Berrios v. Green Wireless, LLC et al

Filing 48

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

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 fi.om 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.