Kraft v. Flex Capital Transport, LLC et al

Filing 29

REPORT AND RECOMMENDATIONS re 23 MOTION for Default Judgment as to Flex Capital filed by Dana Kraft, 20 MOTION for Attorney Fees ans Costs filed by Dana Kraft., ORDER re 23 MOTION for Default Judgment as to Flex Capital filed by Dana Kraft, 20 MOTION for Attorney Fees ans Costs filed by Dana Kraft. Within fourteen (14) days after service of the magistrate judges report, any party may serveand file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C.A. § 636(b)(1)(C). Signed by Magistrate Judge Don D. Bush on 7/16/15. (cm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
DANA KRAFT,
Plaintiff,
VS.
FLEX CAPITAL TRANSPORT, LLC,
ANDREW ADAMS AND MICAH TORRES,
Defendants.

§
§
§
§
§
§
§
§
§
§

Case No. 4:14cv213

REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Now before the Court are Plaintiff Dana Kraft’s Motion for Default Judgment Against
Defendant Flex Capital Transport, LLC (Dkt. 23) and Plaintiff Dana Kraft’s Motion for Award of
Attorneys’ Fees and Costs in Connection With Plaintiff’s Motion for Default Judgment Against
Defendant Flex Capital Transport, LLC (Dkt. 20). As set forth below, the Court finds that the
motions should be GRANTED.
This action was filed by Plaintiff Dana Kraft against Flex Capital Transport, LLC
(“Defendant” or “Flex Capital”),1 seeking monetary relief to remedy Defendant’s unlawful
employment practices in violation of the FMLA, EPA, Title VII and 1981a. Plaintiff has asked that
the Court enter default judgment against Defendant Flex Capital Transport, LLC. A Clerk’s Entry
of Default was entered as to Defendant Flex Capital Transport, LLC on September 16, 2014, after
the Court found that service was property executed on Defendant through the Texas Secretary of

1

Plaintiff also originally named Andrew Adams and Micah Torres as Defendants, but
those claims have been voluntarily dismissed without prejudice. See Dkt. 27.
1

State and no answer or responsive pleading was filed. See Dkts. 12 & 14. Plaintiff then filed her
motions for default judgment and attorney’s fees. After those motions had been pending for four
months without any responses in opposition, the Court set the matter for hearing.
At the June 18, 2015 hearing, Plaintiff appeared with counsel. The Court considered
argument from Plaintiff’s counsel, as well as the testimony of Plaintiff and her husband. Nobody
appeared for Defendant Flex Capital Transport, LLC. A copy of the order setting the hearing was
sent to Defendant Flex Capital Transport, LLC c/o Andrew Adams at its last known address, but it
was returned unclaimed. See Dkts. 24 & 28.
Under Federal Rule of Civil Procedure 55, default is appropriate if a defendant has “failed
to plead or otherwise defend” the suit. FED. R. CIV. P. 55(a). Having reviewed the record here, the
Court finds that default is appropriate as Defendant has failed to defend the claims against it.
Further, having reviewed the record before it regarding Plaintiff’s allegations and damages, including
the exhibits attached to the motions, the testimony presented at the hearing, and the provisions of the
applicable statutes (see, e.g., 29 U.S.C. § 206, 29 U.S.C. §215, 29 U.S.C. §216(b), 29 U.S.C. §2617,
42 U.S.C. § 2000e-5, and 42 U.S.C. § 1981a), the Court finds that damages should and interest
thereon should be awarded to Plaintiff as follows:
Lost Wages after Discharge:

$7,355.00

Liquidated Damages on Lost Wages:

$7,355.00

Lost Wages for Equal Pay Act Violation:

$32,500.00

Liquidated Damages on Lost Wages for Equal Pay Act Violation: $32,500.00
Compensatory Damages including Emotional Distress:

2

$50,000.00

Punitive Damages:

$50,000.00

Pre-judgment interest on the Lost Wages After Discharge

$853.99

The Court further finds that, pursuant to the provisions of Rule 54 of the Federal Rules of
Civil Procedure, Plaintiff is entitled to an award of reasonable attorney’s fees and costs of court.
Having heard the testimony of Plaintiff’s counsel and considered the documents, the Court finds that
the reasonable attorney’s fees incurred by Plaintiff in this matter are $26,406.
The Court further finds that, pursuant to the provisions of 28 U.S.C. §2412(a)(2), Plaintiff
is entitled to an award of $400.00, an amount equal to the filing fee in this Court.
Therefore, as set forth herein, Plaintiff Dana Kraft’s Motion for Default Judgment Against
Defendant Flex Capital Transport, LLC (Dkt. 23) and Plaintiff Dana Kraft’s Motion for Award of
Attorneys’ Fees and Costs in Connection With Plaintiff’s Motion for Default Judgment Against
Defendant Flex Capital Transport, LLC (Dkt. 20) should be GRANTED and the attached final
default judgment should be entered for Plaintiff.
Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
and file written objections to the findings and recommendations of the magistrate judge. 28
U.S.C.A. § 636(b)(1)(C).
A party is entitled to a de novo review by the district court of the findings and conclusions
contained in this report only if specific objections are made, and failure to timely file written
objections to any proposed findings, conclusions, and recommendations contained in this report shall
bar an aggrieved party from appellate review of those factual findings and legal conclusions accepted
by the district court, except on grounds of plain error, provided that the party has been served with

3

notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 474 U.S. 140,
148 (1985); Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc),
superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections
.

from ten to fourteen days).
The Clerk of Court is directed to send a copy of this report and recommendation to
Defendant Flex Capital Transport, LLC c/o Andrew Adams at its last known address 558 S.
Central Expressway, Richardson, Texas, 75080, via certified mail return receipt requested.
SIGNED this 16th day of July, 2015.
.

____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

4

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
DANA KRAFT,
Plaintiff,
VS.
FLEX CAPITAL TRANSPORT, LLC,
ANDREW ADAMS AND MICAH TORRES,
Defendants.

§
§
§
§
§
§
§
§
§
§

Case No. 4:14cv213

PROPOSED FINAL DEFAULT JUDGMENT
This action was filed by Dana Kraft (“Plaintiff”) against Flex Capital Transport, LLC
(“Defendant” or “Flex Capital”), seeking monetary relief to remedy Defendant’s unlawful
employment practices in violation of the FMLA, EPA, Title VII and 1981a. Pursuant to Federal
Rule of Civil Procedure 55(b) and the Memorandum Adopting Report and Recommendation of
United States Magistrate Judge filed in this matter, this Court enters default judgment against Flex
Capital in the above stated action because it has failed to appear, plead or otherwise defend after
being properly served with a summons and copy of the complaint.
Therefore, it is ORDERED, ADJUDGED, AND DECREED that:
1.

Judgment is rendered for Plaintiff against Flex Capital, and Plaintiff shall recover from Flex
Capital the sum of $207,369.99, to wit:
Lost Wages after Discharge:

$7,355.00

Liquidated Damages on Lost Wages:

$7,355.00

Lost Wages for Equal Pay Act Violation:

$32,500.00

5

Liquidated Damages on Lost Wages for Equal Pay Act Violation: $32,500.00
Compensatory Damages including Emotional Distress:

$50,000.00

Punitive Damages:

$50,000.00

Attorneys’ Fees

$26,406.00

Costs

$400.00

Pre-judgment interest on the Lost Wages After Discharge

$853.99

2.

All allowable and reasonable costs incurred hereafter are taxed against Flex Capital;

3.

Post-judgment interest shall accrue on the total amount of the judgment of $207,369.99 at
the applicable federal rate of 0.28% per annum, from the date of the entry of this judgment
until it is paid in full;

4.

Plaintiff is entitled to all writs and processes in order to collect this judgment; and

5.

All relief not granted herein is denied. This is a final judgment, and the Clerk shall close this
case.
It is SO ORDERED.

6