United States District Court, D. Maryland, Southern Division
R. ALEXANDER ACOSTA, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Plaintiff
EMERALD CONTRACTORS, INC., et al., Defendants.
REPORT AND RECOMMENDATION
Charles B. Day United States Magistrate Judge.
Report and Recommendation addresses Plaintiff's Motion
for Default Judgment (“Plaintiff's
“Motion”). ECF No. 19. Plaintiff R. Alexander
Acosta, Secretary of Labor of the United States Department of
Labor (“Plaintiff”) filed a complaint against
Defendants Emerald Contractors, Inc., d/b/a Emerald Plumbing
Co. (“Emerald Plumbing”) and Roderick Neither,
Sr. (collectively “Defendants”), alleging
Defendants violated the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 206, 207,
211(c), 215(a)(2), and 215(a)(5). Pl.'s Compl., ECF No.
1.Plaintiff seeks damages under 29 U.S.C.
§ 216(c) and an injunction under 29 U.S.C. § 217.
Id. at ¶ 11. Pursuant to 28 U.S.C. § 636
and Local Rules 301, 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. ECF No. 20.
reasons stated herein, I recommend the Court GRANT IN
PART AND DENY IN PART WITHOUT PREJUDICE,
December 6, 2018, Plaintiff commenced this action against
Defendants alleging that Defendants violated provisions of
the FLSA. Pl.'s Compl. ¶¶ 7-9. The Complaint
states that Defendant Emerald Plumbing is a corporation with
its principal office located in Temple Hills, Maryland,
providing “plumbing services in addition to specialty
services, such as drain cleaning, heating, air-conditioning,
and electrical work.” Id. at ¶ 2.
Defendant Neither is the President and owner of Emerald
Plumbing. Id. at ¶ 3. In his capacity as
President and owner, Mr. Neither oversaw the day-to-day
operations and employment practices of Emerald Plumbing.
December 6, 2015 through June 25, 2017 (“the
Investigative Period”), Emerald Plumbing employed
individuals as plumbers, laborers, and technicians.
Id. at ¶ 6. Plaintiff alleges that throughout
the Investigative Period, Defendants paid the Employees less
than minimum wage because the Employees were paid “the
same, fixed biweekly payment regardless of the number of
hours employees worked.” Id. at ¶ 7a.
Plaintiff alleges that this practice resulted in the
Employees receiving an hourly rate that was less than
further alleges that Defendants failed to pay the Employees
overtime pay despite the Employees having worked
approximately 43 to 51 hours each week during the
Investigative Period. Pl.'s Compl. ¶ 8a. Instead,
Defendants paid the Employees a fixed biweekly payment based
on their normal pay rate. Id. The fixed payment did
not include overtime pay for hours worked over 40 hours per
week. See Id.
Plaintiff alleges that Defendants failed to make, keep, and
preserve records containing the hours the Employees worked
each workday, the total pay for overtime hours, and accurate
hire and termination dates for the Employees. Id. at
March 17, 2019, Plaintiff served Emerald Plumbing with
process. ECF No. 7. On April 2, 2019, Plaintiff served Mr.
Neither with process. ECF No. 9. On April 17, the Clerk
entered an order of default against Emerald Plumbing. ECF No.
13. On April 25, 2019, the Clerk entered an order of default
against Mr. Neither. ECF No. 16.
14, 2019, Plaintiff's Motion was filed seeking judgment
by default against both Defendants for the sum $873, 198.08.
Pl.'s Mem. in Supp. 10, ECF No. 19-7. Plaintiff further
seeks to permanently enjoin Defendants from violating
Sections 206, 207, 211(c), 215(a)(2) and 215(a)(5) of the
FLSA. Id. at 10-11.
of the Federal Rules of Civil Procedure governs entries of
default and default judgments. Fed.R.Civ.P. 55. 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). A party may request a
default judgment in two ways: (1) if a plaintiff's claim
is for a sum certain or a sum that can be made certain with
computation, a plaintiff may file a request with the Clerk
attaching an affidavit showing the amount due; or (2) in all
other cases, the party seeking default judgment must apply to
the Court. Fed.R.Civ.P. 55(b)(1)-(2). 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);
TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915,
917-18 (9th Cir. 1987) (“The general rule of law is
that upon default the factual allegations of the complaint,
except those relating to the amount of damages, will be taken
as true.”); 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.”).
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 Plaintiff's factual allegations as true and must
make an independent determination. 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.