Sanabria et al v. Cocody, Inc. et al

Filing 16

MEMORANDUM OPINION (c/m to Defendants Cocody, Inc. and Moussa Toure 7/17/17 sat). Signed by Judge Deborah K. Chasanow on 7/17/2017. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
IRIS SANABRIA, et al.
:
v.

:

Civil Action No. DKC 16-0365

:
COCODY, INC., et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this unpaid
wage and overtime case is a motion for default judgment filed by
Plaintiffs

Iris

(“Plaintiffs”).

Sanabria,

Karina

(ECF No. 14).

being deemed necessary.

Pleitez,

and

Rosario

Lainez

The court now rules, no hearing

Local Rule 105.6.

For the following

reasons, Plaintiffs’ motion will be granted in part and denied
in part.
I.

Background
A.

Factual Background

Plaintiffs’ complaint recites that they were employed as
wait staff at Defendant Cocody, Inc.’s restaurant known as “Coco
Cabana Bar and Grill.”

Defendant Moussa Toure is the “founder

and director” of Defendant Cocody, Inc.

Plaintiffs allege that

they regularly worked an average of 27 hours per week on Friday,
Saturday, and Sunday nights but were not compensated.

B.

Procedural Background

Plaintiffs filed their complaint on February 9, 2016.
No. 1).

(ECF

Plaintiffs allege 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).
Service

of

process

was

properly

effected

on

Defendant

Cocody, Inc. on February 22, 2016, and upon Defendant Moussa
Toure on March 22, 2016.

When Defendants failed to respond

within the requisite time period, Plaintiffs moved for the entry
of default.
default.

(ECF No. 8).

(ECF No. 9).

On May 9, 2016, the clerk entered

On April 10, 2017, Plaintiff filed the

pending motion for default judgment and attached as exhibits
affidavits of Plaintiffs.

(ECF Nos. 14, 14-3, 14-4, and 14-5).

To date, Defendants have 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)

2

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

remains,

(D.Md.

determine

2005).
whether

It

these

however,

unchallenged

“for
factual

constitute a legitimate cause of action.”

the

court

to

allegations

Agora Fin., LLC v.

Samler, 725 F.Supp.2d 491, 494 (D.Md. 2010).

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

Defendants
responded.

were

served

with

the

complaint

but

have

not

Accordingly, all of Plaintiffs’ allegations as to

liability are deemed admitted.
29 U.S.C. § 203(m) provides that an employer may not take a
tip credit with regard to an employee’s wages unless (1) “such
employee has been informed by the employer of the provisions of
this subsection” and (2) “all tips received by such employee
3

have been retained by the employee, except that the subsection
shall not be construed to prohibit the pooling of tips among
employees

who

customarily

and

regularly

receive

tips.”

§ 203(m); Dorsey v. TGT Consulting, LLC, 888 F. Supp. 2d 670,
680-81

(D.

Md.

2012).

These

two

requirements

are

“strictly

construed.”

Id.; Copantitla v. Fiskardo Estiatorio, Inc., 788

F.

253,

Supp.

2d

287

(S.D.N.Y.

2011)

(quoting

Chung

v.

New

Silver Palace Rest., 246 F. Supp. 2d 220, 229 (S.D.N.Y. 2002)).
It

is

undisputed

that

Defendants

failed

to

meet

the

notice

requirement of Section 203(m).
The MWHL, like the FLSA, requires that an employer provide
notice to an employee before claiming a tip credit as to the
employee’s

wages.

Md.

Code,

Labor

&

Employment

§

3-

419(a)(1)(ii) (“This section applies to each employee who has
been

informed

section.”).

by

the

employer

about

the

provisions

of

this

Further, the language of the MWHL notice provision

is nearly identical to that of the FLSA.

Compare 29 U.S.C. §

203(m) (“[The tip credit provision of the FLSA] shall not apply
with respect to any tipped employee unless such employee has
been

informed

subsection.”)
419(a)(1)(ii).

by
with

the
Md.

employer
Code,

of

the

Labor

provisions
&

of

Employment

this
§

3-

Given that the MWHL is the “state parallel” of

the FLSA, the court concludes that Defendants also violated the
MWHL by failing to give Plaintiffs proper notice.
4

Newell v.

Runnels, 967 A.2d 729, 771 (Md. 2009); Gionfriddo v. Jackson
Zink, LLC, 769 F. Supp. 2d 880, 895 (D. Md. 2011) (noting the
“congruent nature of the FLSA and MWHL”).
The

MWPCL

requires

that

an

employer

“shall

pay

each

employee at least once in every 2 weeks or twice in each month.”
Md.Code Ann., Lab. & Empl. § 3–502(a)(1)(ii).

It also provides

that “each employer shall pay an employee ... all wages due for
work

that

the

employee

performed

before

the

termination

of

employment, on or before the day on which the employee would
have

been

paid

terminated.”

the

wages

if

Id. § 3–505(a).

the

employment

had

not

been

Plaintiffs allege that Defendants

never paid them wages for the hours they worked.
A

complete

failure

to

pay

clearly

does

not

biweekly or twice-per-month requirements of the MWPCL.

meet

the

Based on

Plaintiffs’ well-pleaded allegations, Defendants willfully and
intentionally failed to pay Plaintiffs their regular wages, in
violation

of

the

MWPCL.

Therefore,

default

liability is appropriate on Count Three.

judgment

as

to

The Court of Appeals

of Maryland reiterated the reach of the MWPCL claim in Peters 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,
5

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
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”).
It is well settled that an individual may qualify as an
employer and face liability under the FLSA.
the

Supreme

Court

found

that

an

In Falk v. Brennan,

individual

qualified

as

an

“employer” under the FLSA because the defendant had extensive
managerial

responsibilities

and

“substantial

control

of

the

terms and conditions of the work of [plaintiff] employees.”

414

U.S. 190, 195 (1973); see also Brock v. Hamad, 867 F.2d 804, 808
n.6

(4th

Cir.

1989)

(finding

a

manager

was

liable

for

FLSA

violations as an “employer” because “he hired and directed the
employees who worked for the enterprise.”); Pearson v. Prof’l 50
States Protection, LLC, No. RDB-09-3232, 2010 WL 4225533, at *4
(D.Md. Oct. 26, 2010) (collecting cases).
employer

context,

reality’

of

determining

an

“courts

generally

individual’s

liability.”

As in the corporate

look

at

status

in

the

Gionfriddo

v.

Jason

the

‘economic

workplace
Zink,

before

LLC,

769

F.Supp.2d 880, 890 (D.Md. 2011) (citing Schultz, 466 F.3d at

6

304; Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33
(1961)).

This “economic reality” includes a number of factors,

“such as the person’s job description, his or her financial
interest in the enterprise, and whether or not the individual
exercises

control

over

the

employment

relationship.”

Gionfriddo, 769 F.Supp.2d at 890 (citing Baystate Alt. Staffing
v. Herman, 163 F.3d 668, 675 (1st Cir. 1998)).
Courts in this district have applied the Bonnette factors
to determine whether an individual constitutes an “employer.”
See Iraheta v. Lam Yuen, LLC, No. DKC-12-1426, 2012 WL 5995689,
at *3 (D.Md. Nov. 29, 2012); Khalili, 2011 WL 231793, at *2.
single

factor

is

dispositive;

rather,

circumstances must be considered.

the

totality

of

No
the

See, e.g., Speert v. Proficio

Mortg. Ventures, LLC, No. JKB–10–718, 2011 WL 2417133, at *3
(D.Md. June 11, 2011).

“An individual’s status as a high-level

corporate shareholder or officer does not automatically impart
‘employer’ liability to that individual, as individual liability
‘is

dictated

by

relationship.’”

the

economic

Caseres,

2012

reality
WL

of

5250561,

the
at

employment
*3

(quoting

Pearson, 2010 WL 4225533, at *4).
In their complaint, Plaintiffs allege that Moussa Toure is
the director and founder of co-defendant Cocody Inc. and that he
was

“in

charge

of

day-to-day

operations

at

Restaurant, directing and supervising Plaintiffs.”
7

Coco

Cabana

(ECF No. 1

¶ 5).

It is further alleged that Mr. Toure had “the power to

hire or fire employees.”
Viewing

the

(Id.).

complaint

in

the

light

most

favorable

to

Plaintiffs, the allegations against Defendant Moussa Toure state
a plausible claim that he is individually liable as “employer.”
Accepting

as

true

the

well-pled

allegations,

Plaintiffs

have

established that Defendants are jointly and severally liable to
Plaintiffs under FLSA, the MWHL, and MWPCL.
B.

Damages

In order to calculate damages, “the Court ... may rely on
affidavits

or

other

evidentiary

documents

determine the amount of damages.”

in

the

record

to

Quiroz v. Wilhelm Commercial

Builders, Inc., No. WGC-10-2016, 2011 WL 5826677, at *2 (D. Md.
Nov.

17,

2011).

“The

Court

may

award

damages

based

on

Plaintiffs’ testimony even though the amounts claimed are only
approximated and not perfectly accurate.”

Lopez v. Lawns R Us,

No. DKC-07-2979, 2008 WL 2227353, at *3 (D. Md. May 23, 2008).
Here, Plaintiffs have requested compensation in the amount of
$7.25 per hour, the federal minimum.
This court has awarded damages for unpaid wages based on a
Plaintiff’s declaration asserting the average number of hours he
worked.
204,

See Cruz v. Home & Garden Concepts, LLC, No. GJH-15-

2016

WL

3679139,

at

*5

(D.

Md.

July

12,

2016).

Plaintiffs cannot recover under more than one theory.
8

But

See Gen.

Tel.

Co.

of

the

Nw.

v.

EEOC,

446

U.S.

318,

333

(1980).

Therefore, they only may recover an amount of regular damages
equivalent to the minimum wages they establish that they are
owed; they cannot recover three times that amount by recovering
under the FLSA, MWHL, and MWPCL.
Plaintiffs’

motion

for

default

judgment

asserts

that

Plaintiff Sanabria is owed $11,940.75, Plaintiff Pleitez is owed
$5,974.00,

and

Plaintiff

Lainez

damages for unpaid wages.

is

owed

$8,613.00

(ECF No. 14 p. 4).

in

actual

Plaintiffs’

motion also requests double and treble damages under the FLSA or
the MWPCL, respectively.

(Id. p. 4 and 5).

“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 her
improperly compensated work ‘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. 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
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
9

amounts

claimed

accurate.”
C.

are

only

approximated

and

not

perfectly

Id. at *3.
Enhanced Damages

Plaintiffs request 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
Prof'l Servs., Inc., No. DKC-14-1992, 2015
WL 4068531, at *6-7 (D.Md. July 2, 2015);
10

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,

Defendants

have

failed

to

appear

and

present

any

evidence of a colorable justification for withholding the wages.
On the other hand, Plaintiffs have provided no evidence of any
consequential

damages

suffered

violations.

Accordingly,

as

liquidated

a

result
damages

of

Defendants’

pursuant

to

29

U.S.C. § 216 will be awarded.
D.

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).
Plaintiffs’ counsel has not yet moved for attorney’s fees
or costs.

He will be provided an opportunity to do so pursuant

to Local Rule 109.2.a.

11

IV.

Conclusion
For the foregoing reasons, Plaintiffs’ motion for default

judgment will be granted in part and denied in part.

Judgment

will be entered for Plaintiff Iris Sanabria in the amount of
$23,881.50,

judgment

Pleitez

the

entered

in
for

$17,226.00.

will

amount

Plaintiff

of

be

entered

for

$11,948.00,

and

Rosario

Lainez

in

Plaintiff
judgment
the

Karina
will

amount

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

12

be
of