Tagre v. Continental USA Kitchens & Baths, Inc. et al

Filing 11

MEMORANDUM OPINION (c/m to Defendants 11/4/15 sat). Signed by Judge Deborah K. Chasanow on 11/4/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MARIO TAGRE
:
v.

:

Civil Action No. DKC 14-2467

:
CONTINENTAL USA KITCHENS & BATHS,
INC., et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case
involving alleged violations of the Fair Labor Standards Act
(“FLSA”) and the Maryland Wage and Hour Law (“MWHL”) is a motion
for default judgment and for attorney’s fees and costs filed by
Plaintiff Mario Tagre (“Plaintiff”).

(ECF No. 10).

now rules, no hearing being deemed necessary.

The court

Local Rule 105.6.

For the following reasons, Plaintiff’s motion will be granted in
part and denied in part.
I.

Background
A.

Factual Background

Unless otherwise noted, the following facts are set forth
in the complaint.

(ECF No. 1).

Defendant Peter Komorowski is

the registered agent and owner of Defendants Continental USA
Kitchens

and

Baths,

Inc.

(collectively, “Defendants”).

and

Continental

(Id. ¶¶ 3-5).

Surfaces,

LLC

Plaintiff worked

as a general laborer for Defendants from approximately July 2012
through March 2014.

(Id. ¶ 20).

Plaintiff alleges that Mr.

Komorowski had the power to set and control Plaintiff’s work
schedule and rate of pay.

(Id. ¶¶ 17-18).

Plaintiff has provided an affidavit signed under penalty of
perjury stating that, from July 2012 until October 2013, he was
paid a flat hourly rate of $15 per hour.

(ECF No. 10-1 ¶ 9).

His affidavit also asserts that for a period of twenty weeks
from October 2013 until March 2014, he was paid a “hybrid” rate
that

utilized

rate.”

a

combination

of

an

hourly

rate

and

a

“piece

The piece rate was determined based on the quantity of

work completed.

(Id. ¶ 8).

Plaintiff declares in his sworn

affidavit that, when he was paid at the hybrid rate, his hourly
rate was $15.66 per hour.

(Id. ¶ 10).

Plaintiff further avers

that, during those twenty weeks from October 2013 to March 2014,
he worked an average of forty-seven hours a week, but was not
paid time and a half for his overtime hours.
B.

(Id. ¶¶ 11-12).

Procedural History

Plaintiff filed his complaint on August 5, 2014.
1).

(ECF No.

The complaint alleges minimum wage and overtime violations

pursuant to the FLSA, 29 U.S.C. § 201 et seq. (Count I); the
MWHL, Md. Code Ann., Lab. & Empl. § 3-401 et seq. (Count II);
and the Maryland Wage Payment and Collection Law (“MWPCL”), Md.
Code Ann., Lab. & Empl.

§ 3-501 et seq. (Count III).1

1

Plaintiff’s pending motion for default judgment
requests judgment on the FLSA and MWHL overtime violations.
2

only

Service

of

process

(ECF Nos. 3; 4; 5).

was

properly

effected

on

Defendants.

Defendants failed to respond within the

requisite time period, and Plaintiff moved for entry of default.
(ECF No. 6).

The clerk entered default on October 28, 2014.

(ECF No. 7).

Plaintiff filed the pending motion for default

judgment on the FLSA and MWHL overtime counts on May 5, 2015.
(ECF No. 10).

To date, Defendants have taken no action in the

case.
II.

Standard of Review
Under

Federal

Rule

of

Civil

Procedure

55(a),

“[w]hen

a

party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is
shown

by

affidavit

party’s default.”

or

otherwise,

the

clerk

must

enter

the

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.”

Where a default has been previously entered by the clerk and the
complaint does not specify a certain amount of damages, default
judgment

may

be

entered

upon

the

pursuant to Fed.R.Civ.P. 55(b)(2).

plaintiff’s

application

“Upon [entry of] default,

the well-pled allegations in a complaint as to liability are
taken as true, although the allegations as to damages are not.”
S.E.C. v. Lawbaugh, 359 F.Supp.2d 418, 422 (D.Md. 2005).
remains,

however,

“for

the

court
3

to

determine

whether

It

these

unchallenged factual allegations constitute a legitimate cause
of action.”

Agora Fin., LLC v. Samler, 725 F.Supp.2d 491, 494

(D.Md. 2010).
Where a complaint does not specify an amount, such as here,
“the court is required to make an independent determination of
the sum to be awarded.”

Adkins v. Teseo, 180 F.Supp.2d 15, 17

(D.D.C. 2001) (citing S.E.C. v. Mgmt. Dynamics, Inc., 515 F.2d
801, 814 (2d Cir. 1975); Au Bon Pain Corp. v. Artect, Inc., 653
F.2d 61, 65 (2d Cir. 1981)).

While the court may hold a hearing

to consider evidence as to damages, it is not required to do so;
it

may

rely

evidence

instead

to

on

determine

“detailed

the

affidavits

appropriate

sum.”

or

documentary
Adkins,

180

F.Supp.2d at 17 (citing United Artists Corp. v. Freeman, 605
F.2d

854,

857

(5th

Cir.

1979));

see

also

Laborers’

District

Council Pension, et al. v. E.G.S., Inc., Civ. No. WDQ-09-3174,
2010 WL 1568595, at *3 (D.Md. Apr. 16, 2010) (“[O]n default
judgment, the Court may only award damages without a hearing if
the record supports the damages requested.”).
III. Analysis
A.

Liability

Defendants were served with the complaint, but have not
responded.

Accordingly, all of Plaintiff’s allegations as to

liability are deemed admitted.

4

The FLSA provides that, for any hours worked in excess of
forty hours per week, an employee shall “receive[] compensation
for his employment . . . at a rate not less than one and onehalf times the regular rate at which he is employed.”
§ 207.

29 U.S.C.

Similarly, Section 3-415 of the MWHL requires employers

to pay their employees an overtime wage of at least one-and-half
times their usual hourly wage for work they perform in excess of
forty hours per week.
420.

Md.Code Ann., Lab. & Empl. §§ 3-415, 3-

“The requirements of the MWHL ‘mirror’ those of the FLSA,

and

claims

together.”

under

both

statutes

therefore

stand

or

fall

Orellana v. Cienna Properties, LLC, Civ. No. JKB-11-

2515, 2012 WL 203421, at *5 (D.Md. Jan. 23, 2012) (citing Turner
v. Human Genome Science, Inc., 292 F.Supp.2d 738, 744 (D.Md.
2003)).
Plaintiff alleges that he worked approximately forty-seven
hours per week for twenty weeks from October 2013 until March
2014, but was paid his regular rate for the hours worked after
forty hours each week.
were

Plaintiff’s

Plaintiff also avers that Defendants

“employer”

and

were

engaged

commerce with revenues exceeding $500,000.00.
10); see 29 U.S.C. §§ 203, 207.
that,

from

July

2012

to

in

interstate

(ECF No. 1 ¶¶ 7-

Specifically, Plaintiff asserts

March

2014,

he

was

an

employee

of

Defendants Continental USA Kitchens & Bath, Inc. and Continental
Surfaces,

LLC.,

(ECF

No.

10-1
5

¶

2),

and

Defendant

Peter

Komorowski was his supervisor and the registered agent and owner
of both entities (ECF Nos. 1 ¶ 5; 10-1 ¶ 3).2

Accepting as true

the

established

well-pled

allegations,

Plaintiff

has

that

Defendants are liable to Plaintiff under the FLSA and the MWHL.
B.

Damages

Although Plaintiff did not request a specific sum in the
complaint, Defendants were on notice of Plaintiff’s allegations
that for certain weeks he was not paid overtime.3

See, e.g.,

Labuda v. SEF Stainless Steel, Inc., Civ. Action No. RDB-111078, 2012 WL 1899417, at *2 (D.Md. May 23, 2012) (“[T]his Court
has held that as long as the defendant receives notice that some
damages may be awarded, allegations and supporting affidavits
regarding

damages

money damages.”).

suffice

to

support

a

default

judgment

for

“In cases such as the present one in which

wage and pay records, required to be kept by employers pursuant
to 29 U.S.C. § 211(c), are not available, [the employee] must
show the amount and extent of [his] improperly compensated work
2

Plaintiff has sufficiently alleged that the FLSA’s broad
and expansive definition of “employer,” which includes “any
person acting directly or indirectly in the interest of an
employer in relation to an employee,” covers Mr. Komorowski. 29
U.S.C. § 203(d); see also Jones v. Williams, No. CCB-11-0793,
2011 WL 5110380, at *3 (D.Md. Oct. 24, 2011) (discussing how an
individual was an “employer” under the FLSA because he had
“extensive managerial responsibilities and ‘substantial control
of the terms and conditions of the work of . . . employees’”)
(quoting Falk v. Brennan, 414 U.S. 190, 195 (1973)).
3

In
fact,
the
uncompensated overtime.

complaint
6

overestimated

Plaintiff’s

‘as a matter of just and reasonable inference.’”

Lopez v. Laws

‘R’ Us, Civ. No. DKC-07-2979, 2008 WL 2227353, at *3 (D.Md. May
23, 2008) (quoting

Donovan v. Bel-Loc Diner, Inc., 780 F.2d

1113, 1116 (4th Cir. 1985)).

Moreover, an employee’s statement

under oath “as to his recollection of the hours he worked and
the pay he received, if considered credible by the trier of
fact, is sufficient to establish a prima facie case of wages
owed,”

and

if

the

employer

does

not

successfully

rebut

the

employee’s statement, “[t]he Court may award damages based on
Plaintiffs’ testimony even though the amounts claimed are only
approximated and not perfectly accurate.”
Plaintiff
number

of

credibly

overtime

establishes

hours

for

his

which

he

Id. at *3.
rate
did

of

pay

not

and

receive

the
an

overtime premium, albeit by a sworn affidavit instead of live
testimony.
For twenty weeks from October 2013 to March 2014, Plaintiff
was paid a “hybrid rate,” which was a combination of a flat
hourly rate and a rate based on the quantity of work Plaintiff
completed.

(ECF

No.

10-1

¶

8).

For

these

twenty

weeks,

Plaintiff worked an average of forty-seven hours per week and
was paid an average of $15.66 per hour for the time worked.
(Id. ¶¶ 10-11).

Plaintiff was not compensated at the mandated

time and a half rate for overtime worked each of the twenty
weeks.

Because Plaintiff was paid his regular rate for the
7

overtime worked, he is due overtime compensation in an amount of
fifty percent his regular rate ($7.83) multiplied by the total
number of overtime hours worked (seven hours a week for twenty
weeks, for a total of 140 overtime hours worked).

Accordingly,

Plaintiff is entitled to $1,096.20 in overtime wages for work
performed from October 2013 through March 2014.
Plaintiff also requests liquidated damages pursuant to the
FLSA.4
court

(ECF No. 10, at 5-6).
to

award,

in

29 U.S.C. § 216(b) authorizes the

addition

to

compensatory

additional equal amount as liquidated damages.”
Circuit

has

held

that

a

grant

of

liquidated

damages,

“The Fourth

damages

‘norm’ in cases in which the FLSA is violated.”

“an

is

the

Williams v.

Maryland Office Relocators, 485 F.Supp.2d 616, 620 (D.Md. 2007)
(citing Mayhew v. Wells, 125 F.3d 216, 220 (4th Cir. 1997)).

The

court can deny or reduce liquidated damages if the defendant
shows that the “act or omission giving rise to such action was
in good faith and that he had reasonable grounds for believing
that his act or omission was not a violation of the [FLSA].”
U.S.C.

§

showing,

260.

Here,

Plaintiff

because

is

Defendants

entitled

4

to

have

not

liquidated

made

29
any

damages.

Plaintiff notes that the MWHL allows for liquidated
damages, but the right to liquidated damages under the MWHL only
became effective on July 1, 2014 and would not apply
retroactively to Plaintiff.
Md. Code. Ann., Lab. & Empl. § 3427 (2014).
Therefore, Plaintiff can only seek liquidated
damages under the FLSA.
8

Accordingly, Defendants are liable to Plaintiff in the total
amount of $2,192.40.
C.

Attorney’s Fees and Costs

In any action under the FLSA, “[t]he court . . . shall, in
addition to any judgment awarded to the plaintiff or plaintiffs,
allow a reasonable attorney’s fee to be paid by the defendant,
and costs of the action.”
attorneys’

fees

claims

mandatory.

is

and

costs

29 U.S.C. § 216(b).
to

“The

employees
amount

of

The payment of

who

prevail

on

the

attorney’s

FLSA
fees,

however, is within the sound discretion of the trial court.”
Burnley v. Short, 730 F.2d 136, 141 (4th Cir. 1984).

The MWHL

also allows for the recovery of attorneys’ fees and costs.

See

Md. Code Ann., Lab. & Empl. § 3–427 (“If a court determines that
an employee is entitled to recovery in an action under this
section, the court may allow against the employer reasonable
counsel fees and other costs.”).
Plaintiff

was

represented

by

Matthew

B.

Kaplan,

of

The

Kaplan Law Firm, and Edward Gonzalez of The Law Office of Edward
Gonzalez,

PC.

(ECF

No.

10,

at

6).

Mr.

Kaplan

seeks

compensation for 12.61 hours, all expended by Mr. Kaplan, who
seeks $350 per hour for a total of $4,414.90.

Mr. Gonzalez

seeks compensation for 29.40 hours, of which 13.20 hours were
expended by Mr. Gonzalez at an hourly rate of $450, and 16.20

9

hours were expended by Mr. Gonzalez’s colleagues at hourly rates
of $150 or $190 for a total of $8,390.00.
“The most useful starting point for determining the amount
of a reasonable fee is the number of hours reasonably expended
on

the

litigation

multiplied

by

a

reasonable

hourly

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
is commonly known as the “lodestar” method.

This approach
Grissom v. The

Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008).5
what

constitutes

“reasonable”

rate,

a

“reasonable”
numerous

number

factors

may

rate.”

of

In deciding
hours

prove

and

a

pertinent,

including:
(1) the time and labor expended; (2) the
novelty and difficulty of the questions
raised; (3) the skill required to properly
perform the legal services rendered; (4) the
attorney’s opportunity costs in pressing the
instant litigation; (5) the customary fee
for
like
work;
(6)
the
attorney’s
expectations
at
the
outset
of
the
litigation; (7) the time limitations imposed
by the client or circumstances; (8) the
amount
in
controversy
and
the
results
obtained; (9) the experience, reputation and
ability
of
the
attorney;
(10)
the
undesirability of the case within the legal
community in which the suit arose; (11) the
nature
and
length
of
the
professional
relationship between attorney and client;
and (12) attorneys’ fees awards in similar
cases.

5

Maryland courts also use the “lodestar” method
determining attorneys’ fees under fee-shifting statutes.
e.g., Friolo v. Frankel, 373 Md. 501, 504-05 (2003).
10

when
See,

Robinson v. Equifax Info. Servs., 560 F.3d 235, 243–44 (4th Cir.
2009) (quoting Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n.28
(4th Cir. 1978)).

“[T]he burden rests with the fee applicant to

establish the reasonableness of a requested rate.”

Id. at 244

(quoting Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990)).
“In addition to the attorney’s own affidavits, the fee applicant
must produce satisfactory specific evidence of the prevailing
market rates in the relevant community for the type of work for
which he seeks an award,” including, for example, “affidavits of
other local lawyers who are familiar both with the skills of the
fee applicants and more generally with the type of work in the
relevant community.”

Id. at 244, 245 (internal quotation marks

omitted).
Counsel has not provided evidence other than affidavits of
Mr. Kaplan and Mr. Gonzalez and detailed billing sheets from
their

firms,

evidence

but

the

necessary

in

undersigned
this

case.

does

not

deem

The

additional

court

has

previously

considered fee petitions in a number of similar cases, including
a case filed by Mr. Kaplan, and found reasonable the same hourly
rate

Mr.

Kaplan

requests

here.

See,

e.g.,

Utilities, No. DKC-13-2997, ECF Nos. 24; 26.

Guerra

v.

NVA

In addition, the

rates comply with the guidelines set forth in the Local Rules.
Local Rules App’x B.

Accordingly, the hourly rates for Mr.

Kaplan and Mr. Gonzalez are deemed reasonable.
11

Although the

court

finds

reasonable,
documentation

Mr.

Kaplan’s

Plaintiff

Mr.

provides

supporting

Gonzalez’s colleagues.

and

the

Gonzalez’s

no

hourly

affidavits

requested

hourly

rates

or

rates

other
for

Mr.

It is unclear if they are paralegals or

less experienced lawyers.

It is also unclear why one of the

colleague’s hourly rate fluctuates.

Absent any support for the

requested

Mr.

rates,

work

performed

by

Gonzalez’s

colleagues

will be credited at an hourly rate of $95 per hour.6
The

number

specificity.

of

hours

expended

are

well-documented

(ECF Nos. 10-2, at 5-6; 10-3, at 5-6).

with

However,

Plaintiff offers no explanation or justification supporting the
need for multiple lawyers and paralegals from two separate law
firms to work on his case, and it appears that there was some
unreasonable
Plaintiff

duplication

contends

that

of
the

hours
case

expended
presented

on

certain

tasks.

difficult

issues

(such as a language barrier and the calculation of the hybrid
rate), but, even with these difficulties, the number of hours
requested is unreasonable.

Other than the calculation of the

hybrid rate, Plaintiff’s case is a fairly straightforward FLSA
overtime violation case.

In addition, because Defendants have

not made an appearance, Plaintiff has not had to react to any
unexpected legal theories or tactics.

6

Finally, both Mr. Kaplan

The Local Rules’ rate for paralegals and law clerks is
$95-$150. Local Rules App’x B.
12

and Mr. Gonzalez request hourly rates at the high end of the
guidelines in the Local Rules, and therefore are expected to
handle difficult issues ably, be more efficient in their time,
and exercise prudent billing judgment.
Mr. Kaplan requests compensation for 3.618 hours of work
completed

before

the

complaint

was

filed

and

Mr.

Gonzalez

requests 16.6, 2.7 for himself and 13.9 for his colleagues.
(ECF Nos. 10-2, at 5-6; 10-3, at 5-6).

The hours Mr. Kaplan and

Mr. Gonzalez spent reviewing, editing, and revising the draft
complaint

will

be

reduced

by

half

because

there

is

no

justification for the involvement of two partners in this case,
particularly at the pleadings stage.
even

with

the

aforementioned

The court also finds that,

reduction,

the

requested

17.59

hours requested for work done before the filing of the complaint
is

unreasonable,

particularly

because

the

complaint

does

not

include any damages calculations and Plaintiff is not seeking
judgment

on

the

complaint’s

minimum

wage

or

MWPCL

claims.

Accordingly, the undersigned will reduce the pre-complaint hours
by

an

additional

one-quarter.

The

post-complaint

hours

requested will be further reduced in the following ways:


Mr. Gonzalez requests compensation for 0.3 hours on
December 3, 2014, which includes “review[ing] proposed
dates from opposing counsel.”

13

(Id.).

This entry is

clearly

erroneous

as

Defendants

have

not

made

an

appearance in this case.


The 0.9 hours Mr. Gonzalez spent on “travel to office
on snow day and wait for client” on February 21, 2015
is non-compensable time.



On March 19, 2015, Mr. Kaplan and Mr. Gonzalez spoke
with Mr. Tagre for 0.9 hours.
half

because

there

is

attorneys to be present.

no

This will be reduced by
justification

for

both

See Local Rules App’x B, at

2.d.
For the foregoing reasons, $3,487.88 will be awarded for
9.965 hours worked by Mr. Kaplan, and $5,798.88 will be awarded
for 22.925 hours worked by Mr. Gonzalez and his colleagues.
Plaintiff also seeks $552.90 for litigation costs.

Mr.

Kaplan requests reimbursement of $412.90, which consists of a
$400 filing fee and $12.90 for computer research.
2, at 7).
fees.

(ECF No. 10-

Mr. Gonzalez requests $140 for service of process

(ECF No. 10-3, at 7).
[T]he Fourth Circuit has held that district
courts have discretion to determine the
costs that will be assessed against losing
defendants in FLSA cases.
Roy v. Cnty. Of
Lexington, S.C., 141 F.3d 533, 549 (4th Cir.
1998).
. . .
[C]osts charged to losing
defendants may include “those reasonable
out-of-pocket
expenses
incurred
by
the
attorney which are normally charged to a
fee-paying
client,
in
the
course
of
providing
legal
services.”
Spell
v.
14

McDaniel, 852 F.2d 762, 771 (4th Cir. 1988).
Types of costs charged to losing defendants
include “necessary travel, depositions and
transcripts,
computer
research,
postage,
court costs, and photocopying.”
Almendarez
v. J.T.T. Enters. Corp., No. JKS-06-68, 2010
WL 3385362, at *7 (D.Md. Aug. 25, 2010).
Andrade v. Aerotek, Inc., 852 F.Supp.2d 637, 644 (D.Md. 2012).
Here,

the

costs

requested

by

Plaintiff

are

reasonable,

necessary, and are detailed with sufficient specificity.
Nos. 10-2, at 7; 10-3, at 7).

(ECF

Accordingly, Plaintiff has met

his “burden of providing sufficient detail . . . to explain and
support [his] requests for fees and costs,” see Andrade, 852
F.Supp.2d

at

645

(citing

Spencer

v.

General

Elec.

Co.,

706

F.Supp. 1234, 1244 (E.D.Va. 1989)), and the requested costs will
be awarded in full.
IV.

Conclusion
For

the

foregoing

reasons,

Plaintiff’s

granted in part and denied in part.

motion

will

be

Judgment will be entered

for Plaintiff in the amount of $2,192.40.

Plaintiff will also

be awarded $9,286.76 in attorney’s fees ($3,487.88 to The Kaplan
Law Firm and $5,798.88 to The Law Office of Edward Gonzalez, PC)
and $552.90 in costs ($412.90 to The Kaplan Law Firm and $140.00
to The Law Office of Edward Gonzalez, PC).

A separate order

will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
15