Opinion
3:23-cv-00448-JR
03-22-2024
BELLA BLAND, Plaintiff, v. JEFFREY HEBNER, an individual, and DG LLC dba Dream Girls Espresso, an Oregon Limited Liability Company, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Plaintiff Bella Bland moves for entry of default judgment pursuant to Fed.R.Civ.P. 55(b) against defendants Jeffrey Hebner and DG LLC, doing business as Dream Girls Expresso. For the reasons set forth below, plaintiff's motion should be denied.
BACKGROUND
This action arises under the Fair Labor Standards Act (FLSA) and Oregon minimum wage and discrimination claims. Specifically, plaintiff asserts that she was not paid for time spent at the end of her shifts at Dream Girls Expressodriving to and from Hebner's house to personally handdeliver the day's receipts. Additionally, plaintiff asserts that her hours, and thus wages, were steadily decreased when she rebuked defendant Hebner's “unwanted verbal and physical advances clearly aimed at initiating sexual activity.” Compl. ¶ 9 (doc. 1). The reduction in plaintiff's hours “made continued employment at the coffee stand unsustainable.” Id. at ¶ 13. Finally, plaintiff alleges Hebner's conduct created a “hostile work environment,” and that she was “constructively discharged” from Dream Girls Expresso because she refused Hebner's sexual advances. Id. at ¶¶ 16-26.
According to the Complaint, “Hebner owns and operates a coffee shop under the assumed business name of Dream Girls Espresso. He . . . also owns DG LLC, an Oregon Limited Liability Company that was administratively dissolved by the Oregon Secretary of State in 2016. [Hebner] personally owns and operates Dream Girls Espresso . . . in his individual capacity, with DG LLC serving as an interrelated entity.” Compl. ¶ 5 (doc. 1).
In March 2023, plaintiff filed a Complaint in this Court. As relief, plaintiff seeks lost wages, FLSA liquidated damages, and “penalty wages in the amount of 240 times plaintiff's hourly wage” per Or. Rev. Stat § 653.055. Id. at ¶ 15. Additionally, plaintiff seeks equitable relief, and economic and compensatory damages in regard to her discrimination claim.
Plaintiff personally served defendants on May 18, 2023, and filed a certificate of service with the Court. Defendants were required to answer or respond to plaintiff's Complaint by June 8, 2023. In the absence of any responsive pleading, the Court granted plaintiff's motion for entry of default on October 31, 2023. On March 6, 2024, plaintiff filed the present motion for default judgment.
STANDARD
The decision to grant or deny a motion for default judgment is within the discretion of the court. DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 852 (9th Cir. 2007). The court must consider seven factors, often referred to as the Eitel factors, in resolving such a motion: (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff's substantive claim; (3) the sufficiency of the Complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).
Upon the entry of default, the court accepts “the well-pleaded factual allegations in the complaint as true.” DIRECTV, Inc., 503 F.3d at 854. However, the court “does not accept as admitted facts that are not well-pleaded, conclusions of law, or facts relating to the amount of damages.” United States v. RiverCliff Farm, Inc., 2017 WL 3388172, *1 (D. Or. Aug. 7, 2017) (citations omitted); see also Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008) (“[t]he general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true”) (citation and internal quotations omitted). In other words, “[i]t is well settled that a default judgment for money may not be entered without a hearing unless the amount claimed is a liquidated sum or capable of mathematical calculation.” Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir. 1981).
DISCUSSION
Plaintiff seeks economic and non-economic damages in the amounts of $800,000 and $500,000, respectively, as well as reasonable attorney fees. To grant default judgement, the Court must first address the appropriateness of such a judgment pursuant to the Eitel factors, and then assesses damages and reasonable attorney fees. Stross v. Smith Rock Masonry Co., 2021 WL 2453388, *2 (D. Or. June 16, 2021).
I. Eitel Factors
The first factor “considers whether a plaintiff would suffer prejudice if default judgment is not entered, and any potential prejudice to the plaintiff favors granting a default judgment.” Contractors Bonding & Ins. Co. v. Radian Constr. Corp., 2021 WL 5927682, *2 (D. Or. Nov. 29), adopted by 2021 WL 5925962 (D. Or. Dec. 15, 2021) (citation and internal quotations omitted). Plaintiff does not address this factor in her motion or supporting affidavit.
The second and third factors concern the merits of plaintiff's claims and the sufficiency of her complaint. In the Ninth Circuit, a complaint should generally only be found insufficient if it appears certain the plaintiff is not entitled to relief under “any state of facts which could be proved in support of the claim.” Danning v. Lavine, 572 F.2d 1386, 1388-89 (9th Cir. 1978) (citation and internal quotations omitted). While there is a liberal pleading standard in the Ninth Circuit, pleadings that do not contain necessary facts or proffer legally insufficient claims should not be established by default. Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992); see also Lambert v. Ackerley, 180 F.3d 997, 1007 (9th Cir. 1999) (explaining that “amorphous expressions of discontent related to wages and hours” do not constitute valid FLSA claims). Plaintiff does not address the second and third factors in her motion or affidavit. The Complaint also does not present any detailed factual allegations regarding hours worked, the applicable hourly rate, actual wages paid by defendants, or a timeline of how her hours were reduced. As such, neither plaintiff's motion nor Complaint establish the elements of her claims sufficient to prove liability.
The fourth factor considers the sum of money at stake. Plaintiff's motion is silent as to the fourth factor. However, the damages here are substantial; plaintiff seeks $1,300,000, along with attorney fees and costs. Cf.J&J Sports Prods. v. Cardoze, 2010 WL 2757106, *5 (N.D. Cal. July 9, 2010) (“a large sum of money at stake would disfavor default damages,” such as a request for $114,200 in damages).
The fifth factor surrounds the possibility of a dispute concerning material facts. As stated above, the defendant was properly served but has not appeared in this case. “The fifth factor . . . weighs in favor of default judgment when the claims in the complaint are well-pleaded.” Joe HandProds. v. Holmes, 2015 WL 5144297, *7 (D. Or. Aug. 31, 2015). Because plaintiff fails to address the elements of her claims, it cannot be determined if there exists a possibility of dispute regarding material facts.
The sixth factor considers whether the defendant's default was due to excusable neglect. The record here demonstrates that defendant was served but has not appeared and has not otherwise indicated an intent to do so.
Finally, as to the seventh factor, while default judgements are generally disfavored and there is a strong preference for decisions made on the merits, this policy does not necessarily “weigh against default judgment because [the defendant's] failure to appear makes a decision on the merits impractical.” Contractors Bonding & Ins. Co., 2021 WL 5927682 at *3 (citations and internal quotations and brackets omitted). Plaintiff again neglects to discuss this factor.
II. Damages
Employers who violate the FLSA are liable for the full amount of unpaid wages or unpaid overtime compensation, whichever applies, plus “an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).
As denoted in Section I, plaintiff's motion and affidavit are wholly silent as to the Eitel factors. These documents are equally silent as to damages. That is, neither the motion nor supporting affidavit include any proof or list any specific amount of damages. Moreover, counsel has not submitted plaintiff's hourly rate or a calculation of the allegedly unpaid or reduced hours. Rather, plaintiff merely describes the sought-after damages - i.e., “economic damages in the amount of $800,000 for plaintiff first through third claims of relief,” and “non-economic damages in the sum of $500,000” - without any further detail. Pl.'s Mot. for Default J. 2 (doc. 23).
Plaintiff alternatively relies on Or. Rev. Stat. § 653.055 to collect penalty wages “in the amount of 240 times plaintiff's hourly wage.” Compl. ¶ 15 (doc. 1). However, the cited statute simply provides that an employee should be paid the full amount of any unpaid wages. Or. Rev. Stat. § 653.055(1)(a). The only related statutory penalty provision states:
if an employer willfully fails to pay any wages or compensation of any employee whose employment ceases . . . then, as a penalty for the nonpayment, the wages or compensation of the employee shall continue from the due date thereof at the same hourly rate for eight hours per day until paid or until action therefor is commenced [but not to continue more than 30 days from the due date]. However . . . the penalty [generally] may not exceed 100 percent of the employee's unpaid wages or compensation.Or. Rev. Stat. § 652.150(1)-(2). While it is perhaps possible that 240 times plaintiff's hourly wage does represent 100 percent of her unpaid wages, this is not explained anywhere in the motion or supporting affidavit.
Therefore, plaintiff has not sufficiently demonstrated that the amounts claimed are a liquidated sum or capable of mathematical calculation, which is especially problematic given that her motion seeks a substantial amount of unspecified non-economic damages (and the Complaint requests only economic and compensatory damages, and penalty wages). Compare generally Compl. (doc. 1), with Pl.'s Mot. for Default J. (doc. 23). In other words, because counsel does not address the Eitel factors or provide proof of damages for each category sought (i.e., economic, non-economic, and/or penalty/statutory), the Court is unable to enter a judgment awarding damages.
III. Attorney's Fees
Regardless of whether the violation was knowing or reckless, the FLSA allows recovery of “a reasonable attorney fee to be paid by defendant.” 29 U.S.C. § 216(b). In determining reasonableness in the context of a motion for default judgment, the court employs the “‘lodestar method,' which multiplies the number of hours the prevailing party reasonably expended on litigation by a reasonable hourly rate.” Stross, 2021 WL 2453388 at *4.
Counsel here has not detailed the amount of hours spent on this case or provided any information concerning his hourly rate (or, relatedly, his amount of experience, practice areas, level of expertise regarding the FLSA, or the facts attendant to this lawsuit). Thus, the Court is unable to determine the amount of reasonable attorney fees at this time.
RECOMMENDATION
For the foregoing reasons, plaintiff's Motion for Default Judgment (doc. 23) should be denied. Any amended default judgment motion must be filed within 15 days of the District Judge's order.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.