Hernandez v. Hoge
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
Civil Action No. DKC 15-1988
JAMES CHRISTOPHER HOGE
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.
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
(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
(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
(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
id. at 2-4).
Plaintiff filed her complaint on July 7, 2015.
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).
The complaint states that Plaintiff worked “at least 750
hours of overtime” for which she is “owed half of her regular
(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).
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).
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).
On September 8, the clerk entered default.
On October 5, Plaintiff filed the pending motion for
default judgment and for attorney’s fees and costs, attaching as
spreadsheet, an example of a timecard that Defendant used to
attorney’s fees, expenses, and court costs.
6-2; 6-3; 6-4).
(ECF Nos. 6; 6-1;
To date, Defendant has 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
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,
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
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
(citing United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th
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 [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
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
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
termination of employment.
these statutes allow employees to recover
avenues to do so.
(holding that the MWPCL generally provides an employee with a
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.
Plaintiff alleges that she received no compensation for several
Plaintiff has established that Defendant is liable to Plaintiff
under FLSA, the MWHL, and MWPCL.
The complaint asserts that Plaintiff is owed approximately
(ECF No. 1 ¶ 25).
(Id. ¶¶ 39, 51).
The complaint also requests either
“In cases such as the present
employers pursuant to 29 U.S.C. § 211(c), are not available,
[the employee] must show the amount and extent of her improperly
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)).
an employee’s statement under oath “as to [her] recollection of
the hours [s]he worked and the pay [s]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 Plaintiff[’s] testimony even though the
Id. at *3.
calculations spreadsheet, and an example of a timecard used to
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.
spreadsheet displays that Plaintiff is owed $3,538.50, but an
Plaintiff may have been underpaid by $4,438.50.
(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
Accordingly, Plaintiff is entitled to $3,500.00 in
damages for unpaid wages and overtime.
Plaintiff requests that the damages be doubled pursuant to
“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).
“‘Enhanced damages serve the dual
such as late charges or evictions that can occur when employees
who are not properly paid are unable to meet their financial
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
consequential damages suffered because of
5409733, at *8 (quoting Lopez, 2008 WL
2227353, at *4); see also Castillo v. D&P
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.
Ristorante, 751 F.Supp.2d 789, 800 (D.Md.
2348003, at *3 (D.Md. May 4, 2016).
evidence of a colorable justification for withholding the wages.
On the other hand, Plaintiff has provided no evidence of any
violations. Accordingly, liquidated damages under the FLSA will
be awarded in the total amount of $7,000.00.
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 attorney’s 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.”).
determining the amount of a reasonable fee is the number of
reasonable hourly rate.”
Hensley v. Eckerhart, 461 U.S. 424,
This approach is commonly known as the “lodestar”
Grissom v. The Mills Corp., 549 F.3d 313, 320 (4th Cir.
In deciding what constitutes a “reasonable” number of
(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) attorney[’s] fees awards in similar
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).
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
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.
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
attorneys had been admitted to the bar for approximately six
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.
Tucker and Mr. Zelikovitz request a billing rate of $295 per
hour, which is near the top of the guidelines’ range.
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.
rate of $145 per hour for work performed by a paralegal is
within the guidelines’ range and is reasonable.
specificity, and are reasonable.
(ECF No. 6-4).
40.9 hours on this case from the initial client phone interview
with Plaintiff through the drafting of the pending motion.
of the work was performed by a paralegal rather than a higherbilling
$8,230.00 in attorney’s fees.
Plaintiff seeks $505.00 in costs.
(Id. at 2).
include a $400.00 filing fee and $105.00 for service of process
[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).
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.
For the foregoing reasons, the motion for default judgment
filed by Plaintiff will be granted in part and denied in part.
attorney’s fees and $505.00 for costs.
A separate order will
DEBORAH K. CHASANOW
United States District Judge
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