United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT
JUDGMENT AND MOTION FOR ATTORNEY'S FEES AND COSTS (DKT.
NO. 8), AND DISMISSING CASE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
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
Entry of Default
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.
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 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.
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.
court is satisfied that the plaintiff effectuated service,
and that the entry of default was proper.
Plaintiff's Motion for Default Judgment
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.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)).
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)).
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.
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.
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,
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
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 ...