Constant v. A Place for Children, Inc.
MEMORANDUM OPINION and ORDER GRANTING 9 MOTION for Default Judgment against A Place for Children, Inc. (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
A PLACE FOR CHILDREN, INC.,
February 23, 2017
David J. Bradley, Clerk
CIVIL ACTION H-15-2781
MEMORANDUM OPINION AND ORDER
Pending before this court is a motion for default judgment against defendant A Place For
Children, Inc. filed by plaintiff Senelise Constant. Dkt. 7. Defendant has not responded to the
motion. Having considered the motion and applicable law, the court is of the opinion that the motion
should be GRANTED.
Constant seeks to recover $2,880.00 in unpaid overtime and statutory liquidated damages for
violations of the overtime provisions of the Fair Labor Standards Act (“FLSA”). 29 U.S.C. § 201,
et seq. Additionally, Constant requests $5,650.00 as reasonable and necessary attorney’s fees, and
$532.54 in costs. Dkt. 9. According to Constant, the defendant was obligated to pay her a wage of
$9.00 per hour straight time and $13.50 per hour for each overtime hour worked. Dkt.9, Ex. E.
Constant asserts that, for approximately 16 weeks, she worked 60 hours each week and was paid
straight time at $9.00 per hour. Id. Since Constant was paid $9.00 per hour rather than $13.50 per
hour for 20 hours of overtime for 16 weeks, Constant contends that she is owed $1,440.00 in
overtime pay and $1,440.00 in statutory liquidated damages. Id.
On September 23, 2015, Constant filed this lawsuit asserting claims against the defendant
for violations of the overtime provisions of the FLSA. Dkt. 1. A summons was issued on September
28, 2015, and served on Shannon Allen on October 15, 2015. Dkt. 9, Ex. A. Shannon Allen is
designated by law to accept service on behalf of the defendant. Id. On November 4, 2015, Allen
filed an answer on behalf of the defendant. Dkt. 4. Constant filed the pending motion for default
judgment on December 15, 2015. Dkt. 9.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 55(a), “[w]hen a party against whom judgment for
affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by
affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). Under Rule
55(b)(2), a party may apply for the court to enter a default judgment, and the “court may conduct
hearings or make referrals—preserving any federal statutory right to a jury trial—when, to enter or
effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or (D) investigate any other matter.” Fed. R.
Civ. P. 55(b)(2). Local Rule 5.5 requires that motions for default judgment “be served on the
defendant-respondent by certified mail (return receipt requested).” S.D. Tex. L.R. 5.5. A court may
not enter a default judgment against a minor or incompetent person unless the person is represented
by a general guardian, conservator, or other like fiduciary who has appeared. Fed. R. Civ. P. 55(b).
Additionally, a court may not enter a default judgment if the plaintiff does not file an affidavit
regarding the defendant’s military status. 50 App. U.S.C. § 521(1). If the defendant is in the military
service, “the court may not enter a judgment until after the court appoints an attorney to represent
the defendant.” Id. § 521(2). A default judgment is 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). “The Federal Rules of Civil Procedure
are designed for the just, speedy, and inexpensive disposition of cases on their merits, not for the
termination of litigation by procedural maneuver.” Id.
Constant requests the court to enter a default against the defendant because the defendant
failed to plead or otherwise defend under Rule 55(a). Dkt. 9. Constant further requests the court
grant default judgment pursuant to Rule 55(b) in the amount of $2,880.00, for unpaid overtime and
statutory liquidated damages, $5,650.00 as reasonable and necessary attorneys fees, and $532.54 in
Here, defendant was served with the complaint on October 15, 2015, through its registered
agent, Shannon Allen. Dkt. 9, Ex. A. The motion was sent to the defendant via certified mail, return
receipt requested, as required by the Local Rules. Dkt. 10. The defendant is not an infant or
incompetent person. Id. In addition, the defendant is a corporation and is unable to serve in the
military. See Dkt. 9, Ex. D. Allen filed an answer on behalf of the defendant on November 4, 2015.
Dkt. 4. However, a corporation cannot appear in federal court pro se; it must appear through
licensed counsel. Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194,
202, 113 S. Ct. 716, 721 (1993). Constant contends that because Allen is not a licensed attorney,
Allen cannot represent the interests of the defendant. Dkt. 9. Thus, to the extent that Allen filed an
answer on behalf of the defendant corporation, such answer must be struck as a corporation cannot
represent itself and can appear only through counsel. See Rowland, 506 U.S. at 202. The court finds
that the defendant’s answer is a nullity, and thus, the defendant has failed to plead or otherwise
defend as provided in Rule 55(a). Constant is therefore entitled to default judgment under Rule
55(b). Constant’s motion for default judgment is therefore GRANTED.
Given the defendant’s failure to answer the complaint in a timely manner, the court has the
authority to enter default against the defendant, accept all well-pleaded facts in Constant’s complaint
as true, and award the relief sought by Constant in this action. See Nishimatsu Constr. Co. v. Hous.
Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). Constant has offered evidence to establish that,
for approximately 16 weeks, she worked 60 hours per week, and she was a non-exempt employee
under the FLSA. Dkt. 9, Ex. E. An employer cannot employ a non-exempt employee for more than
40 hours per week unless the employee “receives compensation for his [or her] employment in
excess of [40 hours] at a rate not less than one and one-half times the regular rate . . . .” 29 U.S.C.
§ 207(a)(1). Constant was paid straight time at $9.00 per hour for all 60 hours of work when she
should have received $13.50 per hour for the 20 overtime hours worked. An employer in violation
of the overtime provisions of the FLSA is liable to the affected employee for “their unpaid overtime
compensation . . . and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).
Constant has offered sufficient evidence that defendant was in violation of the overtime provisions
of the FLSA and is therefore entitled to relief. See 29 U.S.C. § 207(a)(1).
Constant is entitled to compensatory damages, statutory liquidated damages, and attorney’s
fees and costs . 29 U.S.C. § 216(b). Constant’s damages are calculated as follows:
20 hours * 16 weeks *$4.50/hour
Statutory Liquidated Damages:
See Dkt. 9, Ex. E.
Constant is entitled to recover damages against the defendant as detailed above, plus postjudgment interest at the rate of 0.83 % per annum pursuant to 28 U.S.C. § 1961.
Pursuant to section 216(b) of the FLSA, in addition to any judgment awarded to the plaintiff,
the court shall allow an award of reasonable attorney’s fees and costs. 29 U.S.C. § 216(b).
According to Saizan v. Delta Concrete Products Co., the court should apply a lodestar analysis to
determine an award of attorney’s fees by multiplying the number of hours reasonably spent on the
case by a reasonable hourly rate for each attorney. 448 F.3d 795, 799 (5th Cir. 2006); Johnson v. Ga.
Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) (the court may enhance or reduce the
lodestar amount by applying the twelve factors discussed within). “Given the nature of claims under
the FLSA, it is not unusual for attorneys’ fees to exceed the amount of the judgment in the case.
Chapman v. A.S.U.I. Healthcare & Dev. Ctr., No. H-11-3025, 2013 WL 487032, at *7 (S.D. Tex.
Feb. 6, 2013), aff’d, 562 F. App’x 182 (5th Cir. 2014). Furthermore, the party seeking an award of
attorneys’ fees should provide evidence demonstrating the amount of time devoted to the pursuit of
the case and the rates claimed. Saizan, 448 F.3d at 799. Constant has provided billing records and
expense records from her attorney. Dkt. 9, Exs. F-G. Such records indicate that Constant’s attorney
billed 22.6 hours on this matter and charged $250.00 per hour. Id. In sum, Constant’s attorney
requests attorney’s fees in the amount of $5,650.00 and costs of $532.54, totaling $6,182.54.1 Id.
Here, the court finds the hours devoted, billing rate charged, and costs to be reasonable. Therefore,
the court GRANTS Constant’s request for reasonable attorney’s fees and costs in the amount of
Constant’s motion for default judgment requests total attorney’s fees of $6,267.54. Dkt.
9 ¶ 4. However, the court awards $6,182.54 in attorney’s fees and costs—the sum of $5,650.00
For the foregoing reasons, Constant’s motion for default judgment (Dkt. 9) is GRANTED.
The court awards $1,440.00 for overtime pay and $1,440.00 for statutory liquidated damages.
Further, the court awards attorney’s fees in the amount of $5,650.00 and costs in the amount of
Signed at Houston, Texas on February 23, 2017.
Gray H. Miller
United States District Judge
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