Feliciano et al v. Wehunt

Filing 5

OPINION and ORDER granting in part and denying in part with leave to renew Plaintiff's 3 Motion for Default Judgment. Plaintiff's motion is GRANTED as to Plaintiff Feliciano's claims against Defendant, and Defendant is DIRECTED to pa y Plaintiff Feliciano $463.75 in overtime pay plus liquidated damages in the same amount for a total of $927.50. Plaintiffs' motion for default judgment is GRANTED as to Plaintiff Baker's claims against Defendant, and Defendant is DIRECTED to pay Plaintiff Baker $594.00 plus liquidated damages in the same amount for a total of $1,188.00. Plaintiffs' motion for default judgment is GRANTED IN PART and DENIED IN PART WITH LEAVE TO RENEW as to Plaintiff Tucker' ;s claims against Defendant, and Defendant is DIRECTED to pay Plaintiff Tucker $3,795 in unpaid overtime plus liquidated damages in the same amount for a total of $7,590. As stated previously, Plaintiff Tucker is DIRECTED to file a motion with accompanying affidavit addressing what damages she is owed from November 9, 2007 to February of 2008. Costs and attorneys' fees are awarded in the amount of $5,980.62. Signed by Judge J. Owen Forrester on 4/15/10. (bse)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Jolevette Feliciano, et al., Plaintiffs, v. Gregory L. Wehunt, Defendant. : : : : : : : : : :

CIVIL ACTION NO. 1:09-cv-03130-JOF

OPINION & ORDER This matter is before the court on Plaintiffs' motion for default judgment [3]. Plaintiffs, Jolevette Feliciano, Chondorra Tucker, and Clarissa Baker, filed this suit on November 9, 2009 for violations of the federal Fair Labor Standards Act for failure to pay overtim e. According to the facts alleged in the com plaint, Defendant Gr egory L.

Wehunt, D.O. is a m edical practice, and each Plaintiff worked for Defendant and each worked overtime for which they were not properly com pensated. Plaintiffs Feliciano and Tucker worked as Medical Assistants, and Plaintiff Baker worked as an X-Ray Technician. Waiver of service was mailed to Defendant on November 13, 2009, and Defendant signed the waiver on Novem ber 30, 2009. Defendant 's answer was due January 12, 2010, but

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Defendant has yet to file an answer or otherwise participate in this ca se beyond waiving service. On January 21, 2010, Plaintiffs filed the present motion for default. Under Federal Rule of Civil Procedure 55(a), where a party has failed to defend, "the clerk must enter the party's default." Fed. R. Civ. P. 55(b)(2) then provides that, after the entry of default by the Clerk, a party my apply to the court for an entry of default judgm t. a en The Clerk of the Court has not yet made an entry of default against Defendant under Fed. R. Civ. P. 55(a), and is DIRECTED to do so. The court now addresses Plaintiffs' m n and otio their request that this court enter default judgment against Defendant under Rule 55(b)(2). Upon the entry of a default judgm nt, Defendant "admits the plaintiff's well-pleaded e allegations of fact." See Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).1 However, simply because Defendant is in default does not m an that e a default judgment is warranted. Id. at 1206. Instead, "[t]here must be a sufficient basis in the pleadings for the judgm ent entered." Id. Thus, the court m ust determine whether the well-pleaded allegations in the complaint deemed admitted by Defendant are sufficient to establish both Defendant's liability and the amount of damages such that Plaintiffs' motion for default judgment must be granted. Here, the com plaint asserts that each Plaintiff was

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) ( en banc), the Eleventh Circuit adopted as binding precedent all decisions rendered by the form er Fifth Circuit prior to October 1, 1981.

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employed by Defendant; that Defendant was an em loyer within the meaning of the FLSA; p and that P laintiffs worked overtim e for which they were not properly com pensated. By virtue of default, Defendant adm its these well-pleaded allegations, and Pla intiffs have properly pled violations of the FLSA. Title 29 U.S.C. § 207(a)(1) provides that emloyees should receive com ensation for p p hours worked in excess of forty hours in one workweek at one and one -half times their regular rate. An employee bringing suit for overtime wages under the FLSA has the burden of proving that he performed work for which he was not properly compensated. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). The em ployer is liable for

compensating an em ployee for all hours that the em ployer "suffer[s] or perm it[s] [the employee] to work." 29 U.S.C. § 203(g). If the employer violates the overtime provisions of the FLSA, the employer is liable for the unpaid amount and an additional equal amount as liquidated damages. 29 U.S.C. § 216(b). Plaintiffs' com plaint makes no allegations of willfulness, and therefore, the statute of limitations for Plaintiffs' claims is two years. See 29 U.S.C. § 255(a). Any overtim that accrued before November 9, 2007, two years before e the complaint was filed, c annot be recovered. See Knight v. Columbus, Ga., 19 F.3d 579 (11th Cir. 1994). Plaintiffs' motion for default judgment includes an affidavit of Plaintiffs' counsel. According to that uncontroverted affidavit and the comlaint, Plaintiff Feliciano worked for p

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Defendant from October 2006 through March 2007 and again from October 1, 2008 through August 4, 2009. Plaintiffs' m tion for default judgm nt only requests that Plaintiff Feliciano o e be compensated for overtime accrued during Plaintiff's second term of employment with Defendant, and therefore, the statute of limitations found in 29 U.S.C. § 255 does not bar recovery. During the relevant tim e period, Plaintiff Feliciano's regula r pa y rate was $14.00/hour. The affidavit also asserts that Plaintiff Feliciano worked approximtely 66.25 a hours of overtim for which she was only comensated at her regular rate. Plaintiff Feliciano e p calculates her damages to be $463.75 in overtime pay ($7.00/hour (time and a half minus her regular rate) x 66.25 hours) plus liquidated damages in the same amount for a total of $927.50. Plaintiff Feliciano has carried her burden with respect to establishing liability and the amount of damages owed. Plaintiff Baker worke d for Defendant from August 30, 2007 to August 18, 2009. However, Plaintiff Baker only alleges that she accrued uncomensated overtime hours from p July 2008 to Septem ber 2008, and therefore, her claims are also within the statute of limitations. Plaintiff was compensated for all time worked at her regular rate but was not compensated at time and a half for overtim hours worked. Plaintiff alleges that she worked e approximately 66 hours of overtim e, and her regular rate of pay was $18.00/per hour. Plaintiff requests overtime compensation in the amount of $594.00 ($9.00/hour (time and half minus her regular rate) x 66 hours) plus liquidated damages in the same amount for a

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total of $1,188.00. Plai tiff Baker has carried her burden with re pect to e tablishing liability n s s and the amount of damages owed. Plaintiff Tucker worked for De fendant from June 27, 2007 to August 17, 2009. Plaintiff was compensated for all time worked at her regular rate, but was not com ensated p at time a nd a half for overtim e hours worked. Her pay rate changed throughout her employment. From June 27, 2007 to June of 2008, Plaintiff Tucker received $12.00/hour. From June 2008 until August 2009, Plaintiff Tucker earned $15.00/hour. In August of 2009, until her involuntary termination on August 17, 2009, Plaintiff Tucker earned $16.00/hour. ber Plaintiff Tucker requests the following: $663 for the period of June 2007 to Septem 2007, $1,386 for the time period of September 2007 to February 2008, $360 for the time period of February 2008 to June 2008, $450 for the period of June 2008 to Septemr 2008, $2,310 be for the period of September 2008 to April 2009, and $675 for the period of April 2009 to August 2009. Plaintiff Tucker seeks overtim e com pensation and liquidated dam ages for time periods outside of the statute of lim itations. Plaintiff Tucker cannot recover the $663 in overtime for the period of June 2007 to Septem er 2007 because that am unt accrued more b o than two years before this suit was filed. Plaintiff Tucker can recover, and has carried her burden with respect to establishing liability and the amount of damages, for time period of February 2008 to August 2009: $3,795 in unpaid overtim e compensation plus liquidated

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damages in the same amount for a total of $7,590. Plaintiff can also recover for part of the damages requested for September 2007 to February 2008--those damages that accrued on or after November 9, 2007. However, Plaintiff's affidavit and com laint do not provide the p court with enough information for the court to determne the proper amount. The court only i knows that Plaintiff worked approximately 231 overtime hours during that time period, but not how m uch of that was accrued within the statute of lim itations. Plaintiff Tucker is

DIRECTED to file a motion with accompanying affidavit addressing what damages she is owed from November 9, 2007 to February of 2008. Plaintiffs also request attorneys' fees and costs. In FLSA suits for unpaid overtime wages, "[t]he c ourt . . . shall, in addition to any judgm ent awarded to the plaintiff or plaintiffs, allow a reasonable attorney' s fee to be paid by the defendant, and costs of the action." 29 U.S.C. § 216(b). In fact, "fee awards [are]mandatory for prevailing plaintiffs." Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1542 (11th Cir.1985). Such fees and costs, however, m st be reasonable. Plaintiffs' atorneys' affidavit states that Attorney Alysa u t B. Freeman worked 15.5 hours at an hourly ra te of $250 for a total of $3,875. Attorney Farahany worked 7 hours at the hourly rate of $350 for a total of $2,450. Plaintiffs a lso request costs in the amount of $355.62. "[T]he starting point in any determination for an objective estimate of the value of a lawyer's services is to multiply hours reasonably expended by a reasonable hourly rate."

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Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). A reasonable hourly rate is determ ined by "the prevailing m arket rate in the relevant legal community for similar services by lawyers of reasonably comarable skills, experience, and p reputation." Id. The burden is upon Plaintiff to show that the requested rate is reasonable, and "[s] atisfactory evidence at a m inimum is m ore than the affidavit of the attorney performing the work." Id. In support of the claim for attorneys' fees, Plaintiffs provide the court only with an affidavit from one of their attorneys and have not identifie d in any manner for the court what attorneys in the relevant legal mrket charge. Plaintiffs have also a not provided any inform ation as to what the billed hours were for nor have Plaintiffs provided any information regarding the experience of counsel. Plaintiffs failed to sustain their burden in proving the reasonableness of the fees they in request. However, the court can rely upon its own experience to determ e a reasonable fee excessive, and even when faced with an inadequate fee application or fee rates which seem the court should still award a fee where warranted. Norman, 836 F.2d at 1303. Relying on its own judgment and experience, the court finds that a reasonable hourly rate is $250 for both Attorney Freeman and Attorney Farahany. Using its own billing judgment, the court also finds that the 22.5 hours spent on this case were reasonable, as is the $355.62 in costs. Plaintiffs are awarded $5,625 in attorneys' fees and $355.62 in costs.

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In conclusion, Plaintiffs' motion for default judgment is GRANTED IN PART and DENIED IN PART WITH LEAVE TO RENEW [3] . Plaintiffs' m tion for default judgm nt o e is GRANTED as to Plaintiff Feliciano's claim s against Defendant, and Defendant is

DIRECTED to pay Plaintiff Feliciano $463.75 in overtime pay plus liquidated damages in the sam e am ount for a total of $927.50. Plaintiffs' m otion for default judgm ent is

GRANTED as to Plaintiff Baker's claim against Defendant, and Defendant is DIRECTED s to pay Plaintiff Baker $594.00 plus liquidated dam ages in the same amount for a total of $1,188.00. Plaintiffs' motion for default judgment is GRANTED IN PART and DENIED IN PART WITH LEAVE TO RENEW as to Plaintiff Tucker's claims against Defendant, and Defendant is DIRECTED to pay Plaintiff Tucker $3,795 in unpaid overtim e plus

liquidated damages in the same amount for a total of $7,590. As stated previously, Plaintiff Tucker is DIRECTED to file a m otion with accom panying affidavit addressing what

damages she is owed fromNovember 9, 2007 toFebruary of 2008. Costs and attorneys' fees are awarded in the amount of $5,980.62. IT IS SO ORDERED this 15th day of April 2010.

/s J. Owen Forrester J. OWEN FORRESTER SENIOR UNITED STATES DISTRICT JUDGE

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