United States District Court, E.D. Virginia, Alexandria Division
REPORT AND RECOMMENDATION
D. Davis United States Magistrate Judge
matter is before the Court on Plaintiffs' Motion for
Entry of Default Judgment ("Motion for Default
Judgment") against Defendant K Power Construction, Inc.
("Defendant") pursuant to Federal Rule of Civil
Procedure 55(b)(2). Mot. for Default J., ECF No. 18. After
Defendant failed to retain counsel following the hearing on
February 1, 2019, the undersigned Magistrate Judge took this
matter under advisement to issue this Report and
Recommendation. Upon consideration of the Complaint,
Plaintiffs* Motion for Default Judgment, and the supporting
memorandum, the undersigned Magistrate Judge makes the
following Findings and recommends that Plaintiffs' Motion
Juan Menacho, Hugo Reynaldo Quezada-Canedo, and Maynor Eliseo
Xalin-Huz ("Plaintiffs") Filed their Complaint on
November 1, 2018, against Defendant, its owner, Sung Jin Koo,
and Sun Jin Koo's wife, Myung Kwan Koo. CompL ECF No. 1.
Plaintiffs allege that Defendant failed to pay overtime
premiums and unpaid wages. Compl, ¶ 12. Plaintiffs seek
relief pursuant to Section 16(b) of the Federal Fair Labor
Standards Act of 1938, as amended, 29 U.S.C. § 201
et seq ("FLSA"). Compl. at 2.
Specifically, Plaintiffs seek a monetary judgment awarding
all unpaid wages proven at trial, an equal amount in
liquidated damages, interest (both pre and post judgment),
attorney's fees, and the costs of this action. Compl.
Jurisdiction and Venue
Court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. § 1331 because this case involves
federal questions arising under FLSA, which is a federal law
relating to minimum wage and overtime pay eligibility. Compl.
¶ 11. Here, Defendant is a corporation formed under the
laws of Virginia, with its principal place of business in
Burke, Virginia. Compl. ¶ 2. Therefore, the Court may
exercise personal jurisdiction over the Defendant. Similarly,
venue is appropriate in this District pursuant to 28 U.S.C.
§ l39l(b)(1)-(2) because Defendant's principal place
of business is in this District.
Service of Process
serving process to a business entity such as a corporation, a
plaintiff may effectuate service by delivering a copy of the
summons and a copy of the complaint to an officer or managing
agent of the business entity. Fed.R.Civ.P. 4 (h)(1)(B).
Service may also be made on a corporation in accordance with
state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the
district court is located. Fed.R.Civ.P. 4 (e)(1), (h)(1)(B).
Under Va. Code Ann. § 8.01-299(3), substitute service
may be on the registered agent of a corporation pursuant to
§ 801.296 if the address of the corporation is a
single-family residential dwelling. According to the proof of
service, the process server completed service upon
Defendant's registered agent, Sung Jin Koo, on November
7, 2018, at 5833 Oak Leather Drive, Burke, Virginia 22015
("Address"). Proof of Serv., ECF No. 4. As the
Address is a single-residential dwelling, the Court finds
that service was proper under Va. Code Ann. §8.01-296.
Grounds for Default
filed their Complaint on November 1, 2018. Compl., ECF No. 1.
On November 28, 2018, Plaintiffs filed with the Clerk's
Office a request for Entry of Default. ECF. No. 11. The Clerk
entered default against Defendant on November 29, 2018. ECF.
No. 17. On December 14, 2018, Plaintiffs filed a Motion for
Default Judgment, for which the Court held a hearing on
February 1, 2019. ECF. Nos. 18, 20. The Court continued the
matter to February 22, 2019, and ordered that a responsive
pleading be filed by February 20, 2019, and that default
judgment would be entered against Defendant unless an
attorney appearance was filed on their behalf. ECF. No. 21.
See In re Tamojira, Inc., 20 Fed.Appx. 133, 134 (4th
Cir. 2001) (holding that corporations are required to be
represented by counsel in federal court); Flame S.A. v.
Freight Bulk Pte. Ltd., 762 F.3d 352, 355 (4th Cir.
2014); Olawole v. ActioNet, Inc., 258 F.Supp.3d 694,
701 (E.D. Va. 2017).
filed an answer through its individual owners, who are not
licensed attorneys on March 5, 2019. ECF. No. 27. No. answer
was filed, however, on Defendant's behalf by a licensed
attorney. When Defendant failed to retain an attorney, the
undersigned Magistrate Judge took this matter under
advisement to issue this Report and
Recommendation. ECF. No. 32.
default case, the plaintiffs factual allegations are accepted
as true for all purposes except in determining damages. To
support a claim for damages, a plaintiff must provide an
appropriate basis for the Court to determine whether it is
entitled to the relief sought. A default judgment "must
not differ in kind from, or exceed in amount, what is
demanded in the pleadings." Fed.R.Civ.P. 54(c).
Furthermore, in default cases in this district, "there
can be no recovery over the amount pled in the
complaint." Sheet Metal Workers' Nat. Pension
Fund v. Frank Torrone & Sons, Inc., No. Civ.A.
1:04CV1109, 2005 WL 1432786, at *8 (E.D. Va. June 1, 2005);
see also Cumberlander v. KCL Site Servs., LLC, No.
08-994, 2009 WL 4927144, at *9 (E.D. Va. Dec. 17, 2009).
However, "[t]he exact amounts for interest, costs, and
attorney's fees need not be pled specifically in the
complaint." Frank Torrone & Sons, Inc.,
2005 WL 1432786 at *8.). In FLSA cases, any employer who
violates Section 206 of the FLSA "shall be ...