Vickers v. Luschak et al
Filing
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MEMORANDUM OPINION AND ORDER granting in part and denying in part 12 Motion for Default Judgment. While default judgment is appropriate, the evidence before the Court is insufficient to award damages that can be determined through mathematical calculation. Therefore, Mr. Vickers may supplement the record with additional evidence on or before 7/10/2018. (Ordered by Judge Jane J. Boyle on 6/19/2018) (zkc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
RYAN VICKERS
Plaintiff,
v.
IGOR LUSCHAK, FREIGHTER, INC.,
and CONVOY, INC.,
Defendants.
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CIVIL ACTION NO. 3:17-CV-3521-B
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Ryan Vickers’s Motion for Default Judgment. Doc. 12. For the
reasons stated below, the Motion is GRANTED in part and DENIED in part.
I.
BACKGROUND
Ryan Vickers filed this lawsuit against Defendants on December 30, 2017. Doc. 1, Compl.
Mr. Vickers alleges that Defendants failed to pay him minimum and overtime wages in violation of
the Fair Labor Standards Act, as amended, 29 U.S.C. § 201 et seq. (FLSA). Id. ¶ 23. On January 29,
2018, Mr. Vickers filed a Motion for Substitute Service of Process against Defendants, Doc. 5, which
the Court granted, Doc. 6. Substitute service was made on all Defendants on February 3. Docs. 7–9.
Defendants neither submitted an answer nor otherwise made an appearance in this case despite
having been served.
On February 27, 2018, Mr. Vickers requested the Clerk enter default judgment against all
Defendants, Doc. 10, and the Clerk did so the same day, Doc. 11. On May 23, 2018, Mr. Vickers
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filed this Motion for Default Judgment, Doc. 12, which is ripe for review.
II.
LEGAL STANDARD
Rule 55 of the Federal Rules of Civil Procedure authorizes the Court to enter a default
judgment against a defendant who has failed to plead or otherwise defend upon motion of the
plaintiff. Fed. R. Civ. P. 55(b). That being said, “[d]efault judgments are a drastic remedy, not
favored by the Federal Rules and resorted to by courts only in extreme situations.” Sun Bank of Ocala
v. Pelican Homestead & Sav. Ass’n, 874 F.2d 274, 276 (5th Cir. 1989). A party is not entitled to a
default judgment merely because the defendant is technically in default. Ganther v. Ingle, 75 F.3d
207, 212 (5th Cir. 1996). “Rather, a default judgment is generally committed to the discretion of the
district court.” United States v. 1998 Freightliner Vin #: 1FUYCZYB3WP886986, 548 F. Supp. 2d 381,
384 (W.D. Tex. 2008).
In determining whether a default judgment should be entered against a defendant, courts
have developed a three-part analysis. Id. First, courts consider whether the entry of default judgment
is procedurally warranted. See Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998). The factors
relevant to this inquiry include:
[1] whether material issues of fact are at issue; [2] whether there has been substantial
prejudice; [3] whether the grounds for default are clearly established; [4 ]whether the
default was caused by a good faith mistake or excusable neglect; [5] the harshness of
a default judgment; and [6] whether the court would think itself obliged to set aside
the default on the defendant’s motion.
Id.
Second, courts assess the substantive merits of the plaintiff’s claims and determine whether
there is a sufficient basis in the pleadings for the judgment. See Nishimatsu Constr. Co., Ltd. v. Hous.
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Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)(noting that “default is not treated as an absolute
confession by the defendant of his liability and of the plaintiff’s right to recover”). In doing so, courts
are to assume that due to its default, the defendant admits all well-pleaded facts in the plaintiff’s
complaint. Id. However, a “defendant is not held to admit facts that are not-well pleaded or to admit
conclusions of law.” Id.
Third, courts determine “what form of relief, if any, the [plaintiff] should receive.” 1998
Freightliner, 548 F. Supp. 2d at 384. Normally, damages are not to be awarded without a hearing or
a demonstration by detailed affidavits establishing the necessary facts. See United Artists Corp. v.
Freeman, 605 F.2d 854, 857 (5th Cir. 1979). But if the amount of damages can be determined with
mathematical calculation by reference to the pleadings and supporting documents, a hearing is
unnecessary. James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993).
III.
ANALYSIS
A.
Whether Default Judgment is Procedurally Warranted
The Court determines default judgment is procedurally warranted after reviewing Mr.
Vickers’s Motion in light of the six Lindsey factors. First, Defendants have not filed any responsive
pleadings so there are no material facts in dispute. Lindsey, 161 F.3d at 893; Nishimatsu Constr., 515
F.2d at 1206 (noting that “[t]he defendant, by his default, admits the plaintiff’s well-pleaded
allegations of fact.”). Second, Defendants’ “failure to respond threatens to bring the adversary process
to a halt, effectively prejudicing Plaintiff’s interests.” Ins. Co. of the W. v. H & G Contractors, Inc., No.
C-10-390, 2011 WL 4738197, at *3 (S.D. Tex, Oct. 5, 2011)(citing Lindsey, 161 F.3d at 893).Third,
Defendants have not responded to any part of this proceeding since it was filed on December 30,
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2017; thus, the grounds for default are “clearly established.” See J.D. Holdings, LLC v. BD Ventures,
LLC, 766 F. Supp. 2d 109, 113 (D.D.C. 2011)(finding that “[d]efault judgment is appropriate if
defendants are ‘totally unresponsive’ and the failure to respond is ‘plainly willful, as reflected by [the
parties’] failure to respond either to the summons and complaint, the entry of default, or the motion
for default judgment’” (quoting Cumins Ins. Soc’y, Inc. v. Billups, No. 10-1478, 2010 WL 4384228,
at *2 (D.D.C. Nov. 4, 2010))). Fourth, there is no evidence before the Court to indicate Defendants’
silence is the result of a “good faith mistake or excusable neglect.” Lindsey, 161 F.3d at 893. Fifth,
Mr. Vickers seeks only the relief to which he is entitled under the FLSA, mitigating the harshness
of a default judgment against Defendants. Finally, the Court is not aware of any facts that would give
rise to “good cause” to set aside the default if challenged by Defendants. See id. Therefore, the Court
concludes default judgment is procedurally warranted.
B.
Whether There is a Sufficient Basis for Judgment in the Pleadings
The Court finds there is a sufficient basis for default judgment against Defendants in Mr.
Vickers’s pleadings. In light of the entry of default, Defendants are deemed to have admitted the
allegations set forth in Mr. Vickers’s complaint. Nonetheless, the Court must review the pleadings
to determine whether they provide a sufficient basis for Mr. Vickers’s claim for relief. Nishimatsu
Constr., 515 F.2d at 1206.
Mr. Vickers asserts that from February 20 through February 27, 2017, and from July 17
through August 2, 2017, he was not paid any wages for the time he worked. Doc. 1, Compl. ¶ 35.
He also claims that “Defendants knowingly and willfully operated their business with a policy of not
paying [] the FLSA overtime rate” so he did not receive overtime pay even though he worked “one
or more weeks” in excess of forty hours. Id. ¶¶ 20, 42.
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Under the FLSA, an employer must pay employees a minimum wage per hour and must
compensate an employee “for his [overtime hours] at a rate not less than one and one-half times the
regular rate at which he is employed” when the employee works more than forty hours in a
workweek. 29 U.S.C. §§ 206(a)(1), 207(a)(1). Mr. Vickers’s allegations as to Defendants, which the
Court accepts as true based on Defendants’ default, establish violations of the FLSA. See Nishimatsu
Constr., 515 F.2d at 1206. Thus, the Court finds there is a sufficient basis for default judgment
against Defendants in Mr. Vickers’s pleadings.
C.
Damages
Mr. Vickers requests unpaid wages and liquidated damages under the FLSA. Doc. 12, Mot.
Default J., 2–3. In addition, he requests attorney’s fees and costs. Id. at 3–5. The Court considers
each request in turn.
1.
Unpaid wages
The Court denies without prejudice Mr. Vickers’s request for unpaid wages in the amount
of $16,349. Mr. Vickers claims he is owed $3852 in unpaid minimum wages for days he worked
between February 20 through February 27, 2017, and July 17 through August 2, 2017. Doc. 12-1,
Vickers Decl. ¶ 4. He arrives at this figure by multiplying the total number of hours worked (214)
by his hourly wage ($18). Id. Mr. Vickers claims he is owed $9500 in unpaid overtime wages from
November 7, 2016, through March 17, 2017. Id. ¶ 2. He arrives at this figure by multiplying the
average number of overtime hours worked each week (50) by his total weeks of employment for that
period of employment (19) by half his hourly wage ($101). Id. During his second period of
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The Court notes that although Mr. Vickers claims he was paid $20 per hour from November 6,
2016 through March 17, 2017, Doc. 12-1, Vickers Decl., ¶ 2, he also claims he was paid $18 per hour
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employment, June 5 through August 2, 2017, Mr. Vickers claims he is owed $2997 in unpaid
overtime wages. Id. ¶ 3. He arrives at this figure using the same formula above, overtime hours per
week (37) by amount of weeks (9) by half hourly rate ($9). Id.2
Mr. Vickers’s requests for unpaid wages are problematic because Mr. Vickers provides
nothing other than his own terse declaration to support his request. There are no time sheets, pay
stubs, work logs, or other evidence to substantiate the length of his employment, his hourly rate, or
the hours he worked. Though the Court accepts as true the allegations Mr. Vickers makes with
respect to his underlying claim, it is nonetheless reluctant to grant his request for damages absent any
supporting documents. C.f. Carazani v. Zegarra, No. 12–107(RC), 2013 WL 5303492, at *7 (D.D.C.
July 3, 2013)(plaintiff provided employment contract, prevailing wage determination policy guidance
from Employment and Training Administration, prevailing wage rates for housekeepers in area,
FLSA minimum wage for that period, and weekly tabulation of hours she worked to support her
claims); Gibbs v. Parr Mgmt., LLC, No. 12–CV–4474, 2013 WL 2355048, at *1 (N.D.Tex. May 29,
2013)(plaintiff provided detailed affidavit listing dates and work hours to support overtime claim);
Bell v. Able Sec. & Investigations, Inc., No. 10–CV–1945, 2011 WL 2550846, at *1 (N.D. Tex. June
28, 2011)(plaintiff provided timekeeping records to support overtime claim); Bullion v. Transtec Sys.,
Inc., No. 07–61463–CIV, 2008 WL 4218119, at *2 (S.D. Fla. Sept. 15, 2008)(plaintiff “submitted
detailed affidavit to establish claimed damages”).
from February 20, 2017 through February 27, 2017, id. ¶ 4.
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Mr. Vickers also seeks reimbursement for “escrow and security,” but he has not pointed to any
provision in the FLSA that entitles him to that reimbursement. Doc. 12, Mot. Default J., 2. Therefore,
the Court DENIES Mr. Vickers’s request for reimbursement of those funds.
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In light of these deficiencies, the Court is disinclined to award damages absent a hearing or
detailed affidavits establishing the necessary facts. United Artists, 605 F.2d at 857. Thus, the Court
denies Mr. Vickers’s requests for $16,349 in unpaid wages, and orders a supplemental briefing from
which the Court may accurately establish the necessary facts to determine the appropriate amount
Mr. Vickers is owed.
2.
Liquidated Damages
The Court finds Mr. Vickers is entitled to liquidated damages, but denies his request until
he submits a supplemental briefing. A plaintiff is entitled to liquidated damages equal to the amount
of unpaid wages for willful violations of the FLSA. 29 U.S.C. §216(b).“Under the FLSA, a district
court may not exercise its discretionary authority to reduce or to eliminate a liquidated damages
award unless the employer first sustains its burden of showing that its failure to obey the statute was
in good faith.” Nero v. Indus. Molding Corp., 167 F.3d 921, 928 (5th Cir. 1999). Defendants failed
to sustain their burden of showing good faith, because they failed to respond to Mr. Vickers’s
Complaint. Consequently, the Court finds Mr. Vickers is entitled to liquidated damages but denies
his request pending the Court’s receipt of a supplemental briefing.
3.
Attorney’s Fees and Costs
The Court grants Mr. Vickers’s request for attorney’s fees and costs. “The FLSA authorizes
a prevailing party in an FLSA proceeding to recover costs and attorney’s fees, and the award of
attorney’s fees . . . is mandatory.” Bell, 2011 WL 2550846, at *3; see 29 U.S.C. § 216(b). Mr. Vickers
seeks $4313.50 in attorney’s fees and $885.98 in costs. Doc. 12, Mot. Default J., 7. In support of this
request, Mr. Vickers presents the declaration of his attorney, Lantis Roberts, as well as the billing
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records of his law firm, The Roberts Law Office. Doc. 12-1, Roberts Decl. These detail the charges
and expenses incurred during this litigation.
i.
Attorney’s fees
The Fifth Circuit has described the basic procedure and standard for determining attorney’s
fees as follows:
The determination of a fees award is a two-step process. First the court calculates the
“lodestar” which is equal to the number of hours reasonably expended multiplied by
the prevailing hourly rate in the community for similar work. The court should
exclude all time that is excessive, duplicative, or inadequately documented. Once the
lodestar amount is calculated, the court can adjust it based on the twelve factors set
forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974).
Smith v. Acevedo, 478 F. App’x 116, 124 (5th Cir. 2012)(quoting Jimenez v. Wood Cnty., 621 F.3d
372, 379–81 ( 5th Cir. 2010)). The Johnson factors are (1) time and labor required for the litigation;
(2) novelty and difficulty of the questions presented; (3) skill requisite to perform the legal services
properly; (4) preclusion of other employment; (5) customary fee; (6) whether the fee is fixed or
contingent; (7) limitations imposed by the client or circumstances; (8) amount involved and the
result obtained; (9) experience, reputation, and ability of the attorneys; (10) “undesirability” of the
case; (11) nature and length of the professional relationship with the client; and (12) awards in
similar cases. 488 F.2d at 717–19. The Court will apply the lodestar method and make adjustments,
if necessary, with respect to the Johnson factors.
The first step in the lodestar analysis requires the Court to determine the reasonable number
of hours expended by Mr. Vickers’s attorney on the lawsuit, as well as the reasonable hourly rate for
the attorney involved. Smith, 478 F. App’x at 124; Williams v. Kaufman Cnty., No. 3:97–CV–0875–L,
2003 WL 21755913, at *5 (N.D.Tex. July 30, 2003). Here, Mr. Vickers’s attorney has provided a
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time sheet and invoice indicating the amount of work performed in the case. Mr. Roberts expended
13.9 hours of his time at a rate of $300 per hour and 0.2 hours at a rate of $100 per hour. Doc. 12-1,
Roberts Invoice. Additionally, a legal assistant performed 1.3 hours at a rate of $95 per hour. Id.
After reviewing Mr. Roberts’s declaration as well as his supporting invoice, the Court finds
the time he and his legal assistant expended reasonable. Nothing indicates either individual was
billing for “excessive, duplicative, or inadequately documented” time. Smith, 478 F. App’x at 124.
The Court accepts these hours as part of its lodestar calculation.
With respect to the hourly rates, the Court also finds the amounts were reasonable. Mr.
Roberts has been practicing law for over eight years on similar matters Doc. 12-1, Roberts Decl. ¶
2. In light of his declaration as well as the Court’s own knowledge of rates charged for legal services
by attorneys in the area with similar levels of skill, experience, and competence, the Court is
comfortable using his hourly rate of $300. Also, the Court is comfortable using the rate of $95 per
hour for Mr. Roberts’s legal assistant.
Accordingly, the Court finds the lodestars for attorney’s fees to be: (1) $4190 for Mr. Roberts
((13.9 hours x $300) plus (0.2 hours x $100)); and (2) $123.5 for his legal assistant (1.3 hours x
$95). Considering the twelve Johnson factors described above, the Court does not think it is necessary
to make any adjustment to these figures. Accordingly, Mr. Vickers’s request for attorney’s fees is
granted in the amount of $4313.50.
ii.
Costs
Lastly, a prevailing party in a civil action is entitled to recover its costs unless a federal
statute, the federal rules, or the court provides otherwise. See Fed. R. Civ. P. 54(d)(1). In addition,
pursuant to § 216(b) of the FLSA, the court may allow costs to be paid by the defendant. 29 U.S.C.
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§ 216(b). Taxable court costs include: (1) fees paid to the clerk and marshal; (2) court reporter fees
for all or part of the deposition transcript; (3) witness fees and related expenses; (4) printing costs;
and (5) fees for copies of papers necessarily obtained for use in the case. See 28 U.S.C. § 1920. Here,
Mr. Vickers seeks $885.98 in costs, the filing fee ($400), the service of process fees ($485), and
postage ($0.98). Doc. 12-1, Roberts Decl. ¶ 6. These are all reasonable and taxable under the law.
See Bullion, 2008 WL 4218119, at *4. Therefore, the Court grants Mr. Vickers’s request for costs in
the amount of $885.98.
IV.
CONCLUSION
For the foregoing reasons, Mr. Vickers’s Motion for Default Judgment is GRANTED in part
and DENIED in part. While default judgment is appropriate, the evidence before the Court is
insufficient3 to award damages that can be determined through mathematical calculation. Therefore,
Mr. Vickers may supplement the record with additional evidence on or before July 10, 2018.
SO ORDERED.
SIGNED: June 19, 2018.
_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE
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The Court notes that the evidence supporting an award for the liquidated damages and
attorney’s fees is sufficient, but the Court is deferring its award of these damages until after Mr. Vickers
supplements the record with evidence allowing the Court to calculate damages regarding unpaid wages.
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