Opinion
3:23-cv-00448-JR
09-19-2024
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 second amended motion should be granted in part.
BACKGROUND
This action arises under the Fair Labor Standards Act (“FLSA”) and state minimum wage and discrimination law. 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 ¶¶ 16-25.
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).
Plaintiff initiated this action in March 2023. She 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 November 30, 2023, plaintiff's original counsel - i.e., Jon Weiner - withdrew. Plaintiff's current attorneys - i.e., George McCoy and Nicole Lemieux - made their appearance on February 20, 2024.
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.” Bland v. Hebner, 2024 WL 1991553, *2-3 (D. Or. Mar. 22), adopted by 2024 WL 1999848 (D. Or. May 4, 2024). The Court additionally noted that Mr. McCoy, 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 *3.
On April 4, 2024, plaintiff lodged an amended motion requesting “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). The Court denied plaintiff's amended motion because she continued to fail to “provide proof of non-economic damages.” Findings & Recommendation 4 (doc. 29). Namely, Hebner's criminal proceedings did “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,” and the “complaint likewise does not allege any emotional distress or seek non-economic damages.” Id. at 4-5 (citations and internal quotations omitted). Regarding attorney fees, the Court observed that, while “counsel now indicates he has been practicing since 2010 in the areas of personal injury and criminal law,” he did “not furnish any information that would justify his hourly rate of $425” or “provide a billing statement detailing the hours spent on this case.” Id. at 5.
On May 16, 2024, plaintiff filed her second amended motion for entry of default judgment.
Plaintiff apparently amended her motion in lieu of filing objections to the Court's 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. 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). Stated differently, “[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 second amended motion, plaintiff seeks “economic damages in the amount of $13,109,” and attorney fees and costs in the sum of $8,291.75. Pl.'s Second Am. Mot. Default 10 (doc. 31); McCoy Decl. Ex. 4, at 1-3 (doc. 31-6); Second Am. Proposed Order 2-3 (doc. 32). To grant default judgement, the Court must first address the appropriateness of such a judgment pursuant to the factors laid out in Eitel, and then assess damages and reasonable attorney fees. Stross v. Smith Rock Masonry Co., 2021 WL 2453388, *2 (D. Or. June 16, 2021).
I. Eitel Factors
The Court accepts plaintiff's well-pleaded factual assertions as true because default has been entered against defendants. And the Court concludes that the Eitel factors, on balance, support granting plaintiff's motion.
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). Because she has no other means to address defendants' violations of the FLSA and Oregon law and, by extension, obtain unpaid wages, the first factor favors granting plaintiff's motion.
The second and third factors - the merits of plaintiff's claims and the sufficiency of the complaint - also weigh in favor of default judgment. The Ninth Circuit has directed that the second and third factors, taken together, require the dispositive pleading to “state a claim on which the [plaintiff] may recover.” Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978). Plaintiff has sufficiently plead an actual controversy regarding defendants' improper pay practices and hostile work environment. Compl. ¶¶ 4-25 (doc. 1).
The fourth factor considers the sum of money at stake in this action. The damages here are neither nominal nor particularly substantial, as plaintiff seeks approximately $21,400 in damages, attorney fees, and costs. The Court concludes that the fourth factor is neutral.
The fifth factor considers the possibility of a dispute concerning material facts. As discussed above, defendants were properly served but have not appeared in this case. The Court must therefore accept as true plaintiff's well-pleaded factual allegations that defendants violated the FLSA and Oregon law. Moreover, Hebner is facing a litany of criminal charges, which in part emanate from or are related to the employment practices challenged in this case. Accordingly, the fifth factor supports the issuance of default judgment.
Finally, the sixth and seventh factors favor granting plaintiff's second amended motion. The sixth factor considers whether defendants' default was due to excusable neglect, and here the record demonstrates that defendants were served, but have not appeared or otherwise indicated any intent to do so. As to the seventh factor, “default judgments are disfavored because cases should be decided on their merits whenever reasonably possible [but] the policy . . . favoring decisions on the merits does not 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). In sum, after balancing the Eitel factors, the Court concludes that default judgment should be entered.
II. Damages
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.” Bolton v. Pentagrp. Fin. Servs., LLC, 2009 WL 734038, *10 (E.D. Cal. Mar. 17, 2009).
Mr. McCoy has not submitted any proof of non-economic damages or emotional distress, despite having three opportunities to do so. And counsel appears to have abandoned plaintiff's requests for liquidated damages under the FLSA and penalty wages under Or. Rev. Stat. § 653.055. Compl. ¶¶ 14-15 (doc. 1). Mr. McCoy does, however, furnish sufficient information related to the sole remedy now sought - i.e., “economic damages in the amount of $13,109.00 for [plaintiff's three] claims.” Pl.'s Second Am. Mot. Default 10 (doc. 31); Bland Decl. ¶¶ 4-16 (doc. 31-2); Second Am. Proposed Order 2-3 (doc. 32).
III. Attorney Fees
The FLSA and Oregon law permit the recovery of reasonable attorney fees in the present context. 29 U.S.C. § 216(b); Or. Rev. Stat. § 659A.885. In determining reasonableness, 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.
Although plaintiff does not cite to Or. Rev. Stat. § 20.075 or address any of its factors, the Court finds that, to the extent applicable, this statute does not instruct a different outcome. SeeGrahamv. Forever Young Or., LLC, 2014 WL 4472702, *3 (D. Or. Sept. 10, 2014) (Kerr “factors are similar to those” articulated in Or. Rev. Stat. § 20.075).
Here, plaintiff's counsel seeks 20.17 hours in attorney time, at a rate of $325 per hour; 7.5 hours of paralegal time, at a rate of $95 per hour; and $1024 in unspecified costs. McCoy Decl. Ex. 4, at 1-3 (doc. 31-6); Second Am. Proposed Order 2-3 (doc. 32). As an initial matter, the Court finds the requested hourly rates to be reasonable. See, e.g., Prison Legal News v. Umatilla Cnty., 2013 WL 2156471, *4-7 (D. Or. May 16, 2013). Mr. McCoy's rate does not exceed the average rate for attorneys with commensurate experience based on the most recent Oregon State Bar Economic Survey. 2022 OSB Survey 42-44. Furthermore, the paralegal rate does not exceed the average rate for first-year associates. Id.
The amount of hours billed is nonetheless excessive given the procedural posture and complexity of this case at the time Mr. McCoy stepped in as counsel. That is, this case resolved at its early stages and no discovery has taken place; Mr. McCoy did not file the complaint, proposed summons, certificate of service, motion for entry of default, or any extension request. Thus, while 4.75 hours appear to be related to fact finding and client intake, the remainder of the 20.17 attorney hours he billed were associated with the default judgment. McCoy Decl. Ex. 4, at 1 (doc. 31-6).
Counsel's billing descriptions are vague and often lump various tasks together, further complicating the Court's efforts to determine the reasonableness of the requested fees. SeeSterlingSavings Bank v. Sequoia Crossing, LLC, 2010 WL 3210855, *5-6 (D. Or. Aug. 11, 2010) (the numbers of hours expended must not only be reasonable, but also adequately documented).
Similarly, only 3 hours of paralegal time was spent on opening a client file and garnishment letters. Id. at 2.
In other words, Mr. McCoy billed 15.42 hours, and his paralegal billed 4.5 hours, for the initial and amended motions for default judgment. Id. at 1-2. The initial motion is approximately one page and includes boilerplate language, and the initial proposed judgment is also boilerplate and incomplete, insofar as it does not specify any damages, fees, or costs. Likewise, counsel's declarations offer little beyond indicating that service occurred. Nevertheless, the declaration submitted by plaintiff in association with the amended motion is detailed and certainly required some time to prepare. The Court therefore finds 4 hours of attorney time and 1 hour of paralegal time sufficient for these tasks, thereby reducing counsel's time by 11.42 hours and the paralegal's time by 3.5 hours. Cf.Moreno v. City of Sacramento, 534 F.3d 1106, 1115-16 (9th Cir. 2008) (“[t]he district court may properly use the simplicity of a given task . . . as justification for a reduction”). As a result, Mr. McCoy is awarded 8.75 hours at $325 per hour, and his paralegal is awarded 4 hours at $95 per hour.
Mr. McCoy does not seek attorney fees for his second amended motion, which is virtually identical to the amended motion save for the removal of the request for non-economic damages.
Lastly, plaintiff requests “costs in the amount of $594 and prevailing party fee in the amount of $430.” Second Am. Proposed Order 3 (doc. 32). Plaintiff's motion and declarations are completely silent as to these sums, despite the fact that the Court previously instructed Mr. McCoy that, “if plaintiff is seeking costs as part of the default judgment, those must be separately addressed and supported.” Findings & Recommendation 6 (doc. 29). As such, it is unclear what the $594 in costs pertain to, especially since it is not readily apparent that Mr. McCoy's firm actually paid the filing fee or incurred any expenses surrounding service. And, while Or. Rev. Stat. § 20.190 does authorize a $345 prevailing party fee, the Court has supplemental jurisdiction over plaintiff's state law claims and default had already been entered at the time Mr. McCoy appeared. See Bio-Synergy Env't, LLC v. Garcia, 2023 WL 4399082, *2 (D. Or. July 7, 2023) (denying the plaintiff's request for fees under Or. Rev. Stat. § 20.190 where, among other reasons, it “provide[d] no analysis” of the statute's application to a case originally filed in federal court). Accordingly, plaintiff's request for costs is denied.
RECOMMENDATION
For the foregoing reasons, plaintiff's Second Amended Motion for Entry of Default Judgment (doc. 31) should be granted in part. Specifically, the Eitel factors favor entry of a default judgment as to the $13,109 in economic damages sought, and attorney fees should be awarded in the reduced sum of $3,223.75.
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.