Sanabria et al v. Cocody, Inc. et al
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.
Civil Action No. DKC 16-0365
COCODY, INC., et al.
Presently pending and ready for resolution in this unpaid
wage and overtime case is a motion for default judgment filed by
(ECF No. 14).
being deemed necessary.
The court now rules, no hearing
Local Rule 105.6.
For the following
reasons, Plaintiffs’ motion will be granted in part and denied
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.
Plaintiffs filed their complaint on February 9, 2016.
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).
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
(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.
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).
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
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.
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
have been retained by the employee, except that the subsection
shall not be construed to prohibit the pooling of tips among
§ 203(m); Dorsey v. TGT Consulting, LLC, 888 F. Supp. 2d 670,
Id.; Copantitla v. Fiskardo Estiatorio, Inc., 788
Silver Palace Rest., 246 F. Supp. 2d 220, 229 (S.D.N.Y. 2002)).
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
419(a)(1)(ii) (“This section applies to each employee who has
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
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.
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”).
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
employment, on or before the day on which the employee would
Id. § 3–505(a).
Plaintiffs allege that Defendants
never paid them wages for the hours they worked.
biweekly or twice-per-month requirements of the MWPCL.
Plaintiffs’ well-pleaded allegations, Defendants willfully and
intentionally failed to pay Plaintiffs their regular wages, in
liability is appropriate on Count Three.
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
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”).
It is well settled that an individual may qualify as an
employer and face liability under the FLSA.
In Falk v. Brennan,
“employer” under the FLSA because the defendant had extensive
terms and conditions of the work of [plaintiff] employees.”
U.S. 190, 195 (1973); see also Brock v. Hamad, 867 F.2d 804, 808
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).
As in the corporate
F.Supp.2d 880, 890 (D.Md. 2011) (citing Schultz, 466 F.3d at
304; Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33
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
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.
circumstances must be considered.
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
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
Restaurant, directing and supervising Plaintiffs.”
(ECF No. 1
It is further alleged that Mr. Toure had “the power to
hire or fire employees.”
Plaintiffs, the allegations against Defendant Moussa Toure state
a plausible claim that he is individually liable as “employer.”
established that Defendants are jointly and severally liable to
Plaintiffs under FLSA, the MWHL, and MWPCL.
In order to calculate damages, “the Court ... may rely on
determine the amount of damages.”
Quiroz v. Wilhelm Commercial
Builders, Inc., No. WGC-10-2016, 2011 WL 5826677, at *2 (D. Md.
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
See Cruz v. Home & Garden Concepts, LLC, No. GJH-15-
Plaintiffs cannot recover under more than one theory.
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.
Plaintiff Sanabria is owed $11,940.75, Plaintiff Pleitez is owed
damages for unpaid wages.
(ECF No. 14 p. 4).
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
available, [the employee] must show the amount and extent of her
improperly compensated 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)).
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.
Plaintiffs request 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, Plaintiffs have provided no evidence of any
U.S.C. § 216 will be awarded.
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).
Plaintiffs’ counsel has not yet moved for attorney’s fees
He will be provided an opportunity to do so pursuant
to Local Rule 109.2.a.
For the foregoing reasons, Plaintiffs’ motion for default
judgment will be granted in part and denied in part.
will be entered for Plaintiff Iris Sanabria in the amount of
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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