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Heard v. Nielson

United States District Court, S.D. Ohio, Western Division, Cincinnati

June 2, 2017

HEARD, Plaintiffs,
v.
NIELSON, et al, Defendants.

          ORDER OF DEFAULT JUDGMENT AGAINST DEFENDANTS SUSAN JOHNSON AND MARTIN NIELSON

          TIMOTHY S. BLACK, United States District Court Judge

         This action is before the Court on Plaintiffs' Motions for Default Judgment against co-Defendants JOHNSON and NIELSON (Doc. Nos. 19 and 25).

         I. PROCEDURAL HISTORY

         On 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 HAFT[1] ("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.

         Service 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 1/12/17).

         Upon 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).

         Service 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).

         II. STANDARD OF REVIEW

         Applications 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)).

         While 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).

         III. ANALYSIS

         Defendants 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.

         Plaintiffs 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 Cir. 2007).

         A 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 Cir. 1984).

         "The 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 ...


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