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
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