United States District Court, E.D. Virginia, Alexandria Division
PROPOSED FINDINGS OF FACT AND
F. Anderson United States Magistrate Judge.
matter is before the court on a motion for default judgment
filed by plaintiff Heather Gibson ("plaintiff")
against defendants Only Choice Home Health Care Agency, LLC
("Only Choice") and Beverly Ann McNairy
("McNairy") (collectively "defendants").
(Docket no. 12). Pursuant to 28 U.S.C. § 636(b)(1)(C).
the undersigned magistrate judge is filing with the court his
proposed findings of fact and recommendations, a copy of
which will be provided to all interested parties.
March 25, 2018. plaintiff filed this action against
defendants alleging violations of the Fair Labor Standards
Act ("FLSA"). (Docket no. 1). On May 7. 2018.
plaintiff notified the Clerk of Court that she had served the
defendants on April 18, 2018. (Docket no. 5). On May 10,
2018, plaintiff filed a request for entry of default against
defendants (Docket nos. 6, 7), which the Clerk of Court
entered on May 11. 2018 as to McNairy and Only Choice for
failure to plead or otherwise defend (Docket nos. 8, 9). On
May 22, 2018. McNairy informed the court that Only Choice is
closed and no longer doing business. (Docket no. 10). On
September 19, 2018, the court ordered plaintiff to promptly
file either a motion for default judgment, an accompanying
memorandum in support, and a notice setting the hearing, or a
request that the action be dismissed without prejudice.
(Docket no. 11). On October 3, 2018, plaintiff filed this
motion for default judgment and noticed the hearing for
November 2, 2018 at 10:00 a.m. (Docket nos. 12, 13). On
October 18, 2018, plaintiff filed an amended notice of
hearing for November 16, 2018 at 10:00 a.m. (Docket no. 15),
and served a copy of her motion for default judgment with
Roseboro notice and exhibits, memorandum in support, and
proposed order of default judgment on defendants (Docket no.
16). At the hearing on November 16, 2018, counsel for
plaintiff appeared, but no one appeared on behalf of
following facts are established by the complaint (Docket no.
1) ("Compl."). Only Choice was formed in the
Commonwealth of Virginia and employed therapists, medical
social workers, and nurses to provide in-home health care
services. (Compl. ¶ 1). McNairy, a resident of Virginia,
had an ownership interest in Only Choice and served as its
registered agent and Patient Care/Administrator. (Compl.
¶¶ 3-5). Defendants employed plaintiff as a
full-time private-duty nurse from April 2015 until August
2017. (Compl. ¶¶ 21-22, 35-36, 41-42, 147).
McNairy, who established pay policies and acted as an Only
Choice employer, controlled plaintiffs work schedule. (Compl.
¶¶ 13, 38-39).
entered into an employment contract with defendants on April
30, 2015 that provided defendants would pay plaintiff $17.00
per hour for her private-duty nursing services. (Compl.
¶¶ 20-21). Plaintiff entered into an amended
employment contract in February 2016 that described her
employment as "at will" and raised her rate to
$18.00 per hour effective March 1, 2016. (Compl. ¶¶
26-28, 43, 45-46). The February 2016 contract also provided
that plaintiff would receive a rate of $30.00 per hour when
she provided skilled nursing services to Only Choice's
customers. (Compl. ¶ 44). Failure to appear for a shift
would result in a "voluntary resignation." (Compl.
¶ 40). Despite the language of the employment contracts,
defendants treated plaintiff as an independent contractor,
providing her with a Form 1099 for tax years 2015, 2016, and
2017, never having her fill out a Form W-4, and describing
her as a contractor in an email sent to plaintiff on February
1, 2017. (Compl. ¶¶ 23-24, 30-32, 34).
raised plaintiffs pay rate to $18.00 per hour on March 1,
2016, raised it in error to $20.00 per hour on September 13,
2016, and decreased it back to $18.00 per hour on December 1,
2016. (Compl. ¶¶ 46, 48-50). Defendants failed to
notify plaintiff of the September pay increase or the
December pay decrease. (Compl. ¶ 49, 51). Only Choice
notified plaintiff of the erroneous pay increase in February
2017 and stated its intention to recoup the $895.00
overpayment from plaintiffs next paycheck. (Compl. ¶
52-56). When Only Choice's human resources employee, Tina
DePalma, notified plaintiff of this deduction, plaintiff
responded by stating that she disagreed with Ms. DePalma and
declaring "her intent to address the issue with the
proper authority to determine if Only Choice's actions
were legal." (Compl. ¶¶ 159-60). Only Choice
deducted the overpayment from plaintiffs next paycheck.
(Compl. ¶¶ 56-57, 162).
also regularly worked more than forty hours per week, but
defendants did not pay her an overtime premium. (Compl.
¶¶ 37, 58-81, 100-39, 141-42, 144-45). The number
of days defendants included in a pay period varied, and
defendants often deposited plaintiffs wages into her bank
account in an untimely manner. (Compl. ¶¶ 87-96).
Defendants also failed to pay plaintiff for hours worked
between May 24, 2017 and May 31, 2017; July 3, 2017 and July
9, 2017; and July 28, 2017 and August 2, 2017. (Compl.
¶¶ 97-99, 140, 143, 146; Docket no. 14-1 ¶
69-71). Plaintiff resigned from Only Choice in August 2017.
(Compl. ¶ 147).
Findings and Recommendations
of the Federal Rules of Civil Procedure provides for the
entry of a default judgment when "a party against whom a
judgment for affirmative relief is sought has failed to plead
or otherwise defend." Based on the failure to plead or
otherwise defend against the action, the Clerk of Court has
entered a default as to Only Choice Home Health Care Agency,
LLC and Beverly Ann McNairy. (Docket nos. 8, 9).
defendant in default admits the factual allegations in the
complaint. See 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."); see also
GlobalSantaFe Corp. v. Globalsantafe.com, 250 F.Supp.2d
610, 612 n.3 (E.D. Va. 2003) ("Upon default, facts
alleged in the complaint are deemed admitted and the
appropriate inquiry is whether the facts as alleged state a
claim."). Rule 55(b)(2) of the Federal Rules of Civil
Procedure provides that a court may conduct a hearing to
determine the amount of damages, establish the truth of any
allegation by evidence, or investigate any other matter when
necessary to enter or effectuate judgment.
must have both subject matter and personal jurisdiction over
a defaulting party before it can render a default judgment.
28 U.S.C. § 1331 provides that "district courts
shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United
States." Similarly, 28 U.S.C. § 1337(a) provides
that "district courts shall have original jurisdiction
of any civil action or proceeding arising under any Act of
Congress regulating commerce or protecting trade and commerce
against restraints and monopolies." The FLSA itself also
states that any action to recover unpaid minimum or overtime
wages may be maintained "in any Federal or State court
of competent jurisdiction." 29 U.S.C. § 216(b).
Since this action arises from a law of the United States, the
FLSA, and further arises from an Act of Congress regulating
commerce, this court has subject matter jurisdiction over
this action pursuant to 28 U.S.C. §§1331 and 1337.
court also has personal jurisdiction over defendants. As
stated in the complaint, McNairy is a resident of the
Commonwealth of Virginia, and Only Choice had its principal
office located in Fredericksburg, Virginia and regularly
conducted business in this District. (Compl. ¶¶ 2,
these reasons, the undersigned recommends a finding that this
court has subject matter jurisdiction over this action, that
this court has personal jurisdiction over the ...