Andrews v. America's Living Centers, LLC et al

Filing 79

MEMORANDUM OF DECISION AND ORDER granting in part and denying in part 77 Motion for Default Judgment. Specifically, the Motion [Doc. 77] is GRANTED to the extent that the Plaintiff Stella Andrews is hereby awarded $9,8 01.92 in compensatory damages, plus an additional award of $9,801.92 in liquidated damages against the Defendants America's Living Centers, LLC and Kenneth Hodges. The Motion is DENIED with respect to the opt-in Plaintiffs Betty Gosnell, Sh eila Barnard, and Sherry Hensley, and any claims purportedly asserted by these persons in this action are hereby DISMISSED WITHOUT PREJUDICE. FURTHER ORDERED that the Plaintiff Stella Andrews is hereby awarded attorney's fees in the amount of & #036;20,000.00 and an award of costs in the amount of $2,202.54 against the Defendants America's Living Centers, LLC and Kenneth Hodges. Signed by District Judge Martin Reidinger on 8/11/2017. (Pro se litigant served by US Mail.)(khm)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:10-cv-00257-MR-DLH

STELLA ANDREWS, individually and )
on behalf of similarly situated
)
persons,
)
)
Plaintiff,
)
)
vs.
)
)
AMERICA’S LIVING CENTERS, LLC, )
et al.,
)
)
Defendants.
)
_______________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion for Default
Judgment [Doc. 77].
I.

PROCEDURAL BACKGROUND
The Plaintiff Stella Andrews first filed suit on June 4, 2010, against the

Defendants America’s Living Centers, LLC (“ALC”) and Kenneth Hodges
(“Hodges”) (collectively, “Defendants”),1 asserting claims under the Fair
The Plaintiff brings suit against ALC “doing business as” the ten residential facilities that
ALC allegedly owned/operated: Carolina Living Center; Carolina Living Center #1, Zion
Hill Living Center, Golden Harvest Living Center #1, Golden Harvest Living Center #2,
Union Mills Living Center #1, Union Mills Living Center #2, Union Mills Living Center #3,
Four Seasons Family Care Home, and Transylvania Living Center. Hodges is sued in
both his individual capacity and in his capacity as the sole member/manager of ALC and
the owner and/or manager of the various ALC facilities. [See Doc. 1 at ¶¶ 7-38].
1

Labor Standards Act of 1938, 29 U.S.C. §§ 201, et seq. (“FLSA”). [Civil Case
No. 1:10-cv-00114-MR-DLH, Doc. 1]. On July 29, 2010, the Defendants
moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. [Id., Doc. 15]. Before the motion was ruled on, the Plaintiff
decided to voluntarily dismiss her action pursuant to Federal Rule of Civil
Procedure 41(a)(1), and she immediately filed the present action. [Doc. 1].
Shortly after the Plaintiff re-filed her action, three additional employees -Betty Dean Gosnell, Sheila Annette Barnard, and Sherry Marie Hensley -filed notices indicating their consent to opt in and become party plaintiffs.
[Docs. 20, 23].
The Defendants moved to stay this action pending the Plaintiff’s
payment of costs of the prior action pursuant to Federal Rule of Civil
Procedure 41(d). [Doc. 26]. The Court granted the Defendants’ motion and
ordered the Plaintiff to pay an award of attorneys’ fees and other expenses
that had been incurred by the Defendants in defending the first action. [Docs.
30, 36].
The Plaintiff appealed to the Court of Appeals.

That appeal was

dismissed because the amount of the award had yet to be determined. [Doc.
41]. On remand, this Court awarded $13,403.75 in attorneys’ fees to the
Defendants and stayed the case pending payment. [Doc. 50]. The Plaintiff
2

did not pay the costs, but before the case was dismissed for nonpayment,
she filed a second appeal. [Doc. 51]. After oral argument before the Fourth
Circuit, the Plaintiff moved to voluntarily dismiss the appeal, which motion
was granted. [Doc. 57]. In the interim, counsel for the Defendants moved to
withdraw.

This motion was granted on May 22, 2015, leaving both

Defendants unrepresented. [Docs. 61, 62].
On June 10, 2015, the Court dismissed this action for failure of the
Plaintiff to pay the awarded attorneys’ fees. [Doc. 63]. The Plaintiff then
appealed for a third time. On June 28, 2016, the Court of Appeals vacated
the award of attorneys’ fees and remanded the case for further proceedings.
[Doc. 69]. The Court of Appeals’ mandate issued on July 20, 2016. [Doc.
70].
Following the last remand, none of the Defendants filed an Answer.
The Plaintiff, however, made no effort to prosecute the case. On August 24,
2016, the Court ordered the Plaintiff to file an appropriate motion or otherwise
take further action with respect to each Defendant within fourteen (14) days
of entry of the Order, or the Court would dismiss this action. [Doc. 71]. The
Plaintiff subsequently moved for an entry of default against the Defendants.
[Doc. 75]. On September 7, 2016, the Clerk entered default against the
Defendants. [Doc. 76].

On September 20, 2016, the Plaintiff filed the
3

present motion for default judgment on behalf of herself and the “opt-in”
plaintiffs. [Doc. 77]. In her motion, the Plaintiff specifically requested that
the Court not set an evidentiary hearing. Instead, the Plaintiff requested a
period of sixty (60) days to assemble the necessary documentation to
support her and the “opt-in” plaintiffs’ claims for damages. [Doc. 77 at 2].
The

Plaintiff

filed

a

supplemental

memorandum

and

supporting

documentation in support of her claims and that of opt-in plaintiff Betty
Gosnell2 on November 22, 2016. [Doc. 78].
This matter is now ripe for disposition.
II.

STANDARD OF REVIEW
Rule 55 of the Federal Rules of Civil Procedure provides for the entry

of a default when “a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). Once
a defendant has been defaulted, the plaintiff may then seek a default
judgment. If the plaintiff’s claim is for a sum certain or can be made certain
by computation, the Clerk of Court may enter the default judgment. Fed. R.

2

The Plaintiff indicated in her Memorandum that she was unable to locate the two other
opt-in plaintiffs and therefore no additional documentation was submitted in support of
their claims. [Doc. 78 at 1 n.1].
4

Civ. P. 55(b)(1). In all other cases, the plaintiff must apply to the Court for a
default judgment. Fed. R. Civ. P. 55(b)(2).
“The defendant, by his default, admits the plaintiff's well-pleaded
allegations of fact . . . .” Ryan v. Homecomings Fin. Network, 253 F.3d 778,
780 (4th Cir. 2001) (quoting Nishimatsu Constr. Co., Ltd. v. Houston Nat'l
Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). A defendant, however, “is not
held . . . to admit conclusions of law.” Ryan, 253 F.3d at 780 (quoting
Nishimatsu, 515 F.2d at 1206). The Court therefore must determine whether
the

facts

as

alleged

state

a

claim.

GlobalSantaFe

Corp.

v.

Globalsantafe.com, 250 F. Supp. 2d 610, 612 n.3 (E.D. Va. 2003).
III.

PLAINTIFF’S FACTUAL ALLEGATIONS
The well-pleaded factual allegations of the Plaintiff’s Complaint having

been deemed admitted by virtue of the Defendants’ default, the following is
a summary of the relevant facts.
The Plaintiff was employed as a “Supervisor in Charge” at the
Transylvania Living Center (“TLC”), one of multiple “family care homes”3
North Carolina law defines a “family care home” as “[a]n adult care home having two to
six residents.” N.C. Gen. Stat. § 131D-2.1(9). An “adult care home” is defined as “[a]n
assisted living residence in which the housing management provides 24-hour scheduled
and unscheduled personal care services to two or more residents, either directly or for
scheduled needs, through formal written agreement with licensed home care or hospice
agencies.” N.C. Gen. Stat. § 131D-2.1(3).
3

5

owned and operated by the Defendants, from January 15, 2006 to June 30,
2009. [Complaint, Doc. 1 at ¶¶ 5-6, 80; Declaration of Stella Andrews
(“Andrews Decl.”), Doc. 78-1 at ¶ 14].4
As the sole member/manager of ALC, Hodges exercised complete
control over all compensation, policy, and personnel decisions for ALC. [Id.
at ¶¶ 61, 74-78]. Hodges personally signed many of the checks issued to
the Plaintiff for payroll, for expenses that she incurred when she was required
to purchase household goods for the facility, and for reimbursement to the
Plaintiff for the payment of utility bills that the Plaintiff paid out of her account
on the promise that she would be reimbursed for such expense. The checks
signed by Hodges were written from an account under the name of “Hodges
& Associates.” [Id. at ¶ 60].
Although the Plaintiff’s job title was that of “Supervisor in Charge,” she
did not have any authority to supervise, fire, or hire other employees or to
enter into contracts with third parties on behalf of the Defendants. [Id. at ¶¶
91, 93-95]. Rather, the Plaintiff’s job duties were defined in writing, and a

4

In the Complaint, which is not verified, the Plaintiff alleges that she was employed from
January 15, 2007 to June 30, 2009. [Doc. 1 at ¶ 6]. The sworn Declaration submitted in
support of her claim for damages, however, indicates that the Plaintiff was employed from
January 15, 2006 to June 30, 2009. [Doc. 78-1 at ¶ 14]. The Court will use the dates
from the Plaintiff’s sworn Declaration in calculating her damages.
6

manual maintained on site set forth procedures for the day-to-day operation
of the facility. [Id. at ¶¶ 92, 97]. Deviation from these procedures carried the
threat of disciplinary action by the Defendants. [Id. at ¶ 98; Andrews Decl.,
Doc. 78-1 at ¶ 12]. The Plaintiff’s job duties included: (1) keeping track of
the expenses of the home to which she was assigned; (2) paying bills when
cut off notices were received in the mail for the home to which she was
assigned; (3) purchasing groceries and household supplies for the home; (4)
notifying ALC of the need for maintenance at the home to which she was
assigned; (5) assisting with the intake of new clients; (6) preparing meals for
those clients residing at the home to which she was assigned; (7) performing
housekeeping duties in the home to which she was assigned; (8) doing
laundry for the clients assigned to her care; (9) preparing medications (four
or more times a day) for the clients assigned to her; (10) distributing such
medication; (11) tracking the inventory of such medication; (12) maintaining
records of the distribution of each client’s medication; (13) contacting the
appropriate pharmacy or physician to ensure an adequate supply of
medication was on hand for each client; (14) transporting clients to physician
appointments and/or social functions when transportation was not available
from ALC; and (14) coordinating clients’ doctor and all service providers’
appointments. [Doc. 1 at ¶ 82]. The Plaintiff estimates that she spent
7

between thirty percent (30%) and fifty percent (50%) of her time per week on
domestic duties, such as cooking, cleaning, laundry, transporting residents,
and administering medications. [Id. at ¶ 104].
In order to perform her duties of providing care to the residents of TLC,
the Plaintiff was required to reside at the facility. [Id. at ¶ 86]. She had to
provide her own substitute in the event that she needed to leave TLC. [Id.
at ¶¶ 88-89]. She was on duty twenty-four hours a day, seven days a week,
and was regularly awakened during the night to administer medication to
residents or to prevent residents from leaving the facility without permission.
[Id. at ¶¶ 87, 108, 109]. As a result, the Plaintiff rarely received more than
five hours of uninterrupted sleep on any given night. [Id. at ¶ 111]. No
agreement existed between the Plaintiff and the Defendants regarding the
Plaintiff’s sleep, rest, or meal periods. [Id. at ¶¶ 107, 110].
During her employment, the Plaintiff was classified as an independent
contractor and was paid a straight salary of between $500 and $600 per
week. [Id. at ¶¶ 83-84, 118]. The Plaintiff’s salary did not vary, regardless
of how many hours she worked or whether she was on duty. [Id. at ¶ 116].
When the Plaintiff requested an IRS Form 1099 from the Defendants, she
was told to create her own document. [Id. at ¶ 115].

8

Due to the Defendants’ failure to pay her minimum wage and overtime
as required by the FLSA, the Plaintiff calculates that she was underpaid by
$86,044.08 over the course of her employment. [Doc. 78 at 1]. She seeks
that amount in compensatory damages and an equal amount of liquidated
damages. [Id. at 2]. She also seeks an award of $45,496.23 in attorneys’
fees and costs. [Id. at 3].
III.

DISCUSSION
A.

Claims of the Opt-In Plaintiffs

The Plaintiff brought this suit for violations of the FLSA’s minimum
wage and overtime requirements on behalf of herself as well as “all other
similarly situated employees.” [Doc. 1 at ¶ 39]. FLSA collective actions are
distinct from Rule 23 class actions in that class members in a FLSA collective
action must affirmatively “opt-in,” that is, consent to become parties to the
action. See 29 U.S.C. § 216(b).
In order for other employees to join a FLSA action, the Court must
certify the collective action. Courts generally follow a two-step process to
certify a collective action under the FLSA. First, at the notice stage, the court
may conditionally certify the class and direct that notice be given to potential
class members so that they may opt in. Purdham v. Fairfax Cty. Pub. Schs.,
629 F. Supp. 2d 544, 547 (E.D. Va. 2009), aff’d, 637 F.3d 421 (4th Cir. 2011);
9

Parker v. Rowland Express, Inc., 492 F. Supp. 2d 1159, 1164 (D. Minn.
2007). Once members have opted in and substantial discovery has been
completed, the court can then make a factual determination as to whether
the collective action members are “truly ‘similarly situated.’” Purdham, 629
F. Supp. 2d at 547; Parker, 492 F. Supp. 2d at 1164.
Here, there was no certification, conditional or otherwise, of any
collective action prior to the entry of default against the Defendants, and the
Plaintiff did not move for a certification of the collective action with her motion
for default judgment. See Davis v. Precise Commc’n Servs., Inc., No. 1:07CV-3128-JOF, 2009 WL 812276, at *1 (N.D. Ga. Mar. 27, 2009) (noting that
conditional certification was still required despite defendant’s default).
Because no determination has been made that the proposed members of
the collective action are “similarly situated,” an entry of a default judgment, if
appropriate at all, is proper only as to the named Plaintiff, Stella Andrews.
See id.; see also Partington v. Am. Int’l Specialty Lines Ins. Co., 443 F.3d
334, 340 (4th Cir. 2006) (where class not certified under Fed. R. Civ. P. 23,
default judgment order binds only named plaintiffs and not putative class
members); Skeway v. China Nat. Gas, Inc., 304 F.R.D. 467, 472 (D. Del.
2014) (“in cases in which the district courts have entered a default judgment
against a defendant and no class has been certified [under Fed. R. Civ. P.
10

23], only named plaintiffs can recover damages”). Accordingly, the Court will
dismiss the claims of the putative collective action members without
prejudice and will address the motion for default judgment with respect to the
claims of the Plaintiff Stella Andrews only.
B.

Plaintiff’s FLSA Claims

The Plaintiff asserts claims for unpaid minimum wages and unpaid
overtime compensation under the FLSA, 29 U.S.C. §§ 206, 207. The FLSA
requires covered employers to pay their employees a minimum wage, which
is currently set at $7.25 per hour. 29 U.S.C. § 206(a). Covered employers
also must also pay their employees an overtime rate of 1½ times the regular
rate of pay for each hour worked in excess of forty hours per week. 29 U.S.C.
§ 207(a)(1).
In order to determine whether the Plaintiff has adequately stated a
claim under the FLSA for unpaid minimum wage and overtime
compensation, the Court first must determine whether the named
Defendants are “employers” subject to the provisions of the FLSA. Assuming
the Defendants are covered employers, the Court must then determine
whether the Plaintiff is an “employee” who is not otherwise exempt from
FLSA protection. The Court will address each of these issues in turn.

11

1.

Are the Defendants’ Plaintiff’s “Employers”?

The Plaintiff alleges that both Hodges and ALC qualify as her
“employer.”
The FLSA defines “employer” broadly to include “any person” other
than a labor organization who “act[s] directly or indirectly in the interest of an
employer in relation to an employee.” 29 U.S.C. § 203(d). An individual may
be liable for FLSA violations, despite the corporate structure of the employing
business, if the individual had extensive managerial responsibilities and
“substantial control of the terms and conditions of the work of [plaintiff]
employees.” Falk v. Brennan, 414 U.S. 190, 195 (1973); see also Brock v.
Hamad, 867 F.2d 804, 808 n.6 (4th Cir. 1989) (imposing FLSA liability on
individual who “hired and directed the employees who worked for the
enterprise”); Bonham v. Wolf Creek Acad., 767 F. Supp. 2d 558, 571
(W.D.N.C. 2011) (noting that “veil piercing” is not required to attach FLSA
liability to an individual behind a corporate employer). Here, the Plaintiff’s
factual allegations, which are deemed admitted, are sufficient to establish
that Hodges was the sole member/manager of ALC and thus controlled all
aspects of the business, including all personnel decisions. As Hodges had
“substantial control” over the terms and conditions of the Plaintiff’s
employment, Falk, 414 U.S. at 195, the Court concludes that the Plaintiff has
12

established that both Hodges and ALC were her “employers” for the purpose
of imposing FLSA liability.
Having determined that both Defendants employed the Plaintiff, the
Court now turns to whether her employers are covered by the FLSA. To
recover for minimum wage or overtime violations under the FLSA, a plaintiff
must show that either (1) her employer is an “enterprise engaged in
commerce or in the production of goods for commerce” or (2) the plaintiff
herself has “engaged in commerce or in the production of goods for
commerce” in her capacity as an employee. 29 U.S.C. § 203(s)(1)(A)(i).
Here, the Plaintiff has alleged that the Defendants are engaged in the
operation of “family care homes” for adults who are frail due to age or who
suffer from physical or mental infirmities such that they are unable to live by
themselves. [Doc. 1 at ¶¶ 48, 50]. Section 203 of the FLSA defines an
“enterprise engaged in commerce or in the production of goods for
commerce” as including an enterprise that “is engaged in the operation of ...
an institution primarily engaged in the care of the sick, the aged, or the
mentally ill or defective who reside on the premises of such institution.” 29
U.S.C. § 203(s)(1)(B). The Plaintiff has sufficiently alleged that Hodges and
ALC constitute an “enterprise” within the meaning of that provision.

13

Accordingly, the Court concludes that the Defendants are subject to liability
for violations of the minimum wage and overtime requirements of the FLSA.
2.

Is Plaintiff a Covered “Employee”?

Next, the Court evaluates whether the Plaintiff qualifies as a covered
employee under the Act.
The FLSA broadly defines “employee,” with numerous exceptions not
applicable here, to be “any individual employed by an employer.” 29 U.S.C.
§ 203(e)(1). “In determining whether a worker is an employee covered by
the FLSA, a court considers the ‘economic realities’ of the relationship
between the worker and the putative employer.” Schultz v. Capital Int’l Sec.,
Inc., 466 F.3d 298, 304 (4th Cir. 2006) (quoting Henderson v. Inter-Chem
Coal Co., 41 F.3d 567, 570 (10th Cir. 1994)). “The focal point is whether the
worker is ‘economically dependent on the business to which [she] renders
service or is, as a matter of economic reality, in business for [herself].”
Schultz, 466 F.3d at 304.
In considering the economic realities of a plaintiff’s employment, the
Fourth Circuit applies the following factors: “(1) the degree of control that the
putative employer has over the manner in which the work is performed; (2)
the worker’s opportunities for profit or loss dependent on his managerial skill;
(3) the worker’s investment in equipment or material, or his employment of
14

other workers; (4) the degree of skill required for the work; (5) the
permanence of the working relationship; and (6) the degree to which the
services rendered are an integral part of the putative employer’s business.”
Id. at 304-05.
The fact that an employer classifies an employee as an independent
contractor or pays the employee a straight salary does not eliminate the need
for a court to conduct the economic realities analysis. See Kennedy v. A
Touch of Patience Shared Hous., Inc., 779 F. Supp. 2d 516, 521 (E.D. Va.
2011). Additionally, “[a] job title alone is insufficient to establish the exempt
status of an employee.” 29 C.F.R. § 541.2. Rather, an analysis of the
“employee’s salary and duties” is required to establish exempt status. Id.
While the Complaint contains several conclusory statements
supporting the existence of an employer-employee relationship, there are
sufficient factual allegations throughout the pleading to establish that the
Plaintiff was an “employee” of the Defendants. Although she was classified
as both an independent contractor and a supervisor, the Plaintiff in fact had
a very limited degree of control in her position. She did not have any
authority to supervise, fire, or hire other employees or to enter into contracts
with third parties on behalf of her employers. She did not invest in any
equipment or employ other workers. Her duties consisted of mainly manual
15

tasks lacking a high degree of skill. Although the Plaintiff was employed atwill, she was employed for over three years, which indicates that her position
was permanent. For all of these reasons, the Court concludes that the
Plaintiff has demonstrated that she was a covered “employee” within the
meaning of the FLSA.
3.

Plaintiff’s Damages Calculations

The Court next turns to the amount of unpaid wages to which the
Plaintiff is entitled. In the one sole paragraph of the Memorandum filed in
support of the motion for default judgment which addresses the issue of
damages, the Plaintiff explains her damages calculation as follows:
Andrews was paid initially $550 per week for 167
weeks, then $600 per week for 14 weeks. That is a
total of $100,250.00. If she had been paid minimum
wage for all hours worked (19 per week) she should
have earned $138,034.05 regular time plus
$48,260.02 overtime. Minimum wage was $5.15 for
79 weeks, $5.85 for 53 weeks, and $6.55 for 49
weeks. This is a difference of $86,044.08.
[Doc. 78 at 1] (emphasis added). The Plaintiff’s reference to “19 hours per
week” appears to be a typographical error. It is evident from the spreadsheet
that the Plaintiff submits in support of her damages calculation that she is
claiming to have worked 133 hours per week, which calculates to working 19
hours per day. [See Doc. 78-3]. Thus, it appears that the Plaintiff seeks
16

overtime pay under a theory that, as an employee who was required to reside
on site, she worked 19 hours per day, seven days per week for a period of
more than three years.
Due to the nature of certain job positions requiring that an employee
be on duty for twenty-four hours or more, the FLSA and its accompanying
regulations provide exemptions from overtime pay for certain activities
depending upon the employee’s living circumstances. In pertinent part, 29
C.F.R. § 785.23 provides as follows:
An employee who resides on his employer's
premises on a permanent basis or for extended
periods of time is not considered as working all the
time he is on the premises. Ordinarily, he may
engage in normal private pursuits and thus have
enough time for eating, sleeping, entertaining, and
other periods of complete freedom from all duties
when he may leave the premises for purposes of his
own. It is, of course, difficult to determine the exact
hours worked under these circumstances and any
reasonable agreement of the parties which takes into
consideration all of the pertinent facts will be
accepted.
29 C.F.R. § 785.23.
Recognizing the difficulty of determining the true number of hours
“worked” by an employee who resides on site, “section 785.23 establishes a
presumption that employees residing on the employer's premises are not
working the entire time they are on the premises.” Garofolo v. Donald B.
17

Heslep Assocs., Inc., 405 F.3d 194, 198 (4th Cir. 2005); Jarrett v. ERC
Properties, Inc., 211 F.3d 1078, 1082 (8th Cir. 2000) (discussing
presumption that resident employees are not working the entire time they are
on the job).

The burden is on the employee to rebut the presumption

established by § 785.23. Garofolo, 405 F.3d at 198.
Here, the Plaintiff has failed to present sufficient evidence to rebut the
presumption established by § 785.23.

While she alleges that she was

required to reside at TLC all the time, and that she performed various duties
for the residents there, she does not allege any facts with respect to how
long it normally took her to perform such duties. She also does not make
any factual allegations as to how she ate her meals or the amount of any
personal or “down” time she had when not caring for residents.5 Without
such evidence, the Court must presume that the Plaintiff’s working
arrangement allowed her to have at least some time for eating, sleeping,
entertaining, and other periods of relief from her required duties.

See

In fact, the Plaintiff alleges in her Complaint that she “generally worked around 168
hours in a week” [Doc. 1 at ¶ 118], which would mean that she engaged in work activity
twenty-four hours per day, seven days per week for the period of more than three years
that she was employed by the Defendants. In her Memorandum in support of her Motion
for Default Judgment, the Plaintiff reduces this estimation to 133 hours per week, or 19
hours per day. [Doc. 78 at 1]. However, she still fails to provide any evidence to support
a finding that her required duties took 19 hours per day to perform and precluded her from
having any time for personal pursuits, meals, or sleep or more than five hours per night.
18
5

Garofolo, 405 F.3d at 200 (affirming summary judgment for employer when
plaintiff presented “no evidence to suggest that they were working the entire
time that they were present at the storage facility”); Myers v. Baltimore Cty.,
Md., 50 F. App’x 583, 587 (4th Cir. 2002) (affirming summary judgment for
employer where there was “no indication that interruptions of private pursuits
were frequent enough to render such time work time, that is, time spent
predominantly for the benefit of [the employer]”).
Presumably, the five hours per day for which the Plaintiff does not claim
compensation is the approximate time that she could sleep at night without
being interrupted. [See Doc. 1 at ¶ 111 (“Due to the requirement that plaintiff
administer medication and the interruptions of residents/clients attempting to
leave the premises, among other things, it was rare if ever that plaintiff
received at least five (5) uninterrupted hours of sleep in any night.”)]. The
Plaintiff makes no allegations, however, and presents no evidence to explain
how long these interruptions typically lasted, and there is certainly nothing in
the record to suggest that she could not return to sleep after these
interruptions. Given this lack of evidentiary support, the Plaintiff has failed
to establish that she is entitled to overtime compensation for her overnight
hours. See Kelly v. Hines-Rinaldi Funeral Home, Inc., 847 F.2d 147, 148
(4th Cir. 1988) (denying funeral employee overtime for overnight hours
19

during which he occasionally answered phone calls or had to pick up
corpses, finding that plaintiff was “wait[ing] to be engaged” and therefore
these hours were not working time).
Under the circumstances of this case, the Plaintiff has not alleged
evidence which reasonably shows the amount of time she actually worked.
While the parties apparently had no clear agreement regarding the nature of
the Plaintiff’s work hours or any periods of personal time or rest, it is simply
a matter of common sense that the Plaintiff could not have sustained a work
schedule of nineteen hours per day, seven days per week, for over three
years. See Kelly, 847 F.2d at 148 (“While there was no clear agreement
between the parties on the exact nature of the time in question, practical
considerations guide us to conclude that [plaintiff] waited to be engaged ....
[I]t is not realistic to assume that [defendant] would employ someone for 69
hours per week, thereby incurring large overtime expense, to perform the
tasks assigned to [plaintiff]”).
Accordingly, the Court concludes that the Plaintiff is entitled to
compensation at the applicable minimum wage rate for forty hours per week.
As for amount of overtime worked, the Court finds that the Plaintiff is exempt
from overtime for eating, rest, and sleep time hours of at least twelve hours
per day (eight hours for sleep and four hours for meals and rest periods).
20

The Plaintiff’s overtime compensation, therefore, will be calculated based on
a total of forty-four (44) overtime hours of per week. Accordingly, the Court
will award the Plaintiff unpaid minimum wage and overtime payments as
follows:
Applicable Minimum Wage
$5.15 x 40 hours x 79 weeks =

$ 16,274.00

$5.85 x 40 hours x 53 weeks =

$ 12,402.00

$6.55 x 40 hours x 49 weeks =

$ 12,838.00

Overtime (1.5 x applicable minimum wage)
$7.73 x 44 hours x 79 weeks =

$ 26,869.48

$8.78 x 44 hours x 53 weeks =

$ 20,474.96

$9.83 x 44 hours x 49 weeks =

$ 21,193.48

Gross Compensation Owed

$110,051.92

Compensation Received

<100,250.00>

Net Compensation Owed

$

9,801.92

The Plaintiff will also be awarded an additional amount of $9,801.92 in
liquidated damages. See 29 U.S.C. § 216(b).
C.

Award of Attorneys’ Fees and Costs

The FLSA mandates an award of reasonable attorneys’ fees and costs
to a prevailing employee. See 29 U.S.C. § 216(b). While an award of fees
21

and costs is mandatory, the amount of such fees are within the Court’s sound
discretion. Burnley v. Short, 730 F.2d 136, 141 (4th Cir. 1984).
In determining the amount of reasonable attorneys' fees to be
awarded, courts typically apply the lodestar method, whereby the Court
multiplies the number of reasonable hours expended by a reasonable hourly
rate. See Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir.
2009). In determining the lodestar amount, the Court must consider the
twelve-factor test set forth in Johnson v. Georgia Highway Express, Inc., 488
F.2d 714, 717-19 (5th Cir. 1974), overruled on other grounds, Blanchard v.
Bergeron, 489 U.S. 87 (1989), as adopted by the Fourth Circuit Court of
Appeals in Barber v. Kimbrell’s Inc., 577 F.2d 216, 226 (4th Cir. 1978). See
Grissom v. The Mills Corp., 549 F.3d 313, 320-21 (4th Cir 2008). Those
factors include:
(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; (7) the time limitations imposed by
the client or circumstances; (8) the amount in
controversy and the results obtained; (9) the
experience, reputation and ability of the attorney;
(10) the undesirability of the case within the legal
community in which the suit arose; (11) the nature
and length of the professional relationship between
attorney and client; and (12) attorneys’ fees awards
in similar cases.
22

Grissom, 549 F.3d at 321 (quoting Spell v. McDaniel, 824 F.2d 1380, 1402
n.18 (4th Cir. 1987)). After calculating the lodestar amount, the Court then
should subtract fees for time spent on unsuccessful claims which were
unrelated to successful ones. Jackson v. Estelle’s Place, LLC, 391 F. App’x
239, 241 (4th Cir. 2010). Once the fees for unsuccessful claims have been
subtracted, the Court should then “award[ ] some percentage of the
remaining amount, depending on the degree of success enjoyed by the
plaintiff.” Id. (quoting Grissom, 549 F.3d at 321). The party seeking an
award of attorneys’ fees has the burden of demonstrating a reasonable fee.
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
Currently, the Plaintiff is represented by three attorneys: Joseph H.
Cassell of the Eron Law Office in Wichita, Kansas; Terry D. Smith of the Law
Office of Terry D. Smith in Wichita, Kansas; and John C. Hunter of the John
C. Hunter Law Firm in Asheville, North Carolina. Both Mr. Cassell and Mr.
Smith were admitted to practice pro hac vice before this Court. Mr. Cassell
served as lead counsel, and Mr. Hunter served as the Plaintiff’s local
counsel. The Plaintiff has provided scant information upon which the Court
can award attorneys’ fees, and what has been provided is very difficult to
decipher. Mr. Cassell gives no explanation of his claim for fees, but merely
23

attaches six pages showing some expense records and hours worked. [Doc.
78-4]. From this it appears that the Plaintiff claims $26,094.626 in attorneys’
fees and $19,401.61 in costs. [Id. at 6]. This fees total, however, includes
an entry in the amount of $7,425.62 from Mr. Cassell’s prior firm, which
amount includes other funds expended rather than fees. Therefore, the fees
claim must be reduced by another $6,780.98 to reflect this. [Id. at 3]. This
reduces the fees claim to $19,313.64. This, however, is still not the end of
the calculation. The funds expended by Mr. Cassell and his firms include
amounts paid to Mr. Hunter and his firms for services as local counsel.
These are apparently part of the claim for fees. It appears the amount
claimed for such is $8,553.23. Therefore, the Plaintiff appears to be claiming
a total of $27,866.87 for fees and $17,629.36 for costs.
Absent from the Plaintiff’s claim for fees, however, are any affidavits of
counsel to explain their experience or their work on the case, and they offer
no affidavits from other attorneys in the relevant legal community to establish
the reasonableness of their requested fee. See Grissom, 549 F.3d at 321
(“In addition to the attorney’s own affidavits, the fee applicant must produce
satisfactory specific evidence of the prevailing market rates in the relevant

This is derived from what appears to be counsel’s total claim of $45,496.23, which
includes fees and counsel’s total regarding expenses of $19,401.61.
24
6

community for the type of work for which he seeks an award.”) (citation
omitted). Further, the Plaintiff’s attorneys have not provided any argument
or citation to any legal authority in support of their request for fees and costs
in the motion for default judgment. Of the twelve Grissom factors, counsel
has provided scant information on one and no information on the others.7
The lack of effort demonstrated by the Plaintiff’s counsel makes the
determination of a reasonable fee award extremely difficult in this case.
Mr. Cassell claims payment for 205.09 hours at an apparent average
rate of $94.17 per hour. It is noted that many of Mr. Cassell’s time entries
have a notation at the right-hand margin stating “No Charge,” which
apparently lowered this hourly rate. As for Mr. Hunter’s services, however,
the Plaintiff has provided no explanation whatsoever as to what Mr. Hunter
did, when such services were performed or the hourly rate charged.8 The
Court is left to guess as to all of these important factors.
The Court finds that a reasonable fee in this matter should be
somewhat limited. The Plaintiff recovered only a small portion of what she

7

The Court could glean information regarding the amount in controversy and results
obtained (factor 8) from the record.
8

The Plaintiff offers no evidence whatsoever regarding the services of Mr. Smith.
25

claimed. As such, the Plaintiff was only partially successful in this suit. In
addition, the Plaintiff has prevailed by way of default, which should not have
involved any great expenditure of attorney time. The Court recognizes that
this case involved three trips to the Court of Appeals, but those were
occasioned by counsel’s own tactical move of taking a voluntary dismissal of
the suit he originally filed. Lastly, since literally no information has been
provided regarding the services performed by Mr. Hunter, the Court can only
allow for the recovery for the most rudimentary actions by local counsel. The
Court cannot base an assessment of “reasonable fees” on assumptions of
anything beyond that.

The Court notes that counsel appears to have

reduced the claim for fees – presumably based on at least some of these
factors – by indicating “No Charge” next to many of counsel’s time entries.
Suffice it to say, counsel’s submittal is completely inadequate for the Court
to conduct the ordinary lodestar analysis. Taking all of these factors into
account, however, the Court will in its discretion award attorneys’ fees in the
amount of $20,000.00 and finds that such amount is reasonable.
Finally, the Court turns to the Plaintiff’s request for an award of costs.
Courts have construed the term “costs of the action” as used in the FLSA to
allow only the types of costs permitted by 28 U.S.C. § 1920. See Uphoff v.
Elegant Bath, Ltd., 176 F.3d 399, 411 (7th Cir. 1999) (interpreting Fair Labor
26

Standards Act) (cited with approval by People for Ethical Treatment of
Animals v. Doughney, 263 F.3d 359, 371 (4th Cir. 2001) (discussing costs in
the context of the Lanham Act)). Section 1920 provides that the Court may
tax as costs any of the following:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded
transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and
witnesses;
(4) Fees for exemplification and the costs of making
copies of any materials where the copies are
necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts,
compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation
services under section 1828 of this title.
28 U.S.C. § 1920. In awarding costs pursuant to § 1920, the Court is further
guided by Local Civil Rule 54.1, which sets forth certain categories of costs
that may or may not be awarded to a prevailing party. This Rule states, in
pertinent part, as follows:
(F) Taxable Costs. Items normally taxed include,
without limitation:

27

(1) those items specifically listed on the bill of costs
form. The costs incident to the taking of depositions
(when allowable as necessarily obtained for use in
the litigation) normally include only the reporter's
attendance fee and charge for the original transcript
of the deposition;
(2) premiums on required bonds;
(3) actual mileage, subsistence, and attendance
allowances for necessary witnesses at actual cost,
but not to exceed the applicable statutory rates,
whether they reside in or out of this district;
(4) one copy of the trial transcript for each party
represented by separate counsel;
(5) costs associated with private process servers;
(6) fees for service of summons, subpoena, and
notices by private firms; and
(7) costs of the original videotape of a deposition and
the appearance fee of a videographer in lieu of the
costs of a transcript of the deposition.
(G) Nontaxable Costs. Items normally not taxed
include, without limitation:
(1) multiple copies of depositions;
(2) daily copy of trial transcripts, unless prior Court
approval has been obtained;
(3) copies of documents filed electronically; and
(4) attorney fees and attorney travel expenses;
(5) costs of shipping/mailing transcripts;
28

(6) costs for computer aided legal research including
paralegal charges and computerized indices or
optical discs produced for the benefit of counsel;
(7) costs associated with mediation;
(8) copy costs for any documents filed or served in
electronic format;
(9) pro hac vice fees;
(10) costs for extraction and/or electronic
configuration of data (emails) for the convenience of
counsel absent any agreement among the parties
pertaining to these costs; and
(11) costs associated with condensing a transcript,
putting transcripts on a diskette or providing Etranscripts in addition to counsel receiving the
original transcript.
LCvR 54.1.
The attachment to the Plaintiff’s motion contain two lists of expenses.
The third page contains a list of “costs” apparently incurred by Mr. Cassell in
2010 and 2011. Included in this list are a total of $90.37 for charges for long
distance telephone calls, computerized legal research, and overnight
delivery costs. [Id. at 3]. Also included as “costs” in this list are lump sum
charges for “legal services by The Van Winkle Law Firm” in the amount of

29

$4,313.75,9 and “Expert/Consultant Fee by Hunter & Carpenter, P.L.L.C.” in
the amount of $1,172.50.10 [Id.]. The total amount of “costs” claimed for this
time period therefore are $6,816.62.11

The last page of billing records

contains a list of claimed “expenses,” apparently incurred by Mr. Cassell from
2011 to 2016, in the amount of $19,401.61. These expenses include the
“expenses/advances carried over from Redmond & Nazar” in the amount of
$6,816.62,12 as well as claims for postage ($99.50); filing fees ($910.00);
costs of computer legal research ($292.39); overnight delivery charges
($53.98); copy expenses ($1,525.59); and attorney travel expenses related
to oral argument ($790.30). Also included in these “expenses” are various
charges for “legal services” of local counsel referred to above. [Id. at 6].
The recovery of several of these items is clearly prohibited under Local
Civil Rule 54.1(G), such as fees for attorney travel expenses and
computerized legal research. Other claimed costs, while not specifically

9

No attorney from The Van Winkle Law Firm, however, ever made an appearance on
behalf of the Plaintiff in this case.
10

Mr. Hunter was subsequently retained as local counsel, but this entry indicates that the
services performed were something other than services of counsel to the Plaintiff.
11

Some of these expenditures have already been addressed in the section pertaining to
fees, see p. 24, supra.
12

This amount appears to have been included in the $7,425.62 charge two pages earlier,
and thus appears to be double counted in this claim.
30

addressed by § 1920 or the Local Rules, are similarly excludable, such as
overnight delivery and other postage costs and long-distance telephone
charges. See AM Props. v. Town of Chapel Hill, 202 F. Supp. 2d 451, 456
(M.D.N.C. 2002).
The Court will further disallow any claimed costs for which the Plaintiff
has failed to provide an adequate explanation for the expense. See Andrade
v. Aerotek, Inc., 852 F. Supp. 2d 637, 645 (D. Md. 2012) (denying costs
where the “entries lack[ed] the basic level of detail sufficient for the court to
understand the nature of the costs or why they should be granted”); Scallet
v. Rosenblum, 176 F.R.D. 522, 525 (W.D. Va. 1997) (“In order to recover
costs a party is required to provide explanation and adequate supporting
documentation for the bill of costs.”). Therefore, while the Court will award
costs for the commercial printing of briefs for the Fourth Circuit ($723.95 and
$568.59), the Court will not award costs for the additional $233.05 claimed
in copy expenses when no explanation is provided as to why such additional
expenses were necessary.
The Court, however, will allow the recovery of the fees incurred in filing
two of the appeals to the Fourth Circuit Court of Appeals ($455 and $455),

31

as such filing fees are recoverable under § 1920.13 Accordingly, the Plaintiff
will be awarded a total of $2,202.54 in costs.

ORDER
IT IS, THEREFORE, ORDERED that the Motion for Default Judgment
[Doc. 77] is GRANTED IN PART and DENIED IN PART. Specifically, the
Motion [Doc. 77] is GRANTED to the extent that the Plaintiff Stella Andrews
is hereby awarded $9,801.92 in compensatory damages, plus an additional
award of $9,801.92 in liquidated damages against the Defendants America’s
Living Centers, LLC and Kenneth Hodges. The Motion is DENIED with
respect to the opt-in Plaintiffs Betty Gosnell, Sheila Barnard, and Sherry
Hensley, and any claims purportedly asserted by these persons in this action
are hereby DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Plaintiff Stella Andrews is hereby
awarded attorney’s fees in the amount of $20,000.00 and an award of costs
in the amount of $2,202.54 against the Defendants America’s Living Centers,
LLC and Kenneth Hodges.

13

The Court notes that the Plaintiff does not seek to recover the costs of filing this action
in the District Court in the first instance.
32

A

Judgment

consistent

with

this

Order

contemporaneously herewith.
IT IS SO ORDERED.

Signed: August 11, 2017

33

shall

be

entered