James v. ZEELTV, LLC et al
Filing
15
ORDER AND OPINION granting 11 Plaintiff's Motion for Default Judgment and granting as unopposed Plaintiff's 13 Motion to Compel and Motion for Extension of Time to Complete Discovery. The Court enters a default judgment against defe ndant ZeelTV in the amount of $86,126.04. The Court ORDERS defendant Taylor to respond to plaintiffs outstanding discovery requests by Friday, October 11, 2013 and to cooperate fully with any future discovery requests in accordance with Federal Rule 26. The discovery period will be extended until Friday, November 29, 2013. Signed by Judge Julie E. Carnes on 9/20/13. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ERROL O. JAMES,
Plaintiff,
CIVIL ACTION NO.
v.
1:12-CV-2290-JEC
ZEELTV LLC and SUE ANN TAYLOR,
Defendants.
ORDER & OPINION
This case is before the Court on plaintiff’s Motion for Default
Judgment as to ZeelTV LLC (“ZeelTV”) [11], plaintiff’s Motion to
Compel [13] and plaintiff’s Motion for an Extension of Time to
Complete Discovery [14].
The Court has reviewed the record and the
arguments
reasons
and,
for
the
set
out
below,
concludes
that
plaintiff’s Motion for Default Judgment [11] should be GRANTED,
plaintiff’s Motion to Compel [13] should be GRANTED as unopposed and
plaintiff’s Motion for an Extension of Time to Complete Discovery
[14] should be GRANTED as unopposed.
BACKGROUND
Plaintiff filed this action to collect unpaid compensation from
his former employers:
6.)
ZeelTV and Sue Ann Taylor.
Defendants hired plaintiff in October 2008 to assist with
ZeelTV’s production needs.
AO 72A
(Rev.8/82)
(Compl. [1] at ¶
(Id. at ¶¶ 1-2.)
Between October 2008
and May 2012, plaintiff worked a minimum of forty-five hours a week.
(Id. at ¶ 3.)
On certain occasions such as President Obama’s
inauguration and the Clinton Global Initiative Conference, plaintiff
worked over 60 hours a week.
(Id. at ¶ 4.)
Plaintiff claims that defendants hired him at a rate of $32,000
a year or $2,667.67 a month.
(Id. at ¶ 1.)
However, defendants
failed or refused to pay plaintiff for several months during his
employment. (Compl. [1] at ¶ 5.) According to plaintiff, defendants
owe him in excess of $52,955.78 in unpaid wages.
(Id. at ¶ 6.)
In
the complaint, plaintiff asserts claims to recover the unpaid wages
under the Fair Labor Standards Act (“FLSA”) and under a breach of
contract theory.
(Id. at ¶¶ 39-58.)
Defendant Sue Ann Taylor (“Taylor”) submitted a pro se answer in
which she denied the substantive allegations of the complaint,
purportedly on behalf of herself and ZeelTV.
(Answer [6].)
As a
corporation, ZeelTV is an artificial entity that cannot appear pro se
and must be represented by counsel.
See Rowland v. California Men’s
Colony, 506 U.S. 194, 201-202 (1993) and Palazzo v. Gulf Oil Corp.,
764 F.2d 1381, 1385 (11th Cir. 1985).
The Court thus ordered ZeelTV
to (1) retain counsel and (2) have counsel make an appearance within
20 days.
(Order [7].)
The Court advised ZeelTV that failure to
comply with its order would result in an entry of default against it.
(Id.)
ZeelTV did not respond to the Court’s order.
2
AO 72A
(Rev.8/82)
Accordingly, and
pursuant to plaintiff’s motion, the clerk entered a default against
it.
(See Pl.’s Application for Entry of Default [8].)
plaintiff
submitted
discovery.
(Pl.’s
a
discovery
Prelim.
plan
Report
and
and
attempted
Discovery
Thereafter,
to
conduct
Plan
[10].)
Defendants did not participate in the plan or respond to any of
plaintiff’s discovery requests.
Plaintiff
has
thus
discovery period.
filed
(Pl.’s Mot. to Compel [13] at 2.)
motions
to
compel
and
to
extend
the
(Id. and Pl.’s Mot. for Extension of Time [14].)
Plaintiff has also filed a motion for default judgment as to ZeelTV.
(Pl.’s Mot. for Default J. [11].)
Defendants have not responded to
any of these motions.
DISCUSSION
I.
Motion for Default Judgment
More than a year has passed since the Court instructed ZeelTV to
retain counsel and enter an appearance.
(Order [7].)
ZeelTV still
has not responded either to the Court’s order or to the clerk’s entry
of judgment against it. The Court thus finds that a default judgment
is warranted.
See Am. Res. Ins. Co., Inc. v. Evoleno Co., LLC, 2008
WL 4701350 at *3 (S.D. Ala. 2008)(“[t]he failure of an artificial
entity to obtain counsel, in violation of a court order or rule to do
so, has repeatedly been held to support default judgment”).
While
the decision to enter a default judgment is generally a last resort
measure, it is an appropriate response to a defendant’s willful or
bad faith disregard of Court orders.
3
AO 72A
(Rev.8/82)
Adolph Coors Co. v. Movement
Against Racism and the Klan, 777 F.2d 1538, 1542 (11th Cir. 1985).
There is no other way to characterize ZeelTV’s failure to respond in
any way to the Court’s clear directive.
A defendant who has defaulted is deemed to have admitted the
plaintiff’s
well-pleaded
allegations
of
fact.
Eagle
Hosp.
Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th
Cir. 2009).
Based on the allegations in the complaint and the
supporting affidavits to the motion for entry of default judgment,
plaintiff has properly stated a claim for breach of contract in the
amount of $48,018.06.1
at ¶ 2.)
(Compl. [1] at ¶¶ 14, 17 and James Aff. [11]
ZeelTV hired plaintiff to work as a production facilitator
for $2,667.67 per month.
(Compl. [1] at ¶¶ 14, 17.)
Although
plaintiff performed all of his job duties in a satisfactory manner,
ZeelTV refused to pay him for eighteen months during his employment.
(Id. at ¶¶ 23-32.)
Such facts properly support a claim for breach of
contract under Georgia law in the amount of $48,018.06.
See Walker
Elec. Co. v. Byrd, 281 Ga. App. 190, 192 (2006).
Plaintiff has also properly stated a claim under the FLSA for
unpaid overtime wages in the amount of $30,985.20.2
¶¶ 9, 14.)
(Compl. [1] at
In the complaint, plaintiff alleges that defendant is an
FLSA-covered enterprise and that defendant employed him.
(Id. at ¶¶
1
Plaintiff has apparently made a minor mathematical error in
his calculations.
The Court has adjusted the amount due on the
breach of contract claim accordingly.
2
The Court has again corrected minor arithmetical errors in
arriving at this figure.
4
AO 72A
(Rev.8/82)
9, 12-14.)
In addition, plaintiff asserts that he worked in excess
of forty hours per week and that defendant did not pay him overtime
wages. (Id. at ¶¶ 3-4, 18-19, 44-48.) These allegations satisfy all
of the elements of an FLSA overtime claim.
See Morgan v. Family
Dollar Stores, 551 F.3d 1233, 1277 (11th Cir. 2008).
The FLSA generally requires that employees receive overtime pay
at one and a half times their regular rate for all hours worked in
excess of forty hours per week.
Avery v. City of Talladega, 24 F.3d
1337, 1340 (11th Cir. 1994). Plaintiff alleges that he worked fortyfive hours a week for 143 weeks between July 2009 and April 2012, and
that for two additional weeks during that time period he worked sixty
hours per week on special projects.3
44-48.)
(Compl. [1] at ¶¶ 3-4, 18-19,
Plaintiff thus claims that he worked a total of 755 hours of
overtime.
(James Aff. [11] at ¶ 7.)
Plaintiff’s hourly rate of pay is derived “by dividing the total
remuneration for employment in any work period by the total number of
hours actually worked by him in that work period for which such
compensation was paid.”
1480
(11th
Cir.
1990).
Kohlheim v. Glynn County, 915 F.2d 1473,
See
also
29
C.F.R.
§§
778.109-.110.
Plaintiff’s weekly pay between July 2009 and April 2012 can be
3
The July 2009 date accounts for the FLSA statute of
limitations, which is three years when an employer’s failure to pay
was willful as alleged here. See Allen v. Bd. of Public Educ. for
Bibb County, 495 F.3d 1306, 1323 (11th Cir. 2008). Plaintiff filed
this action on June 29, 2012. (Compl. [1].) Applying the three year
statute of limitations, he can only recover wages under the FLSA for
work performed after June 29, 2009.
5
AO 72A
(Rev.8/82)
calculated by dividing his annual rate of pay ($32,000) by the number
of weeks worked per year (52).
That amounts to $615.38.
As
plaintiff regularly worked 45 hours per week, his hourly rate was
$13.68 ($615.38/45) and his overtime rate should have been $20.52.
At this rate, plaintiff’s unpaid overtime compensation amounts to
$15,492.60 ($20.52 X 755).
In addition to this amount, plaintiff is
entitled to liquidated damages equal to his unpaid overtime.
See 29
U.S.C. § 216(b) and De Leon-Granados v. Eller & Sons Trees, Inc., 581
F. Supp. 2d 1295, 1316 (N.D. Ga. 2008)(awarding liquidated damages
where the employer did not come forward with any evidence to show
good faith and reasonableness in failing to pay overtime). The total
value of plaintiff’s FLSA overtime claim is thus $30,985.20.
Finally, plaintiff has properly stated a claim for attorney’s
fees in the amount of $7,122.78.
Under the FLSA, fee awards are
mandatory for prevailing plaintiffs.
Kreager v. Solomon & Flanagan,
P.A., 775 F.2d 1541, 1542 (11th Cir. 1985). Plaintiff’s attorney has
submitted an affidavit substantiating fees and costs in the amount
claimed.
(Winkles Aff. [11] at ¶ 11.)
His testimony is unrebutted
and unchallenged.
II.
Discovery Motions
Plaintiff has attempted to conduct discovery, but defendants
have not cooperated.
Neither defendant has responded to plaintiff’s
document requests or interrogatories.
2.)
The deadline for those responses expired nearly a year ago.
6
AO 72A
(Rev.8/82)
(Pl.’s Mot. to Compel [13] at
(Id.)
Plaintiff’s counsel attempted to confer with defendant Taylor
to resolve the outstanding discovery issues, but Taylor has been
completely non-responsive.
(Id. at 2-3.)
Consequently, plaintiff
has filed a motion to compel defendants to respond to his requests
[13] and a motion to extend the discovery period [14].
Plaintiff’s discovery motions are presumably moot as to ZeelTV
as a result of the default judgment.
However, Taylor’s responses
will likely help plaintiff establish individual liability and assist
in his efforts to collect on the judgment.
The Court thus GRANTS
plaintiff’s motion to compel [13] and motion to extend discovery [14]
as to Taylor.
The Court notes that these motions are unopposed, but
that they are also substantively meritorious.
Besides entering an
answer, Taylor has refused to participate in this litigation.
The
Federal Rules do not permit a defendant to simply ignore discovery
requests, as Taylor has done in this case.
CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiff’s motion
for default judgment [11] and GRANTS as unopposed plaintiff’s motions
to compel [13] and to extend the discovery period [14].
The Court
enters a default judgment against defendant ZeelTV in the amount of
$86,126.04.
The
Court
ORDERS
defendant
Taylor
to
respond
to
plaintiff’s outstanding discovery requests by Friday, October 11,
2013 and to cooperate fully with any future discovery requests in
accordance with Federal Rule 26.
7
AO 72A
(Rev.8/82)
The discovery period will be
extended until Friday, November 29, 2013.
SO ORDERED, this 20th day of September, 2013
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF U.S. DISTRICT JUDGE
8
AO 72A
(Rev.8/82)
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