Hines v. JBR Carry Trucking
Filing
50
OPINION and ORDER entered by Judge Sue E. Myerscough on 3/24/2020. Plaintiff's Motion for Entry of an Order for Default, d/e 37 is GRANTED. Plaintiff's Petition for Attorney's Fees and Costs, d/e 48 is also GRANTED. Judgment to enter. Case CLOSED. (SEE WRITTEN OPINION & ORDER) (MAS, ilcd)
E-FILED
Tuesday, 24 March, 2020 04:02:29 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
JEREL HINES,
Plaintiff,
v.
JBR TRUCKING LLC and
CARRY TRUCKING SERVICES LLC,
Defendants.
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No. 2:18-CV-2159
OPINION AND ORDER
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on the Plaintiff Jerel Hines’
Motion for Entry of an Order for Default, d/e 37, which the Court
construes as a Motion for Default Judgment. For the reasons that
follow, Plaintiff’s Motion for Entry of an Order for Default is
GRANTED.
I. BACKGROUND AND PROCEDURAL HISTORY
In June 2018, Plaintiff filed a Complaint 1 against JBR/Carry
Trucking alleging discrimination based on Plaintiff’s race in
Plaintiff filed his Complaint pro se. However, in October 2018, two attorneys
entered their appearances for Plaintiff (d/e 16, 17) and, in April 2019, a third
attorney entered an appearance for Plaintiff (d/e 26).
1
Page 1 of 22
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000
et seq. Compl., d/e 1. Plaintiff alleged race discrimination (Count I)
and retaliation (Count II). Id. at 4–6. Plaintiff also brought a state
law claim under the Illinois Human Rights Act, 775 ILCS 5/1-101
et seq. Id. at 7. Plaintiff alleged that JBR was the successor/alter
ego of Carry Trucking. Id. at 2.
The Complaint contains the following allegations. Plaintiff was
hired on March 21, 2015, as a truck driver. Id. He was the only
African American employee with the company. Id. at 3. During his
employment, he complained about employees making racists
comments against interracial dating amongst whites and blacks.
Id. Plaintiff reported racial slurs to the owner, Carrie Bentley. Id.
at 4. Plaintiff also reported to a human resources employee that an
employee stated “white is right” in reference to another employee
mentioning Plaintiff. Id. at 3. This same employee stated he would
“get rid” of Plaintiff. Id. at 4. Ms. Bentley did not investigate,
discipline, or otherwise remedy the racially hostile environment at
the company. Id.
Page 2 of 22
Plaintiff was a union employee subject to a collective
bargaining agreement, under the terms of which, in the event of a
layoff, employees with the most seniority were to be laid off last. Id.
at 3. In October 2015, despite being the most senior employee with
the company, Plaintiff was laid off while Plaintiff’s white
counterparts who were less senior to Plaintiff were not laid off. Id.
On April 29, 2016, Plaintiff was fired without cause. Id. at 2, 4.
According to Plaintiff, the purported reasons for his termination
were a pretext for discrimination because Plaintiff did not engage in
any of the conduct forming the purported basis for his termination.
Id. at 5–6. Plaintiff also asserts that he was retaliated against for
engaging in the statutorily protected activity of reporting and
complaining of harassment, racism and unfair practices. Id.
Plaintiff seeks compensatory damages for physical and mental
injuries, future pecuniary losses, reimbursement of costs and
attorney’s fees, reinstatement of employment, expungement of any
wrongdoing from Plaintiff’s personal file, back pay, and front pay.
On August 27, 2018, counsel entered an appearance for
“Defendants, CARRY TRUCKING SERVICES, LLC, an Illinois
Page 3 of 22
Limited Liability Company, erroneously sued as CARRY TRUCKING
and JBR TRUCKING LLC, a dissolved Illinois Limited Liability
Company, erroneously sued as JBR.” See Entry of Appearance (d/e
13).2 Defendants moved to dismiss, asserting that Title VII only
applies to businesses who employ fifteen or more employees for at
least twenty weeks in a relevant calendar year and that Defendants
did not employ fifteen or more people. Mot. to Dismiss, d/e 18.
District Judge Colin S. Bruce—the judge assigned to the case until
the case was transferred to the undersigned judge—denied the
motion, noting that the fifteen-employee requirement was not
jurisdictional and concluding that Plaintiff did not have to allege
that Defendants employed at least fifteen employees to state a claim
of racial discrimination. Text Order, Nov. 15, 2018. Judge Bruce
refused to consider on a motion to dismiss the affidavit from the
Managing Member of Defendants asserting that at no time did
Defendants employ fifteen or more people, stating the argument was
better suited for summary judgment.
The Court notes that the Illinois Secretary of State website reflects that Carry
Trucking Services, LLC was involuntarily dissolved on August 9, 2019.
https://www.ilsos.gov/corporatellc/CorporateLlcController (last visited March
20, 2020).
2
Page 4 of 22
On January 9, 2019, Defendants filed an Answer and
Affirmative Defenses. d/e 24. The affirmative defenses were: (1)
that Title VII only applies to businesses that employ fifteen or more
employees for at least 20 weeks in a relevant calendar year, and (2)
that that Plaintiff was never employed by Carry Trucking Services,
LLC.
On May 7, 2019, counsel for Defendants moved to withdraw,
d/e 29, asserting that irreconcilable differences had arisen. On
May 23, 2019, Magistrate Judge Eric I. Long granted the motion
and directed Defendants’ counsel to certify with the Court that she
provided notice of the order to Defendants. Text Order, May 23,
2019. Judge Long advised Defendants that a corporation may not
appear pro se and that Defendants must obtain new counsel on or
before June 24, 2019. Thereafter, counsel for Defendants filed two
Certificates of Service, d/e 32, 34, reflecting that she served a copy
of the Text Order on Defendants. Once the Certificates of Service
were filed, Judge Long terminated Defendants’ former counsel from
the case. Text Order, June 25, 2019.
Page 5 of 22
On June 25, 2019, Judge Long also issued an Order to Show
Cause, d/e 35, to “Defendant” on or before July 9, 2019 for its
failure to obtain counsel. Judge Long directed Defendants’ former
counsel to provide a copy of the Show Cause Order to “Defendant.”
Text Order, June 25, 2019. On July 15, 2019, Plaintiff filed a
Motion for Entry of An Order for Default, d/e 36, due to Defendants’
failure to file a show cause response by July 9, 2019. Judge Long
granted the Motion, noting that “Defendant’s” failure to find
replacement counsel despite multiple warnings to do so constituted
a “failure to otherwise defend the case” under Federal Rule of Civil
Procedure 55(a). Judge Long granted Plaintiff twenty-one days to
file a Motion for Default Judgment and directed Plaintiff to mail a
copy of the Order to “Defendants” last known address. Text Order,
July 16, 2019.
On July 29, 2019, Plaintiff filed a Second Motion for Entry of
Default, d/e 37, which this Court construes as a motion for default
judgment. Plaintiff sent a copy of Motion by certified mail to Jeff
Bentley, Carry Trucking Services, LLC and to Carrie Boone a/k/a
Carrie Bentley. See d/e 37 at 3.
Page 6 of 22
That same day, former counsel for Defendants filed a
Certification, d/e 38, noting that she provided notice to Defendants
of the Court’s June 25, 2019 Order to Show Cause by both regular
and Certified mail but that the certified mail to Carry Trucking
Services, LLC was marked as “UNCLAIMED” and returned.
On August 19, 2019, this Court entered a Text Order noting
that the docket sometimes refers to a “defendant” and other times
refers to “defendants.” This Court also noted that the Entry of
Default was entered against “JBR Carry Trucking” but that, when
counsel entered an appearance for defendant, she identified
Defendants as “Carry Trucking Services, LLC” and “JBR Trucking
LLC.” Text Order, Aug. 19, 2019. The Court directed Plaintiff to
advise whether the Court can correct the docket to identify the
Defendants as “Carry Trucking Services, LLC” and “JBR Trucking
LLC.” Id. The Court also asked Plaintiff to file a Certificate of
Service showing that Plaintiff mailed a copy of the July 16, 2019,
Text Order to Defendants’ last known address, as directed by Judge
Long. Id.
Page 7 of 22
On August 26, 2019, Plaintiff filed a Motion to Correct the
Docket. d/e 39. Plaintiff asserted that, when he filed his
Complaint, he argued that the companies were intermingled and
that each company employed him simultaneously. Id. at 1.
Through discovery, Plaintiff determined that JBR Trucking LLC, a
dissolved Illinois Limited Liability Company, and Carry Trucking
Services, LLC, a Limited Liability Company, were legally separate
entities owned and managed respectively by Carrie Boone a/k/a
Carrie Bentley and Jeffrey Bentley. Id. Plaintiff maintains that
both companies employed his services at all relevant times. Id.
Plaintiff requested that the Court correct the docket to identify the
Defendants as Carry Trucking Services, LLC and JBR Trucking,
LLC. This Court granted the Motion and directed the Clerk of the
Court to correct the docket accordingly. Text Order, August 28,
2019.
Plaintiff also filed a Certificate of Service, d/e 40, which
reflected that he provided notice of the Court’s July 16, 2019, Order
by certified mail to the owners of the Defendants, Jeffrey Bentley
and Carrie Boone a/k/a Carrie Bentley. Service was effectuated on
Page 8 of 22
Carrie Boone a/k/a Carrie Bentley. Certification of service to
Jeffrey Bentley had yet to be returned and, according to UPS,
Jeffrey Bentley has been unresponsive in their attempts to complete
discovery.
The Court subsequently determined that a hearing to
determine damages was required and directed Plaintiff to provide
notice of the Court’s order setting the hearing to Defendants. Text
Order, September 13, 2019. Plaintiff filed certificates of service
reflecting service on Carrie Boone a/k/a Carrie Bentley and Jeffrey
Bentley on September 24, 2019, and October 8, 2019, respectively.
See Certificates of Service, d/e 41, 42. The hearing on damages
was ultimately held on November 18, 2019. Minute Entry, Nov. 18,
2019. Defendants did not appear for the hearing. See id.
Following the hearing, Plaintiff filed a Written Closing Argument,
d/e 47, and a Petition for Attorneys’ Fees and Costs, d/e 48, in
support of his pending Motion for Entry of an Order for Default.
Plaintiff also sought, and was granted, leave to file a Motion to Cite
Additional Authority, d/e 49, in support of the Petition for
Attorneys’ Fees.
Page 9 of 22
II. LEGAL STANDARD
Plaintiff moves for entry of an order of default and/or
additional miscellaneous relief pursuant to Federal Rule of Civil
Procedure 55. Upon the entry of default, the Court accepts the
facts set forth in the Complaint as true. Dundee Cement Co. v.
Howard Pipe & Concrete Products, Inc., 722 F.2d 1319, 1323 (7th
Cir. 1983) (“As a general rule, a default judgment establishes, as a
matter of law, that defendants are liable to plaintiff as to each cause
of action alleged in the complaint,” so long as the plaintiff’s
allegations are well-pled.) (internal quotation marks omitted). Upon
default, while all well-pled allegations regarding liability are taken
as true, allegations regarding damages are not. Wehrs v. Wells, 688
F.3d 886, 892 (7th Cir. 2012). A plaintiff seeking default judgment
must establish a right to the requested relief. In re Catt, 368 F.3d
789, 793 (7th Cir. 2004). The district court cannot enter a default
judgment without a hearing on damages unless “the amount
claimed is liquidated or capable of ascertainment from definite
figures contained in the documentary evidence or in detailed
affidavits.” E360 Insight v. Spamhaus Project, 500 F. 3d 594, 602
Page 10 of 22
(7th Cir. 2007) (quoting Dundee Cement Co., 722 F.2d at 1323).
When a plaintiff’s claim is not for a sum certain or a sum that can
be made certain, the Court may conduct hearings or make referrals
as it deems necessary to determine the amount of damages,
including directing an accounting. Fed. R. Civ. P. 55(b)(2). The
district court must then determine with reasonable certainty the
proper amount to award as damages to the prevailing party. In re
Catt, 368 F.3d at 793.
III. ANALYSIS
The Court finds that Defendants have failed to appear, plead
to, or otherwise defend the Complaint filed herein within the time
period prescribed by the Federal Rules of Civil Procedure and Local
Rules. Accordingly, the allegations of liability contained in
Plaintiff's Complaint, Motion for Entry of an Order of Default, and
exhibits submitted in support thereof, taken as true, establish that
Defendants engaged in unlawful employment practices in violation
of Title VII of the Civil Rights Act of 1964. Defendants intentionally
discriminated against Plaintiff on the basis of his race and in
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retaliation for Plaintiff’s complaints of racial harassment when
Defendants terminated Plaintiff’s employment.
Because the allegations regarding damages are not taken as
true, and because the amount claimed is not liquidated or capable
of ascertainment from definite figures contained in the documents
or in affidavits, the Court determined that a hearing was necessary
in this case. That hearing has now been held and Plaintiff’s
pending Motion for Entry of an Order for Default is ripe for ruling.
Plaintiff asks the Court to render a judgment of default for the
statutory maximum of $50,000 for combined compensatory and
punitive damages, as well as $140,523.00 in back pay plus
$16,443.14 in pre-judgment interest. The court will grant these
damages requests.
First, Plaintiff has submitted documentation clearly
demonstrating that he is entitled to $156,966.14 in backpay.
Plaintiff earned an average of $1,364.30 for each two-week pay
period during the time he was employed by Defendants. Between
the date of his termination and January 9, 2020, not counting the
two pay periods during which Plaintiff was rehired, there were 103
Page 12 of 22
pay periods. Multiplying Plaintiff’s average bi-weekly payment
amount by the number of pay periods yields a total of $140,523.00
in back pay.
The prevailing party on a Title VII claim is also entitled to
prejudgment interest on an award of back pay. Hutchison v.
Amateur Elec. Supply, Inc., 42 F.3d 1037, 1045 (7th Cir. 1994).
Using the prime rate for the time period in question multiplied by
the average amount Plaintiff would have earned had he not been
terminated results in a total of $16,443.14 in pre-judgment interest.
Victims of intentional discrimination prohibited by Title VII
may recover compensatory damages for “emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other
non-pecuniary losses.” 42 U.S.C. § 1981A(b)(3). Plaintiff requests
an award of $50,000.00 for pain, suffering, inconvenience, and
other nonpecuniary loss. Compensatory and punitive damages for
intentional discrimination are statutorily capped on the number of
employees employed by the employer during the year of
discrimination. 42 U.S.C. § 1981A(b)(3). The total number of
employees employed by Defendants was the subject of some dispute
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in this litigation as discussed previously. Defendants, however,
have abandoned this defense. And, as discussed in greater detail
later, the Court would conclude that Defendants were a single
employer employing more than fifteen employees for liability
purposes anyway. Plaintiff appropriately requests the most
conservative amount for these damages, which are capped at
$50,000 for an employer that employs more than more than
fourteen and fewer than 101 employees.
Here, the Court heard Plaintiff’s sworn testimony at the
hearing on damages. Plaintiff was the sole breadwinner for his
family, supporting his wife and six children. Plaintiff testified that
as a result of his termination he suffered economic damages which
included the eviction of his family from their rented home and
repossession of the family’s car when Plaintiff could no longer make
the payments on them. Plaintiff also testified to the emotional
damage caused by these sudden and drastic changes to his quality
of life. Plaintiff further testified that since his termination he
suffered from anxiety, stress, and depression caused by the loss of
what had been a stable and rewarding career. The circumstances
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leading up to Defendants’ discriminatory termination of Plaintiff
were inherently humiliating and caused Plaintiff substantial
emotional distress. The details provided by Plaintiff’s testimony at
the hearing on damages and the inherently degrading
circumstances that Plaintiff experienced are sufficient to support
the statutory maximum emotional distress award. See EEOC v.
HCS Med. Staffing, Inc., 2012 WL 529593, at * 3 (E.D. Wis. Feb. 17,
2012) (awarding statutory maximum in compensatory damages
based on plaintiff’s affidavit testimony demonstrating emotional
distress). Accordingly, the Court will award $50,000 in
compensatory damages.
Finally, the Court concludes that Defendants should be
treated as a single entity for purposes of liability. Plaintiff alleges in
his Complaint that “JBR is the successor or alter ego of CARRY
TRUCKING.” Compl. 1. While a defaulting party loses its ability to
contest the factual basis for the moving party’s claim, the defaulting
party does not admit mere conclusions of law. Jones v. Man 2 Men
USA, No. 09-CV-4596, 2013 WL 5432819, at *7 (N.D. Ill. Sept. 30,
2013) (quoting Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir.
Page 15 of 22
2010)). “The single employer doctrine holds that when two entities
are sufficiently integrated, they will be treated as a single entity for
certain purposes.” Lippert Tile Co. v. Int'l Union of Bricklayers &
Allied Craftsmen, Dist. Council of Wis. & Its Local 5, 724 F.3d 939,
946 (7th Cir. 2013) (quoting Moriarty v. Svec, 164 F.3d 323, 332
(7th Cir. 1998)). To determine whether two nominally separate
business entities are a single employer, the Court must examine
four factors set out by the Supreme Court: “(1) interrelation of
operations, (2) common management, (3) centralized control of labor
relations, and (4) common ownership.” Trs. of Pension, Welfare, &
Vacation Fringe Benefit Funds of IBEW Local 701 v. Favia Elec. Co.,
995 F.2d 785, 788 (7th Cir.1993) (citing S. Prairie Constr. Co. v.
Local No. 627, 425 U.S. 800, 803 (1976)). “No one of these factors
is conclusive; instead, the decisionmaker must weigh the totality of
the circumstances.” Id. “Ultimately, single employer status . . . is
characterized by the absence of an arm’s length relationship found
among unintegrated companies.” Lippert Tile Co., 724 F.3d at 947
(quoting Lihli Fashions Corp., Inc. v. NLRB, 80 F.3d 743, 747 (2d
Cir. 1996)).
Page 16 of 22
The Court concludes that JBR Trucking, LLC, and Carry
Trucking, LLC, are a single employer for purposes of liability.
“When analyzing the interrelation of operations, it is the ‘day-to-day
operational matters’ that are the most relevant.” Lippert Tile Co.,
724 F.3d at 947. JBR Trucking, LLC, was legally owned by Jeffrey
Bentley, while Carry Trucking, LLC, was owned by Jeffrey’s wife
Carrie Bentley. In response to interrogatories, Defendants admitted
that Jeffrey Bentley was the manager of Carry Trucking. Pl.’s
Written Closing Argument, Ex. D. The two companies shared an
office and operations area, and Jeffrey Bentley was the primary
manager for both companies. Supervisors and other employees also
worked interchangeably for both companies. In fact, Plaintiff
testified that during his employment the two companies were
indistinguishable such that he was unsure which of the companies
actually employed him and his coworkers. Plaintiff’s well-pled
allegations, which the Court accepts as true, show that under the
totality of the circumstances, the two Defendants are sufficiently
intertwined to be treated as a single employer.
Page 17 of 22
IV. PLAINTIFF’S PETITION FOR ATTORNEYS’ FEES AND COSTS
Plaintiff also requests attorneys’ fees in the amount of
$30,515.00 and $163.71 in costs. Pl.’s Pet. For Attorneys’ Fees and
Costs 8, d/e 48. For the reasons that follow, the Petition is granted.
The starting point in the determination of a reasonable fee is a
calculation of “the number of hours reasonably expended on the
litigation multiplied by the reasonable hourly rate.” Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). The figure computed using
this method is termed the “lodestar.” Eddleman v. Switchcraft, Inc.,
927 F.2d 316, 318 (7th Cir. 1991). The lodestar figure is presumed
to be a reasonable fee award. Graham v. Sauk Prairie Police
Comm’n, 915 F.2d 1085, 1109 (7th Cir. 1990). Thereafter, the
court may adjust the figure to reflect various factors, including “the
complexity of the legal issues involved, the degree of success
obtained, and the public interest advanced by the litigation.”
Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir. 2010); see also
Tolentino v. Friedman, 46 F.3d 645, 652 (7th Cir. 1995) (listing the
twelve factors courts should consider in determining attorney fees).
The party seeking fees bears the burden of proving the
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reasonableness of the hourly rate charged and the reasonableness
of the hours worked. Spegon v. Catholic Bishop of Chicago, 175
F.3d 544, 550 (7th Cir. 1999).
Plaintiff’s Petition for Attorneys’ Fees and Costs is supported
by affidavits of Plaintiff’s attorneys and billing records from
Plaintiff’s attorneys’ law firm. The affidavits set forth the time each
attorney has expended on the case, the attorneys’ typical hourly
rates, and each attorney’s background and experience. Plaintiff’s
attorneys seek rates between $200 and $500 per hour.
Attorney Richard Dvorak seeks the highest rate at $500 per
hour. Attorney Dvorak has been a licensed attorney since 1999 and
has handled hundreds of civil rights cases, including many
employment cases. Plaintiff has submitted a declaration from
Attorney Louis Meyer attesting to the reasonableness of Attorney
Dvorak’s hourly rate. Plaintiff also filed additional authority in
which a District Court Judge in the Northern District of Illinois
recently approved Attorney Dvorak’s hourly rate.
Attorney Adrian Bleifuss Pardo seeks a rate of $350 per hour.
Attorney Bleifuss Pardo has been a licensed attorney since 2012,
Page 19 of 22
concentrating in civil rights cases. Attorney Bleifuss Pardo’s
requested rate was recently agreed to in a settlement agreement
reached in a case in the Northern District of Illinois.
Attorney Loren Jones seek a rate of $200 per hour. Attorney
Jones was licensed in 2018 and has been employed by Plaintiff’s
attorneys’ law firm since September 2018. Attorney Jones has
submitted two declarations from attorneys who have worked with
Attorney Jones on other cases attesting to the reasonableness of the
rate sought. Attorney Jones ably represented Plaintiff in front of
the undersigned at the hearing on damages.
These rates, although perhaps on the higher end for the
Central District of Illinois, are in line with rates that have recently
been approved in this District generally, and by this Court in
particular. See, e.g., Donaldson v. MBR Cent. Illinois Pizza, LLC,
No. 18-CV-3048, 2019 WL 4447969, at *3 (C.D. Ill. Sept. 17, 2019)
(approving hourly rates ranging from $250 to $400); Abellan v.
HRDS Le Roy IL, LLC, Case No. 16-1037, 2018 WL 6247260, at *10
(C.D. Ill. Nov. 29, 2018) (approving award of fees where attorneys
and paralegals billed at rates between $150 and $400 per hour).
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Plaintiffs’ attorneys have pursued this litigation diligently,
complying with numerous directives from the Court to ensure
service on recalcitrant defendants. Moreover, the vast majority of
the hours claimed—106.4 out of a total of 127.7—are attributed to
Attorney Jones at the lowest of the rates sought. Attorney Dvorak
and Attorney Bleifuss Pardo each seek fees for only 11.8 hours and
9.5 hours expended, respectively, at their higher rates. Plaintiff
also seeks costs in the amount $163.71.
Taking into account Plaintiff’s success in this litigation and
the experience of Plaintiff’s attorneys, the Court, therefore, finds the
request for attorneys’ fees and costs to be reasonable and
appropriate for Plaintiff’s attorneys’ work in this litigation. Having
carefully considered Plaintiff’s Petition for Attorneys’ Fees and
Costs, the Petition is granted.
V. CONCLUSION
Plaintiff’s Motion for Entry of an Order for Default, d/e 37, is
GRANTED. The Court awards Default Judgment for Plaintiff and
against Defendants in the amount of $206,966.14. Plaintiff’s
Petition for Attorneys’ Fees and Costs, d/e 48, is also GRANTED, for
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a total of $30,515 in fees and $163.71 in costs.
The Clerk is directed to issue a judgment reflective of this
Order.
IT IS SO ORDERED.
CASE CLOSED.
ENTERED: March 24, 2020
FOR THE COURT:
/s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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