Luong v. China Garden et al

Filing 16

DEFAULT JUDGMENT in favor of Huy Luong and against Peter Wai d/b/a China Garden. Signed by U. S. District Judge Jeffrey L. Viken on 6/12/12. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
HUY LUONG, a/k/a
PETER LUONG,
Plaintiff,
vs.
CHINA GARDEN and
PETER WAI,
Defendants.

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CIV. 10-5069-JLV
ORDER FOR
DEFAULT JUDGMENT

Plaintiff filed a complaint in this action on August 25, 2010. (Docket 1).
On May 19, 2011, the court entered a Notice of Rule 4(m). (Docket 7). See
Fed. R. Civ. P. 4(m). On June 17, 2011, the court entered an order extending
the deadline for service on defendants.1 (Docket 10). That order required
plaintiff to “make proper service of the summons and complaint on defendant[]
and file with the Clerk of Court verification of service on or before Thursday,
September 15, 2011.” Id. On October 17, 2011, plaintiff filed a proof of service
of summons and complaint. (Docket 11). The court finds the proof of service
to be in substantial compliance with the court’s order of June 17, 2011.
On February 27, 2012, plaintiff filed a motion for default judgment
pursuant to Fed. R. Civ. P. 55(b). (Docket 12). With the motion, plaintiff filed

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Plaintiff acknowledges there is only one defendant in this action, Peter
Wai, d/b/a China Garden. (Docket 13 ¶ 3). All references will be to the
“defendant.”

affidavits of plaintiff and counsel in support of default pursuant to Fed. R. Civ.
P. 55(a). (Dockets 13 & 14).
Pursuant to Fed. R. Civ. P. 12, defendant’s answer to the complaint was
to have been filed “within 21 days after being served with the summons and
complaint . . . .” Fed. R. Civ. P. 12(a)(1)(A)(i). As of the date of this order,
defendant has not filed an answer or requested leave of the court for an
extension of time to file an answer. The court finds defendant in default and
plaintiff is entitled to entry of default. Fed. R. Civ. P. 55(a).
The court concludes plaintiff is also entitled to a default judgment
pursuant to Rule 55(b)(2). The court finds it is not necessary to conduct a
hearing pursuant to Rule 55(b)(2) because plaintiff’s affidavit appropriately
supports plaintiff’s right to recover a money judgment. Fed. R. Civ. P. 55(b)(2).
Plaintiff’s wage claim against defendant was investigated by the United
States Department of Labor, Wage and Hour Division. (Docket 13 ¶¶ 6 & 7).
The Wage and Hour Division determined defendant violated the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), and SDCL § 60-11-7 and owed
plaintiff $14,476.64 for violations of federal and state law. Id. at ¶ 7.
Defendant failed to pay the amount due. Id.
South Dakota law provides for an assessment of double damages:
In any action for the breach of an obligation to pay wages, if a private
employer has been oppressive, fraudulent, or malicious, in the
employer’s refusal to pay wages due to the employee, the measure of

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damages is double the amount of wages for which the employer is
liable.
SDCL § 60-11-7. Plaintiff’s affidavit indicates he was paid between $1.67 and
$3.21, per hour while employed at the China Garden from November 2007 to
March 2010. (Docket 13 ¶ 4). During this employment, plaintiff often was
required to work six 12-hour days without regular minimum wage and without
time-and-a-half overtime. Id. After plaintiff complained to the United States
Department of Labor regarding the wage and overtime issue, defendant
terminated plaintiff’s employment in retaliation.2 (Docket 13 ¶ 6). The court
finds defendant’s refusal to pay minimum wages,3 his refusal to pay time-anda-half for overtime above 40 hours per week,4 and then terminating plaintiff
because of the wage complaint to be oppressive and malicious conduct as
contemplated by 29 U.S.C. § 215(a)(3) and SDCL § 60-11-7.
Federal law permits an employee to recover “unpaid minimum wages, or
their unpaid overtime compensation, as the case may be, and in an additional

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It is unlawful for any employer to engage in any threatened reprisal or
termination of an employee who files a wage complaint. See 29 U.S.C.
§ 215(a)(3) & SDCL § 60-11-17.1.
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See SDCL § 60-11-3 & 2007 South Dakota Session Laws Chapter 297
which set the South Dakota minimum wage as of July 1, 2007, at $5.85 per
hour. See also SDCL § 60-11-4 which invalidates any agreement between an
employer and employee to work for less than the minimum wage contemplated
by SDCL § 60-11-3.
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29 U.S.C. § 207(a)(1).
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equal amount as liquidated damages.” 29 U.S.C. § 216(b). The law also allows
an employee whose employer violated § 215(a)(3) to recover “an additional equal
amount as liquidated damages.” 29 U.S.C. § 216(b). In addition to any award
for damages, the court “shall . . . allow a reasonable attorney’s fee to be paid by
the defendant, and costs of the action.” Id.
Plaintiff submits affidavits of attorneys David Claggett and Sara
Frankenstein for which he seeks an award of attorneys’ fees and costs against
defendant. (Dockets 14 & 15). Both attorneys submitted detailed billing
statements reflecting their work on behalf of plaintiff. (Dockets 14-1 & 15 at
pp. 6-11). Ms. Frankenstein started working with plaintiff after the United
States Department of Labor investigation began. (Docket 15 at p. 6 [8/23/10]).
She continued to represent plaintiff until Mr. Luong retained Mr. Claggett to
complete the lawsuit. (Docket 14-1 at p. 1).
The court must decide the reasonable hourly rate which should be
applied to any fee award. Hensely v. Eckerhart, 461 U.S. 424, 433 (1983) (“It
remains for the district court to determine what fee is ‘reasonable.’ ”). This
starting point is useful, because “[t]his calculation provides an objective basis
on which to make an initial estimate of the value of a lawyer’s services.” Id.
Plaintiff’s submissions properly request different hourly rates to reflect
the various levels of legal experience of the attorneys and paralegals involved in
this litigation. (Docket 14-1 & 15 ¶¶ 8, 13, 17 & 20). The court finds plaintiff

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has “produce[d] satisfactory evidence . . . that [counsels’] requested rates are in
line with those prevailing in the community for similar services . . . of
reasonably comparable skill, experience, and reputation.” Blum v. Stenson,
465 U.S. 886, 896 n. 11 (1984). The court finds the hourly rates for each
attorney as set forth in the billing statements to be appropriate for their
professional services and for use in this analysis.
The next step is to multiply that reasonable hourly rate by “the number
of hours reasonably expended on the litigation . . . .” Hensley, 461 U.S. at 433.
“The party seeking an award of fees should submit evidence supporting the
hours worked and rates claimed.” Id. If “the documentation of hours is
inadequate, the district court may reduce the award accordingly.” Id. The
billing statements submitted by plaintiff’s attorneys provide date certain and
detailed descriptions of all services provided.
In conducting a review of the attorneys’ detailed billing statements, the
court completed a thorough evaluation of the entries and the activities
described. Addressing Ms. Frankenstein’s billing statements, the court finds
Ms. Frankenstein’s work on August 23, 2010, for four hours research of the
federal and state wage and hour laws to be more than an attorney with her
expertise and experience should require. The court concludes the hours billed
for that day should be reduced from 7.5 hours to 4.0 hours. On September 9,
2010, plaintiff was billed for .3 hours for “review of Summonses . . . and invoice

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from Butte County Sheriff’s Office.” (Docket 15 at p. 7). The court concludes
this billing should be reduced from .3 hour to .1 hour. On December 21, 2010,
Ms. Frankenstein’s billing statement reflects she reviewed Rule 4 of the Federal
Rules of Civil Procedure for .3 hour. Id. It should take only a minute or two for
an attorney with Ms. Frankenstein’s experience to review Rule 4 and arrive at a
conclusion concerning its applicability to this case. The court concludes the
time billed for that day should be reduced from 2.5 hours to 2.2 hours.
Ms. Frankenstein seeks reimbursement for the time of a legal intern.
(Docket 15 ¶ 12). While work of this nature is certainly within the realm of
professional training for a summer legal intern, the court is not inclined to
assess costs against a defendant for those services. The court concludes the
intern’s billings for June 27, 2010, and June 29, 2010, totaling 3.6 hours
should be deducted.
Finally, Ms. Frankenstein seeks reimbursement for time spent by
Attorney Shiloh MacNally to research comparable fees awarded by the court in
other cases. (Docket 15 at p. 8). Ms. MacNally has appeared before this court
in employment and wage and hour litigation on numerous occasions. It should
not take Ms. MacNally 2.8 hours to complete the research necessary to cite
only three cases for fee comparison. Id. at p. 8 ¶¶ 10 & 11. The court
concludes the time billed should be reduced from 2.9 hours to 1.0 hour.

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In summary, Ms. Frankenstein’s fees and costs will be adjusted in the
following manner:
Ms. Frankenstein

34.50 hours
- 4.00 hours
30.50 hours @ $200

= $6,100.00

Ms. Hovland

0.30 hours @ $80

=

Ms. MacNally

3.10 hours
-1.90 hours
1.20 hours @ $185

=

24.00

222.00

Total Fees
6% SD Sales Tax
Filing Fee
Costs
6% SD Sales Tax on Costs

$6,346.00
380.76
350.00
130.69
7.84

Total

$7,215.29

Mr. Claggett charges $200 per hour. (Docket 14 ¶ 3). The first entry in
his billing statement for June 9, 2011, reflects a one hour “opening balance” at
the rate of $220.80 with no further explanation. (Docket 14-1 at p. 1). The
court finds there is insufficient explanation to permit assessing this amount
against defendant. On June 16, 2011, Mr. Claggett’s paralegal spent .3 hours
preparing a letter to “Client re: Personal Injury.” Id. The court finds there is
insufficient relationship between a “wage and hour claim” and a “personal
injury” to permit assessing this amount against defendant. Finally, there
appears to be a double billing on August 11, 2011, and August 24, 2011, for
the prepaid fees of $129 to a San Francisco process server. Id. Deducting

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these three items from Mr. Claggett’s billing statement, the court adjusts Mr.
Claggett’s fees and costs in the following manner:
Attorney’s fees
Paralegal fees
Total Fees
6% SD Sales Tax
Costs
6% SD Sales Tax on Costs

$1,120.00
60.00
$1,180.00
70.80
132.60
7.95

Total Fees & Costs

$1,391.35

The court finds plaintiff is entitled to compensatory damages against
defendant for unpaid wages of $14,476.64 for defendant’s violations of the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), and SDCL § 60-11-7; for
liquidated damages of $14,476.64 pursuant to 29 U.S.C. §§ 215(a)(3) & 216(b)
and SDCL § 60-11-7; and for Ms. Frankenstein’s attorney’s fees and costs of
$7,215.29 and Mr. Claggett’s attorney’s fees and costs of $1,391.35 pursuant
to 29 U.S.C. § 216(b).
Plaintiff is not entitled to recover prejudgment interest. “It is settled that
the FLSA does not permit successful plaintiffs to obtain prejudgment interest
in addition to liquidated damages because that would enable them to obtain
double recovery.” Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1102 (8th
Cir. 1982). “Allowance of interest on minimum wages and liquidated damages
recoverable under [29 U.S.C. § 216(b)] tends to produce the undesirable result
of allowing interest on interest. . . . Congress by enumerating the sums
recoverable in an action under [29 U.S.C. § 216(b)] meant to preclude recovery
of interest on minimum wages and liquidated damages.” Id. (citing Brooklyn
Savings Bank v. O’Neil, 324 U.S. 697, 715-16 (1945)).
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Accordingly, it is hereby
ORDERED that plaintiff Huy Luong, a/k/a Peter Luong, is entitled to
entry of a default judgment pursuant to Fed. R. Civ. P. 55(b)(2) against the
defendant Peter Wai, d/b/a China Garden.
IT IS FURTHER ORDERED that plaintiff Huy Luong, a/k/a Peter Luong,
is entitled to a money judgment against defendant Peter Wai, d/b/a China
Garden, for the following amounts:
Compensatory Damages

$14,476.64

Liquidated Damages

$14,476.64

Attorneys’ Fees & Costs

$ 8,606.64

Total Money Judgment

$37,559.92

Dated June 12, 2012.
BY THE COURT:
/s/ Jeffrey L. Viken__________________________
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE

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