Lee v. The Krystal Company et al
ORDER finding as moot 46 Motion for Default Judgment; denying 53 Motion for Default Judgment. The Crossclaim is dismissed for failure to state a claim. The Clerks Office is directed to close this file for administrative and statisticalpurposes. Signed by Chief Judge William H. Steele on 2/4/2013. (mbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
THE KRYSTAL COMPANY, et al.,
CIVIL ACTION 11-0627-WS-C
This matter comes before the Court on crossclaim plaintiff The Krystal Company’s
Motion for Default Judgment (doc. 53).1 The Motion is ripe for disposition.
Plaintiff, Reena Lee, brought this action against defendants, The Krystal Company, Brian
Broome and Vernon McLemore, alleging violations of the Fair Labor Standards Act, 29 U.S.C.
§§ 201 et seq. Lee contended that Krystal and an entity called Elite Security (the alter ego of
Broome and McLemore) were her joint employers, and that they had violated the FLSA by
failing to pay her approximately $1,218 in straight-time wages.
Early in the lifespan of the case, Lee took a voluntary dismissal of her claims against
Broome and McLemore, on the grounds that she perceived them to be “judgment-proof.” Before
she dismissed those claims, however, Krystal filed a Crossclaim (doc. 8) against Broome and
McLemore, both individually and doing business as Elite. That Crossclaim alleged, in relevant
The court file also contains a previously-submitted Motion for Default Judgment
by Krystal seeking the same relief against the same individuals. (See doc. 46.) That iteration of
the Motion remains pending; indeed, the Court entered an Order (doc. 48) on January 15, 2013
requiring supplemental briefing. Krystal filed its second Motion for Default Judgment in lieu of
a supplemental brief. To minimize confusion and redundancy, the Court deems the initial
Motion for Default Judgment (doc. 46) moot, although arguments therein will be considered to
the extent they are relevant and beneficial to the more recent, supplemented version of the
part, as follows: (i) Lee was employed by Elite, not Krystal (a mixed question of fact and law
under the FLSA); (ii) “Elite was responsible at all times for compensating Ms. Lee;” (iii) if
Krystal is found liable “for any wages or compensation that Elite failed to pay to Ms. Lee, then
Elite is under a duty to pay this amount to Krystal under the doctrines of indemnity and/or
contribution;” and (iv) Broome and McLemore would be liable not only for any wages that
Krystal was required to pay Lee, but also any “attorneys’ fees or costs that the Court … may
conclude that Krystal is obligated to pay to the plaintiff.” (Doc. 8, at 5-6.) Krystal completed
service of process on McLemore via personal service on February 10, 2012 (see doc. 18), and on
Broome via personal service on April 3, 2012 (see doc. 21). Neither McLemore nor Broome
appeared, responded or defended in a timely manner; therefore, on May 15, 2012, a Clerk’s
Entry of Default (doc. 27) was entered against them pursuant to Rule 55(a), Fed.R.Civ.P.
Notwithstanding the default as to the Crossclaim, this litigation proceeded with respect to
Lee’s claims against Krystal. In August 2012, Krystal extended an Offer of Judgment to Lee in
the amount of $1,218.00 (representing “the full amount of the wages in controversy”), exclusive
of costs and attorney’s fees, pursuant to Rule 68(a), Fed.R.Civ.P. Lee timely accepted, and this
Court approved that settlement by Order (doc. 33) dated August 28, 2012. Because the Offer of
Judgment left open the amount of attorney’s fees owed to Lee under the fee-shifting provisions
of 29 U.S.C. § 216(b), the parties subsequently submitted briefing and exhibits on that issue. On
January 15, 2013, the Court entered an Order (doc. 47) awarding Lee reasonable attorney’s fees
in the amount of $22,577.50, and costs in the amount of $615.87.
Krystal now seeks entry of default judgment against Broome and McLemore, jointly and
severally, not only for the $1,218.00 in back wages, but also for the $22,577.50 in Lee’s
attorney’s fees that were shifted to Krystal under the FLSA. In an Order (doc. 48) entered on
January 15, 2013, the Court questioned “why Lee’s statutory attorney’s fee petition is a
compensable element of Krystal’s damages in its indemnity/contribution crossclaims against
Broome and McLemore” (doc. 48, at 2), and afforded Krystal an opportunity (of which it availed
itself) to support its position.
In this Circuit, “there is a strong policy of determining cases on their merits and we
therefore view defaults with disfavor.” In re Worldwide Web Systems, Inc., 328 F.3d 1291, 1295
(11th Cir. 2003); see also Varnes v. Local 91, Glass Bottle Blowers Ass’n of U.S. and Canada,
674 F.2d 1365, 1369 (11th Cir. 1982) (“Since this case involves a default judgment there must be
strict compliance with the legal prerequisites establishing the court’s power to render the
judgment.”). Nonetheless, it is well established that a “district court has the authority to enter
default judgment for failure … to comply with its orders or rules of procedure.” Wahl v. McIver,
773 F.2d 1169, 1174 (11th Cir. 1985).
Where, as here, crossclaim defendants failed to appear or defend against a lawsuit for
approximately ten months after being served (despite knowledge of ongoing default proceedings
against them), entry of default judgment is appropriate. Indeed, Rule 55 itself provides for entry
of default and default judgment where a defendant “has failed to plead or otherwise defend.”
Rule 55(a), Fed.R.Civ.P. In a variety of contexts, courts have entered default judgments against
defendants who have failed to appear and defend in a timely manner following proper service of
process.2 In short, “[w]hile modern courts do not favor default judgments, they are certainly
appropriate when the adversary process has been halted because of an essentially unresponsive
party.” Flynn v. Angelucci Bros. & Sons, Inc., 448 F. Supp.2d 193, 195 (D.D.C. 2006) (citation
omitted). That is what happened here. Despite being served with process back in February 2012
and April 2012, Broome and McLemore declined to appear or defend, and effectively prevented
this litigation (at least as to the Crossclaim, which is the only part that concerns them) from
leaving the starting blocks.
The law is clear, however, that Broome’s and McLemore’s failure to appear and the
Clerk’s Entry of Default do not automatically entitle Krystal to a default judgment in the
requested (or any) amount. A default is not “an absolute confession by the defendant of his
See, e.g., In re Knight, 833 F.2d 1515, 1516 (11th Cir. 1987) (“Where a party
offers no good reason for the late filing of its answer, entry of default judgment against that party
is appropriate.”); Matter of Dierschke, 975 F.2d 181, 184 (5th Cir. 1992) (“when the court finds
an intentional failure of responsive pleadings there need be no other finding” to justify default
judgment); PNCEF, LLC v. Hendricks Bldg. Supply LLC, 740 F. Supp.2d 1287, 1290 (S.D. Ala.
2010) (“Where, as here, a defendant has failed to appear or otherwise acknowledge the pendency
of a lawsuit for more than three months after being served, entry of default judgment is
appropriate.”); Kidd v. Andrews, 340 F. Supp.2d 333, 338 (W.D.N.Y. 2004) (entering default
judgment against defendant who failed to answer or move against complaint for nearly three
months); Viveros v. Nationwide Janitorial Ass'n, Inc., 200 F.R.D. 681, 684 (N.D. Ga. 2000)
(entering default judgment against counterclaim defendant who had failed to answer or otherwise
respond within time provided by Rule 12(a)(2)).
liability and of the plaintiff’s right to recover,” but is instead merely “an admission of the facts
cited in the Complaint, which by themselves may or may not be sufficient to establish a
defendant’s liability.” Pitts ex rel. Pitts v. Seneca Sports, Inc., 321 F. Supp.2d 1353, 1357 (S.D.
Ga. 2004); see also Nishimatsu Const. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1204 (5th Cir.
1975) (similar); Cotton States Mut. Ins. Co. v. Sellars, 2008 WL 4601015, *5 (M.D. Ala. Oct.
15, 2008) (“the failure to defend does not automatically entitle a plaintiff to recover”); Descent v.
Kolitsidas, 396 F. Supp.2d 1315, 1316 (M.D. Fla. 2005) (“the defendants’ default
notwithstanding, the plaintiff is entitled to a default judgment only if the complaint states a claim
for relief”). Stated differently, “a default judgment cannot stand on a complaint that fails to state
a claim.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir. 1997); see
also Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009)
(“A default defendant may, on appeal, challenge the sufficiency of the complaint, even if he may
not challenge the sufficiency of the proof.”).
In light of these principles, the Court cannot reflexively enter default judgment, but must
first verify that the Crossclaim states a viable common-law indemnity/contribution claim against
Broome and McLemore. Upon careful consideration, the Court concludes that it does not. As an
initial matter, the FLSA provides no statutory indemnity or contribution remedy for putative joint
employers in Krystal’s position. Krystal posits that “a defendant may pursue a claim for
indemnity against an unrelated third party under the FLSA” (doc. 53-1, at 4), but cites only a
solitary 20-year old district court decision from another jurisdiction to support that proposition.3
That case, Daniels v. Board of Trustees of Herington Mun. Hosp., 841 F. Supp.
363 (D. Kan. 1993), is distinguishable in an important respect. In Daniels, there was a contract
of indemnity between the employer and the county for which the employer had agreed to provide
emergency medical services. Here, by contrast, there was no contract between Krystal and Elite;
rather, Krystal seeks to recover in common-law indemnity. The difference matters. See
generally Itzep v. Target Corp., 2010 WL 2278349, *24 (W.D. Tex. June 4, 2010) (“The Court
finds that the FLSA does not preempt a contractual allocation of risk and obligation under the
FLSA. … The Court does not find it repugnant to public policy for the employers to
contractually allocate the liability.”). At any rate, it is far from clear that a cognizable right to
contractual indemnification exists in the FLSA context, given the public policy interests at stake.
See Gustafson v. Bell Atlantic Corp., 171 F. Supp.2d 311, 328 (S.D.N.Y. 2001) (“Whether or not
JAG breached a contractual obligation, defendants’ attempt to recover damages from JAG for
overtime violations is an attempt to receive indemnification for FLSA liability. … Allowing
indemnification in cases such as this would permit employers to contract away their obligations
By contrast, persuasive federal authorities are legion for the proposition that common-law
indemnity or contribution remedies cannot be engrafted onto an FLSA case, and that any attempt
to do so under state law is preempted. See, e.g., Herman v. RSR Sec. Services Ltd., 172 F.3d 132,
144 (2nd Cir. 1999) (“we hold that there is no right to contribution or indemnification for
employers held liable under the FLSA” because “the text of the FLSA makes no provision for
contribution or indemnification,” the FLSA was not enacted for employers’ benefit, the
comprehensiveness of the FLSA remedial scheme “strongly counsels against judicially
engrafting additional remedies,” the FLSA’s legislative history is silent on the issue, and “the
FLSA’s remedial scheme is sufficiently comprehensive as to preempt state law in this respect”));
LeCompte v. Chrysler Credit Corp., 780 F.2d 1260, 1264 (5th Cir. 1986) (affirming dismissal of
employer’s counterclaim for common-law indemnity in FLSA action, reasoning that “[t]o engraft
an indemnity action upon this otherwise comprehensive federal statute would run afoul of the
Supremacy Clause of the Constitution [and] would undermine employers’ incentive to abide by
under the FLSA, a result that flouts the purpose of the statute.”). Of course, this Court need not
decide between the Itzep and Gustafson approaches, for the simple reason that this is not a
contractual indemnity case at all.
See also McDougal v. G & S Tobacco Dealers, L.L.C., 712 F. Supp.2d 488, 496
(N.D. W.Va. 2010) (“A number of cases have addressed the issue of whether there is a right to
contribution or indemnification for employers held liable under the FLSA and have held there is
none.”); Villareal v. El Chile, Inc., 601 F. Supp.2d 1011, 1016 (N.D. Ill. 2009) (“In light of the
consistent holdings by the courts that have considered the issue, Defendants’ counterclaim for
indemnity (or contribution) with respect to Plaintiffs’ FLSA claim is dismissed with prejudice.”);
Emanuel v. Rolling in the Dough, Inc., 2010 WL 4627661, *4 (N.D. Ill. Nov. 2, 2010) (“the
FLSA is silent as to allowing recovery for indemnity or contribution, however, the federal courts
that have considered the issue … have all found that allowing an employer to seek
indemnification or contribution would frustrate the purpose of FLSA and undermine the
incentive for employers to comply with wage and overtime standards,” such that employer’s
“common law indemnity and contribution claims are preempted by federal law”); Quintana v.
Explorer Enterprises, Inc., 2010 WL 2220310, *2 (S.D. Fla. June 3, 2010) (“Although the
Eleventh Circuit has not addressed this issue, the circuits that have addressed the issue
consistently found that indemnification claims against employees or owners are contrary to
public policy and the legislative intent of the FLSA.”); Bailon v. Seok AM No. 1 Corp., 2009 WL
4884340, *4 (W.D. Wash. Dec. 9, 2009) (“This authority stands for the proposition that plaintiffs
may have a claim against an individual supervisor, but does not stand for the proposition that
Although some of these authorities may be distinguishable, and none are binding, the
Court nonetheless finds their reasoning persuasive here. As the cases point out, the text of the
FLSA is comprehensive, yet it fails to provide for indemnification or contribution. Moreover,
the statute was not intended to protect employers at all. Allowing employers such as Krystal to
shirk their FLSA obligations on the theory that someone else (i.e., a joint employer such as Elite)
will foot the bill by operation of state law would be antithetical to the compelling public policy
considerations animating the FLSA. And any attempt to invoke Alabama common-law
indemnity or contribution principles here is doomed to failure because of the preemption
problem and the lack of availability of state-law contribution rights where federal law supplies
the rule of decision. See, e.g., Herman, 172 F.3d at 144 (rejecting contention that state-law
contribution or indemnification claims may be pursued in FLSA action, and reasoning that
federal courts recognize right to state-law contribution only in cases in which state law supplies
the rule of decision); Mortgages, Inc. v. U.S. Dist. Court for Dist. of Nev. (Las Vegas), 934 F.2d
209, 212 (9th Cir. 1991) (“A defendant held liable under a federal statute has a right to
contribution or indemnification from another who has also violated the statute only if such right
arises (1) through the affirmative creation of a right of action by Congress, either expressly or
implicitly, or (2) via the power of the courts to formulate federal common law.”); LeCompte, 780
F.2d at 1264-65 (“As enforcement of the Louisiana-law-based cause of action for indemnity
would squarely conflict with the [FLSA], the state law cannot be applied to this case.”).
Unquestionably, Broome and McLemore are in default; however, their default is not
necessarily tantamount to an admission that Krystal’s Crossclaim is legally viable. For the
reasons set forth herein, the Court is persuaded by a veritable wall of precedent that state-law
indemnity and contribution remedies are unavailable in FLSA actions such as this because the
statute does not provide for them, the legislative history does not mention them, the public
policies undergirding the FLSA would be disserved by them, there are significant preemption
concerns, state common-law indemnity and contribution theories are not cognizable where
another defendant who may be liable for wage claims has a contribution or indemnity claim
against someone similarly situated.”).
federal law provides the rule of decision, and there was no contract between Krystal and
Broome/McLemore for apportioning liability or FLSA compliance responsibility. Because the
Crossclaim on its face fails to state a claim, no default judgment can stand against Broome and
McLemore, notwithstanding their failure to participate in this litigation.
For all of the foregoing reasons, it is ordered as follows:
Krystal’s initial Motion for Default Judgment (doc. 46) is moot;
Krystal’s second Motion for Default Judgment (doc. 53) is denied;
The Crossclaim is dismissed for failure to state a claim;
Because this ruling resolves the last remaining claims and issues joined in this
action, a final judgment will be entered separately; and
The Clerk’s Office is directed to close this file for administrative and statistical
DONE and ORDERED this 4th day of February, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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