Castro Bruno et al v. Rossi et al

Filing 27

ORDER denying 25 Motion for Default Judgment. Signed by Senior Judge W. Earl Britt on 5/13/2019. Copy of the order and 18-SO-5 Notice sent to Rossi Group, Inc. and Rossi Consolidated, Inc., c/o Juan A. Rossi, 5818 Rustic Wood Lane, Durham, NC 27713, Rossi NC, Inc., c/o Maritza Rossi, 1502 E. Franklin Street, Chapel Hill, NC 27514 and Rossi Restaurant Group, Inc., c/o Juan A. Rossi, 1239 S. 5th Street, Mebane, NC 27302 via US Mail. (Edwards, S.)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16–CV–911–BR
EDDI ROBERTO CASTRO BRUNO,
et al.,
Plaintiffs,
v.
JUAN ARMANDO ROSSI, et al.,
Defendants.

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ORDER

This matter is before the court on Eddi Roberto Castro Bruno, Abraham Toledo Duarte,
and Elber Victorio Pardo’s (“plaintiffs”) motion for default judgment and assessment of damages
as to defendants Rossi Group, Inc., Rossi Restaurant Group, Inc., Rossi Consolidated, Inc., and
Rossi NC, Inc. (collectively “corporate defendants”). (DE # 25.) Plaintiffs’ claim against non–
defaulting defendant Juan Armando Rossi (“Rossi”) remains pending before the court, although
the action as to him is stayed pending his bankruptcy proceeding.
Plaintiffs seek default judgment, namely actual and liquidated damages, pursuant to Rule
55(b)(2), for corporate defendants’ violations of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 207. (See Mem. Supp. Default J., DE # 26, at 20–21.) However,
[i]n multi–defendant cases, where liability has been alleged as joint and several, in
order to avoid inconsistent judgments, default judgment should be reserved until
the action is resolved on the merits against non–defaulting defendants so that if
plaintiff loses on the merits, the complaint should then be dismissed against
defaulting and non–defaulting defendants.
Rodriguez v. Irwin, No. 7:10–CV–102–FL, 2011 WL 737316, at *6 n.5 (E.D.N.C. Feb. 23,
2011); see e.g., Frow v. De La Vega, 82 U.S. 552, 554 (1872); United States ex rel. Hudson v.
Peerless Ins. Co., 374 F.2d 942, 944 (4th Cir. 1967); Phoenix Renovation Corp. v. Gulf Coast

Software, Inc., 197 F.R.D. 580, 583 (E.D. Va. 2000). Because plaintiffs bring their FLSA claim
jointly and severally against all defendants, (Compl., DE # 1, at 8–9), and defendant Rossi is not
in default, plaintiffs’ motion for default judgment and assessment of damages is DENIED
WITHOUT PREJUDICE.
This 13 May 2019.

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W. Earl Britt
Senior U.S. District Judge

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