Pacheco Henriquez v. Magno Enterprises, LLC, et al

Filing 33

MEMORANDUM. Signed by Judge Ellen L. Hollander on 8/10/18. (krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ESDRAS NEHEM PACHECO
HENRIQUEZ,
Plaintiff,
v.

Civil Action No. ELH-17-1417

MAGNO ENTERPRISES, LLC, d/b/a
MAGNUM FLOORING, et al.
Defendants.
MEMORANDUM
On January 22, 2018, plaintiff Esdras Nehem Pacheco Henriquez filed suit against his
former employers, Magno Enterprises, LLC, d/b/a Magnum Flooring (“MF”) and Alessandro
Magno. ECF 1. Pacheco Heriquez asserts wage claims under the Fair Labor Standards Act
(“FLSA”), as amended, 29 U.S.C. § 201 et seq.; the Maryland Wage And Hour Law (“MWHL”),
Md. Code (2016 Repl. Vol., 2017 Supp.), §§ 3-401 et seq. of the Labor and Employment
Article (“L.E.”); and the Maryland Wage Payment and Collection Law (“MWPCL”), L.E. §§ 3501 et seq. See ECF 1. In particular, plaintiff seeks compensation for hours he worked as a
flooring installer. Id. ¶ 17.
The docket reflects that defendants were served on June 1, 2017, by personal service on
Alessandro Magno. See ECF 4; ECF 5. Mr. Magno, who is self-represented, answered the suit
on December 1, 2017. ECF 17. However, because parties other than individuals must be
represented by counsel to appear in this Court, Mr. Magno could not answer on behalf of MF.
See Local Rule 101.1. Therefore, pursuant to a request by plaintiff (ECF 13), the Clerk entered
an Order of Default as to MF on October 25, 2017. ECF 14.

On December 22, 2017, plaintiff filed a Rule 55(b)(2) Motion for Entry of Default
Judgment and Award of Attorneys’ Fees and Costs. ECF 19 (“Motion”). The Motion is
accompanied by the Declaration of Esdras Nehem Pacheco Henriquez (ECF 19-1, “Plaintiff’s
Declaration”), as well as several exhibits in support of plaintiff’s claims for unpaid wages (ECF
19-2 and ECF 19-3). And, the Motion contains an exhibit in support of plaintiff’s requested
attorneys’ fees. ECF 19-4.
The Motion requests that judgment be entered against MF in the amount of $55,145.01,
plus prejudgment interest; that plaintiff be awarded attorneys’ fees in the amount of $3,810.00;
and that plaintiff be awarded costs in the amount of $465.00. ECF 19 at 11. MF has not
responded to the Motion, and the time to do so has expired. See Local Rule 105.2(a).
No hearing is necessary to resolve the Motion. See Local Rule 105.6. Because I find that
the Motion is premature, I shall deny the Motion, without prejudice.
I.

Legal Standard

Rule 55(b) of the Federal Rules of Civil procedure governs default judgments.

In

particular, Rule 55(b)(1) provides that the clerk may enter a default judgment if the plaintiff’s
claim is “for a sum certain or a sum that can be made certain by computation.”1 But, “[a]
plaintiff’s assertion of a sum in a complaint does not make the sum ‘certain’ unless the plaintiff
claims liquidated damages; otherwise the complaint must be supported by affidavit or
documentary evidence. Monge v. Portofino Ristorante, 751 F. Supp. 2d 789, 794 (D. Md. 2010)
(Grimm, M.J.).2

1

If the sum is not certain or ascertainable through computation, the court looks to Rule

55(b)(2).
2

Judge Grimm now serves as a United States District Judge. But, he authored Monge
when he was a United States Magistrate Judge.
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To be sure, the United States Court of Appeals for the Fourth Circuit has a “strong policy
that cases be decided on the merits.” United States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th
Cir. 1993); see Tazco, Inc. v. Director, Office of Workers’ Compensation Program, 895 F. 2d
949, 950 (4th Cir. 1990). But, that policy is not absolute. Default judgment “‘is appropriate
when the “adversary process has been halted because of an essentially unresponsive party.’”
Entrepreneur Media, Inc. v. JMD Entertainment Group, LLC, 958 F. Supp. 2d 588, 593 (D. Md.
2013) (quoting SEC v. Lawbaugh, 359 F. Supp. 2d 418, 421 (D. Md. 2005)).
Upon the entry of default against a party, the court must determine whether the
undisputed factual allegations constitute a legitimate cause of action. Id. at 780-81; see also 10A
Wright, Miller & Kane, Federal Practice and Procedure § 2688 (3d ed. 2010 Supp.)
(“[L]iability is not deemed established simply because of the default . . . and the court, in its
discretion, may require some proof of the facts that must be established in order to determine
liability.”).
If the court is satisfied that liability has been established, it must then determine the
appropriate amount of damages. Ryan, 253 F.3d at 780-81. Allegations “relating to the amount
of damages” are not deemed admitted based on a defendant’s failure to respond to a suit. Fed R.
Civ. P. 8(b)(6); see Ryan, 253 F.3d at 780 (“‘[D]efault is not treated as an absolute confession by
the defendant of his liability and of the plaintiff’s right to recover’”) (citation omitted); Monge,
751 Supp. 2d at 794; Trs. of the Elec. Welfare Trust Fund v. MH Passa Elec. Contracting, Inc.,
DKC-08-2805, 2009 WL 2982951, at *1 (D. Md. Sept. 14, 2009) (“Upon default, the well-pled
allegations in a complaint as to liability are taken as true, although the allegations as to damages
are not.”); Pentech Fin. Servs., Inc. v. Old Dominion Saw Works, Inc., No. 6:09cv00004, 2009

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WL 1872535, at *1 (W.D. Va. June 30, 2009) (“Upon default judgment, Plaintiff’s factual
allegations are accepted as true for all purposes excluding determination of damages.”).
Rather, the court must make an independent determination regarding allegations as to
damages. See Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 154 (2d Cir. 1999).
In so doing, the court may conduct an evidentiary hearing. Fed. R. Civ. P. 55(b)(2). However,
the court may also make a determination of damages without a hearing, so long as there is an
adequate evidentiary basis in the record to support an award of the requested damages. See
Adkins v. Teseo, 180 F. Supp. 2d 15, 17 (D.D.C. 2001) (“[T]he court may rely on detailed
affidavits or documentary evidence to determine the appropriate sum.”); see also Trustees of the
Nat’l Asbestos Workers Pension Fund v. Ideal Insulation, Inc., ELH-11-832, 2011 WL 5151067,
at *4 (D. Md. Oct. 27, 2011) (determining that, in a case of default judgment against an
employer, “the Court may award damages without a hearing if the record supports the damages
requested”); Monge, 751 F. Supp. 2d at 795 (same); Pentech Fin. Servs., Inc., 2009 WL
1872535, at *2 (concluding that there was “no need to convene a formal evidentiary hearing on
the issue of damages” after default judgment because plaintiff submitted affidavits and records
establishing the amount of damages).
Notably, under Fed. R. Civ. P. 54(c), “[a] default judgment must not differ in kind from,
or exceed in amount, what is demanded in the pleadings.” See In re Genesys Data Techs, Inc.,
204 F.3d 124, 132 (4th Cir. 2000) (“When a Complaint demands a specific amount of damages,
courts have generally held that a default judgment cannot award additional damages.”). This is
meant to enable the defendant to decide whether to expend the resources to defend the action.
Monge, 751 F. Supp. 2d at 796.

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II.

Factual Allegations

The Complaint alleges that plaintiff worked for MF, which was controlled by Magno,
between January 4, 2014, and October 25, 2016. ECF 1, ¶¶ 10, 17. Plaintiff asserts that from
January 4, 2014, through October 3, 2015, he was paid a daily rate of $130.00; and that from
October 10, 2015, through July 30, 2016, he was paid at a daily rate of $140.00. Id. ¶ 18. For
the remainder of his employment, he was paid at a daily rate of $160.00. Id. Further, plaintiff
maintains that he worked in excess of 40 hours per week, but was never paid at an overtime rate
for those hours. Id. ¶ 20. In the Introduction to the Complaint, plaintiff asserts that he worked
“between sixty and eighty-four hours per week.” ECF 1 at 2.
Accordingly, plaintiff claims that defendants violated the provisions of the FLSA and
MWHL by failing to pay him overtime. ECF 1 at 6-7; see 29 U.S.C. § 206; L.E. § 3-413. And,
plaintiff maintains that defendants also violated the MWPCL by failing to pay him all wages
owed. ECF 1, ¶¶ 30-32.
III.

Default Judgment as to Only One Party

Plaintiff seeks default judgment against MF, one of two defendants. ECF 19. Final
judgment can be entered as to one of multiple defendants if the court “expressly determines that
there is no just reason for delay.” Fed. R. Civ. P. 54(b). But, an order or decision “that
adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does
not end the action as to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Id.
Plaintiff’s Motion does not address the implications of granting a default judgment as to
only one party. This omission is of concern, in light of the principles articulated in Frow v. De
La Vega, 82 U.S. (15 Wall.) 552 (1872).

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In Frow, the plaintiff alleged that multiple defendants, including Frow, conspired to
defraud him of land. 82 U.S. (15 Wall.) at 553. Frow failed to answer the complaint and the
lower court entered a final decree against him. Id. Meanwhile, the other defendants answered
the complaint and prevailed on the merits. Id. When the case reached the United States
Supreme Court, Justice Bradley described this inconsistent result as “unseemly and absurd.” Id.
at 554. The Court said that, ordinarily, in order to avoid the risk of inconsistent judgments in a
multi-defendant case, the proper course “is simply to enter a default” against the defaulting party,
and to “proceed with the cause upon the answers of the other defendants.” Id.; see also 10A
Wright and Miller § 2690 (“As a general rule . . . , when one of several defendants who is alleged
to be jointly liable defaults, judgment should not be entered against that defendant until the
matter has been adjudicated with regard to all defendants, or all defendants have
defaulted.”); accord United States ex rel. Hudson v. Peerless Ins. Co., 374 F.2d 942, 944 (4th
Cir. 1967); Mullins v. River Docks, Corp., 791 F. Supp. 2d 511, 512 (E.D. Va. 2011); Carter v.
Rosenberg, AMD-04-759, 2005 WL 782923, at *4 (D. Md. Apr. 7, 2005).
To be sure, subsequent case law has recognized that Frow’s holding is limited to
situations alleging “joint and/or several” liability, or at least “‘closely related’” liability. Hudson,
374 F.2d at 944-45 (citation omitted). To illustrate, if “the nondefaulting defendant’s defense is
a personal one—infancy, for example—and would not be available to the defaulting defendant,”
the Frow rule would not apply. 10A Wright and Miller § 2690; see Whelan v. Abell, 953 F.2d
663, 674-75 (D.C. Cir. 1992) (stating that Frow doctrine pertains “when liability is truly joint—
that is, when the theory of recovery requires that all defendants be found liable if any one of
them is liable—and when the relief sought can only be effective if judgment is granted against
all”); Int’l Controls Corp. v. Vesco, 535 F.2d 742, 746-47 n.4 (2d Cir. 1976) (“[A]t most, Frow

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controls in situations where the liability of one defendant necessarily depends upon the liability
of the others.”), cert. denied, 434 U.S. 1014 (1978). See generally Phoenix Renovation Corp. v.
Gulf Coast Software, Inc., 197 F.R.D. 580, 582-83 (E.D. Va. 2000) (reviewing cases).
The Complaint alleges that both defendants—Mr. Magno and MF—are responsible for
allegedly underpaying plaintiff. See ECF 1, ¶¶ 4-16. Indeed, in the Complaint, plaintiff requests
entry of “judgment against Defendants, jointly and severally.” Id. at 5, 6, 7.
As a result, at this stage it is inappropriate to grant a default judgment against one of two
parties, so long as the other party is active in the case. See Fed. R. Civ. Pro. 54(b).
IV.

Conclusion

For the reasons discussed, I shall DENY the Motion, without prejudice to plaintiff’s right
to refile it at the appropriate time. An Order follows.

Date: August 10, 2018

/s/
Ellen Lipton Hollander
United States District Judge

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