United States District Court, E.D. Wisconsin
FERNANDO CERVANTES, ADRIAN CERVANTES, and FIDEL BLANDON, Plaintiffs,
MIDWEST ENVIRONMENTAL LLC and BONNY LOUISE REISKE,
ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT
JUDGMENT AS TO MIDWEST ENVIRONMENTAL AND BONNY LOUISE REISKE
(DKT. NO. 12)
PAMELA PEPPER United States District Judge.
November 13, 2018, at the plaintiffs' request, the clerk
of court entered default. A week later, the plaintiffs moved
for default judgment. Dkt. No. 12. To date, neither defendant
has appeared. The court will grant the motion for default
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 the court must first
assure itself that the defendant was aware of the suit, and
still did not respond.
plaintiffs filed the complaint on April 17, 2018. Dkt. No. 1.
They filed their proofs of service on May 30 and June 1,
2018. Dkt. Nos. 4, 5. The proof of service indicates that
Carlton Manske served Bonnie Louis Reiske individually and on
behalf of Midwest Environmental, LLC, at 2905A S. Wentworth
Ave., Milwaukee, Wisconsin on May 25, 2018. Dkt. No. 4. The
Department of Financial Institutions website confirms that
Bonny Louise Reiske is the registered agent for Midwest
Environmental, LLC, and that the principal office is located
at 2905A S. Wentworth Ave., Milwaukee, WI 53207-2511
(accessible at https://www.wdfi.org/apps/CorpSearch).
summons indicated that within twenty-one days of the date the
defendant received service, it must answer. Dkt. No. 1-2 at
1. This means that the defendants' deadline for answering
or otherwise responding to the complaint was June 15, 2018.
The defendants did not respond, and the clerk of courts asked
the plaintiffs to file a status update. On July 5, 2018, the
plaintiffs filed a motion for leave to file a first amended
complaint. Dkt. No. 7. Magistrate Judge Joseph granted the
motion, and the plaintiffs filed an amended complaint on
August 10, 2018. Dkt. No. 10. The defendants did not file an
answer or otherwise respond. Three months later, the
plaintiffs filed a motion for entry of default against both
defendants, dkt. no. 11, and the clerk entered default the
next day. The court is satisfied that the plaintiffs
effectuated service, and that the entry of default was
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 defendants violated the Fair Labor
Standards Act, 29 U.S.C. § 201, et seq., when
it required, or permitted, the plaintiffs to work more than
forty hours a week but did not compensate them 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, 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 April 2016 to mid-May
2016, the plaintiffs-former employees of the
defendants-worked as asbestos removers. Dkt. No. 10 at
¶15. The defendants “regularly suffered or
permitted plaintiffs to work in excess of forty hours per
week in many workweeks.” Id. at ¶19. The
defendants agreed to pay the plaintiffs a base hourly rate of
$18 per hour, but the defendants failed to pay the plaintiffs
for all hours worked. Id. at ¶¶21, 22. The
plaintiffs allege that defendants' actions were willful.
Id. at ¶38.
relevant times, Reiske owned and operated Midwest
Environmental. Id. at ¶27. Plaintiff Adrian
Cervantes worked approximately eighty hours at his regular
rate of $18 per hour and sixteen hours at his overtime rate
of $27 per hour for a total of $1, 872 in unpaid wages.
Id. at ¶24. When the number is doubled for
liquidated damages, the defendants owe Adrian Cervantes $3,
744. Plaintiff Fernando Cervantes worked approximately ninety
hours at his regular rate of $18 per hour and sixteen hours
at his overtime rate for a total of $2, 052 in unpaid wages.
Id. at ¶25. When that amount is doubled for
liquidated damages, the amount owed to Fernando Cervantes is
$4, 104. Plaintiff Fidel Blandon worked approximately 160
hours at his regular rate of $18 per hour and sixty-eight
hours at his overtime rate of $27 per hour. Id. at
¶26. Blandon was compensated $300 for hours worked, but
has a total of $4, 416 in unpaid wages. Id. When
that amount is doubled, the defendants owe Fidel Blandon $8,
832. The total amount owed the plaintiffs is $16, 680 in
unpaid wages and damages.
FLSA also provides for an award of attorney's fees and
costs. 29 U.S.C. §216(b). Attorney Larry Johnson filed a
declaration and a verified statement of costs and fees. Dkt.
Nos. 14, 14-1, 14-2. Johnson billed 7.1 hours at $350, and
his associate, Claire Roehre, billed 7.2 hours at $200, for a
total amount of $3, 925. Costs totaled $668.70 (filing fee,
service fee and postage). The court finds that the plaintiffs
have supported their request for fees and costs in the amount
of $4, 593.70.