Ruth v. Pinnacle Payment Service LLC

Filing 9

Memorandum Opinion and Order For the reasons stated herein, the Court grants Plaintiff's Motion for Default Judgment (ECF No. 6 ) and awards $16,780.00. The Court grants Plaintiff's Motion for Attorney Fees and Costs (ECF No. 7 ) and awards $4,892.51 in fees and costs. Judge Benita Y. Pearson on 7/31/2013. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JACOB RUTH,
Plaintiff,
v.
PINNACLE PAYMENT SERVICE LLC,
Defendant.

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CASE NO. 1:13cv476

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Regarding ECF Nos. 6; 7]

This matter is before the Court upon the Motion for Default Judgment against Defendant
Pinnacle Payment Services, LLC, filed by Plaintiff Jacob Ruth on June 24, 2013. ECF No. 6.
Also pending is Plaintiff’s Motion for Attorney Fees and Costs by Attorney Frederick Bean.
ECF No. 7. For the reasons expressed below, the Court grants both motions as to liability and
awards damages and attorney fees in modified amounts.
I. Background
Plaintiff filed a Complaint on March 4, 2013 alleging violations of the Fair Labor
Standards Act, 29 U.S.C. § 201, et seq. ECF No. 1. On April 23, 2013 service as made via
certified mail upon Defendant and, on April 29, 2013, a return of service was executed. ECF No.
3. Defendant did not answer or otherwise respond. On June 24, 2013, Plaintiff filed an
Application for Default and a Motion for Default. On that same day, Plaintiff’s attorney filed a
Motion for Attorney’s Fees. ECF Nos. 5; 6; 7. The Clerk entered default on July 8, 2013, and a
copy of the same was mailed to Defendant. ECF No. 8. Plaintiff now requests the Court enter
judgment in his favor and award him $34,380.00 in damages. ECF No. 6 at 5. Plaintiff also
requests $6,187.50 in attorney’s fees and $355.01 in costs. ECF No. 7 at 3.

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II. Standard of Review
After a default has been entered pursuant to Fed. R. Civ. Pro. 55(a), the party seeking
relief from a defaulting party may apply for default judgment pursuant to Rule 55(b). HICA
Educational Loan Corp. v. Jones, 2012 WL 3579690, at *1 (N.D. Ohio 2012). A default upon
well-pleaded allegations establishes the defendant’s liability, but the plaintiff bears the burden of
establishing damages. Id. (citing Flynn v. People’s Choice Home Loans, Inc., 440 Fed. App’x.
452, 457 (6th Cir.2011) ( citing Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir.1995)).
In order to enter default judgment, the Court must determine the amount of damages. HICA,
2012 WL 3579690, at *1. The Court may determine the amount of damages by affidavit and/or
other documentary evidence. Id. An evidentiary hearing is not required by Rule 55(b) if the
amount of damages can be determined by computation from the record before the Court. Id.
III. Discussion
A. Damages
In his Complaint, Plaintiff alleges that he was unlawfully denied overtime payments and
that he was terminated in retaliation for his efforts to receive compensation for the unpaid
overtime. ECF No. 1 at 3-5. He seeks overtime payments plus liquidated damages; back pay
plus liquidated damages; front pay; and damages flowing from intentional infliction of emotional
distress. ECF No. 1.
1. Unpaid Overtime
Pursuant to 29 U.S.C. § 216(b), Plaintiff is entitled to the amount of his unpaid overtime
compensation. In support of his motion for default judgment, Plaintiff attests that he worked five
days a week, in most cases for 47.5 hours per week. ECF Nos. 6-3 at 1; 6 at 2–4. He worked a

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total of 112.5 unpaid overtime hours, payable at the overtime rate of $12.00 per hour, for a total
of $1,350.00. ECF Nos. 6-3 at 1; 6 at 3-4.
2. Back Pay
Plaintiff is also eligible for back pay. See 29 U.S.C. § 216(b). Plaintiff attests that he has
not been able to gain employment despite his best efforts, and that he has suffered lost wages
from the date of his termination in the amount of $7,040.00. ECF No. 6-3 at 1. This amount is
based on his hourly wage of $8.00 per hour over a 22-week period of unemployment.1 ECF No.
6 at 4.
3. Liquidated Damages
29 U.S.C. § 216(b) provides that an employee is entitled to liquidated damages in an
amount equal to his or her unpaid overtime compensation and back pay. 29 U.S.C. § 260 in turn
provides,
if the employer shows to the satisfaction of the court that the act or omission
giving rise to such action was in good faith and that he had reasonable grounds for
believing that his act or omission was not a violation of the Fair Labor Standards
Act of 1938, as amended, the court may, in its sound discretion, award no
liquidated damages or award any amount thereof not to exceed the amount
specified in section 216 of this title.

Because Defendants have failed to show their violation was in good faith or was reasonable,
liquidated damages are warranted. Accordingly, Plaintiff is entitled to an amount equal his
unpaid overtime ($1,350.00) and back pay ($7,040.00) as liquidated damages. The total sum
awarded is $16,780.00.
4. Front Pay
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Plaintiff was terminated on January 17, 2013. ECF No. 6 at 4.

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Plaintiff “separately [ ] submits that he should be entitled to front pay as a result of
termination up to the one-year anniversary of his termination.” ECF No. 6 at 5. Plaintiff cites no
legal authority nor does he explain why the Court should grant him an award of front pay. An
award of front pay is discretionary. See Arban v. West Pub. Corp., 345 F.3d 390, 406 (6th Cir.
2003). Plaintiff has offered nothing to persuade the Court that front pay should be awarded. See
id. (citing factors).
5. Emotional Distress
Plaintiff also asks for damages flowing from emotional distress in the amount of $8,000.2
ECF No. 6 at 5. Plaintiff does not explain how he arrived at this sum. Damages for his
intentional infliction of emotional distress claim are, therefore, unwarranted.
In sum, the Court awards Plaintiff $16,780.00, representing unpaid overtime with
liquidated damages and back pay with liquidated damages.
B. Attorney Fees
Plaintiff’s counsel submitted an affidavit stating his hourly rate is $375.00. ECF No. 7-2
at 1. However, Plaintiff’s counsel did not include a curriculum vitae nor did he attest that this
rate is customary for counsel in the area in FLSA cases. In determining a reasonable rate, a court
may also consider the awards in analogous cases, see Johnson v. Connecticut Gen. Life Ins., Co.,
2008 WL 697639, at *5 (N.D.Ohio 2008), and its own knowledge and experience from handling

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Plaintiff does not specify whether this claim is based upon state law or 29 U.S.C. §
216(b). The Court finds Plaintiff’s request deficient under either standard. See Weber v. Obuch,
2005 WL 3556693, at *8 (Ohio Ct. App. Dec. 30, 2005) (lower court did not err in denying
damages on default judgment when the plaintiff “did not introduce any damages attributable to
his claim of intentional infliction of emotional distress”); Moore v. Freeman, 355 F.3d 558, 563
(6th Cir. 2004) (FLSA provides for compensation “for demonstrable emotional injuries”).

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similar requests for fees, see Ousley v. Gen. Motors Retirement Program for Salaried Employees,
496 F.Supp.2d 845, 850 (S.D.Ohio 2006) (citing Coulter v. State of Tenn., 805 F.2d 146, 149–50
(6th Cir. 1986)). Another unit of the instant Court has recently found $275.00 to be reasonable in
an FLSA case, see White v. All About Cable Connections, LLC, 2013 WL 2949920, at *4
(N.D.Ohio June 13, 2013); see also Abdelkhaleq v. Precision Door of Akron, 2010 WL 395236,
at *6 (N.D.Ohio Jan. 25, 2010) (awarding an hourly rate of $235.00); Towner v. WestPark
Direct, Case No. 1:12-cv-01958, (Gaughan, J.) (see ECF No. 10 at 6 , hourly rate of $265.00 is
customary, approved at ECF No. 11). Accordingly, the Court awards attorney fees based on an
hourly rate of $275.00, for 16.5 hours worked, for a total of $4,537.50 in reasonable attorney fees
and $355.01 in reasonable costs.3
IV. Conclusion
For the reasons stated above, the Court grants Plaintiff’s Motion for Default Judgment
(ECF No. 6) and awards $16,780.00. The Court grants Plaintiff’s Motion for Attorney Fees and
Costs (ECF No. 7) and awards $4,892.51 in fees and costs.

IT IS SO ORDERED.

July 31, 2013
Date

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/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

Plaintiff’s counsel attests that the costs include the filing fee and service via certified
mail. ECF No. 7-2.