Opinion
3:23-cv-00448-JR
06-21-2024
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 amended motion should be denied.
BACKGROUND
This action arises under the Fair Labor Standards Act (FLSA) and Oregon minimum wage and discrimination claims. In particular, 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. In addition, plaintiff asserts that her hours, and thus wages, were steadily decreased when she rebuked Hebner's “unwanted verbal and physical advances clearly aimed at initiating sexual activity.” Compl. ¶ 9 (doc. 1). 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. Plaintiff also 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 her initial motion for default judgment, seeking “economic damages in the amount of $800,000” and “non-economic damages in the sum of $500,000.” Pl.'s Mot. Default 2 (doc. 23). The Court denied that motion on the grounds that plaintiff wholly failed to “address [the Eitel factors] in her motion or supporting affidavit” or provide “any proof or list any specific amount of damages.” Findings & Recommendation 4-6 (doc. 24). The Court additionally noted that counsel, while requesting attorney fees, “has not detailed the amount of hours spent on this case or provided any information concerning his hourly rate.” Id. at 7. On April 4, 2024, plaintiff lodged an amended motion for entry of default judgment.
Plaintiff apparently amended her motion in lieu of filing objections to the Court's initial Findings and Recommendation, which has since been adopted in full.
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. River Cliff 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
Via her amended motion, plaintiff seeks “economic damages in the amount of $13,109” and “non-economic damages in the sum of $1,286,891.” Pl.'s Am. Mot. Default 10 (doc. 26). In other words, she still requests precisely $1,300,000 in damages, although the allocation between economic and non-economic damages has drastically shifted. And, while plaintiff does now address the “merits” of her claims and provide information related to economic damages, her amended motion and declarations still do not provide proof of non-economic damages. Id. at 6-7; see generally McCoy Decl. (doc. 26-1); Bland Decl. (doc. 26-2). As a result, the Court is unable to enter a default judgment for money damages at this juncture. Davis, 650 F.2d at 1161; see also 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).
The Court understands Hebner has been charged with dozens of sexual crimes associated with his business practices and that plaintiff was one of his victims. See, e.g., Pl.'s Am. Mot. Default 3-6 (doc. 26). The existence of these criminal proceedings, however, does not establish non-economic damages for federal and state wage claims, especially considering that plaintiff's amended motion and declaration are silent as to emotional distress. Cf. Bolton v. Pentagrp. Fin.Servs., LLC, 2009 WL 734038, *10 (E.D. Cal. Mar. 17, 2009) (when pursuing relief under a particular statute, the plaintiff may recover “statutory damages, actual damages, including damages for emotional distress, sustained as a result of defendant's conduct in violation of [that] statute”) (citation and internal quotations omitted). The complaint likewise does not allege any emotional distress or seek non-economic damages. See Findings & Recommendation 6 (doc. 24) (so noting); see also Leon v. Saldana, 2014 WL 12709398, *2 (C.D. Cal. Dec. 15, 2014) (denying the plaintiff's amended motion for entry of default judgment where his “only proof of emotional distress is his own self-serving declaration [which] is wholly inadequate to justify an award of $150,000 in noneconomic damages,” but nonetheless awarding $50,000 in non-economic damages based on the plaintiff's “allegations of lifestyle changes and stress around the time that his first child was born”).
Further, counsel now indicates he has been practicing since 2010 in the areas of personal injury and criminal law, but he does not furnish any information that would justify his hourly rate of $425 (which far exceeds the mean/median rate for commensurate experience based on the most recent OSB Survey) in an employment discrimination case that resulted in the entry of default against all defendants. See Poticny v. Movers & Packers Relocation Specialists LLC, 2022 WL 18024218, *8 (D. Or. Dec. 30, 2022) (awarding attorney fees in a default judgment case at the median rate for an attorney with 16-20 years of practice - i.e., $325 per hour). In addition, counsel still does not provide a billing statement detailing the hours spent on this case - instead, he simply states: “I have expended at least twenty (20) hours on this matter.” McCoy Decl. ¶ 13 (doc. 26-1). Based on this information, the Court cannot determine reasonable attorney fees. See Stross v. SmithRock Masonry Co., 2021 WL 2453388, *4 (D. Or. June 16, 2021) (the court employs the “‘lodestar method' [to evaluate the reasonableness of an attorney fee request,] which multiplies the number of hours the prevailing party reasonably expended on litigation by a reasonable hourly rate”).
RECOMMENDATION
For the foregoing reasons, plaintiff's Amended Motion for Entry of Default Judgment (doc. 26) should be denied. Any amended default judgment motion must be filed within 15 days of the District Judge's order, and specifically provide argument and evidence related to non-economic damages and the reasonableness of the attorney fees sought. Finally, if plaintiff is seeking costs as part of the default judgment, those must be separately addressed and supported.
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.