Hernandez v. Hoge
Filing
9
MEMORANDUM OPINION (c/m to Defendant James Christopher Hoge 5/19/16 sat). Signed by Judge Deborah K. Chasanow on 5/19/2016. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MILAGRO DE LA PAZ FLORES
HERNANDEZ
v.
:
:
Civil Action No. DKC 15-1988
:
JAMES CHRISTOPHER HOGE
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this unpaid
wage and overtime case is a motion for default judgment and for
attorney’s fees and costs filed by Plaintiff Milagro De La Paz
Flores Hernandez (“Plaintiff”).
(ECF No. 6).
rules, no hearing being deemed necessary.
The court now
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
Plaintiff worked as a “kitchen hand” for Defendant James
Christopher Hoge (“Defendant”) from 2008 until March 22, 2015.
(ECF No. 6-1 ¶ 3).
During the time period relevant to this
case, Defendant paid Plaintiff $10.00 per hour from June 2012
till May 2014 and $13.00 per hour from May 2014 until March
2015.
(ECF No. 6-2).
According to the complaint, Defendant was
aware of the legal requirements to pay timely wages due, and he
knowingly failed to pay Plaintiff time and a half for overtime
hours worked.
(ECF No. 1 ¶¶ 32, 37).
Plaintiff alleges that
she regularly worked more than forty hours per week and was paid
her regular hourly rate for all hours worked, including overtime
hours.
(Id. ¶¶ 20, 22).
In all, Plaintiff was paid only her
regular rate for 759.5 hours of overtime.1
(See ECF No. 6-2).
Additionally, Plaintiff contends that she was not compensated at
all for thirteen hours of work, both regular and overtime.2
(See
id. at 2-4).
B.
Procedural Background
Plaintiff filed her complaint on July 7, 2015.
1).
(ECF No.
Plaintiff alleges violations pursuant to the Fair Labor
Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq.
(“FLSA”) (Count I); the Maryland Wage and Hour Law, Md. Code
Ann., Lab. & Empl. § 3-401 et seq. (“MWHL”) (Count II); and the
Maryland Wage Payment and Collection Law, Md. Code Ann., Lab. &
Empl. § 3-501 et seq. (“MWPCL”) (Count III).
1
The complaint states that Plaintiff worked “at least 750
hours of overtime” for which she is “owed half of her regular
hourly rate.”
(ECF No. 1 ¶ 23).
Exhibit B, attached to the
motion for default judgment, provides a more precise calculation
of the number of overtime hours worked for which Plaintiff was
paid a regular rate. (ECF No. 6-2).
2
The complaint incorrectly states that Defendant did not
pay Plaintiff “for at least [fifteen] hours of work” for which
she is “owed her regular hourly rate.”
(ECF No. 1 ¶ 24).
Exhibit B shows that Plaintiff was not paid for thirteen hours
of work. (See ECF No. 6-2, at 2-4). Seven of those hours were
overtime. (See id. at 3-4).
2
Service of process was properly effected on Defendant on
July 19, 2015.
When Defendant failed to respond within the
requisite time period, Plaintiff moved for entry of default.
(ECF No. 4).
No. 5).
On September 8, the clerk entered default.
(ECF
On October 5, Plaintiff filed the pending motion for
default judgment and for attorney’s fees and costs, attaching as
exhibits
an
affidavit
of
Plaintiff,
a
damages
calculations
spreadsheet, an example of a timecard that Defendant used to
track
Plaintiff’s
hours
worked,
and
an
affidavit
attorney’s fees, expenses, and court costs.
6-2; 6-3; 6-4).
regarding
(ECF Nos. 6; 6-1;
To date, Defendant has 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
party’s
affidavit
default.”
or
Rule
otherwise,
55(b)(1)
the
clerk
provides
that
must
enter
the
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.”
“Upon [entry of] default, the well-pled allegations in a
complaint as to liability are taken as true, but the allegations
as to damages are not.” S.E.C. v. Lawbaugh, 359 F.Supp.2d 418,
422
(D.Md.
2005).
It
remains,
3
however,
“for
the
court
to
determine
whether
these
unchallenged
factual
allegations
constitute a legitimate cause of action.” Agora Fin., LLC v.
Samler, 725 F.Supp.2d 491, 494 (D.Md. 2010). Federal Rule of
Civil Procedure 54(c) limits the type of judgment that may be
entered based on a party's default: “A default judgment must not
differ in kind from, or exceed in amount, what is demanded in
the pleadings.” Thus, where a complaint specifies the amount of
damages sought, such as here, the plaintiff is limited to entry
of a default judgment in that amount. “[C]ourts have generally
held that a default judgment cannot award additional damages . .
. because the defendant could not reasonably have expected that
his
damages
would
exceed
that
amount.”
In
re
Genesys
Data
Technologies, Inc., 204 F.3d 124, 132 (4th Cir. 2000). While the
court may hold a hearing to consider evidence as to damages, it
is not required to do so; it may rely instead on “detailed
affidavits or documentary evidence to determine the appropriate
sum.”
Adkins
v.
Teseo,
180
F.Supp.2d
15,
17
(D.D.C.
2001)
(citing United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th
Cir. 1979)).
III. Analysis
A.
Liability
Defendant
responded.
was
served
with
the
complaint
but
has
not
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 [her] employment . . . at a rate not less than one and onehalf times the regular rate at which [s]he is employed.” 29
U.S.C. § 207.
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.
§§ 3-415, 3-420.
Md.Code Ann., Lab. & Empl.
“The requirements of the MWHL ‘mirror’ those
of the FLSA, and claims under both statutes therefore stand or
fall together.”
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)).
reiterated
the
Moreover,
reach
of
the
the
Court
MWPCL
of
claim
Appeals
in
of
Peters
Maryland
v.
Early
Healthcare Giver, Inc., 439 Md. 646, 646 (2014):
Maryland has two wage enforcement laws...the
[M]WHL and the [M]WPCL. The [M]WHL aims to
protect Maryland workers by providing a
minimum wage standard. The [M]WPCL requires
an employer to pay its employees regularly
while
employed,
and
in
full
at
the
termination of employment.
Read together,
these statutes allow employees to recover
unlawfully
withheld
wages
from
their
employer,
and
provide
an
employee
two
avenues to do so.
See
also
Marshall
v.
Safeway,
437
Md.
542,
561-62
(2014)
(holding that the MWPCL generally provides an employee with a
5
cause of action against an employer, not just for the failure to
pay wages on time, but also for “the refusal of employers to pay
wages lawfully due”).
Plaintiff alleges that she was not paid time and a half for
the hours worked after forty hours each week.
Additionally,
Plaintiff alleges that she received no compensation for several
hours
worked.
Accepting
as
true
the
well-pled
allegations,
Plaintiff has established that Defendant is liable to Plaintiff
under FLSA, the MWHL, and MWPCL.
B.
Damages
The complaint asserts that Plaintiff is owed approximately
$3,500.00
in
actual
damages
wages.
(ECF No. 1 ¶ 25).
double
or
treble
damages
for
under
(Id. ¶¶ 39, 51).
one
wage
which
and
pay
regular
and
overtime
The complaint also requests either
respectively.
in
unpaid
the
FLSA
or
the
MWPCL,
“In cases such as the present
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 her improperly
compensated
inference.’”
work
‘as
a
matter
of
just
and
reasonable
Lopez v. Laws 'R' Us, Civ. No. DKC-07-2979, 2008
WL 2227353, at *3 (D.Md. May 23, 2008) (quoting Donovan v. BelLoc Diner, Inc., 780 F.2d 1113, 1116 (4th Cir. 1985)).
Moreover,
an employee’s statement under oath “as to [her] recollection of
the hours [s]he worked and the pay [s]he received, if considered
6
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 Plaintiff[’s] testimony even though the
amounts
claimed
accurate.”
1.
are
only
approximated
and
not
perfectly
Id. at *3.
Damages Calculation
Plaintiff’s
motion
includes
her
affidavit,
a
damages
calculations spreadsheet, and an example of a timecard used to
track
her
hours.
The
exact
amount
of
damages
Plaintiff
is
seeking is not clear from her motion and attached documents.
The spreadsheet contains some discrepancies and miscalculations
regarding the proper overtime rate and total wages owed.
The
spreadsheet displays that Plaintiff is owed $3,538.50, but an
independent
calculation
of
the
weekly
data
Plaintiff may have been underpaid by $4,438.50.
at 4).
indicates
that
(ECF No. 6-2,
Plaintiff’s motion notes that “[t]he total amount owed
is slightly over the $3,500.00 demanded in the [c]omplaint.”
(ECF No. 6, at 4).
Despite the higher amount indicated by the data in the
spreadsheet, Plaintiff sought only $3,500.00 in her complaint,
and she uses $3,500.00 in calculating the request for judgment
in her motion.
(See id. at 5).
The Federal Rules of Civil
Procedure provide that “[a] default judgment must not differ in
7
kind
from,
pleadings.”
or
exceed
in
amount,
what
is
demanded
in
the
Accordingly, Plaintiff is entitled to $3,500.00 in
damages for unpaid wages and overtime.
2.
Enhanced Damages
Plaintiff requests that the damages be doubled pursuant to
the
FLSA
or
trebled
pursuant
to
the
MWPCL.
Plaintiffs
are
“entitled to recover liquidated damages under the FLSA or treble
damages under the [MWPCL], but not both.”
Quiroz v. Wilhelp
Commercial Builders, Inc., No. WGC-10-2016, 2011 WL 5826677, at
*3 (D.Md. Nov. 17, 2011).
purposes
of
compensating
“‘Enhanced damages serve the dual
employees
for
consequential
losses,
such as late charges or evictions that can occur when employees
who are not properly paid are unable to meet their financial
obligations;
without
and
colorable
of
penalizing
employers
justification.’”
Clancy
who
v.
withhold
wages
Skyline
Grill,
LLC, No. ELH-12-1598, 2012 WL 5409733, at *8 (D.Md. Nov. 5,
2012) (quoting Lopez v. Lawns R Us, No. DKC-07-2979, 2008 WL
2227353, at *4 (D.Md. May 23, 2008)).
[I]t has become customary in this district
to award double damages under the FLSA, but
not treble damages under the MWPCL, when the
“defendants ‘[do] not offer any evidence of
a bona fide dispute’ to make liquidated
damages inappropriate, [but the] plaintiffs
‘[do]
not
offer
any
evidence
of
consequential damages suffered because of
the
underpayments.’”
Clancy,
2012
WL
5409733, at *8 (quoting Lopez, 2008 WL
2227353, at *4); see also Castillo v. D&P
8
Prof'l Servs., Inc., No. DKC-14-1992, 2015
WL 4068531, at *6-7 (D.Md. July 2, 2015);
Labuda v. SEF Stainless Steel, Inc., No.
RDB-11-1078, 2012 WL 1899417, at *3 (D.Md.
May
23,
2012);
Monge
v.
Portofino
Ristorante, 751 F.Supp.2d 789, 800 (D.Md.
2010).
Villatoro
v.
CTS
&
Assocs.,
Inc.,
No.
DKC-14-1978,
2016
WL
2348003, at *3 (D.Md. May 4, 2016).
Here,
Defendant
has
failed
to
appear
and
present
any
evidence of a colorable justification for withholding the wages.
On the other hand, Plaintiff has provided no evidence of any
consequential
damages
suffered
as
a
result
of
Defendant's
violations. Accordingly, liquidated damages under the FLSA will
be awarded in the total amount of $7,000.00.
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.”
attorney's
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 attorney’s 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
9
section, the court may allow against the employer reasonable
counsel fees and other costs.”).
Plaintiff’s
(ECF
No.
6,
at
counsel
5).
seeks
“The
$9,215.50
most
useful
in
attorney’s
starting
fees.
point
for
determining the amount of a reasonable fee is the number of
hours
reasonably
expended
reasonable hourly rate.”
433 (1983).
on
the
litigation
multiplied
by
a
Hensley v. Eckerhart, 461 U.S. 424,
This approach is commonly known as the “lodestar”
method.
Grissom v. The Mills Corp., 549 F.3d 313, 320 (4th Cir.
2008).3
In deciding what constitutes a “reasonable” number of
hours
and
a
“reasonable”
rate,
numerous
factors
may
prove
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) attorney[’s] fees awards in similar
cases.
3
Maryland courts also use the “lodestar” method
determining attorney’s 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).
Here, Plaintiff provides a chart detailing the number of
hours worked and the hourly rates requested, as well as signed,
sworn statements by Plaintiff’s attorneys and paralegal.
No. 6-4).
(ECF
Although additional information is often required to
support a request for attorney’s fees, such information is not
necessary in this case.
The court has previously considered fee
petitions in a number of similar cases, and the chart and sworn
statements contain sufficient detail.
The attorneys, Jonathan
Tucker and Justin Zelikovitz, aver that they were admitted to
the
bar
in
Accordingly,
December
when
2009
and
performing
December
the
11
work
2008,
on
respectively.
this
case,
the
attorneys had been admitted to the bar for approximately six
years.
The guidelines set forth in the Local Rules suggest that
a reasonable hourly rate is $165-$300 for lawyers admitted to
the bar for five to eight years.
Local Rules App’x B.
Mr.
Tucker and Mr. Zelikovitz request a billing rate of $295 per
hour, which is near the top of the guidelines’ range.
Last
year, Mr. Zelikovitz was awarded an hourly rate of $225 for work
performed in an FLSA case.
This case presents no particularly
complicated issues that warrant such a sharply increased rate
from one year to the next.
Accordingly, a rate of $250 is
reasonable for Mr. Tucker and Mr. Zelikovitz.
The requested
rate of $145 per hour for work performed by a paralegal is
within the guidelines’ range and is reasonable.
The
number
of
hours
expended
specificity, and are reasonable.
are
well-documented
(ECF No. 6-4).
with
Counsel spent
40.9 hours on this case from the initial client phone interview
with Plaintiff through the drafting of the pending motion.
Much
of the work was performed by a paralegal rather than a higherbilling
attorney.
Accordingly,
Plaintiff
will
be
awarded
$8,230.00 in attorney’s fees.
Plaintiff seeks $505.00 in costs.
(Id. at 2).
These costs
include a $400.00 filing fee and $105.00 for service of process
fees.
12
[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.
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
necessary,
costs
and
Accordingly,
requested
are
Plaintiff
by
detailed
has
Plaintiff
with
met
her
are
reasonable,
sufficient
“burden
specificity.
of
providing
sufficient detail . . . to explain and support [her] 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, the motion for default judgment
filed by Plaintiff will be granted in part and denied in part.
Judgment
$7,000.00.
will
be
entered
Plaintiff
will
for
Plaintiff
also
13
be
in
awarded
the
amount
$8,230.00
of
for
attorney’s fees and $505.00 for costs.
A separate order will
follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
14
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