Kalinich v. Grindlay et al, No. 6:2014cv01120 - Document 9 (D. Kan. 2014)
Court Description: MEMORANDUM AND ORDER denying 8 Motion for Default Judgment. Plaintiff may timely file and serve an amended complaint that alleges facts sufficient to establish FLSA coverage and liability. Signed by U.S. District Senior Judge Sam A. Crow on 7/30/14. (mb)
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Kalinich v. Grindlay et al Doc. 9 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS AMY M. KALI NI CH on behalf of herself and all ot hers sim ilarly sit uat ed, Plaint iffs, Vs. No. 14- 1120- SAC DONNA S. GRI NDLAY, SUSAN E. SMI TH, and KANCONNECT, LLC, Defendant s. MEMORANDUM AND ORDER The case com es before t he court on t he plaint iff’s Mot ion for Default Judgm ent against all defendant s. ( Dk. 8) . The clerk of t he court filed an ent ry of default on June 19, 2014. ( Dk. 7) . The plaint iff now asks t he court t o ent er j udgm ent on her Fair Labor St andards Act ( “ FLSA” ) claim for unpaid wages ( 29 U.S.C. § 206( a) ) , and liquidat ed dam ages, at t orneys’ fees and cost s ( 29 U.S.C. § 216( b) ) , and on her fraudulent filing of W- 2 claim for t he fixed liabilit y of $5,000 or t he sum of act ual dam ages, cost s, and at t orneys’ fees ( 26 U.S.C. § 7434( b) ) . “ Defendant by his default , adm it s t he plaint iff’s well- pleaded allegat ions of fact .” Olcot t v. Delaware Flood Co., 327 F.3d 1115, 1125 ( 10t h Cir.) ( int ernal quot at ion m arks and cit at ion om it t ed) , cert . denied, 540 U.S. 1089 ( 2003) . “ Aft er an ent ry of default , a defendant cannot defendant a Dockets.Justia.com claim on t he m erit s.” I d. at 1125 n.11. Thus, “ t he fact ual allegat ions of t he com plaint , except t hose relat ing t o t he am ount of dam ages, will be t aken as t rue.” Com dyne I , I nc. v. Corbin, 908 F.2d 1142, 1149 ( 3rd Cir. 1990) ( quot ing 10 C. Wright , A. Miller, & M. Kane, Federal Pract ice and Procedure, § 2688 at 444 ( 2d ed. 1983) ( cit ing in t urn Thom son v. Woost er, 114 U.S. 104 ( 1885) ) ) . The ent ry of default j udgm ent rem ains wit hin t he dist rict court ’s sound discret ion. Shah v. New York St at e Dept . of Civil Service, 168 F.3d 610, 615 ( 2nd Cir. 1999) ; Olivas v. Bent wood Place Apart m ent s, LLC, 2010 WL 2952393 at * 4 ( D. Kan. Jul. 26, 2010) . “ Even aft er default , it rem ains for t he court t o consider whet her t he unchallenged fact s const it ut e a legit im at e basis for t he ent ry of a j udgm ent since a part y in default does not adm it conclusions of law.” Olivas, 2010 WL 2952393 at * 4 ( cit at ion om it t ed) ; see Topp v. Lone Tree At hlet ic Club, I nc., 2014 WL 3509201 at * 4 ( D. Colo. Jul. 15, 2014) . “ Following I qbal and Twom bly, federal court s have declined t o ent er default j udgm ent s based upon com plaint s lacking sufficient fact ual allegat ions t o est ablish liabilit y under t he FLSA.” Topp v. Lone Tree At hlet ic Club, I nc., 2014 WL 3509201 at * 5 ( cit at ions om it t ed) . To est ablish her eligibilit y under FLSA, t he plaint iff m ust allege “ sufficient fact s t o plausibly st at e a claim eit her ( 1) t hat she, individually, was engaged in com m erce or ( 2) t hat [ defendant ] . . . is an ent erprise engaged in com m erce.” Reagor v. Okm ulgee Count y Fam ily Resource Cent er, 501 Fed. Appx. 805, 808, 2012 2 WL 5507181 at * 2 ( 10t h Cir. Nov. 14, 2012) . The plaint iff’s com plaint offers such conclusory and form ulaic recit at ions as t he defendant s are “ engaged in int erst at e com m erce and/ or in t he product ion of goods for com m erce” and “ Plaint iff and ot her sim ilarly sit uat ed em ployees were engaged in com m erce and/ or worked for Defendant s, which were ent erprises engaged in com m erce.” ( Dk. 1, ¶¶ 10- 11) . Such allegat ions fail t o est ablish eligibilit y. See Topp v. Lone Tree At hlet ic Club, I nc., 2014 WL 3509201 at * 7. The plaint iff’s com plaint also offers t hese bare- bones allegat ions: “ Plaint iff’s j ob dut ies included answering calls and providing cust om er service for t hirdpart y com panies wit h whom Defendant s cont ract ed t o provide aft er- hours cust om er service.” I d. at ¶ 12. The court cannot reasonably infer int erst at e com m erce act ivit ies from t he m ere t erm s of “ t hird- part y com panies” or “ cust om er service.” The com plaint offers no ot her fact s describing t he nat ure and scope of t he defendant s’ business t hat would support any inference t hat t he defendant s were an ent erprise engaged in int erst at e com m erce. The court is m indful t hat an em ployee m ay be engaged in com m erce if she “ regularly and recurrent ly use[ s] an inst rum ent of int erst at e com m erce, such as a t elephone.” Reagor, 501 Fed. Appx. at 809 ( cit ing Thorne v. All Rest orat ion Servs. I nc., 448 F.3d 1264, 1266 ( 11t h Cir. 2006) , and 29 C.F.R. § 776.10( b) ( “ requiring regular and recurrent use of inst rum ent s of com m unicat ion as part of j ob dut ies” ) ) . “ I solat ed or sporadic act ivit ies do not sat isfy t his requirem ent .” I d. ( cit ing in part , Kit chings v. Fla. 3 Unit ed Met hodist Children’s Hom e, I nc., 393 F. Supp. 2d 1282, 1293 n.26 ( M.D. Fla. 2005) ( “ For an em ployee t o be engaged in com m erce, a subst ant ial part of t he em ployee’s work m ust be relat ed t o int erst at e com m erce.” ( int ernal quot at ion m arks om it t ed) ) . The plaint iff’s com plaint alleges no m ore t han her j ob dut ies “ included answering calls.” The vagueness of t his allegat ion keeps t his court from inferring t hat t he plaint iff’s use of t he t elephone was a “ regular,” “ recurrent ,” and “ subst ant ial part ” of her work. See Reagor, 501 Fed. Appx. at 810 ( “ Ms. Reagor’s assert ion t hat she uses t he t elephone as part of her dut ies is conclusory. She does not assert t hat her use of t he t elephone was a regular and recurrent part of her dut ies or t hat she used t he t elephone for int erst at e com m unicat ions.” ( cit at ion om it t ed) ) . Due t o t he lack of allegat ions showing t hat Kalinich engaged in int erst at e com m erce, t he court cannot reasonably infer t hat t he plaint iff is eligible for FLSA coverage and t hat t he defendant s are liable for t he m inim um wages under t he FLSA. Thus, t he court denies t he m ot ion for default j udgm ent on count one. The plaint iff m ay t im ely file and serve an am ended com plaint which allege fact s sufficient t o est ablish FLSA coverage and liabilit y. Even if t he plaint iff’s com plaint had properly alleged coverage and liabilit y, t he court st ill would have denied t he m ot ion on count one for t he lack of a fact ual present at ion on dam ages. I t is well est ablished in t his dist rict : 4 Furt herm ore, a default j udgm ent does not est ablish t he am ount of dam ages. Plaint iff m ust est ablish t hat t he am ount request ed is reasonable under t he circum st ances. “ Dam ages m ay be awarded only if t he record adequat ely reflect s t he basis for [ t he] award via hearing or a dem onst rat ion by det ailed affidavit s est ablishing t he necessary fact s.” Olivas v. Bent wood Place Apart m ent s, LLC, 2010 WL 2952393 at * 4 ( cit ing and quot ing, DeMarsh v. Tornado I nnovat ions, L.P., 2009 WL 3720180 at * 2 ( D. Kan. Nov. 4, 2009) ; see Herm eris, I nc. v. McBrien, 2012 WL 1091581 at * 1- * 2 ( D. Kan. 2012) ; see also Topp v. Lone Tree At hlet ic Club, 2014 WL 3509201, at * 9 ( D. Colo. Jul. 15, 2014) ; Solis v. Melt Brands St ores, LLC, 2012 WL 364685 at * 2 ( D, Colo. 2012) . The plaint iff proceeds under Fed. R. Civ. P. 55( b) , and not ( a) , as she apparent ly recognizes t hat her claim s are not for sum s cert ain or for sum s t hat can be m ade cert ain by com put at ion. “ ’[ W] hen a default j udgm ent is ent ered on a claim for an indefinit e or uncert ain am ount of dam ages, fact s alleged in t he com plaint are t aken as t rue, except fact s relat ing t o t he am ount of dam ages, which m ust be proven in a supplem ent al hearing or proceeding.’” Unit ed St at es v. Craighead, 176 Fed. Appx. 922, 925 ( 10t h Cir. 2006) ( quot ing Am erican Red Cross v. Com m unit y Blood Cent er of t he Ozarks, 257 F.3d 859, 864 ( 8t h Cir. 2001) ) . The plaint iff’s m ot ion is not accom panied by docum ent at ion or affidavit s concerning t he issues of wages, dam ages, fees and cost s. I n a foot not e, t he plaint iff’s m ot ion does offer t o m ake any docum ent s and inform at ion available t o t he court . ( Dk. 8, p. 2 n.1) . The above cit at ions are com m ended 5 t o t he plaint iff for review in m aking any subsequent fact ual present at ion in t his regard. Concerning count t wo, fraudulent filing of 2013 W- 2 Form , t he plaint iff seeks t o recover only t he st at ut ory penalt y of $5,000 which would be a sum cert ain. The j udgm ent on t his count , however, requires m ore, for 26 U.S.C. § 7434( e) provides: “ The decision of t he court awarding dam ages in an act ion brought under subsect ion ( a) shall include a finding of t he correct am ount which should have been report ed in t he inform at ion ret urn.” The plaint iff’s m ot ion offers no proposed finding for t he court t o com ply wit h t he requirem ent s of § 7434( e) . The plaint iff also asks for at t orneys’ fees under t his count wit hout alleging ent it lem ent t o t he sam e. I T I S THEREFORE ORDERED t hat t he plaint iff’s Mot ion for Default Judgm ent against all defendant s ( Dk. 8) is denied, and t he plaint iff m ay t im ely file and serve an am ended com plaint t hat alleges fact s sufficient t o est ablish FLSA coverage and liabilit y. Dat ed t his 30t h day of July, 2014, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 6
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