Berrios v. Green Wireless, LLC et al

Filing 48

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/8/2018. (aos, Deputy Clerk)

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division * DIANA C. BERRIOS, * Case No.: G.JH-14-3655 Plaintiff, * v. * GREEN WIRELESS, LLC, et al. * Defendants. * * * * * * * * * * MEMORANDUM OPI * as to Defendants Green Wireless. 29 U.S.c. ~ 201 el seq .. the Maryland Code Lab. & Empl.. C'MWPCL"). * 3-401 el seq .. and the Maryland Md. Code. Lab. & Empl.. I. and Michael Pak. of the Fair Labor Standards Wage and I-lour Law ("MWI-IL"). Wage Payment and Collection * 3-50 I el seq. No hearing (D. Md. 2016). For the following reasons. Plaintiffs * Renewed Motion lor LLC C'Green Wireless") ECF NO.4 7. The motion arises out of a lawsuit alleging violations Act C'FLSA"). * ION Presently pending before the Court is Plaintiff Diana C. Berrios' Default Judgment * is necessary. Md. Law Loc. R. 105.6 motion is granted. BACKGROUND A complete discussion in the Court's of the factual and procedural prior opinions. See Berrios 1562902 (D. Md. Apr. 18.2016) 1'. (hereinalter. background of this case can be found Green Wireless. LLC. No. GJI-I-14-3655. "Consem.JII((l!,IIlCIlI Opillioll"). Berrios 2016 WL 1". (freell Wireless. LLe.. No. G.JI-I-14-3655. 2016 WI. 7451297 (D. Md. Dec. 27. 2016) (hercinaltcr. "AI/orney's Fees Opinion"). and Berrios 1'. Green Wireless. LLC. No. GJI-I-14-3655. 2017 WL 2120038 (D. Md. May 15,2017) (hereinafter. only discuss the factual and procedural "Reinstatement Opinion') Thus. the Court will detai Is necessary to resolve the present motion. Plainti ff filed the instant Complaint against her employers Green Wireless, a cell phone and cell phone plan provider: Michael Shin, the owner and manager: and Pak. the co-manager. ECF No. 1.1 The Complaint alleges that Defendants I~liled to pay her overtime wages in violation of the FLSA. MWHL. and MWPCL. After Defendants Complaint, lailed to lile an Answcr to Plaintiffs the Clerk's Onice entered an Order of Del~lUlt against Defendant Green Wireless on March 30. 2015 and Defendants October 22.2015. Shin and Pak on September I. 2015. See ECF Nos. 8. 16. On Plaintiff liled a Motion for Det~lUlt Judgment against all Defendants. 18. On April 18.2016. the Court approved a consent judgment ECF No. between Plainti ITand Shin. Consent .Jlf(~~mentOpinion. ECF No. 29. In the same opinion. the Court stated that "it is unclear whether, in light of the settlement with Mr. Shin. Plaintitfintends to seek additional damages from Green Wireless or Mr. Pak:' Id. at *3. Thus. the Court denied Plaintiffs Judgment as to Defendants Pak and Green Wireless without prejudice. explaining "may relile her motion against the remaining defendants accompanying Order:' Motion for Del~lUlt that Plaintiff within fourteen days of the Id. Plaintiff did not relile the motion within that time period. Instead. in a footnote in her subsequent remaining Motion for Attorncy's defendants "if this judgment for attorney fees, is fully satisfied:' that this judgment defendants." Fees against Shin. Plaintiff stated her intention to dismiss the [against Defendant ShinJ, along with any modification ECF No. 31 at 1. Plaintiff further stated that "in the event is not paid, Plaintiff intends to prosecute her claims as to the two remaining Id. I Pin cites to documents filed on the COUl1'selectronic filing system (CM/ECF) refer to the page numbers generated by that system. 2 On July 7. 2016, PlaintifTrequested that the Clerk "mark the judgment 01'$3.000.00 having been paid" but noted that because Plaintiff's pending. Plaintiffs claim for attorney's On December 27.2016, Motion for Attorney's Fees was still fees and cost had not been satisfied. ECF the Court awarded PlaintifT$16AII0.00 as 0.34. in attorney's fees and costs. Attorney's Fees Opinion. ECF No. 35. In that same opinion. the Court dismissed the remaining claims against Defendants previously stated its intent to dismiss the remaining defendants judgment remaining Pak and Green Wireless, noting that ,.the Plaintiff upon the satisfaction awarded against Defendant Shin ... [and] [a]s that judgment claims are dismissed:' Id. On January 3. 2017. Defendant of the has been satisfied ... the Shin appealed the AI/orney's Fees Opinion to the United States Court of Appeals for the Fourth Circuit. ECF No. 37. On May 15,2017, while the appeal was pending. the Court granted Plaintiffs Vacate and Reinstate her previously dismissed claims against Defendants Motion to Pak and Green Wireless under Fed. R. Civ. P. 59(e). See Reinstatement Opinion. ECF No. 41. The Court determined that its prior dismissal of Defendants Pak and Green Wireless was in error because Plaintiff only intended to dismiss these defendants if the judgment against Defendant Shin. including any award of attorney fees. was fully satislied. Id. at *3. Because the AI/orney's Fees Opinion was pending appeal. the award had not been satisfied. and the Court reinstated Plaintifrs claims against Defendants Pak and Green Wireless. Id. The Court then granted Plaintiff a stay pending resolution of the appeal. ECF No. 44. but the Fourth Circuit determined that in light of the Reinstatement Opinion. the AI/orney's Fees Opinion was no longer a final order and dismissed Shin's appeal for lack of jurisdiction. (4th Cir. 2017) (citing Fed. R. App. P. 4(a)(4)(B)(i» See Berrios v. Shin, 700 F. App'x 222 (docketed as ECF No. 45-1). Plaintiffs Renewed Motion for Default Judgment as to Defendants 3 Pak and Green Wireless. ECF No. 47. followed and is now pending. Defendants Pak and Green Wireless have not responded to the Motion. II. STANDARD OF REVIEW "When a party against whom a judgment plead or otherwise enter the party's for affirmative relief is sought has failed to defend, and that failure is shown by affidavit or otherwise. default." entitle the plaintiff Fed. R. Civ. P. 55(a). '"A defendant's to entry of a default judgment: the clerk must default does not automatically rather, that decision is left to the discretion of the court." Edllc. Credit Mgll1t. Corp. v. Optill1l1l11Welding, 285 F.R.D. 371. 373 (D. Md. 2012). Although "[t]he Fourth Circuit has a 'strong policy' Choice Hotels Intern.. Inc. \'. Savannah that 'cases be decided on their merits,''" Shakti Carp .. No. DKC-II-0438. 2011 WL 5118328. at *2 (D. Md. Oct. 25, 2011) (citing United States v. Sh({ffer Eqllip. Co .. II F.3d 450, 453 (4th Cir. 1993», "default judgment because of an essentially 418,421 may be appropriate unresponsive party[.r when the adversary Id. (citing S,E.c. process has been halted v. Lawhallgh. 359 F. Supp. 2d (D. Md. 2005». "Upon default. the well-pled although the allegations Ryan v. Homecomings defendant, allegations in a complaint as to damages are not." Lawballgh. Fin. Network, as to liability are taken as true. 359 F. Supp. 2d at 422: see also 253 F.3d 778. 780 (4th Cir. 2001) (noting that •.[t]he by [its] default. admits the plaintifrs well-pleaded allegations of fact.'" which provide the basis for judgment). Upon a finding of liability. '"[t]he court must make an independent determination damages regarding Capital Restoration & Painting 54(c) limits the type of judgment judgment Int'l Painters & Allied Trades Indlls. Pension Fllnd \'. Co., 919 F. Supp. 2d 680. 684 (D. Md. 2013). Fed. R. Civ, P. that may be entered based on a party's default: "A default must not differ in kind from, or exceed in amount. what is demanded 4 in the pleadings." While the Court may hold a hearing to prove damages. instead on "detailed affidavits or documentary it is not required to do so: it may rely evidence to determine the appropriate Adkins v. Teseo, 180 F. Supp. 2d 15. 17 (D.D.C. 2001) (citing United Artists Corp. sum." I'. Freeman. 605 F.2d 854, 857 (5th Cir. 1979)). III. DISCUSSION A. Liability The FLSA and MWI-IL require that any employee workweek be paid one-and-one-half worked. See FLSA. pay employees S 3-501(c)(2)(iv); S 207(a)( times their regular rate of pay for each additional I); MWI-IL [the MWI-IL and MWPCL] Under the FLSA, an "employer" (providing requires employers same definition of employer). See FLSA. supervised and controlled whether the employer: determined rates and methods of payment: employee employer work schedules to recover unlawfully with two avenues to do so:'). 203(d): see a/so MWHL individual employer had sufficient or conditions and (4) maintained Inc., 644 F. Supp. 2d 696, 720-21 that the employee (Md. in the interest S 3-401(b) status under the operational control of the (I) had the power to hire and fire employees: may have more than one employer facts establish S In determining whether the purported including v. Frog Is/and Seqlood. allow employees of employment: employment (E.D.N.C. (2) (3) records. See Garcia 2009). Furthermore. for purposes of the FLSA. See 29 C.F.R. an S 791.2(a) is employed jointly by two or more employers, 5 to wages. see MWPCL includes "any person acting directly or indirectly employee. ("[i]fthe including overtime and provide an employee in relation to an employee:' FLSA, courts consider employee Further. the MWPCL hour see a/so Peters v. Ear/y Hea/t!Jcare Gil'er. Inc., 97 A.3d 621. 624-25 wages from their employer, of an employer S 3-415(a). all wages due for work performed. 2014 ("Read together, withheld who works more than forty hours in a i.e. that employment employer(s), considered by one employer all of the employees' as one employment Additionally, administrative, is not completely disassociated work for all of the joint employers for purposes employed capacity"' from the statute's burden of proving an employee by the other during the workweek is of the Act."). the FLSA exempts "any employee or professional from employment in a bona fide executive, overtime protections: is exempt is on the employer however, ancl the exemptions the are construed See Qllirk v. Baltimore COllnty. Md., 895 F.Supp. 773, 777 (D. Md. 1995) (citing narrowly. FLSA. ~ 213(a)(1 )): see also Morrison v. COllnty qlF'aii/ax. 2016) (referring regulations to these exemptions implementing each exemption. determined as the "white collar" exemptions). employees). Department the FLSA set forth general salary and job description of Labor requirements for See 29 C.F.R. ~ 541.2 (..the status of any particular employee must be on the basis of whether the employee's the exemptions) VA, 826 F.3d 758. 761 (4th Cir. salary and duties meet the requirements" added): see. e.g.. 29 C.F.R. (emphasis * 541.100 (General rules for executive While the FLSA and MWHL specify required overtime rate, a salaried employee is not automatically of pay in terms of an hourly exempt. See Desmond r. fNGl Charles Towll Gaming. LLC, 564 F.3d 688. 692 n.4 (4th Cir. 2009) (finding that employee did not meet exemption statutory for administrative minimum employee even though employee received a salary in excess of the 01'$455 per week): see also Colints v. SOllth Carolina Elec. & Gas Co.. 317 F.3d 453, 455 (4th Cir. 2003) ("in order to be exempt 1I"0movertime employee pay requirements. must be paid on a salaried rather than hourly basis, and his employment bona fide administrative, professional, or executive nature") (emphasis must be of a added); kfissel v. Overnight Motor Tramp. Co.. Inc., 126 F.2d 98. 109 (4th Cir. 1942) ("Although 6 an the [FLSAJ only establishes hourly wage standards, workers as well as employees it has been uniformly hourly basis. Id. at ~ 16-17. In December in May 2013 and was initially paid on an 2013. she was put on an $800 bi-weekly salary. and in to $1.000.1d. at ~ 17. In addition to her salary. Plaintiff March 2013, that salary was increased of roughly $100 per month. lei. Plaintiff frequently of forty hours per week. often between paid overtime as covering salaried paid on an hourly basis"'). Plaintiff began working at Green Wireless was also paid a commission interpreted fifty and seventy-five worked in excess hours per week. but she was never wages for the excess hours. lei. at ~~ 18-20. Plaintiff claims that Pak, as co- manager of Green Wireless, Plaintiff. lei. ~ 15. Plaintiff states that she was a clerk but does not provide a detailed account of her job responsibilities wage and overtime affirmative had the power to hire, tire, suspend. and otherwise in support of her assertion defenses that she was not exempt from the minimum of the FLSA. lei. "'116,21. pay protections that an employer discipline However. these exemptions may raise in response to a claim for overtime Ketner v. Branch Banking and Trust Co., 143 F. Supp. 3d 370, 382 (M.D.N.C. wages. are See 2015) (denying motion to dismiss because "exemptions are affirmative against the employer bearing the burden of proof ''). Because the job responsibilities that would otherwise of the Complaint, and Defendants to argue otherwise, Defendants with the employer Plaintiff's Green Wireless FLSA, MWHL, implicate defenses and must be narrowly construed these exemptions are not apparent Green Wireless and Pak have not responded allegations from the face to the Complaint are assumed to be true and the Court finds that and Pak failed to pay Plaintiff overtime and MWPCL. 7 wages in violation of the B. Damages Under the FLSA and MWHL, an employee may recover damages in the amount of unpaid overtime wages, as well as liquidated damages equal to the unpaid wage damages. See FLSA, ~ 216(b); MWHL ~ 3-427(d) (providing for liquidated damages unless employer can prove that failure to pay overtime was in good faith). The statute of limitations under the FLSA is two years but may be extended to three if the employer's failure to pay overtime was willful, ~ 255(a), and three years under the MWHL as a matter of course. See Md. Code Cts. & .Jud. Proc. ~ 5-101. Additionally, under the MWPCL. the Court may award a successful plainti 1'1' additional damages of "an amount not exceeding three times the [unpaid] wages" if the employer's violation of the MWPCL is not the result of a hona.tide dispute about whether the wages are due. See ~ 3-507(b)( I). See Admiral Mor/g .. Inc. I'. Cooper. 745 A.2d 1026. 1034-36 (Md. 2000) (treble damages under the MWPCL is at the discretion of the fact-finder and serves the dual purpose of compensating employees for consequential losses and penalizing employers who withhold wages without colorable justification). Plaintiff alleges that over the course of her employment weekly salary regardless she was paid a nat hourly or of hours worked and is therefore entitled to unpaid overtime in the amount of one and one half times her hourly rate for each hour over forty. On default judgment, the Court may award damages without a hearing iI'the record supports the damages requested. See /'vlonge 1'. Por/(dino Ris/oran/e, 751 F. Supp. 2d 789. 795 (D. Md. 2012). Plaintiff provides an affidavit and accounting corresponding of her ovel1ime hours with her motion, listing total hours worked. the hourly rate, and overtime wages owed on a weekly basis October 2013 8 through September 2014.2 See ECF Nos. 47-2: 47-3. While PlaintifT does not provide the Court with employer-provided pay records, Plaintiffs accounting provides sufficient detail to allow the Court to determine her damages. See Monge. 751 F. Supp. 2d at 798 (citing Lopez U\'. No. DKC-07-2979, 1'. Lawns 'R' 2008 WL 2227353. at *3 (D. Md. May 23. 2008) ("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. improperly compensated [the employee 1 must show the amount and extent of [her] work as a matter o I'just and reasonable inference.") (internal citation and quotation omitted). Plaintiff further alleges that Defendants' failure to pay overtime was knowing. willful. in bad faith, and not the result of a bonafide dispute. lei. at ~ 30.34.40: at 627 (Md. 2014) (employers see a/so Pelers. 97 A.3d maintain burden to show that the MWPCL violation was the result of a bonafide dispute).3 According to Plaintiffs damages calculations. $2,017.84 in overtime wages and requests treble damages in accordance Plaintiff is owed with the MWPCL in the Plaintiff was paid an hourly rate of $8.50 through November 20 13 and claims she is owed an additional $4.25 for each hour worked over forty in a given workweek. Starting in December of 2013. PlaintifT was paid a weekly rate of $400 or $500. In establishing overtime owed as a salaried employee, Plaintiff calculates an effective hourly rate by dividing her weekly rate by the total number of hours worked in a given week and then requests halfofthat effective hourly rate for each hour worked over forty. Although Plainti ff claims that she is owed overtime at a rate of one and one halftimes her hourly rate in her Motion, Plaintiff appears to calculate this overtime owed by the "fluctuating workweek method." See Hills v. En/er,I!.,l' Opera/ions. Inc.. 866 F.3d 610,614 (5th Cir. 2017) (under the fluctuating workweek method, "the regular rate of pay is determined by examining each week individually and dividing the salary paid by the number of hours actually worked (because the salary was intended to compensate whatever number of hours that happened to be)."). The Fourth Circuit has recognized the fluctuating workweek method as "an alternate means by which an employer can determine its employees' regular and ovel1ime rate of pay" rather than the standard time-and-a-half ovel1ime compensation under the FLSA and held that under the fluctuating work week method "the employee must receive a fifty percent overtime premium in addition to the fixed weekly salary for all hours that the employee works in excess of forty during that week." See Griffin 1'. Wake COlln/y, 142 F.3d 712, 715 (4th Cir. 1998) (citing Flood \'. Nell' Hanover COlln/y, 125 F.3d 249. 252 (4th Cir. 1997)); see also Rignl!.l' 1'. Wilson & Co., 61 F.Supp. 801. 803 (S.D. W.V. 1945) (determining an overtime rate for an employee paid a weekly salary "by dividing the weekly salary by the total number of hours worked in each separate week and using the figure so obtained as the hourly rate of pay for that week" and awarding "overtime pay at one-half the hourly rate for work in that week in excess of 40 hours"). Because the fluctuating workweek method is a permissible means of calculating ovel1ime damages for a salaried employee. the Court will accept the calculations underlying Plaintiffs damages request. 3 In the Consent Jlldgmen/ Opinion. the C01ll1 determined that a honafide dispute existed under the FLSA because Shin contended that Plaintiff was a manager and exempt from overtime pay. 2016 WL 1562902, at *2. However. Defendants Green Wireless and Pak have not answered the Complaint. and the Court will not construe Shin's arguments their favor. 2 9 amount 01'$6,053.52. amount. Defendants See ECF No. 47-3. Because Defendant Shin has satisfied $3.000.00 of that Green Wireless and Pak are liable for the remaining $3053.52. See. e.g.. Chisholm v. UHP Pn?iec/s. Inc. 205 F.3d 731. 73 7 (4th Cir. 2000) (the equitable doctrine of the "one satisfaction rule" "operates to reduce a plaintiffs to prevent the plainti 1'1' rom recovering f from a single, indivisible Plaintiff, S 216(b). twice from the same assessment tort-feasor as the prevailing of liability" suffered is entitled to a reduction on a claim against it The Court previously party, is also entitled to reasonable determined jointly and severally attorney's that Plaintiff is entitled to reasonable fees. See FLSA. attorney's fees See A//orney's Fees Opinion. 2016 WL 7451297. Because the Court now rules in favor of Plaintiff against Defendants IV. defendant has entered into a release with another joint tort-feaser). and costs 01'$16,411.00. reinstate from the nonsettling harm); Scapa Dryer Fabrics. Inc. v. Saville. 16 A.3d 159, 180-81 (Md. 2011) (noting that a nonsettlingjoint when the plaintiff recovery Green Wireless and Pak. all Defendants are liable for this fee award, which may be revised should any defendant the recently-dismissed appeal. CONCLUSION For the foregoing reasons, Plaintiffs Renewed Motion for Default Judgment. 47, shall be granted. A separate Order follows. Dated: March ~ 2018 GEORGE.I. HAZEL United States District Judge 10 ECF No.

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