United States District Court, D. Maryland, Southern Division
REPORT AND RECOMMENDATION
CHARLES B. DAY UNITED STATES MAGISTRATE JUDGE.
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
“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.
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
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.
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. 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. 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.
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). 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.
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.
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.
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.
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
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).
“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).
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”).
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).
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.”).
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 ...