Gibbs v. Sasta Bazaar Inc

Filing 10

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 4/30/2018. 8 Plaintiff's MOTION for Default Judgment GRANTED. Plaintiff awarded $1440 in unpaid overtime compensation and $1440 in liquidated damages. 8 Plaintiff's MOTION for Attorney Fees GRANTED. Plaintiff awarded $3,384.50 in attorney fees and $446.77 in costs. Case DISMISSED. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MICHAEL GIBBS,
Plaintiff,
v.

Case No. 17-cv-1268-pp

SASTA BAZAAR, INC.,
Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT AND
MOTION FOR ATTORNEY’S FEES AND COSTS (DKT. NO. 8), AND
DISMISSING CASE
When the defendant failed to file an answer or otherwise respond to the
complaint, the plaintiff moved for entry of default. Dkt. No. 7. The clerk of court
entered default on November 27, 2017. The plaintiff since has filed a motion for
default judgment, attorneys’ fees and costs. Dkt. No. 8. To date, the defendant
has not appeared. The court will grant the motion.
I.

Entry of Default
Federal Rule of Civil Procedure 55 requires a two-step process before the

entry of default judgment. A party first must seek an entry of default based on
the opposing party’s failure to plead. Fed. R. Civ. P. 55(a). This means that the
court must assure itself that the defendant was aware of the suit, and still did
not respond.
The plaintiff filed the complaint on September 20, 2017. Dkt. No. 1. On
October 31, 2017, the plaintiff filed an affidavit of service. Dkt. No. 6. The
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affidavit indicated that the process server served the summons and complaint
on Mohammad A. Patel as the registered agent of the defendant on October 16,
2017. Id. at 2. The affidavit also recounted the steps the process server had
taken to find the registered agent and effectuate service. Id.
The summons indicated that within twenty-one days of the date the
defendant received service, it must answer. Id. at 1. This means that the
defendant’s deadline for answering or otherwise responding to the complaint
was November 6, 2017. The defendant did not respond, and the plaintiff waited
another two weeks, until November 22, 2017, to file the motion for entry of
default. Dkt. No. 7.
The court is satisfied that the plaintiff effectuated service, and that the
entry of default was proper.
II.

Plaintiff’s Motion for Default Judgment
After the entry of default, a plaintiff may move for default judgment

under Rule 55(b). Fed. R. Civ. P. 55(b). When the court determines a defendant
is in default, the court accepts as true the well-pleaded factual allegations in
the complaint. eE360 Insight v. The Spamhaus Project, 500 F.3d 594, 602 (7th
Cir. 2007). “A default judgment establishes, as a matter of law, that defendants
are liable to plaintiff on each cause of action alleged in the complaint.” Id.
However, those portions of the default judgment motion relating to the amount
of damages and fees must be proven. Yang v. Hardin, 37 F.3d 282, 286 (7th
Cir. 1994). Rule 55(b)(2) provides that the district court may conduct hearings
or make referrals, if necessary, to determine the amount of damages. Fed. R.
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Civ. P. 55(b)(2). Such proceedings are unnecessary if the “amount claimed is
liquidated or capable of ascertainment from definite figures contained in the
documentary evidence or in detailed affidavits.” eE360 Insight, 500 F.3d at 602
(quoting Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d
1319, 1323 (7th Cir. 1983)).
The complaint alleges that the defendant violated the Fair Labor
Standards Act, 29 U.S.C. §201, et seq., when it required, or permitted, him to
work more than forty hours a week, but did not compensate him for those
excess hours. Dkt. No. 1 at 1. The FLSA requires employers to pay their
employees a federal minimum hourly wage. 29 U.S.C. § 206(a)(1). In addition to
these minimum wage requirements, the employer must pay an overtime rate of
at least one and one-half times the employee's regular wage for any hours
worked in excess of forty hours in one week. 29 U.S.C. § 207(a). An employee
bears the burden of proving that he performed overtime work for which he was
not properly compensated. eE360 Insight, 500 F.3d at 602 (quoting Dundee
Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th
Cir. 1983)).
With respect to damages, the FLSA provides that any employer who
violates the overtime pay requirement shall be liable in the amount of the
“unpaid wages, or their unpaid overtime compensation, as the case may be,
and in an additional equal amount as liquidated damages.” 29 U.S.C. §216(b).
In addition to any judgment awarded to the plaintiff, the court may allow a
reasonable attorney’s fees and costs. Id.
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The allegations in the complaint establish a violation of FLSA’s overtime
provisions. From September 9, 2016 through January 10, 2017, the plaintiff
worked for the defendant as a meat cutter. Dkt. No. 1 at 3. On average, the
plaintiff worked sixty hours per week, cutting meats in the meat department.
Id. The defendant paid the plaintiff $8 per hour for all the hours he worked,
regardless of whether those hours were regular or overtime. Id. The defendant
set the plaintiff’s work schedule, determined his rate of pay and provided
payroll and human resources services. Id.
Based on the allegations in the complaint (verified in the plaintiff’s
declaration, dkt. no. 8-1), the defendant should have paid $12 per hour for the
additional twenty hours per week over the period of eighteen weeks. The
defendant owes the plaintiff an additional $4 per hour for the twenty hours of
overtime per week for eighteen weeks. The plaintiff has established that he is
entitled to $1,440, plus a liquidated sum in an equal amount, for a total of
$2,880.1
The FLSA also allows the court to award attorneys’ fees and costs.
Attorney James Loren, who represents plaintiffs in FLSA cases throughout the
country, submitted a sworn declaration, attesting that his office billed a total of
10.30 hours on the case. Dkt. No. 8-2. Loren’s associate performed the
majority of the work at her hourly rate of $350 per hour. Id. at 2. Loren also
performed work at his hourly rate of $500 per hour. Id. Attorney Loren
The complaint also includes an overtime violation under Wis. Stat. §103.02,
103.03 and Wis. Admin. Code DWD §274.03. The plaintiff, however, seeks
damages only under the FLSA.
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explained that his work included review of the file, attending multiple
conferences with his client, drafting a demand letter, preparing the summons
and complaint, reviewing client documents, conducting a damages analysis,
drafting the motion for default and a proposed final judgment. Id. Costs totaled
$446.77 ($400 filing fee, $40 service of process fee, and $6.77 for mailing
documents). Id. at 2-3. The court finds that the plaintiff has supported his
request for fees and costs in the amount of $3,831.27.
IV.

Conclusion
The court GRANTS the plaintiff’s motion for default judgment against

defendant Sasta Bazaar, Inc. Dkt. No. 8.
The court AWARDS the plaintiff $1,440 in unpaid overtime
compensation and an equal amount of $1,440 for liquidated damages. The
court GRANTS the plaintiff’s motion for attorney’s fees and costs in the amount
of $3,384.50 and costs in the amount of $446.77 for a total amount of fees and
costs of $3,831.27. Dkt. No. 8. All sums awarded bear post-judgment interest
at the applicable rate. The clerk will enter judgment accordingly.
The court ORDERS that the case is DISMISSED.
Dated in Milwaukee, Wisconsin this 30th day of April, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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