United States District Court, D. Kansas
MEMORANDUM AND ORDER
HONORABLE J. THOMAS MARTEN UNITED STATES DISTRICT JUDGE.
This
matter is before the court on plaintiffs Cynthia Bennett and
Amanda Meads' Motion for Entry of Default Judgment. (Dkt.
11). Plaintiffs request a default as to all defendants
pursuant to Federal Rule of Civil Procedure 55(b). In support
of their motion, plaintiffs and their counsel have each
submitted a Declaration reiterating certain allegations of
the Complaint and declaring the amount of damages suffered.
Under
Rule 55(a), entry of default is proper “when a party
against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise.” Rule 55(b)(1) then
provides for entry of default judgment by the clerk
“[i]f the plaintiff's claim is for a sum certain or
a sum that can be made certain by computation.”
“In all other cases, the party must apply to the court
for a default judgment.” Fed.R.Civ.P. 55(b)(2). Rule
55(b)(2) allows the court to conduct a hearing when, to enter
judgment, it needs to “(A) conduct an accounting; (B)
determine the amount of damages; (C) establish the truth of
any allegation by evidence; or (D) investigate any other
matter.” Id.
“‘Once
the default is established, defendant has no further standing
to contest the factual allegations of plaintiff's claim
for relief.'” Mathiason v. Aquinas Home Health
Care, Inc., 187 F.Supp.3d 1269, 1274 (D. Kan. 2016)
(quoting DeMarsh v. Tornado Innovations, L.P., 2009
WL 3720180, at *2 (D. Kan. Nov. 4, 2009) (quoting 10A Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure §2688 (3d ed.
1998)). See also Fed.R.Civ.P. 8(b)(6) (“An
allegation - other than one relating to the amount of damages
- is admitted if a responsive pleading is required and the
allegation is not denied.”). Although the factual
allegations of the complaint may be accepted as true, the
allegations regarding damages are not. DeMarsh, 2009
WL 3720180, at *2. “Damages may be awarded only if the
record adequately reflects the basis for [the] award via a
hearing or demonstration by detailed affidavits establishing
the necessary facts.” Mathiason, 187 F.Supp.3d
at 1275 (internal quotation marks and citations omitted). A
trial court has broad discretion to decide whether to enter
default judgment. Grandbouche v. Clancy, 825 F.2d
1463, 1468 (10th Cir. 1987).
The
court recognizes that defendants Luigi's Italian
Restaurant a/k/a Gianni LLC and Gianni Topalli failed to
appear, plead or otherwise defend this action. As a result, a
Clerk's Entry of Default was properly entered on May 30,
2019 (Dkt. 12). Pursuant to that default, the court will
accept as true all factual allegations in the Complaint. The
court's inquiry does not stop there, as it is still
obligated to determine whether the facts establish a basis
for entry of judgment and whether the damages claimed are
supported by the record. See Mathiason, 187
F.Supp.3d at 1274 (“[e]ven after default, it remains
for the court to consider whether the unchallenged facts
constitute a legitimate basis for the entry of a judgment
since a party in default does not admit conclusions of
law.”) (internal quotations and citations omitted).
The
Complaint indicates the action is brought pursuant to Title
VII of the Civil Rights Act, as amended, the Fair Labor
Standards Act, the Kansas Act Against Discrimination, and the
Kansas Wage Payment Act. (Dkt. 1, at 2). Only three specific
claims for damages are listed, however: a claim for sexual
harassment in violation of Title VII of the Civil Rights Act
(Dkt. 1, at 4-5); a claim for retaliation in violation of
Title VII of the Civil Rights Act (Dkt. 1, at 5), and a claim
for violation of the Fair Labor Standards Act (Dkt. 1, at
5-6). With respect to the Title VII claims of sexual
harassment and retaliation, the Complaint alleges that
defendants' conduct “directly and proximately
caused [plaintiffs] to suffer damages including but not
limited to mental anguish and lost past and future earnings
in an amount to be proven at trial. These damages are
continuing. Based on Defendants (sic) conduct, punitive
damages are appropriate and should be awarded.” (Dkt.
1, at 4, 5). With respect to the FLSA claims, the Complaint
alleges that defendants' conduct “directly and
proximately caused [plaintiffs] to suffer damage including
but not limited to unpaid compensation, punitive damages,
penalties, attorney fees and expenses.” (Dkt. 7).
Plaintiffs
here have not limited their request to default judgment to
the factual allegations of the pleadings. Instead, plaintiffs
request a specific award of $64, 000, encompassing $27, 000
in damages to each plaintiff and a $10, 000 award of attorney
fees. Those amounts appear for the first time in the
plaintiffs' Declarations and the Declaration of their
counsel submitted with their motion. A court may not
generally enter default judgment without a hearing unless the
damages claimed are a liquidated sum or a sum capable of
mathematical calculation. See Veneble v. Haislip,
721 F.2d 297, 300 (10th Cir. 1983).
While
plaintiffs' claims for unpaid compensation and lost past
and future earnings may well be capable of mathematical
calculation, plaintiffs' Declarations do not provide any
basis for that calculation. Instead, both plaintiffs make
identical conclusory statements that “[a]s a result of
the sexual harassment and retaliation by Luigi's Italian
Restaurant and Gianni Topalli, which is referenced in this
lawsuit, I suffered damages totaling $25, 000.00 for front
pay, back pay, and emotional distress.” (Dkt. 11-1, at
1; Dkt. 11-2, at 1). Plaintiffs also submit nearly identical
conclusory statements in support of their claim for unpaid
wages, in which each plaintiff estimates that she
lost $2, 000.00. (Dkt. 11-1, at 1; Dkt. 11-2, at 1).
Plaintiffs have not submitted any past pay stubs, any proof
of hours they typically worked or the wage they were paid,
any copies of checks they claim were dishonored, or any other
information from which the court could determine the amount
of damages actually suffered. Moreover, plaintiffs have
failed to offer any evidence other than their own estimates
from which the court could determine the value of their
emotional distress claims. The court declines to award any
specific dollar amount of damages to plaintiffs based on
personal estimates and unsubstantiated assertions.
The
court further declines to award attorney fees or costs based
upon the Declaration of counsel provided. Plaintiffs'
counsel indicates the attorney fee award is sought relative
to plaintiffs' Fair Labor Standards Act claim. While
plaintiffs may be entitled to an award of fees as the
prevailing parties on a claim under that Act, entry of
default does not relieve the court of its obligation to
determine whether plaintiffs' fee request is
“reasonable.” See Ross v. Jenkins, 325
F.Supp.3d 1141, 1178 (D. Kan. 2018). Plaintiffs have the
burden to prove the number of attorney hours spent on the
case and appropriate hourly rate. Id. (citing
United Phosphorus, Ltd. v. Midland Fumigant, Ind.,
205 F.3d 1219, 1233 (10th Cir. 2000)). The number
of hours spent multiplied by the appropriate hourly rate
becomes the “lodestar” figure, which the court
can then adjust upwards or downwards based upon different
factors. Id. at 1179. Here, plaintiffs' counsel
has not provided the court with any information from which it
can properly calculate the lodestar figure, much less
determine whether any upward or downward departures are
necessary. A conclusory statement that $10, 000 in fees were
incurred in pursuing a default judgment on an FLSA claim is
insufficient to support a fee award under this court's
precedent.
While
the court finds defendants in default and accepts as true the
allegations of plaintiffs' Complaint (Dkt. 1), the court
declines to enter the default judgment plaintiffs have
requested. Because the damages at issue are not a sum certain
or capable of easy computation, and because plaintiffs have
requested an award of attorney fees that requires further
consideration, the court will set this matter for an
evidentiary hearing to allow plaintiffs to prove their
damages.
IT IS
THEREFORE ORDERED that plaintiffs shall appear at an
evidentiary hearing to assist in the court's
determination of their entitlement to damages. The
court's ruling on plaintiffs' Motion for Entry of
Default Judgment (Dkt. 11) will be held under advisement
until the ...