United States District Court, S.D. Ohio, Western Division, Cincinnati
ORDER OF DEFAULT JUDGMENT AGAINST DEFENDANTS SUSAN
JOHNSON AND MARTIN NIELSON
TIMOTHY S. BLACK, United States District Court Judge
action is before the Court on Plaintiffs' Motions for
Default Judgment against co-Defendants JOHNSON and NIELSON
(Doc. Nos. 19 and 25).
October 14, 2016, the Plaintiffs filed a Complaint in the
United States District Court for the Southern District of
Ohio, Western Division against the Defendant MARTIN NIELSON
("Defendant NIELSON"), Defendant SUSAN JOHNSON
("Defendant JOHNSON") and Defendant PAUL
("Defendant NIELSON and Defendant JOHNSON will be
collectively referred to as "Defendants") (Doc. No.
1). The Complaint alleges that Defendants, violated the Fair
Labor Standards Act of 1938 ("FLSA"), 29 U.S.C.
§§201, et seq., the Ohio Minimum Fair Wage
Standards Act, O.R.C. §§4111 et seg.,
("the Ohio Wage Act"), the Ohio Prompt Pay Act
("OPPA"), Ohio Rev. Code § 4113.15, and the
Ohio Constitution, Oh. Const. Art. II § 34a.
was successfully executed on Defendant JOHNSON on December
20, 2016 (Doc. 14). Plaintiffs were granted an
extension of time to until April 12, 2017, to serve Defendant
NIELSON (See Doc. 15, ant/Notation Order dated
the expiration of the twenty-one (21) day period specified on
the Summons, January 10, 2017, Defendant JOHNSON had not
filed an Answer to the Complaint with the Clerk of this Court
or upon the Plaintiffs; nor had she otherwise defended.
Plaintiffs filed a Request to Enter Default on January 13,
2017 against Defendant JOHNSON (Doc. 16). That same day, the
Clerk filed an Entry of Default against Defendant JOHNSON,
because she had failed to appear, plead or otherwise defend
as provided by the Rules of Civil Procedure (See
Fed. R. Civ. P. Rule 12(a)(1)(A) and Doc. 17). The
Clerk instructed the Plaintiffs to file a motion for default
judgment within twenty-one (21) days. (Doc. 17). A Motion for
Default Judgment was filed by the Plaintiffs on February 3,
2017 (Doc. 19).
was successfully executed on Defendant NIELSON no later than
February 16, 2017 (Docs. 22 and 22-1). Upon the expiration of
the twenty-one (21) day period specified on the Summons,
March 13, 2017, Defendant NIELSON had not filed an Answer to
the Complaint with the Clerk of this Court or upon the
Plaintiffs; nor had she otherwise defended. Plaintiffs filed
a Request to Enter Default on March 14, 2017 against
Defendant NIELSON (Doc. 23). On March 16, 2017, the Clerk
filed an Entry of Default against Defendant NIELSON, because
he had failed to appear, plead or otherwise defend as
provided by the Rules of Civil Procedure (See Fed.
R. Civ. P. Rule 12(a)(1)(A) and Doc. 24). The Clerk
instructed the Plaintiffs to file a motion for default
judgment within twenty-one (21) days. (Doc. 24). A Motion for
Default Judgment was filed by the Plaintiffs on March 29,
2017 (Doc. 25).
STANDARD OF REVIEW
for default judgment are governed by Fed.R.Civ.P. 55(b)(2).
Following the clerk's entry of default pursuant to
Fed.R.Civ.P. 55(a) and the party's application for
default under Rule 55(b), "the complaint's factual
allegations regarding liability are taken as true, while
allegations regarding the amount of damages must be
proven." Morisaki v. Davenport, Allen & Malone,
Inc., No. 2:09-cv-298, 2010 U.S. Dist. LEXIS 86241, at
*1 (E.D. Cal. Aug. 23, 2010) (citing Dundee Cement Co. v.
Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323
(7th Cir. 1983)).
liability may be shown by well-pleaded allegations, the Court
is required to "conduct an inquiry in order to ascertain
the amount of damages with reasonable certainty."
Osbeckv. Golfside Auto Sales, Inc., No. 07-14004,
2010 U.S. Dist. LEXIS 62027, at *5 (E.D. Mich. June 23,
2010). To do so, the civil rules "require that the party
moving for a default judgment must present some evidence of
its damages." Mill's Pride, LP. v. W.D. Miller
Enter., No. 2:07-cv-990, 2010 U.S. Dist. LEXIS 36756, at
*1 (S.D. Ohio Mar. 12, 2010).
having defaulted, the factual allegations in the complaint,
except those related to the amount of damages, are deemed
true. Antoine v. Atlas Turner, Inc., 66 F.3d 105,
110 (6th Cir. 1995). To ascertain an uncertain sum of
damages, Rule 55(b)(2) "allows but does not require the
district court to conduct an evidentiary hearing."
Vesligaj v. Peterson, 331 F.App'x 351, 354-55
(6th Cir. 2009). An evidentiary hearing is not required if
the Court can determine the amount of damages by computation
from the record before it. HICA Educ. Loan Corp. v.
Jones, No. 4:12cv962, 2012 U.S. Dist. LEXIS 116166, at
*1 (N.D. Ohio Aug. 16, 2012). The Court may rely on
affidavits submitted on the issue of damages. Schilling
v. Interim Healthcare of Upper Ohio Valley, Inc., No.
2:06-cv-487, 2007 U.S. Dist. LEXIS 3118, at *2 (S.D. Ohio
Jan. 16, 2007). Here, the Court finds that an evidentiary
hearing is unnecessary.
assert violations of the minimum wage and overtime provisions
of the FLSA and Ohio law. The FLSA requires covered employers
to pay its employees a minimum wage of $7.25 per hour and
overtime compensation for hours of work exceeding 40 in a
workweek at a rate of one and one-half times an
employee's regular rate of pay. 29 U.S.C. §§
206(a), 207(a)(1). Ohio law incorporates the FLSA's
definitions, standards, and principles for its minimum wage
and overtime compensation provisions. Ohio Const. Art. II,
§ 34a; Ohio Rev. Code §§ 4111.02-.03.
Accordingly, the claims may be analyzed together. Thomas
v. Speedway SuperAmerica, LLC, 506 F.3d 496, 501 (6th
covered employer "includes any person acting directly or
indirectly in the interest of an employer in relation to an
employee." 29 U.S.C. § 203(d). Under Department of
Labor regulations, an employee may be jointly employed by two
entities [or persons], each of which is responsible for
complying with the FLSA. 29 C.F.R. § 791.2; Skills
Dev. Servs., Inc. v. Donovan, 728 F.2d 294, 301 (6th
issue of joint employment for the FLSA 'depends upon all
the facts in the particular case.'" Keeton v.
Time Warner Cable, No. 2:09-CV-1085, 2010 WL 2076813, at
*2 (S.D. Ohio May 24, 2010) (citing 29 C.F.R § 791.2(a);
and Int'lLongshoremen's Ass'n, AFL-CIO, Local
Union No. 1937 v. Norfolk S. Corp.,927 F.2d 900, 902
(6th Cir. 1991) (the determination of "joint employer
[status] is essentially a factual issue"). Recognizing
the inclusive and expansive nature of the definition of
"employer" as set forth in the FLSA; courts have
accorded "joint employer status" to two or more
entities or individuals, when each independently satisfies
the definition of employer as articulated by the FLSA.
See 29 U.S.C. § 791.2 (2015); see also,
Mitchell v. Chapman,343 F.3d 811, 827 (6th Cir. 2003)
(all joint employers are responsible, both individually and
jointly for compliance with the ...