesys Data Techs., Inc., 204 F.3d 124, 132 (4th Cir. 2000)) (“In entering default judgment, a court cannot, therefore, award additional damages ‘because the defendant could not reasonably have expected that his damages would exceed' the amount pled in the complaint.”). While the Court may conduct an evidentiary hearing to determine damages, it is not required to do so “if the record supports the damages requested.” Monge v. Portofino Ristorante, 751 F.Supp.2d 789, 795 (D. Md. 2010) (citation omitted). The Court may rely instead on affidavits or documentary evidence of record to determine the appropriate sum. See, e.g., Id. (citing cases in which damages were awarded after a default judgment and without a hearing, based on affidavits, printouts, invoices, or other documentary evidence).

         IV. Discussion

         A. Liability

         Plaintiffs allege Defendants violated the FLSA, MWHL, and MWPCL. In relevant part, the FLSA requires that employers pay nonexempt employees at least the federal minimum wage for all hours worked and overtime pay for hours worked beyond forty hours per week. 29 U.S.C. §§ 206, 207; Darveau v. Detecon, Inc., 515 F.3d 334, 337 (4th Cir. 2008) (quoting 29 U.S.C. § 207(a)(1)) (stating that the FLSA 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”).

         “The MWHL is the [Maryland] equivalent of the FLSA.” Jahn v. Tiffin Holdings, Inc., Civ. A. No. ELH-18-1782, 2019 WL 587421, at *3 (D. Md. Feb. 13, 2019) (citing Newell v. Runnels, 407 Md. 578, 650, 967 A.2d 729 (2009)). Like the FLSA, the MWHL “requires that employers pay the applicable minimum wage” and “that they pay an overtime wage of at least 1.5 times the usual hourly wage for each hour worked in excess of forty hours per week.” McFeeley v. Jackson St. Entm't, LLC, 47 F.Supp.3d 260, 275-76 (D. Md. 2014) (internal quotation marks and citations omitted); Md. Code Ann., Lab. & Empl. §§ 3-413, 3-415, 3-420. As a result, the requirements of the MWHL “mirror” those of the FLSA. Brown v. White's Ferry, Inc., 280 F.R.D. 238, 242 (D. Md. 2012) (internal quotation marks omitted) (quoting Turner v. Human Genome Sci., Inc., 292 F.Supp.2d 738, 744 (D. Md. 2003)). Accordingly, a plaintiff's MWHL claim “‘stands or falls on the success of their claim[s] under the FLSA.” Id. (alteration in original) (quoting Turner, 292 F.Supp.2d at 744).

         Separately, the MWPCL requires an employer to pay all wages due for work that an employee performed. Md. Code Ann., Lab. & Empl. § 3-502. This includes unpaid and overtime wages. Id. at § 3-501(c); Peters v. Early Healthcare Giver, Inc., 439 Md. 646, 654 (2014) (“We reaffirm today that both the [M]WHL and the [M]WPCL are vehicles for recovering overtime wages.”).

         After reviewing Plaintiffs' filings in this matter, I am persuaded that Plaintiffs proved that Defendants violated the FLSA by failing to pay them overtime wages. In support of their Motion, Plaintiffs have each submitted a sworn declaration attesting to the facts of their employment. Decl. of Pl. Digna Osorio de Zavala (“Osorio de Zavala Decl.”), ECF No. 14-1, Ex. A; Decl. of Pl. Elsa Juarez (“Juarez Decl.”), ECF No. 14-2, Ex. B. Plaintiff Osorio de Zavala avers that she was an employee of Defendants and worked for them as a tortilla maker from April 1, 2014 to April 3, 2017. Osorio de Zavala Decl. ¶ 2. Plaintiff Juarez also asserts that she was an employee of Defendants and worked for them as a tortilla maker from June 21, 2013 to April 3, 2017. Juarez Decl. ¶ 2. During their employment, Plaintiffs state that they each worked on average 60 hours per week and were paid between $7.50 and $8.00 per hour. Osorio de Zavala Decl. ¶¶ 7-8; Juarez Decl. ¶¶ 7-8. Despite working over 40 hours a week, Plaintiffs allege that they were paid their regular hourly rate regardless of whether it was for regular hours or overtime hours. Osorio de Zavala Decl. ¶ 9; Juarez Decl. ¶ 9. Taking these factual allegations as true, I am persuaded that Plaintiffs proved that Defendants failed to pay overtime wages in the amount of one and one-half times the federally ...


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