Franko v. All About Travel Inc et al
Filing
139
OPINION AND ORDER denying 137 Motion for Default Judgment against Defendant All About Vacations Inc. The Court grants Plaintiff leave to amend her amended complaint by July 18, 2014. Signed by Judge Joseph S Van Bokkelen on 6/19/14. (mc)
United States District Court
Northern District of Indiana
Hammond Division
DAWN K. FRANKO,
Plaintiff,
v.
ALL ABOUT TRAVEL INC., et al.,
Defendants.
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Civil Action No. 2:09-CV-233 JVB
OPINION AND ORDER
This matter is before the Court on Plaintiff Dawn Franko’s motion for a default judgment
against Defendant All About Vacations Inc. (AAV).
A.
Background
Plaintiff’s original complaint was filed against All About Travel Inc. (AAT) and Denise
Zencka. She alleged that she was an employee of AAT and that both AAT and Zencka were
employers under the Fair Labor Standards Act (FLSA) who failed to pay her minimum wages
and overtime for all the hours she worked, in violation of the FLSA. She also made state law
claims against AAT and Zencka for violation of the Indiana Wage Payment and Wage claims
statutes. Zencka and AAT filed counterclaims against Franko. The parties filed cross-motions
for summary judgment. Plaintiff was awarded $3,075 on her claim under the Wage Payment
Statute. Plaintiff’s claims for unpaid commissions under the Wage Payment Statute as well as
some of Franko’s counterclaims were dismissed.1 Then AAT and Zencka filed bankruptcy.
Plaintiff was granted leave to file an amended complaint. The amended complaint is
identical to the original complaint in all respects except that it names AAV as an additional
defendant and alleges “AAV is the successor of AAT.” (DE 111, ¶ 6.) AAV failed to appear and
Plaintiff moved for a clerk’s entry of default. Default was entered against AAV on November
19, 2013. Plaintiff has now moved for a default judgment against AAV, requesting $10,651.06
in actual damages and $17,716.61 in liquidated damages for violations of state and federal law
together with $48,649.75 in attorneys fees and $3,709.09 in costs.
B.
Discussion
Plaintiff’s amended complaint is an apparent attempt to assert successor liability against
AAV for the FLSA and state law violations alleged against AAT. However, the complaint is
devoid of any facts to plausibly suggest that there is such a continuity of operations between
AAV and AAT that AAV should be held liable for AAT’s violations or that any of the other
factors that permit successor liability are present here. See, e.g., Musikwamba v. ESSI, Inc., 760
F.2d 740, 750–51 (7th Cir. 1985). In other words, Plaintiff’s amended complaint fails to state a
claim for successor liability against AAV.
Default judgment is appropriate only if the well-pleaded allegations of the complaint are
sufficient to establish a legal claim. Gard v. B & T Fin. Serv., No. 2:12-CV-5, 2013 WL 228816,
*1 (N.D. Ind. Jan. 22, 2013). See also Marshall v. Baggett, 616 F.3d 849, 854 (8th Cir. 2010)
1
Later, the parties stipulated to the dismissal of the remaining counterclaims, leaving for trial Plaintiff’s
FLSA claims.
2
(default judgment against corporate officer reversed where complaint on corporate debt failed to
allege any basis for officer’s individual liability). Because Plaintiff has failed to state a claim
against AAV, the Court cannot grant her motion.
C.
Conclusion
For the foregoing reasons, Plaintiff’s motion for default judgment against Defendant All
About Vacations Inc. (DE 137) is DENIED. The Court grants Plaintiff leave to amend her
amended complaint by July 18, 2014.
SO ORDERED on June 19, 2014.
s/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge
3
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