Tagre v. Continental USA Kitchens & Baths, Inc. et al
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
Civil Action No. DKC 14-2467
CONTINENTAL USA KITCHENS & BATHS,
INC., et al.
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.
Local Rule 105.6.
For the following reasons, Plaintiff’s motion will be granted in
part and denied in part.
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
(Id. ¶¶ 3-5).
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
The piece rate was determined based on the quantity of
(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.
(Id. ¶¶ 11-12).
Plaintiff filed his complaint on August 5, 2014.
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
Plaintiff’s pending motion for default judgment
requests judgment on the FLSA and MWHL overtime violations.
(ECF Nos. 3; 4; 5).
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
Standard of Review
party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is
Rule 55(b)(1) provides that the clerk may
enter a default judgment if the plaintiff’s claim is “for a sum
Where a default has been previously entered by the clerk and the
complaint does not specify a certain amount of damages, default
pursuant to Fed.R.Civ.P. 55(b)(2).
“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).
unchallenged factual allegations constitute a legitimate cause
Agora Fin., LLC v. Samler, 725 F.Supp.2d 491, 494
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;
F.Supp.2d at 17 (citing United Artists Corp. v. Freeman, 605
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.”).
Defendants were served with the complaint, but have not
Accordingly, all of Plaintiff’s allegations as to
liability are deemed admitted.
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.”
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.
Md.Code Ann., Lab. & Empl. §§ 3-415, 3-
“The requirements of the MWHL ‘mirror’ those of the FLSA,
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.
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.
Plaintiff also avers that Defendants
commerce with revenues exceeding $500,000.00.
10); see 29 U.S.C. §§ 203, 207.
(ECF No. 1 ¶¶ 7-
Specifically, Plaintiff asserts
Defendants Continental USA Kitchens & Bath, Inc. and Continental
Komorowski was his supervisor and the registered agent and owner
of both entities (ECF Nos. 1 ¶ 5; 10-1 ¶ 3).2
Accepting as true
Defendants are liable to Plaintiff under the FLSA and the MWHL.
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
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
“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
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)).
‘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
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.”
Id. at *3.
overtime premium, albeit by a sworn affidavit instead of live
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
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
Because Plaintiff was paid his regular rate for the
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).
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
(ECF No. 10, at 5-6).
29 U.S.C. § 216(b) authorizes the
additional equal amount as liquidated damages.”
‘norm’ in cases in which the FLSA is violated.”
Maryland Office Relocators, 485 F.Supp.2d 616, 620 (D.Md. 2007)
(citing Mayhew v. Wells, 125 F.3d 216, 220 (4th Cir. 1997)).
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].”
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.
Accordingly, Defendants are liable to Plaintiff in the total
amount of $2,192.40.
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.”
29 U.S.C. § 216(b).
The payment of
however, is within the sound discretion of the trial court.”
Burnley v. Short, 730 F.2d 136, 141 (4th Cir. 1984).
also allows for the recovery of attorneys’ fees and costs.
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.”).
Kaplan Law Firm, and Edward Gonzalez of The Law Office of Edward
compensation for 12.61 hours, all expended by Mr. Kaplan, who
seeks $350 per hour for a total of $4,414.90.
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
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
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
is commonly known as the “lodestar” method.
Grissom v. The
Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008).5
(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
litigation; (7) the time limitations imposed
by the client or circumstances; (8) the
obtained; (9) the experience, reputation and
undesirability of the case within the legal
community in which the suit arose; (11) the
relationship between attorney and client;
and (12) attorneys’ fees awards in similar
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).
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
Id. at 244, 245 (internal quotation marks
Counsel has not provided evidence other than affidavits of
Mr. Kaplan and Mr. Gonzalez and detailed billing sheets from
considered fee petitions in a number of similar cases, including
a case filed by Mr. Kaplan, and found reasonable the same hourly
Utilities, No. DKC-13-2997, ECF Nos. 24; 26.
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.
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
will be credited at an hourly rate of $95 per hour.6
(ECF Nos. 10-2, at 5-6; 10-3, at 5-6).
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
(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.
Finally, both Mr. Kaplan
The Local Rules’ rate for paralegals and law clerks is
$95-$150. Local Rules App’x B.
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
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
justification for the involvement of two partners in this case,
particularly at the pleadings stage.
The court also finds that,
hours requested for work done before the filing of the complaint
include any damages calculations and Plaintiff is not seeking
Accordingly, the undersigned will reduce the pre-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.”
This entry is
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.
attorneys to be present.
This will be reduced by
See Local Rules App’x B, at
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.
Kaplan requests reimbursement of $412.90, which consists of a
$400 filing fee and $12.90 for computer research.
2, at 7).
(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.
. . .
[C]osts charged to losing
defendants may include “those reasonable
attorney which are normally charged to a
McDaniel, 852 F.2d 762, 771 (4th Cir. 1988).
Types of costs charged to losing defendants
include “necessary travel, depositions and
court costs, and photocopying.”
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).
necessary, and are detailed with sufficient specificity.
Nos. 10-2, at 7; 10-3, at 7).
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. 1234, 1244 (E.D.Va. 1989)), and the requested costs will
be awarded in full.
granted in part and denied in part.
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
DEBORAH K. CHASANOW
United States District Judge
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