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Pizzella v. Slocumb Law Firm, LLC

United States District Court, M.D. Alabama, Eastern Division

August 16, 2019

PATRICK PIZZELLA, Acting Secretary of Labor, United States Department of Labor, Plaintiff,



         Under the Fair Labor Standards Act, employees who work more than forty hours a week may have a right to receive one-and-a-half times their regular pay. 29 U.S.C. § 207. The Secretary of the United States Department of Labor “may bring an action in any court of competent jurisdiction to recover [an] amount of unpaid . . . overtime compensation and an equal amount as liquidated damages.” Id. § 216(c). This is one such action. According to the Secretary, Defendants Michael Slocumb and his firm, Slocumb Law Firm, LLC, failed to pay overtime compensation to forty-two employees.

         The Clerk of the Court entered default against Defendants. The Secretary now moves for default judgment. (Doc. # 39.) But for the reasons below, that motion is due to be denied.


         The court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1345. Venue is proper. Id. § 1391(b). Defendants have not disputed personal jurisdiction.


         In April 2017, Investigator Ariel Gonzalez of the Department of Labor looked into whether Defendants paid their employees overtime compensation. (Doc. # 29-2.) She found that, since April 2015, Defendants had underpaid forty-two of their employees. So in March 2018, the Secretary sued Defendants to recover the unpaid wages and liquidated damages. (Doc. # 1.) “Appendix A” of the Complaint lists the names of the forty-two underpaid employees (Doc. # 1, at 5-6), but nothing in the Complaint or “Appendix A” prays for (or alludes to) a specific amount of damages.

         The Secretary had trouble serving Defendants with process. (See Docs. # 6, 11, 16, 25, 28, 29.) In support of one of several motions for an extension of time in which to serve Defendants, the Secretary submitted a November 2018 affidavit from Investigator Gonzalez. That affidavit states that “forty-two (42) employees are due a total of $13, 248.71 in back wages as set forth in Appendix A.” (Doc. # 29-3, at 2.) But the affidavit has no appendix, and “Appendix A” to the Complaint lists no specific dollar amounts whatsoever.[1]

         In March 2019, a Deputy U.S. Marshal served copies of the summons and the complaint on someone known only as “Mona.” According to the Deputy, Mona was “[a] person of suitable age and discretion then residing in defendant's usual place of abode.” (Docs. # 30, 31.) But it appears Mona was at the Slocumb Law Firm office when the Deputy gave her copies of the summons and complaint. (See Doc. # 33, at 2.) What's more, there is no indication that Mona was authorized to receive service for Slocumb Law Firm. Still, the Secretary moved for entry of default in July 2019. (Doc. # 38.) Based on Defendants' failure to appear, the Clerk of the Court entered default against Defendants under Federal Rule of Civil Procedure 55(a). (Doc. # 38.)

         The Secretary now moves for a default judgment against Defendants. (Doc. # 39.) The motion says that an affidavit from Investigator Gonzalez is “attached” (Doc. # 39, at 1), but that is not true. The motion does attach a chart titled “Schedule A.” (Doc. # 39-2, at 3.) “Schedule A” lists the same forty-two employees found in “Appendix A” of the Complaint, and it appears to show how much Defendants owe each employee. The total “back wages” is said to be $13, 248.71 - the same amount stated in Investigator Gonzalez's November 2018 affidavit. (Doc. # 39-2, at 3.) But no filing signed by any person explains “Schedule A.”


         The Secretary's motion for default judgment does not permit the Clerk of the Court to enter default judgment against Defendants. See Fed. R. Civ. P. 55(b)(1). Instead, whether to enter default judgment is left to the court's discretion. Hamm v. DeKalb Cty., 774 F.2d 1567, 1576 (11th Cir. 1985).

         By their default, Defendants are considered to have admitted the Secretary's “well-pleaded allegations of fact.” Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). But they are not held to admit “facts that are not well-pleaded.” Id. Nor are they held to admit “conclusions of law.” Id. Thus, their “default does not in itself warrant the court in entering a default judgment.” Id. Rather, there must be “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” USAmeriBank v. Strength, No. 16-cv-995, 2017 WL 4767694, at *6 (M.D. Ala. Oct. 20, 2017) (quoting Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245 (11th Cir. 2015) (per curiam)).

         Defendants are also not held to admit the amount of damages. Alfa Corp. v. Alfa Mortg., Inc., 560 F.Supp.2d 1166, 1174 (M.D. Ala. 2008); 10A Charles Alan Wright et al., Federal Practice and Procedure § 2688, at 80 & n.17 (4th ed. 2016 & Supp. 2019). Instead, the court has a duty “to assure [itself] that there is a legitimate basis for any damage award it enters.” Anheuser Busch, Inc. v. Philpot, 317 F.3d 1264, 1266 (11th Cir. 2003); see Adolph Coors Co. v. Movement Against Racism & the Klan, 777 F.2d 1538, 1544 (11th Cir. 1985) (“Damages may be awarded only if the record adequately reflects the basis for award via ‘a hearing or a ...

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