MONTES v. JANITORIAL PARTNERS, INC. et al

Filing 73

ORDER ADOPTING REPORT AND RECOMMENDATION. It is hereby ORDERED that the Court ADOPTS the Report and Recommendation 72 filed in this case on June 4, 2019, in its entirety, including the finding that Montes duly served defendants on June 6, 2013, and the determination that the entry of default judgment against defendants is not void due to any defect in service. It is further ORDERED that the parties shall, within 30 days, file a joint status report identifying any issues that remain for the Court's consideration, with a proposed schedule for resolving the outstanding issues. SO ORDERED. Signed by Judge Richard J. Leon on 12/31/2019. (lcrjl2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARCOS MONTES'

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) Civil Case No. 13-410 (RJL)

Plaintiff,
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JANITORIAL PARTNERS, INC., et al.,

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Defendants.

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MEMORAND
(December

20re)

Plaintiff Marcos Montes ("Montes") filed this suit against his former employer,
Janitorial Partners, Inc., and various individuals who owned or managed JanitorialPartners,
Inc., ("defendants") alleging violations of the Fair Labor Standards Act,29 U.S.C. $$ 201-

19. Montes moved for default judgment after defendants failed to timely respond to his
complaint, and on March 10,2014,I granted his motion. Eight months later, defendants
moved to vacate the judgment. As relevant here, defendants argued in their motion to
vacate that Montes failed to properly effect service. Finding defendants' claim that they

were never served with the complaint and summons "questionable, at best,"

l

rejected the

argument. Montes v. Janitorial Partners, Inc., 128 F. Supp. 3d 188, 192-93 (D.D.C, 2015),

But on appeal, the Circuit Court ruled that an evidentiary hearing was needed to evaluate
the credibility of defendants' claim that they had not been serve

d.

See Montes v.

Janitorial

Partners, lnc.,859 F.3d 1079, 1084-85 (D.C. Cir.2017).

I referred

the case to Magistrate Judge Meriweather, who conducted the required

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evidentiary hearing on October 23,2018. The hearing was one-sided. The process server

who served defendants testified and confirmed that the information reported in his
affidavits of service was accurate. The president of the company that employed the process
server at the time of service then testified about the systerns his company has in place to
ensure the accuracy of affidavits. Defendants, on the other hand, did not present evidence.

No witness testified at the hearing in support of their claim that they were never served
with process in this case.
On June 4,2019, after considering this evidence, Magistrate Judge Meriweather
issued a Report and Recommendation that, unsurprisingly, recomfirends that this Court find

that "Montes properly served fdefendants] on June 6, 2013, and that the entry of default
judgment . . . was not

void."

Report and Recommendation at 12 lDkt. # 721, No party

filed objections to the Report and Recommendation within fourteen days, so any objections
to it have been waived. See LCvR 72.3(b), In any event, Magistrate Judge Meriweather's
recommendations are well founded. The Circuit Court required an evidentiary hearing "to

judge [the] credibility" of contradictory declarations about service of process in this

case,

Montes,859 F.3d at 1085 (quoting Autera v. Robinson,4Ig F.2d 1197,1202 (D.C. Cir.
1969)). Only Montes offered evidence at the hearing. Every bit of the hearing evidence
supports Magistrate Judge Meriweather's conclusion that his view

of the facts-that

defendants were duly served-is the most credible.

Accordingly, for the reasons set forth in the Report and Recommendation, the lack
of objections filed thereto, and the entire record herein, it is hereby

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ORDERED that the Court ADOPTS the Report and Recommendation fDkt. # 721,

filed in this case on June 4,2019, in its entirety, including the finding that Montes duly
served defendants on June 6,2013, and the determination that the entry of default judgment

against defendants is not void due to any defect in service; and it is further

ORDERED that the parties shall, within 30 days, file a joint status report
identifying any issues that remain for the Court's consideration, with a proposed schedule
for resolving the outstanding issues.

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SO ORDERED.

RICHARD
United States

a

J

S

ct Judge