Gibson v. Kirkwood Bar & Grill, LLC et al

Filing 9

ORDER AND OPINION granting 7 Plaintiff's Motion for Default Judgment. Kirkwood has until MARCH 4, 2014 to file its objections or request a hearing on damages. If the Court does not receive any such correspondence by that date, it will enter a default judgment for plaintiff in the amount of $10,969.35. Signed by Judge Julie E. Carnes on 2/18/14. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
QUENTIN GIBSON,
Plaintiff,
CIVIL CASE NO.
v.

1:13-cv-00308-JEC

KIRKWOOD BAR & GRILL, LLC and
DAVID JEROME JOHNSON,
Defendants.
ORDER & OPINION
This case is before the Court on plaintiff Quentin Gibson’s
Motion for Default Judgment [7].

The Court has reviewed the record

and plaintiff’s arguments and, for the following reasons, concludes
that plaintiff’s Motion for Default Judgment [7] should be GRANTED.
BACKGROUND
This case arises from alleged violations of the Fair Labor
Standards Act of 1938 (“FLSA”).

29 U.S.C. §§ 201 et seq. (2013).

From October 2012 to December 21, 2012 Kirkwood Bar & Grill, LLC
(“Kirkwood”) employed plaintiff as a cook.

(Compl. [1] at ¶ 7.)

David Jerome Johnson served as plaintiff’s supervisor and controlled
his work schedule.

(Id. at ¶¶ 21-25.)

over plaintiff’s compensation.

Johnson also had authority

(Id. at ¶ 26.)

Plaintiff alleges

that during his period of employment with Kirkwood defendants failed

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to pay him the minimum and overtime wages required by the FLSA.
at ¶¶ 36-53.)

(Id.

He also alleges that defendants are liable for

inadequate compensation and tax withholding improprieties under
theories of breach of contract, quantum meruit, and promissory
estoppel.

(Compl. [1] at ¶¶ 54-76; Mot. [7] at 9-10.)

Plaintiff’s

central claim is that Kirkwood withheld twenty-two percent of his
wages for payroll taxes such that his hourly pay fell below the
amount required by the FLSA, but then did not remit that money to the
government and has not provided him with a W-2.
Plaintiff

filed

a

complaint

grounds on January 30, 2013.
filed a responsive pleading.1

against

(Compl. [1].)

(Mot. [7] at 9-10.)

defendants

upon

these

To date, neither have

Accordingly, on March 28, 2013 the

Clerk of Court entered a default with respect to Kirkwood. (See Mot.
for Clerk’s Entry of Default [5].) Plaintiff now moves the Court for
entry of a default judgment.
I.

(Mot. [7].)

JURISDICTION
Because plaintiff asserts claims arising from the FLSA the Court

may exercise jurisdiction over this action pursuant to 28 U.S.C. §
1331 (2013).
law

The Court retains jurisdiction over plaintiff’s state

claims–-breach

estoppel–-because

of
they

contract,
arise

quantum

from

1

the

meruit,
same

and

common

promissory
nucleus

of

Despite a “diligent effort”, plaintiff has not served
process on Johnson. (Mot. [7] at ¶ 6; see also Notice [8].)
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operative facts as do plaintiff’s FLSA claims.

28 U.S.C. § 1367(a)

(2013). Finally, Kirkwood is subject to the personal jurisdiction of
this Court because it operates its business in Georgia, where it is
registered.
II.

(Compl. [1] at ¶ 19.)

DISCUSSION
Entry of a default judgment is a two-step process.

First, the

Clerk of Court enters a default against a party that has failed to
file a responsive pleading or otherwise defend the action asserted
against it.

FED. R. CIV. P. 55(a).

Then, if the amount requested by

plaintiff is not a “sum certain or a sum that can be made certain by
computation”, the plaintiff must “apply to the court for a default
judgment.”

FED. R. CIV. P. 55(b)(1)-(2).

When considering a motion for default judgment the Court must
first “investigate the legal sufficiency of the allegations of the
plaintiff’s complaint” to determine whether it adequately pleads a
claim for relief.

Bruce v. Wal-Mart Stores, Inc., 699 F. Supp. 905,

906 (N.D. Ga. 1988)(citing Nishimatsu Constr. Co., Ltd. v. Houston
Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)); see also Patray v.
Nw.

Publ’g,

Inc.,

931

F.

Supp.

865,

869-70

(S.D.

(describing the process for entry of a default judgment).
Court may conduct hearings on the amount of damages.
55(b)(2)(B).

Ga.

1996)

Next, the

FED. R. CIV. P.

However, an evidentiary hearing for a determination of

damages is not always required; rather, it is a decision that is left
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to the discretion of the Court.

Tara Prods., Inc. v. Hollywood

Gadgets, Inc., 449 Fed. App’x 908, 911-12 (11th Cir. 2011)(citing
Sec. & Exch. Comm’n v. Smyth, 420 F.3d 1225, 1232 n.13 (11th Cir.
2005)).

The Eleventh Circuit instructs that entry of a default

judgment without first conducting an evidentiary hearing on the
amount of damages is appropriate “where all essential evidence is
already of record.”

Smyth, 420 F.3d at 1232 n.13 (citing Sec. &

Exch. Comm’n v. First Fin. Grp. of Tex., Inc., 659 F.2d 660, 669 (5th
Cir. 1981)).
Such is the circumstance here.

Plaintiff has adequately pled

breaches of the FLSA and state law upon which he can recover.
Compl. [1] at ¶¶ 36-76 and Mot. [7] at 8-12.)

(See

Kirkwood received the

summons issued by the Clerk of Court and has failed to file a
responsive pleading or otherwise defend the action asserted against
it.

(Summons [4].)

Plaintiff’s request for damages is capable of

computation, and he has provided adequate documentation of the hours
he worked, the amounts he is due, the amount withheld for taxes but
not remitted to the government, the amounts due to him for overtime
work, and the hourly rates for and time expended by his attorneys.
(See Mot. [7] at Exs. 1-4.)

See C & M Inv. Grp., Ltd. v. Campbell,

448 Fed. App’x 902, 906 (11th Cir. 2011)(“Rule 55(b)(1) requires a
‘sum certain’ only before the clerk can enter default judgment. Rule
55(b)(2), by contrast . . . contains no such requirement and gives
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courts broad discretion to determine what additional evidence, if
any, is required to enter default judgment.”); Hill v. Windsor Redev.
Corp., No. 8:08-CV-00019-JDW-TGW, 2008 WL 2421105 (M.D. Fla. June 13,
2008)(Whittemore, J.)(entering default judgment awarding damages for
FLSA

violations

based

upon

plaintiffs’

affidavits);

Gomes

v.

Nationwide Janitorial & Flooring Servs., Inc., No. 6:06-cv-929-Orl31KRS, 2007 WL 737584 (M.D. Fla. Mar. 7, 2007)(Presnell, J.)(adopting
report and recommendation determining that hearing is unnecessary for
entry of default judgment and damages in FLSA suit); and Monge v.
Portofino Ristorante, 751 F. Supp. 2d 789 (D. Md. 2010) (same).
In total, plaintiff requests an award of $10,969.35.
12.)

(Id. at

Adequate evidence exists in the record to support an entry of

this request.

Accordingly, Kirkwood has until March 4, 2014 to file

its objections or request a hearing on damages.

Absent such an

objection or request, the Court will enter a default judgment for
$10,969.35 in favor of plaintiff.
CONCLUSION
For

the

foregoing

Judgment [7] is GRANTED.

reasons,

plaintiff’s

Motion

for

Default

Kirkwood has until MARCH 4, 2014 to file

its objections or request a hearing on damages.

If the Court does

not receive any such correspondence by that date, it will enter a
default judgment for plaintiff in the amount of $10,969.35.

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SO ORDERED, this 18th day of February, 2014.

/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE

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