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Menacho v. K Power Construction, Inc.

United States District Court, E.D. Virginia, Alexandria Division

September 20, 2019

JUAN MENACHO, el al., Plaintiffs,
v.
K POWER CONSTRUCTION, INC., et al., Defendants. Employee Unpaid Wages Unpaid Overtime Wages Liquidated Damages Compensatory Damages TOTAL

          REPORT AND RECOMMENDATION

          Ivan D. Davis United States Magistrate Judge

         This 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 be GRANTED.

         I. INTRODUCTION

         Plaintiffs 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.[1] 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. ¶ 52.

         A. Jurisdiction and Venue

         This 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.

         B. Service of Process

         In 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.

         C. Grounds for Default

         Plaintiffs 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).

         Defendant 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.[2] ECF. No. 32.

         II. REQUESTED RELIEF

         A. Damages

         In a 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 ...


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