SARCENO REYES v. KIMUELL

Filing 17

MEMORANDUM OPINION granting 14 Plaintiff's motion for entry of default judgment. See document for details. Signed by Judge Rudolph Contreras on 9/1/2017. (lcrc1)

Case 1:16-cv-00852-RC Document 17 Filed 09/01/17 Page 1 of 12

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANA MARIA SARCENO REYES,
Plaintiff,
v.
KIMMOTI KIMUELL, doing business as
Burrito Brothers,
Defendant.

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Civil Action No.:

16-0852 (RC)

Re Document No.:

14

MEMORANDUM OPINION
GRANTING PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT JUDGMENT
I. INTRODUCTION
Ms. Ana Maria Sarceno Reyes sued Mr. Kimmoti Kimuell, doing business as Burrito
Brothers, alleging that he failed to pay her statutorily required overtime wages. After Mr.
Kimuell failed to appear, file an answer, or otherwise respond to the complaint, the Clerk’s office
entered a default against him. Ms. Sarceno Reyes now moves for a default judgment pursuant to
Federal Rule of Civil Procedure 55(b)(2) in the amount of $117,031.24 in damages, $3647 in
attorneys’ fees, and $500.94 in costs. Because Ms. Sarceno Reyes has met her evidentiary
burden, the Court grants Ms. Sarceno Reyes’s motion but reduces the damages award to correct
several errors.

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II. FACTUAL BACKGROUND1
Ms. Sarceno Reyes worked for Mr. Kimuell as a cook and food preparer2 from June 15,
2010, through March 29, 2016. Pl.’s Rule 55(b)(2) Mot. Entry Default J. (Pl.’s Mot.) at 2, ECF
No. 14. According to Ms. Sarceno Reyes, her hourly wage during the applicable period was:
Time Period

Hourly Wage

March 16, 2013 to July 4, 2014

$ 9.00

July 5, 2014 to July 3, 2015

$ 9.50

July 4, 2015 to March 29, 2016

$ 10.50

Sarceno Reyes Decl. at ¶ 2, ECF No. 14-1. According to Ms. Sarceno Reyes, she worked “an
average of sixty (60) and seventy-five (75) hours per week” but was never paid overtime for
hours worked in excess of forty hours each week. Sarceno Reyes Decl. at ¶ 3. According to Ms.
Sarceno Reyes’s counsel, Ms. Sarceno Reyes worked “approximately 81.25 hours in one week
and 78.50 hours in the next week” from March 16, 2013 to February 27, 2015, and
“approximately 66.50 hours in one week and 64 hours in the next week” from February 28, 2015
to March 29, 2017. 2d Lombardo Aff. ¶ 1, ECF No. 15-1. Based upon these figures, Ms. Sarceno
Reyes claims she is owed “approximately $29,257.81” in unpaid overtime wages. Sarceno Reyes
Decl. at ¶ 4.
Ms. Sarceno Reyes’s Complaint sought damages under three different statutes: the Fair
Labor Standards Act, 29 U.S.C. § 201, et seq. (FLSA); the D.C. Wage Payment and Collection
Law, D.C. Code § 32-1301, et seq. (DCWPCL), and the D.C. Wage Revision Act, D.C. Code

1

Because Mr. Kimuell has not responded, the Court treats the allegations of the
complaint as admitted, except as to the amount of damages. Fed. R. Civ. P. 8(b)(6).
2

Ms. Sarceno Reyes’s complaint states that she was a “cook/food preparer.” Compl. 1,
ECF No. 1.
2

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§ 32-1003, et seq. (DCMWRA). Compl. 1, ECF No. 1. Mr. Kimuell did not appear or answer
within the first 21 days after being served with the complaint, or thereafter. See Proof of Service,
ECF No. 11; Fed. R. Civ. P. 12(1)(A)(i) (requiring a defendant to “serve an answer within 21
days of being served with a summons”). The Clerk of Court therefore entered a default against
Mr. Kimuell. Default, ECF No. 13. Ms. Sarceno Reyes now requests that this Court enter a
default judgment against Mr. Kimuell in the amount of $29,257.81 in unpaid wages and treble
damages of $87,773.43 under the DCWPCL (for a total of $117,031.24 in damages), as well as
$3647 in attorneys’ fees and $500.94 in costs. Pl.’s Mot. at 6, ECF No. 14; Pl.’s Supp’l Sub.,
ECF No. 15.3
III. ANALYSIS
Ms. Sarceno Reyes seeks a default judgment based on Mr. Kimuell’s failure to respond.
The Court may enter a default judgment in accordance with Rule 55 of the Federal Rules of Civil
Procedure. Default judgment is appropriate when the defendant is an “essentially unresponsive
party” whose default is “plainly willful, reflected by its failure to respond to the summons or
complaint, the entry of default, or the motion for default judgment.” Carazani v. Zegarra, 972 F.
Supp. 2d 1, 12 (D.D.C. 2013) (internal citations omitted). The Court may enter a default judgment
when a defendant “makes no request to set aside the default” and “gives no indication of a
meritorious defense.” Ventura v. L.A. Howard Constr. Co., 134 F. Supp. 3d 99, 104 (D.D.C.
2015) (quoting Int’l Painters & Allied Trades Indus. Pension Fund v. Auxier Drywall, LLC, 531
F. Supp. 2d 56, 57 (D.D.C. 2008)).

3

Although Ms. Sarceno Reyes initially sought additional legal fees, she adjusted her
request to $3647.00. Pl.’s Supp’l Sub. ¶ 2.
3

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Here, Mr. Kimuell has not responded to the summons, complaint, entry of default, or
motion for default judgment, and entering a default judgment against him is therefore
appropriate. See Serv. Employees Int’l Union Nat. Indus. Pension Fund v. Artharee, 942 F. Supp.
2d 27, 29–30 (D.D.C. 2013) (“Where, as here, there is a complete ‘absence of any request to set
aside the default or suggestion by the defendant that it has a meritorious defense, it is clear that
the standard for default judgment has been satisfied.’” (quoting Int’l Painters & Allied Trades,
531 F. Supp. 2d at 57)). The Court therefore finds that entry of a default judgment is appropriate.
However, although “[a] default judgment establishes the defaulting party’s liability for
every well-plead allegation in the complaint,” it does not “automatically establish liability in the
amount claimed by the plaintiff.” PT (Persero) Merpati Nusantara Airlines v. Thirdstone
Aircraft Leasing Grp., Inc., 246 F.R.D. 17, 18 (D.D.C. 2007) (emphasis added) (citing Adkins v.
Teseo, 180 F. Supp. 2d 15, 17 (D.D.C. 2001) and Shepherd v. Am. Broad. Cos., 862 F. Supp.
486, 491 (D.D.C. 1994), vacated on other grounds, 62 F.3d 1469 (D.C. Cir. 1995)); see also Fed.
R. Civ. P. 55(b)(2). Instead, “the Court is required to make an independent determination of the
amount of damages to be awarded, unless the amount of damages is certain.” Serv. Employees
Int’l Union, 942 F. Supp. 2d at 30 (citing Int’l Painters & Allied Trades Indus. Pension Fund v.
Davanc Contracting, Inc., 808 F. Supp. 2d 89, 94 (D.D.C. 2011)). In doing so, a court need not
conduct an evidentiary hearing if it can establish a basis for the amount of damages through
detailed affidavits or other documentary evidence. Flynn v. Mastro Masonry Contractors, 237 F.
Supp. 2d 66, 69 (D.D.C. 2002); see also Embassy of the Fed. Republic of Nigeria v. Ugwuonye,
945 F. Supp. 2d 81, 85 (D.D.C. 2013). With these principles in mind, the Court turns to
determining the appropriate measure of damages and concludes that a basis for the damages can
be established without a hearing.

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A. Award of Damages
Ms. Sarceno Reyes’s claim for damages encompasses both a claim for unpaid wages and
a claim for liquidated damages. The Court addresses each in turn. Ms. Sarceno Reyes claims that
she is entitled to $29,257.81 in unpaid wages. Pl.’s Mot. at 2. Ms. Sarceno Reyes’s counsel
provided an Excel spreadsheet demonstrating how that figure was calculated. Excel Spreadsheet,
ECF No. 15-1, Ex. A. According to Ms. Sarceno Reyes’s counsel, Ms. Sarceno Reyes worked
159.75 hours in each two-week period from March 16, 2013 to February 27, 2015, and 130.5
hours in each two-week period thereafter. 2d Lombardo Aff. ¶ 1, ECF No. 15-1 (stating that Ms.
Sarceno Reyes estimated that she worked “approximately 81.25 hours in one week and 78.50
hours in the next week” from March 16, 2013 to February 27, 2015, and “approximately 66.50
hours in one week and 64 hours in the next week” from February 28, 2015 to March 29, 2016).
Ms. Sarceno Reyes does not provide documentary evidence such as pay stubs or other
records to support the hours she claims to have worked. However, because the employer is
responsible for maintaining such records, courts are reluctant to penalize plaintiffs without
documentation in cases where the employers have defaulted. See Martinez v. China Boy, Inc.,
229 F. Supp. 3d 1, 3 (D.D.C. 2016) (“In this case, where the plaintiff has not produced
timesheets and the defendant has failed to respond, the Court will accept [the plaintiff’s]
declaration, submitted under the penalty of perjury, as to the hours she worked and wages she
received . . . .”); Encinas v. J.J. Drywall Corp., 840 F. Supp. 2d 6, 8 (D.D.C. 2012) (“[W]here
the employer’s records are inaccurate or inadequate . . . an employee has carried out his burden if
he proves that he has in fact performed work for which he was improperly compensated and if he
produces sufficient evidence to show the amount and extent of that work as a matter of just and
reasonable inference.” (quoting Arias v. U.S. Serv. Indus., Inc., 80 F.3d 509, 511 (D.C. Cir.

5

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1996))); see also Arias, 80 F.3d at 512 (“The employer cannot be heard to complain that the
damages lack the exactness and precision of measurement that would be possible had [it] kept
records in accordance with the requirements of . . . the [FLSA].” (quoting Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 688 (1946))). The Court therefore proceeds based on Ms.
Sarceno Reyes’s recollection of the hours she worked.
The Court has examined Ms. Sarceno Reyes’s spreadsheet, and agrees with its calculation
of unpaid wages, except for what appears to be one computational error.4 In addition, the Court
notes that the applicable statute of limitations is three years, and thus has updated its calculations
to ensure Ms. Sarceno Reyes does not recover for overtime worked more than three years before
her complaint was filed on May 5, 2016. See Ventura v. Bebo Foods, Inc., 738 F. Supp. 2d 8, 30
(D.D.C. 2010) (“The statute of limitations under both the DCWPCL and FLSA, however, is only
three years. Because plaintiffs filed their complaint on April 11, 2008, [plaintiff] may only
recover for FLSA and DCWPCL violations that occurred on or after April 11, 2005 . . . .” (citing
29 U.S.C. § 255(a) (2006) and D.C. Code § 32-1013)). For reasons concerning the calculation of
liquidated damages, the Court divides its analysis of unpaid wages based on whether the work
occurred before or after October 1, 2014, and calculates unpaid wages as follows:

4

For the time period from March 30, 2013 to December 20, 2013, Ms. Sarceno Reyes’s
spreadsheet indicates that she worked 119.75 hours of overtime in each two-week period. Excel
Spreadsheet, ECF No. 15-1, Ex. A. Instead, the Court understands the correct figure to be 79.75
hours of overtime (159.75 total hours worked in each two-week period, less the 80 normal-time
hours) as shown in the other nearby rows. Excel Spreadsheet, ECF No. 15-1, Ex. A. The Court’s
corrected figures are shown in the table, and therefore the Court’s total for unpaid wages is
somewhat lower than Ms. Sarceno Reyes’s. To the extent that the Court has adjusted Ms.
Sarceno Reyes’s request for damages in various ways, the Court notes that it “has considerable
latitude in determining the amount of damages” for a default judgment. Boland v. Elite Terrazzo
Flooring, Inc., 763 F. Supp. 2d 64, 67 (D.D.C. 2011).
6

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---Prior to October 1, 2014--Time Period
May 11, 20135 to December 20, 2013

Hourly Unpaid
Rate
Wages
$9.00
$5742.08

December 21, 2014 to July 4, 2013

$9.00

$5024.32

July 5, 2014 to October 10, 20146

$9.50

$2651.67

Total $13,418.07
---After October 1, 2014--Time Period
October 11, 2014 to December 19, 2014

Hourly Unpaid
Rate
Wages
$9.50
$1894.05

December 20, 2014 to February 27, 2015

$9.50

$1894.05

February 28, 2015 to July 3, 2015

$9.50

$2158.92

July 4, 2015 to December 18, 2015

$10.50

$3181.56

December 19, 2015 to March 25, 20167

$10.50

$1855.91

Total $10,984.49

Next, the Court analyzes liquidated damages. Both the FLSA and D.C. law provide for
liquidated damages in addition to recovery for unpaid wages. The Court will, as Mr. Sarceno
Reyes requests, assess liquidated damages under the DCWPCL, as it provides for more generous
liquidated damages. Pl.’s Mot. at 6; cf. Martinez v. Asian 328, LLC, 220 F. Supp. 3d 117, 122
(D.D.C. 2016) (“Because [D.C. law] provides for greater liquidated damages than the FLSA, . . .

5

To avoid the statute of limitations issue discussed above, the Court begins with the twoweek period starting on May 11, 2013 instead of March 16, 2016.
6

Rather than split up a two-week period, the Court treats the entire two-week period
ending on October 10, 2014 as occurring before October 1, 2014 for liquidated damages purposes.
7

Although Ms. Sarceno Reyes’s spreadsheet continues through March 29, 2016, there are
no unpaid overtime claims associated with the days after March 25, 2016, and the Court
therefore omits them. Excel Spreadsheet, ECF No. 15-1, Ex. A.
7

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the Court will first assess damages under D.C. law and will not award a duplicative amount
pursuant to federal law.” (quoting Ventura v. L.A. Howard Constr. Co., 134 F. Supp. 3d 99, 104
(D.D.C. 2015))). D.C. law currently provides for liquidated damages “equal to treble the amount
of unpaid wages.” D.C. Code § 32-1012(b). For violations that occurred before October 1, 2014,
however, D.C. law provided for only an unspecified “additional amount as liquidated damages.”
D.C. Code § 32-1012(a) (Dec. 24, 2013); see also Wage Theft Prevention Amendment Act of
2014, 2014 D.C. Laws 20-157 § 7(b) (stating that the current treble damages provision would
take effect on October 1, 2014); Martinez v. China Boy, Inc., 229 F. Supp. 3d 1, 3–4 (D.D.C.
2016). For violations prior to October 1, 2014, therefore, liquidated damages will be provided in
the amount set by federal law, which is an amount “equal” to unpaid wages.8 See 29 U.S.C.
§ 216(b); see also China Boy, Inc., 229 F. Supp. 3d at 3–4. For unpaid wages both before and
after October 1, 2014, the Court awards the full possible amount of liquidated damages because
Mr. Kimuell has not demonstrated any of the factors which D.C. law states can reduce the
liquidated damages award. D.C. Code § 32-1012(b)(2); cf. China Boy, Inc., 229 F. Supp. 3d at 4–5.
The Court therefore finds that a total damage award of $70,774.10 is appropriate, as shown in the
following table:
---Prior to October 1, 2014--Unpaid Wages

Liquidated Damages

Total Damages

$13,418.07

$13,418.07

$26,836.14

---After October 1, 2014--Unpaid Wages

Liquidated Damages

Total Damages

$10,984.49

$32,953.47

$43,937.96
Total $70,774.10

8

The Court’s calculation of liquidated damages is therefore lower than Ms. Sarceno
Reyes’s suggested calculation, which trebled all of the unpaid wages.
8

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B. Award of Attorneys’ Fees and Costs
Ms. Sarceno Reyes requests $3647 in attorneys’ fees. Pl.’s Mot. at 11, ECF No. 14;
Exhibit A, 14-3; Pl.’s Supp’l Sub. ¶ 2, ECF No. 15. The FLSA and DCWPCL require that a
prevailing plaintiff receive an attorneys’ fee award. 29 U.S.C. § 216(b); D.C. Code § 32-1308(b).
This fee must be “reasonable.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A “reasonable”
fee is calculated by multiplying the number of hours reasonably expended by a reasonable hourly
rate. Blum v. Stenson, 465 U.S. 886, 888 (1984).
First the Court considers if counsel has billed for a reasonable number of hours. Ms.
Sarceno Reyes bears the burden of establishing the reasonableness of the hours she seeks for
reimbursement. Herrerra v. Mitch O’Hara, LLC, No. 16-1736, 2017 WL 2869410, at *5 (D.D.C.
July 5, 2017) (citing In re N. (Bush Fee Application), 59 F.3d 184, 189 (D.C. Cir. 1995)). Ms.
Sarceno Reyes’s counsel submitted detailed billing records. See generally Invoice, ECF No. 14-3,
Ex. A. Based upon its examination of the billing records, the Court concludes that the hours
billed by counsel were reasonable because counsel expended a reasonable amount of time on
each task, were successful in all of their motions, and did not bill for duplicative work.
Next, the Court considers a reasonable hourly rate. Based upon Ms. Sarceno Reyes’s
supplemental briefing, Pl.’s Supp’l Sub., ECF No. 15, the Court understands that Ms. Sarceno
Reyes seeks to recover only for work performed by Ms. Lombardo, Mr. Leiberman, and Mr.
Garcia. As shown in the billing records, Ms. Lombardo billed at hourly rates of $440 and $460;
Mr. Leiberman billed at hourly rates of $440 and $460; and Mr. Garcia billed at hourly rates of
$295, $310, and $325. Ms. Lombardo stated in her affidavit that “[t]he rate charged in these
matters is counsel’s normal hourly rate and is in line with the customary fee in this area as well
as the measures used by the federal courts.” Lombardo Aff. ¶ 4E, ECF No. 14-2.

9

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At the time the work for this litigation was performed, Ms. Lombardo and Mr. Lieberman
each had more than sixteen years of experience and Mr. Garcia had approximately two years of
experience. Several matrices, including the USAO Laffey matrix and the LSI Laffey matrix may
assist courts in determining a reasonable hourly rate.9 See Ventura v. Bebo Foods, Inc., 738 F.
Supp. 2d 8, 34 (D.D.C. 2010) (holding that “[f]or attorneys in the District of Columbia, the
Laffey Matrix sets forth the reasonable range of attorneys’ rates based on the respective
attorney’s level of experience” and awarding attorney’s fees in a FLSA and DCWPCL case at
the USAO Laffey Matrix rates). Other courts in this jurisdiction have concluded that the Laffey
matrices suffice as evidence of the prevailing market rate in FLSA cases. See, e.g., Al-Quraan v.
4115 8th St. NW, LLC, 123 F. Supp. 3d 1, 3 (D.D.C. 2015) (“Many judges in this district rely on
the Laffey matrix ‘as an appropriate starting point for determining rates of reimbursing attorneys
who bring cases under the FLSA.’” (quoting Bradshaw v. Jefferson Grill, Inc., No. 11-1558,
2012 WL 2803401, at *2 (D.D.C. July 10, 2012))); see also Ventura v. L.A. Howard Constr. Co.,
139 F. Supp. 3d 462, 464 (D.D.C. 2015) (“[Other cases] provide[] at least some support for the
contention that the Laffey Matrix reflects the market rate for attorneys engaged in FLSA
litigation in the District of Columbia.”).

9

In Eley, the D.C. Circuit stated that “a fee applicant must ‘produce satisfactory
evidence—in addition to the attorney’s own affidavits—that the requested rates are in line with
those prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience and reputation.’” Eley v. District of Columbia, 793 F.3d 97, 100 (D.C. Cir.
2015) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). The decision in Eley required
the fee applicant to do more than point to the applicable Laffey matrix. Id. at 104–05. However,
the D.C. Circuit later clarified in Salazar that the applicants in Eley faced a higher burden
because defendants had shown that hourly fees were generally lower in the IDEA litigation
context. Salazar ex rel. Salazar v. District of Columbia, 809 F.3d 58, 64 (D.C. Cir. 2015). In this
case, because he is in default, Mr. Kimuell “identifies no such submarket” and “instead
acquiesce[es] in the notion that the litigation at issue qualifies as complex federal litigation (as to
which the Laffey Matrices apply)” and therefore the Laffey matrices may be more persuasive as
to a reasonably hourly rate. Id.
10

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In this case the Court need not exhaustively consider which matrix is more appropriate,
because counsel’s hourly rates are near or below the rates provided in both matrices.10 The Court
thus grants awards fees as requested by Ms. Sarceno Reyes and shown in the following table:
Attorney

Hours Billed

Hourly Rate

Total

Ms. Lombardo

3.1

$440

$1364

Ms. Lombardo

0.9

$460

$414

Mr. Lieberman

1.3

$440

$572

Mr. Lieberman

0.3

$460

$138

Mr. Garcia

1.1

$295

$324.50

Mr. Garcia

0.7

$310

$217

Mr. Garcia

1.9

$325

$617.50

Total $3647

C. Award of Costs
Ms. Sarceno Reyes requests that the Court reimburse her for $500.94 in costs, including
the filing fee, process server, and postage. Pl.’s Mot. at 6, ECF No. 14. The Court finds that these
costs are reasonable and compensable under the FLSA. See 29 U.S.C. § 216 (The court in such
an action shall . . . allow [an award of] costs of the action.”). The Court therefore will award Ms.
Sarceno Reyes $500.94 in costs.

10

The LSI Laffey matrix provided that a lawyer with 11-19 years of experience could bill
$661 in 2016; and the USAO Laffey matrix provided that a lawyer with 16-20 years of
experience could bill $504 in 2016. LSI Laffey Matrix, http://www.laffeymatrix.com/see.html;
USAO Laffey Matrix, https://www.justice.gov/usao-dc/file/889176/download. Similarly, the LSI
Laffey matrix provided that a lawyer with two years of experience could bill $343 in 2016, and
the USAO Laffey matrix provided such a lawyer could bill $315 in 2016. LSI Laffey Matrix,
http://www.laffeymatrix.com/see.html; USAO Laffey Matrix, https://www.justice.gov/usaodc/file/889176/download. Therefore both Ms. Lombard and Mr. Lieberman billed somewhat
below the maximum Laffey rate for lawyers with their experience. If Mr. Garcia billed slightly
above, which is possible depending on when he began practicing law, the Court finds that is a
harmless error in light of Ms. Lombard and Mr. Lieberman’s rates.
11

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IV. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for default judgment is GRANTED. An
order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: September 1, 2017

RUDOLPH CONTRERAS
United States District Judge

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