Opinion
MO:21-CV-00173-DC-RCG
03-01-2023
ROBERT MCCAIG, individually and on behalf of all others similarly situated, Plaintiff, v. MAVERICK FIELD SERVICES, LLC, Defendant.
REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE
RONALD C. GRIFFIN, UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is Plaintiff Robert McCaig's Motion for Default Judgment against Maverick Field Services, LLC. (Doc. 59). This case is before the Court through a Standing Order pursuant to 28 U.S.C. § 636 and Appendix C of the Local Court Rules for the Assignment of Duties to United States Magistrate Judges. After due consideration, the Court RECOMMENDS that Plaintiff's Motion for Default Judgment be GRANTED. (Doc. 59).
I. Background
On September 24, 2021, Plaintiff Robert McCaig (“Plaintiff”) filed his Original Complaint on behalf of himself and also brought collective allegations under the FLSA, seeking to represent other similarly situated employees of Defendant Maverick Field Services, LLC (“Defendant”). This suit arises out of Defendant's alleged failure to pay Plaintiff's overtime wage compensation, in violation of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”). Plaintiff worked for Defendant from February 2021 through July 2021 as a completions foreman. (Doc. 59 at 7). Plaintiff alleges that he was misclassified as exempt from overtime, and thus not paid his full overtime premium for hours worked over forty in a single workweek because Defendant paid Plaintiff on a day rate basis, meaning “Defendant paid Plaintiff a set day rate regardless of the number of hours he worked each day or each week.” Id. Thus, Plaintiff asserts that throughout his employment, Defendant did not pay him the overtime premium that he was owed for hours worked in excess of forty. Id.
Defendant was served on September 28, 2021. (Doc. 4). Defendant originally filed a pro se Answer on October 14, 2021, however the Court ordered Defendant to retain licensed counsel to represent it within thirty days of entry of the order and to file an amended answer in compliance with the Federal Rules of Civil Procedure within twenty-one days of retaining counsel. (Docs. 9, 10). Defendant complied with the Court's Orders by both retaining counsel and having said counsel file an appropriate Answer to Plaintiff's Complaint. (Docs. 16, 19). The Parties then submitted scheduling recommendations and the Court issued a Scheduling Order. (Docs. 21, 24). Additionally, as it does for all newly-filed FLSA actions with collective allegations, the Court set the case for a Rule 16 Conference. (Doc. 22). The Rule 16 Conference was held via Zoom on February 3, 2022. (Doc. 29). In accordance with the Parties' submission, on February 16, 2022, the Court issued a Preliminary Discovery Control Plan to allow the Parties to conduct preliminary discovery to aid the Court in determining if Plaintiff and the potential opt-in plaintiffs were similarly situated. (Doc. 30).
Whilst the Preliminary Discovery Control Plan was in effect, Defendant filed its Second Amended Answer on March 15, 2022 and filed a Counterclaim against Plaintiff for Breach of Contract and Attorney's Fees on March 3, 2022. (Docs. 32, 33). However, on March 23, 2022, Defense counsel filed a Motion to Withdraw as Attorney for Defendant because of non-payment of fees for representing Defendant. (Doc. 35). The Court then held two separate in-chambers telephone conferences regarding Defense Counsel's Motion to Withdraw. (Docs. 40, 43). The Court also held a Zoom Hearing regarding the Motion to Withdraw on March 21, 2022 wherein Thomas Johnson was present as a principal representative of Defendant. (Doc. 41). Additionally, “[d]uring the hearing Mr. Johnson consented to Ms. Marcotte, Mr. Florence, and Pope Hardwicke's withdrawal as counsel. Further, the Court appraised Mr. Johnson of the risks associated with proceeding without counsel.” (Doc. 44 at 2). The Court's written Order Granting Defense Counsels' Motion to Withdraw further admonished Defendant “of the fact that although its previous counsel will be allowed to withdraw from representation, it is not entitled to represent itself as a corporation-it must be represented by a licensed attorney.” Id. (emphasis omitted) (citing In Re K.M.A., Inc., 652 F.2d 398, 399 (5th Cir. 1981)). The same day the Court held its hearing regarding Defense Counsels' Motion to Withdraw, Plaintiff filed a Motion for Judgment on the Pleadings of Defendant's Counterclaims. (Doc. 42). Defendant did not file a Response to Plaintiff's Motion.
Defendant filed its Motion for Leave to File Second Amended Answer on March 3, 2022, however said Motion was not granted until March 15, 2022, which is why there is a discrepancy between the dates of the Second Amended Answer's filing and the filing of Defendant's Counterclaim.
Technically, Plaintiff filed his first Motion for Judgment on the Pleadings on March 24, 2022 (Doc. 37), however a deficiency notice was issued as Plaintiff exceeded Local Rule CV-7's page limitation without leave of Court (Doc. 38). After filing a Motion for Leave to Exceed Page Limitation (Doc. 39), which was granted (Text Order dated March 21, 2022), Plaintiff re-filed his Motion for Judgment on the Pleadings (Doc. 42).
On May 26, 2022, the undersigned entered a Report and Recommendation recommending that Plaintiff's Motion for Judgment on the Pleadings be granted, and Defendant's Counterclaim be dismissed. (Doc. 45). That Report and Recommendation was subsequently adopted without objection on July 8, 2022. (Doc. 51). Whilst the Report and Recommendation was pending, on June 29, 2022, Plaintiff filed a Motion to Strike Defendant's Answer and Application for Entry of Default. (Doc. 48). On October 18, 2022, out of an abundance of caution, the Court then warned Defendant a final time of the consequences of proceeding without counsel. (Doc. 52) (“Defendant Maverick Field Services, LLC is warned that a defendant's failure to hire counsel to represent it may result in appropriate measures, including possibly striking the Defendant's defenses and entering default judgment against the defendant.”) (citing Henderson v. Fenwick Protective Inc., No. 3:14-CV-505-M-BN, 2015 WL 3439166, at *1-*2 (N.D. Tex. May 28, 2015); Adonai Commc'ns, Ltd. v. Awstin Invs., L.L.C., No. 3:10-cv-2642-L, 2012 WL 899271, at *1-*2 (N.D. Tex. Mar. 16, 2012)). After the Court's final Order Regarding New Counsel for Defendant went unanswered and unacknowledged, the Court entered its Report and Recommendation regarding Plaintiff's Motion to Strike Defendant's Answer and Application for Entry of Default on December 6, 2022. (Doc. 54). The undersigned recommended that Defendant's Answer be stricken from the record and that the Clerk of Court be directed to enter a Clerk's Entry of Default against Defendant. Id. That Report and Recommendation was adopted without objection on January 17, 2023. (Doc. 55). That same day Plaintiff filed his Motion for Default Judgment against Defendant. (Doc. 59).
The Court's Report and Recommendation erroneously recommended that Defendant's Answer (Doc. 19) be struck, when it should have recommended that Defendant's Second Amended Answer (Doc. 33) be struck, as that was the live pleading.
By his Motion, Plaintiff seeks a default judgment against Defendant for failing to pay him overtime wages as required under the FLSA. Id. Plaintiff seeks an award of: (1) $39,192.00 for Plaintiff's total unpaid overtime wages; (2) $39,192.00 in liquidated damages; (3) attorney fees of $50,370.00; (4) and costs of $736.90, for a total damages award of $129,490.90, plus post-judgment interest pursuant to 28 U.S.C. § 1961. (Docs. 59, 59-3). A hearing was held on the instant Amended Motion for Default Judgment on February 16, 2023. Accordingly, this matter is now ready for disposition.
II. LEGAL STANDARD
After entry of default and upon a motion by the plaintiff, Federal Rule of Civil Procedure 55 authorizes the Court to enter a default judgment against a defendant who fails to plead or otherwise defend the suit. Fed.R.Civ.P. 55(b). However, “[d]efault judgments are a drastic remedy, not favored by the Federal Rules and resorted to by courts only in extreme situations.” Sun Bank of Ocala v. Pelican Homestead & Savs. Ass'n, 874 F.2d 274, 276 (5th Cir. 1989). Accordingly, “[a] party is not entitled to a default judgment as a matter of right, even where the defendant is technically in default.” Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996). Instead, the district court “has the discretion to decline to enter a default judgment.” Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998).
In determining whether to enter a default judgment, courts utilize a three-part test. See United States v. 1998 Freightliner Vin #: 1FUYCZYB3WP886986 , 548 F.Supp.2d 381, 384 (W.D. Tex. 2008). First, the Court considers whether the entry of default judgment is procedurally warranted. Id. The factors relevant to this inquiry include:
(1) whether material issues of fact exist; (2) whether there has been substantial prejudice; (3) whether the grounds for default are clearly established; (4) whether the default was caused by a good faith mistake or excusable neglect; (5) the harshness of a default judgment; and (6) whether the court would think itself obliged to set aside the default on the defendant's motion.Lindsey, 161 F.3d at 893. Second, the court assesses the substantive merits of the plaintiff's claims, determining whether the plaintiff set forth sufficient facts to establish his entitlement to relief. See 1998 Freightliner Vin #: 1FUYCZYB3WP886986 , 548 F.Supp.2d at 384. In doing so, courts assume that, due to its default, the defendant admits all well-pleaded facts in the plaintiff's complaint. See Nishimatsu Constr. Co., Ltd. v. Hous. Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
Third, the court determines what form of relief, if any, the plaintiff should receive in the case. Id.; 1998 Freightliner Vin #: 1FUYCZYB3WP886986 , 548 F.Supp.2d at 384. Generally, damages are not to be awarded without a hearing or a demonstration by detailed affidavits establishing the necessary facts. See United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979).
III. Discussion
Applying the three-part analysis detailed above, the Court finds Plaintiff is entitled to a default judgment against Defendant.
A. Default Judgment is Procedurally Warranted
In light of the six Lindsey factors enumerated above, the Court finds that default judgment is procedurally warranted. First, Defendant's Answer has now been struck per the Court's Order, thus there is effectively no responsive pleading in this case. Consequently, there are no material facts in dispute. Lindsey, 161 F.3d at 893; Nishimatsu Constr., 515 F.2d at 1206 (noting that “[t]he defendant, by his default, admits the plaintiff's well-pleaded allegations of fact.”). Second, the Defendant's total failure to respond has brought the adversarial process to a halt, effectively prejudicing Plaintiff's interests. Lindsey, 161 F.3d at 893. Third, the grounds for default are “clearly established” since over the past year Defendant has not responded to multiple motions, court orders, the entry of default, or the Motion for Default Judgment. See J.D. Holdings, LLC v. BD Ventures, LLC, 766 F.Supp.2d 109, 113 (D.D.C. 2011) (finding that default judgment is appropriate if defendants are totally unresponsive and the failure to respond is plainly willful, as reflected by the parties' failure to respond either to the summons and complaint, the entry of default, or the motion for default judgment).
Fourth, there is no evidence before the Court indicating that Defendant's silence is the result of a “good faith mistake or excusable neglect.” Lindsey, 161 F.3d at 893. Fifth, Defendant has had almost a year to retain counsel in order to respond to Plaintiff's claims or otherwise appear in and litigate this matter. Consequently, any purported harshness of a default judgment is mitigated by Defendant's inaction for this lengthy time period. United States v. Rod Riordan Inc., No. MO:17-CV-071-DC, 2018 WL 2392559, at *3 (W.D. Tex. May 25, 2018). Finally, the Court is not aware of any facts that give rise to “good cause” to set aside the default if challenged by Defendant. Lindsey, 161 F.3d at 893. Therefore, the Court finds that default judgment is procedurally warranted under these circumstances.
B. Default Judgment is Substantively Warranted
The FLSA provides that “no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). The FLSA mandates minimum wage and overtime compensation for employees who are (1) “engaged in commerce or in the production of goods for commerce” (“individual coverage”) or (2) “employed in an enterprise engaged in commerce or in the production of goods for commerce” (“enterprise coverage”). Ramos v. HT Elecs., LLC, No. 5:18-CV-430-DAE-EC, 2018 WL 6040257, at *2 (W.D. Tex. Nov. 19, 2018) (citing 29 U.S.C. §§ 206(a), 207(a)). A plaintiff may invoke the FLSA under either individual or enterprise coverage. Id. (citing Martin v. Bedell, 955 F.2d 1029, 1032 (5th Cir. 1992)). Under the FLSA, an “enterprise engaged in commerce or in the production of goods for commerce” includes an enterprise that:
(A)(i) has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and
(ii) is an enterprise whose annual gross volume of sales made or business done is not less than $500,000 ....28 U.S.C. § 203(s)(1). If an employer meets these requirements, then its employees are subject to the FLSA, unless otherwise exempted by another provision. Here, Plaintiff has established enterprise coverage under the FLSA. In his Complaint, Plaintiff alleges:
At all material times, Defendant has been an enterprise in commerce or in the production of goods for commerce within the meaning of the 3(s)(1) of the FLSA because Defendant has had and continues to have employees engaged in commerce. 29 U.S.C. § 203(s)(1).
Defendant has had an annual gross business volume of not less than $500,000 a year for the three years preceding the filing of this complaint.(Doc. 1 at 6). These allegations satisfy both prongs of the test for enterprise coverage.
Once enterprise coverage has been established, an employee must demonstrate by a preponderance of the evidence that: (1) “there existed an employer-employee relationship during the unpaid overtime periods claimed”; (2) “that the employer violated the FLSA's overtime wage requirements”; and (3) “the amount of overtime compensation due.” Johnson v. Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014). After the employee establishes a prima facie case, the burden shifts to the employer to “come forward with evidence of the precise amount of work performed or with evidence to [negate] the reasonableness of the inference to be drawn from the employee's evidence.” Id. (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946)). “If the employer fails to produce such evidence, the court may then award damages to the employee even though the result may only be approximate.” Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 441 (5th Cir. 2005).
Plaintiff has established that he had an employment relationship with Defendant during the time period relevant to this suit. Under the FLSA, an employee is defined as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). An employer is defined as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” Id. at § 203(d). The term “employer” has been broadly interpreted and may include one or more joint employers depending on the nature of the relationship between the employers. Ramos, 2018 WL 6040257, at *3 (citing Falk v. Brennan, 414 U.S. 190, 195 (1973) and 29 C.F.R. 791.2(a) (1961)).
Here, Plaintiff alleges that “[a]t all material times, Defendant has been an employer within the meaning of 3(d) of the FLSA.” (Doc. 1 at 6) (citing 29 U.S.C. § 203(d)). He also provides that he worked for Defendant from February 2021 through July 2021. (Doc. 59 at 7). Plaintiff further provides that “[h]is job involved monitoring and inspecting oil rigs, fracking operations, and wireline operations at oil well sites. He worked a schedule that was 14 days at work followed by 14 days off.” (Doc. 1 at 3).
Plaintiff's Complaint also establishes that Defendant misclassified Plaintiff as exempt from the FLSA's overtime requirements, when in fact Plaintiff was not exempt. See id. at 4-5 (“None of the white collar exemptions found in 29 U.S.C. § 213(a)(1) are applicable to the Plaintiff and the Class Members because they were not paid on a “salary” basis or “fee” basis as required under 29 U.S.C. § 213(a)(1).”); (“Here, Plaintiff and the Class Members were manual laborers who performed routine work at oil well sites. The administrative exemption does not apply to manual laborers like Plaintiff and the Class Members.”) (citing 29 C.R.R. § 541.3(a)).The Court finds these allegations sufficient to show there existed an employee-employer relationship between Plaintiff and Defendant.
Plaintiff's Declaration attached to his Motion for Default Judgment includes further attestations relating to his nonexempt status under the FLSA. (Doc. 59-1 at 1-3).
Plaintiff not only alleges that he routinely worked more than forty hours in a workweek during his employment with Defendant, he also provided a declaration attached to his Motion for Default Judgment detailing what amount he was paid and his average hours worked per day. Plaintiff provides that “[f]rom February 7, 2021 through February 13, 2021, my daily rate of pay was $1,200 per day,” then his daily rate was $1,800. (Doc. 59-1 at 4). On average Plaintiff worked fourteen (14) hours per day for Defendant-making his overtime rate $39.43 per hour from February 7, 2021 through February 13, 2021-and $59.14 after February 13, 2021. Id. In total Plaintiff attests, “[b]ased on documents provided by Defendant showing the number of days that I worked from February 7, 2021 through July 25, 2021, I worked a total of 682 overtime hours.” Id. Plaintiff provides a spreadsheet “showing my total number of overtime hours worked per week and the amount of overtime wages owed to me from February 2021 through July 2021.” Id. at 6-12. Per Plaintiffs declaration, his total owed unpaid overtime wages is $39,192.00. (Doc. 59 at 7; 59-1 at 4).
The claims Plaintiff makes in the Complaint, Motion for Default Judgment, exhibits attached to the Motion for Default Judgment, as well as exhibits admitted during the default judgment hearing state a claim for unpaid overtime wages under the FLSA. Therefore, a default judgment is substantively warranted.
C. Plaintiff's Right to Relief
As previously stated, damages are not to be awarded without a hearing or a demonstration by detailed affidavits establishing the necessary facts. See United Artists Corp., 605 F.2d at 857. On February 16, 2023, pursuant to Federal Rule of Civil Procedure 55(b)(2), the Court held an evidentiary hearing covering the issue of damages. (See Doc. 60). Additionally, Plaintiff attached both a damage calculation and an affidavit regarding attorney fees and costs to his Motion for Default Judgment from which this Court may calculate damages. (Docs. 59, 59-1, 59-2).
1. Overtime Wages
Plaintiff claims Defendant owes him $39,192.00 in unpaid overtime wages. (Doc. 59 at 7) Plaintiff arrived at this number via two separate calculations that follow the same formula. First, for the weeks of February 7, 2021 through February 13, 2021, Plaintiff was paid $1,200 per day. On average Plaintiff attests he worked fourteen (14) hours per day for Defendant-making his overtime rate $39.43 per hour from February 7, 2021 through February 13, 2021. Plaintiff's spreadsheet of hours worked calculates 58 overtime hours worked during that time period, which when multiplied by Plaintiff's overtime rate, totals $2,286.86. (Doc. 59-1 at 7).
Next, from February 14, 2021 through July 25, 2021, Plaintiff was paid a day rate of $1,800-making his overtime rate $59.14 per hour for the rest of his 624 overtime hours. Accordingly, Plaintiff should be awarded $39,192.00 in unpaid overtime wages.
2. Liquidated Damages
Under the FLSA, if an employee is entitled to recover back pay for overtime wages, the employee is usually entitled to an additional equal amount as liquidated damages. See 29 U.S.C. § 216(b). A liquidated damages award is mandatory unless “the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA].” 29 U.S.C. § 260. Here, Defendant, because of its failure to participate in this case, has failed to meet its burden to show good faith. Thus, Plaintiff should be awarded liquidated damages of $39,192.00 which is an amount equal to that of the unpaid overtime wages.
3. Attorney Fees and Costs
Finally, Plaintiff's counsel, William Hogg and Don Foty, seek attorney fees in the amount of $3,360. Under the FLSA, a prevailing plaintiff is entitled to a mandatory award of reasonable attorney fees and costs. 29 U.S.C. §216(b). In the Fifth Circuit, courts apply a two-step method for determining a reasonable attorney fee award. Combs v. City of Huntington, 829 F.3d 388, 391 (5th Cir. 2016). First, a court must calculate the “lodestar” amount, which is equal to the number of hours reasonably expended on the case multiplied by the hourly rate in the community for similar work. Id. at 392. In performing this calculation, the Court excludes any time that is excessive, duplicative, unnecessary, or inadequately documented. Id.; see also Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). The party seeking reimbursement of attorney fees bears the burden to provide sufficient evidence that is adequate for the Court to determine reasonable hours expended. See La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 325 (5th Cir. 1995).
However, once the Court determines the lodestar, it may enhance or decrease the amount of attorney fees based on the relative weights of the twelve “Johnson factors.” Serna v. Law Office of Joseph Onwuteaka, P.C., 614 Fed.Appx. 146, 157 (5th Cir. 2015); Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989). The Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the legal issues; (3) the skill required to perform the legal service properly; (4) the preclusion of other employment by the attorney as a result of taking the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or other circumstances; (8) the monetary amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) whether the case is undesirable; (11) the nature and duration of the professional relationship with the client; and (12) awards in similar cases. 448 F.2d at 717-19. Notably, “[a] strong presumption exists that the lodestar represents a reasonable fee that should be modified only in exceptional circumstances.” Payne v. Univ. of S. Miss., 681 Fed.Appx. 384, 390 (5th Cir. 2017) (quoting Pembroke v. Wood Cty., 16 F.3d 1214 (5th Cir. 1994)).
The time records attached to Mr. Hogg's declaration indicate that the 105.9 hours spent litigating this case are well grounded and justified. (Docs. 59 at 9-14; 59-2). Additionally, Mr. Hogg submitted billing records as an exhibit to his declaration. (Doc. 59-2 at 14-26). According to Mr. Hogg's declaration he performed 77.9 hours at an hourly rate of $575, Mr. Foty expended 1.5 hours at an hourly rate of $650, as well as 24.8 hours worked by paralegals/legal assistants at an hourly rate of $175, and 1.7 hours worked by accounting at an hourly rate of $175. (Doc. 59-2 at 12). Having reviewed Mr. Hogg's declaration, the Court finds that these hourly rates are reasonable for an attorney practicing in the field of employment law with comparable experience to Mr. Hogg and Mr. Foty. Additionally, the Court finds the 105.9 hours expended by attorneys and support staff at Hodges & Foty, LLP in litigating this case is reasonable. Thus, Plaintiff should be awarded $50,370.00 in reasonable attorneys' fees from Defendant.
Finally, Plaintiff seeks costs of $736.90. In his declaration, Mr. Hogg provides a spreadsheet that breaks down each amount, describes what it was for, and what date the cost was incurred. (Doc. 59-2 at 12-13). Therefore, Plaintiff should be awarded $736.90 in costs from Defendant.
4. Post-judgment Interest
Plaintiff requests the Court award post-judgment interest under 28 U.S.C. § 1961(a). (Doc. 59 at 8-9). The Court finds the request appropriate and RECOMMENDS Plaintiff's request that post-judgment interest be included in the judgment be GRANTED in accordance with § 1961. Thus, post-judgment interest should be included in the judgment at the rate determined by § 1961(a), “computed daily to the date of payment and compounded annually.” (Doc. 59 at 9) (citing § 1961(b)).
* * *
In sum, the Court finds Plaintiff should be awarded (1) $39,192.00 for total unpaid overtime wages; (2) $39,192.00 in liquidated damages; (3) $51,106.90 in attorneys' fees and costs; (4) and post-judgment interest.
IV. Conclusion And Recommendation
For the aforementioned reasons, it is RECOMMENDED that Plaintiff's Motion for Default Judgment be GRANTED. (Doc. 59).
It is FURTHER RECOMMENDED that a final judgment be entered against Defendant Maverick Field Services, LLC in a total amount of $129,490.90 plus post-judgment interest.
Instructions for Service and Notice of Right to Appeal/Object
In the event that a party has not been served by the Clerk with this Report and Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is ORDERED to mail such party a copy of this Report and Recommendation by certified mail. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to this report must serve and file written objections within fourteen (14) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made; the District Judge need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court and serve the objections on all other parties. A party's failure to file such objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Judge. Additionally, a party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Judge. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).