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Diby Ako v. Arriva Best Security, Inc., et al.

U.S.D.C. (N.D. Tex.) Case No. 3:22-cv-1751-S

Brief in Support of Renewed Motion for Default Judgment

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DIBY AKO PLAINTIFF

vs. No. 3:22-cv-1751-S

ARRIVA BEST SECURITY, INC., DEFENDANTS

and AMOIFO KOFFI

BRIEF IN SUPPORT OF RENEWED MOTION FOR DEFAULT JUDGMENT

AGAINST DEFENDANTS ARRIVA BEST SECURITY, INC., 

AND AMOIFO KOFFI

I. INTRODUCTION

Plaintiff Diby Ako (“Plaintiff”) is entitled by operation of law to a judgment by default 

against Defendants Arriva Best Security, Inc., and Amoifo Koffi (“Defendants”), as a result 

of Defendants’ failure to file any responsive pleading herein within the time allowed by the 

Rules. As fully set forth below, Plaintiff has alleged facts which establish a basis for the 

claims relating to violations of the minimum and overtime wage provisions of the Fair 

Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). Also, as more fully set forth herein 

below, Plaintiff has established that he is entitled to damages in the amount of 

$105,560.00, which includes damages for uncompensated hours worked, unpaid 

minimum and overtime wages, and an equal amount in liquidated damages. Plaintiff is

also entitled to an award of attorney’s fees in the amount of $8,282.56 and costs in the 

amount of $870.50. 

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Brief in Support of Renewed Motion for Default Judgment

II. PROCEDURAL BACKGROUND

On August 11, 2022, Plaintiff filed the current lawsuit. ECF No. 1. Defendant Amoifo 

Koffi was served with the Complaint on September 24, 2022 (ECF 7), and Defendant 

Arriva Best Security, Inc. was served with the Complaint on March 18, 2023 (ECF No. 

19). 

Pursuant to Rule 12(a), Defendant Amoifo Koffi’s was required to file and serve a 

responsive pleading to Plaintiff’s Complaint by no later than October 15, 2022, and 

Defendant Arriva Best Security, Inc. was required to file and serve a responsive pleading 

by no later than April 10, 2023. Both Defendants failed to timely serve any responsive 

pleading whatsoever. On February 22, 2022, this Court entered Default against 

Defendant Amoifo Koffi (ECF No. 16) and on August 30, 2023, this Court entered Default 

against Defendant Arriva Best Security, Inc. (ECF No. 27). Plaintiff moved for default 

judgment against Defendant Amoifo Koffi on March 24, 2023 (ECF No. 21), and for default 

judgment against Defendant Arriva Best Security, Inc., on August 30, 2023 (ECF No. 28).

On October 5, 2023, the United States Magistrate Judge recommended that the 

Court deny without prejudice Plaintiff’s Motions for Default Judgment, see ECF No. 31, 

and the Court accepted that recommendation, see ECF No. 31. Pursuant to Rule 55(b)(2), 

Plaintiff renews his request that this Court enter default judgment against Defendants as 

set forth herein below. 

III. DEFAULT JUDGMENT STANDARD

Pursuant to Rule 55, following the entry of a party’s default by the Clerk, the Court 

may enter a default judgment against the defaulting party upon application by the nondefaulting party. Fed. R. Civ. P. 55. When entering a default judgment, the Court takes the 

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U.S.D.C. (N.D. Tex.) Case No. 3:22-cv-1751-S

Brief in Support of Renewed Motion for Default Judgment

facts alleged in the non-defaulting party’s complaint as true. Nishimatsu Constr. Co. v. 

Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). Where the claim is for an 

indefinite or uncertain amount of damages, facts relating to the amount of damages must 

be proved in a supplemental hearing or proceedings. UA Corp. v. Freeman, 605 F.2d 854, 

856 (5th Cir. 1979).

IV. BRIEF FACTUAL BACKGROUND

As noted above, on motion for default judgment, the factual allegations contained 

in Plaintiff’s Complaint must be taken as true. Plaintiff Diby Ako is a resident of the District 

of Columbia. ECF No. 1, Compl. ¶ 8; Exhibit 1, Declaration of Diby Ako (“Decl. Ako”) ¶ 2. 

Arriva Best Security, Inc. (“ABS”) is a foreign for-profit corporation headquartered in 

Texas. ABS’s registered agent for service of process is Amoifo Koffi, 9330 LBJ Freeway, 

Suite 900, Dallas, Texas 75243.headquartered in Texas. Compl. at ¶¶ 5, 10, 12. Amoifo 

Koffi (“Koffi”) is an individual and resident of California, and is a principal, director, officer, 

and/or owner of foreign for-profit corporation ABS. Id. at ¶¶ 5, 13,10, 11. ABS is a business 

subject to the FLSA because its annual gross volume of sales made, or business done is 

at least $500,000.00 and it has at least two employees who handle, sell, or otherwise 

work on goods or materials that have been moved in or produced for commerce. Id. at ¶¶ 

14-15. 

Defendants employed Plaintiff as a fire watch services guard from September of 

2020 until September of 2021. Id. at ¶ 18; Decl. Ako ¶ 9. Defendants determined the 

number of hours worked by Plaintiff, the manner in which Plaintiff performed his job duties, 

and his schedule. Compl. at ¶ 12. Plaintiff’s primary duties included, but were not limited 

to, inspecting Defendants’ customers’ work sites for fire hazards, reporting any potential 

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Brief in Support of Renewed Motion for Default Judgment

fire risks, and monitoring to ensure there were no fires. Id. at ¶ 20; Decl. Ako ¶ 10. Plaintiff 

was promised by Defendants an hourly pay of $15.00 for all hours worked; however,

Plaintiff was paid neither an hourly or salary rate. Compl. at ¶¶ 23, 27; Decl. Ako ¶ 15. 

Plaintiff was hired by Defendants to work for a continuous and ongoing period of time.

Compl. at ¶ 31. Defendants made statements to third parties regarding Plaintiff’s 

employment status, that he was paid $15.00 per hour and worked 100 hours per week. 

Id. at ¶ 35; Decl. Ako, Ex. B. Defendants did not compensate Plaintiff for any of the work 

he performed at any point during his employment with Defendants. Compl. at ¶ 30. 

Defendants failed to pay Plaintiff a lawful minimum wage for all hours worked. Id. at ¶ 29. 

Defendants willfully violated the provisions of 29. U.S.C. §§ 206 and 207 by employing 

employees engaged in commerce at an hourly rate less than the federal minimum wage 

and by failing to pay one and one-half (1.5) times regular wages for all hours worked over 

forty (40) in a week. Id. at ¶¶ 47-53.

V. ARGUMENT

A. Plaintiff has established that the FLSA applies to him, Defendants violated 

the minimum wage and overtime provisions of the FLSA, and he is entitled 

to damages for all unpaid compensation.

Plaintiff has established that the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. 

(the "FLSA") applied to his work, Defendants violated the minimum wage and overtime 

provisions of the FLSA, and he is entitled to damages for all back wages and/or unpaid 

overtime compensation. Specifically, Plaintiff was an employee engaged in commerce 

such that individual coverage under the FLSA applies to him, Defendants did not pay 

Plaintiff a regular rate sufficient to meet the federal minimum wage requirement or at a 

rate of one and one-half times her regular rate for all hours worked over forty (40) hours 

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U.S.D.C. (N.D. Tex.) Case No. 3:22-cv-1751-S

Brief in Support of Renewed Motion for Default Judgment

per week. Because Plaintiff was entitled to the protections of the FLSA and Defendants

violated the regular rate and overtime provisions of the FLSA, Plaintiff is entitled to 

damages for all unpaid back wages and unpaid overtime compensation.

“An employee is considered personally engaged in interstate commerce when the 

work is so directly and vitally related to the functioning of an instrumentality or facility of 

interstate commerce as to be, in practical effect, a part of it, rather than isolated local 

activity.” Dunphy v. Project Aristocrat Life Found., No. H-17-1225, 2019 U.S. Dist. LEXIS 

198632, at *17 (S.D. Tex. Nov. 15, 2019) (internal quotation marks omitted). “Any regular 

contact with commerce, no matter how small, will result in coverage.” Id. at 17–18 (citing 

Sobrinio v. Medical Center Visitor's Lodge, Inc., 474 F.3d 828, 829 (5th Cir. 2007)) 

(internal editing marks omitted). ABS is a multi-state operation that contracts with 

businesses around the country to provide onsite security guard and fire watch services.

Decl. Ako at ¶ 7. Defendants’ main office is in Texas, but they also have an office in 

Beverly Hills, California. Id. at ¶ 8. As a fire watch services guard for Defendants, Plaintiff 

worked in both Texas and Virginia. Id. at ¶ 11. In performing his job, Mr. Koffi, from 

Defendants’ office in California, would regularly call Plaintiff to ask for site updates and to 

provide him with work instructions in order to ensure he was doing his job correctly and 

that there were no issues with the services ABS was contracted to provide at the site. Id.

at ¶ 13. In addition to the day-to-day communications Plaintiff had with Mr. Koffi, Plaintiff 

would also communicate with Defendants’ office in California via email when he had 

questions related to his employment. Id. at ¶14.

29 U.S.C. § 207 requires employers to pay employees one and one-half times the 

employee’s regular rate for all hours that the employee works in excess of forty per week. 

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U.S.D.C. (N.D. Tex.) Case No. 3:22-cv-1751-S

Brief in Support of Renewed Motion for Default Judgment

29 U.S.C.S. § 207. Plaintiff regularly worked in excess of forty (40) hours per week during 

his tenure with Defendants. Compl. ¶ 28. In fact, Defendants made statements to third 

parties regarding Plaintiff’s employment status, stating that Plaintiff worked 100 hours per 

week. Id. at ¶ 35; Decl. Ako, Ex. B. During Plaintiff’s employment with Defendants,

Defendants failed to pay Plaintiff a lawful minimum wage for all hours worked. Compl. at

¶ 61. This is a violation of the overtime provisions of the FLSA, 29 U.S.C. § 201 et seq. 

“An employee who brings suit under [29 U.S.C. 216(b)] of the [FLSA] for unpaid 

minimum wages or unpaid overtime compensation, together with liquidated damages, 

has the burden of proving that he performed work for which he was not properly 

compensated.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–87 (1946). 

However, based on the purposes of the FLSA, the employee’s burden of proof is relaxed 

where the employer has failed to keep accurate records containing the information 

required under the FLSA. Id. at 687–88.

Plaintiff has submitted a sworn declaration with supporting exhibits regarding his 

job duties and uncompensated wages that is in line with the allegations made in the 

Complaint. As such, Plaintiff has established that the FLSA applied to him, and

Defendants violated the minimum wage and overtime provisions of the FLSA. Therefore, 

Plaintiff is entitled to damages for all back wages and unpaid overtime compensation 

within the statute of limitations.

Further, Plaintiff is entitled to liquidated damages regarding his regular rate and

overtime rate judgment. When an employer is found to have violated the overtime 

payment requirements of the FLSA, the employer “shall be liable” to the employee for 

liquidated damages in an amount equal to the amount of overtime compensation owed. 

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Diby Ako v. Arriva Best Security, Inc., et al.

U.S.D.C. (N.D. Tex.) Case No. 3:22-cv-1751-S

Brief in Support of Renewed Motion for Default Judgment

29 U.S.C. § 216. As set forth above, liquidated damages are not penal in nature, but 

represent compensation to the employee for otherwise obscure and difficult to prove 

damages. Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 707 (1945). Subject to the 

discretion of the Court, an employer may be wholly or partially relieved of his duty to pay 

liquidated damages only if the employer proves “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 Fair Labor Standards Act.” 29 U.S.C. § 260; see 

also Klein v. Rush-Presbyterian-St. Like’s Med. Ctr., 990 F.2d 279, 282 (7th Cir. 1993)

(“The FLSA is a remedial act and exemptions from its coverage are to be narrowly 

construed against employers;” citations omitted); Lorillard, Div. of Loew’s Theatres, Inc. 

v. Pons, 434 U.S. 575, 581 n.8 (1978) (noting that liquidated damages are mandatory 

unless the employer can satisfy the Court that the act or omission was in good faith.). An 

employer who violates the FLSA carries the burden of proving its claim of good faith and 

reasonable grounds, and the employer must show that it acted in both objective and 

subjective good faith, which requires that an employer demonstrate that it “took affirmative 

steps to ascertain the [FLSA’s] requirements but nonetheless violated its provisions.” 

Martin v. Ind. Mich. Power Co., 381 F.3d 574, 584 (6th Cir. 2004); Klien, 990 F.2d at 283 

(“The employer bears the burden of proving the application of an exemption,” citing 

Corning Glass Works v. Brennan, 417 U.S. 188, 196-98 (1974).). Liquidated damages 

are “the norm” where an FLSA violation is found. Id. Whether to award liquidated damages 

is a question for the Court, not the jury. Kanatzer v. Dolgencorp. Inc., 2010 U.S. Dist. 

LEXIS 67798 at *24 (E.D. Mo. July 8, 2010).

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Diby Ako v. Arriva Best Security, Inc., et al.

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Brief in Support of Renewed Motion for Default Judgment

The FLSA directs that liquidated damages in an amount equal to any judgment 

awarded on a minimum wage or overtime pay violation claim be awarded if the employer 

fails to carry its burden of proving that it acted in good faith and with reasonable grounds 

for violating the FLSA.29 U.S.C. § 216(b). Because Defendants failed to meet their

burden of proving that they acted in objective and subjective good faith, Plaintiff should 

be awarded liquidated damages equal to any amount of unpaid overtime awarded. 

In addition, the FLSA mandates that an employee who is awarded damages 

against his or her employer for minimum wage or overtime violations of the FLSA be 

awarded a reasonable attorney’s fees and costs incurred in having pursued the case. 

Specifically, 29 U.S.C. § 216(b) states that a Court “shall, in addition to any judgment 

awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fees to be paid by the 

defendant, and costs of the action.” (emphasis added). Plaintiff requests that this Court 

accept the amounts of costs and attorney’s fees incurred by Plaintiff submitted with the

Plaintiff’s Motion for Default Judgment.

B. Plaintiff has established a basis for an award of reasonable attorneys’ fees 

and costs in the amount of $9,153.06.

Plaintiff has established that Defendants violated the minimum wage and overtime 

provisions of the FLSA. Pursuant to 29 U.S.C. § 216(b) and Fed. R. Civ. P. 54, Plaintiff is

entitled to an award of reasonable attorneys’ fees and costs.

An award of reasonable attorneys’ fees and costs to the prevailing party is 

mandatory under the FLSA. 29 U.S.C. § 216(b); Fegley v. Higgins, 19 F.3d 1126, 1134 

(6th Cir. 1994). Congress enacted the fee-shifting provision of the FLSA “to insure 

effective access to the judicial process by providing attorney fees for prevailing plaintiffs 

with wage and hour grievances.” Fegley, 19 F.3d at 1134; see also 29 U.S.C. § 202. 

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Brief in Support of Renewed Motion for Default Judgment

Compensating plaintiffs’ attorneys, who act as private attorneys general lending 

their unpaid work to society, furthers Congress’s public policy goal under the FLSA, which 

is to protect workers from unfair labor practices, as stated:

The design of the Fair Labor Standards Act is intended to rectify and 

eliminate ‘labor conditions detrimental to the maintenance of the minimum 

standard living’ for workers. 29 U.S.C. § 202(a). The availability and award 

of attorney fees under § 216(b) must reflect the obvious congressional intent 

that the policies enunciated in § 202 be vindicated, at least in part, through 

private lawsuits charging a violation of the substantive provisions of the 

wage act.

United Slate, Local 307 v. G & M Roofing & Sheet Metal Co., 732 F.2d 495, 501–02 (6th 

Cir. 1984); 29 U.S.C. § 202. In awarding fees, “[t]he relevant issue...is not whether 

hindsight vindicates an attorney’s time expenditures, but whether, at the time the work 

was performed, a reasonable attorney would have engaged in similar time expenditures.” 

Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 1177 (6th Cir. 1990).

Plaintiff’s counsel kept contemporaneous records of their hours worked in this 

case. See Exhibit 4, Declaration of Josh Sanford (hereinafter “Decl. Sanford”) ¶ 28,

Exhibit 5, Billing Spreadsheet. Time expended in this case included concerted efforts by 

Plaintiff’s counsel to serve Defendants. Although Plaintiff incurred $9,412.00 in attorneys’ 

fees, Plaintiffs have proposed a twelve percent (12%) reduction in the amount of fees 

incurred in order to account for any inefficient or unnecessary billing in this case. Id.

Section 216(b) of the FLSA also provides for an award of costs to a prevailing 

plaintiff. 29 U.S.C. § 216(b); see also Rule 54(d) (allowing an award of costs to a 

prevailing party). Costs recoverable under Rule 54(d) are identified in 28 U.S.C. § 1920. 

“Under the FLSA, however, ‘costs include reasonable out-of-pocket expenses beyond 

those normally allowed under Rule 54(d) and 28 U.S.C. § 1920.’” Hendricks v. Inergy, 

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L.P., 2014 U.S. Dist. LEXIS 6044, at *22 (E.D. Ark. Jan. 6, 2014) (internal editing marks 

omitted); Shorter v. Valley Bank & Trust Co., 678 F. Supp. 1518 1523, 30 WH Cases 334 

(D. Kan. 1991); Walton v. United Consumers Club, 786 F. 2d 303, 316, 27 WH Cases 962 

(7th Cir. 1986). “Reimbursement for travel, meals, lodging, photocopying, long-distance

phone calls, computer legal research, postage, courier service, mediation, exhibits,

document scanning, and visual equipment are the types of litigation expenses that are

recoverable under the FLSA as part of an attorneys' fee award.” Alex v. KHG of San

Antonio, LLC, 125 F. Supp. 3d 619, 630 (W.D. Tex. 2015).

Plaintiff seeks $870.50 in costs. See Decl. Sanford ¶ 38, Exhibit 6, Costs Invoice.

Costs were necessarily incurred, and the services giving rise to the costs were actually 

and necessarily performed. See 28 U.S.C. § 1924; Decl. Sanford ¶ 37. Each cost is 

described sufficiently to demonstrate that the cost was necessary. Accordingly, Plaintiff 

requests an award of all costs.

VI. CONCLUSION

Plaintiff Diby Ako respectfully requests that the Court enter judgment against the 

Defendants, as set forth above. 

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Diby Ako v. Arriva Best Security, Inc., et al.

U.S.D.C. (N.D. Tex.) Case No. 3:22-cv-1751-S

Brief in Support of Renewed Motion for Default Judgment

Respectfully submitted,

PLAINTIFF DIBY AKO

SANFORD LAW FIRM, PLLC

Kirkpatrick Plaza

10800 Financial Centre Pkwy, Suite 510

Little Rock, Arkansas 72211

Telephone: (501) 221-0088

Facsimile: (888) 787-2040

/s/ Josh Sanford 

Josh Sanford

Tex. Bar No. 24077858

josh@sanfordlawfirm.com

CERTIFICATE OF SERVICE

I, the undersigned counsel, do hereby certify that on the date imprinted by the 

CM/ECF system, a copy of the foregoing BRIEF was filed via the CM/ECF system, which 

will provide notice to all interested parties. Notice has been delivered by other means to:

Arriva Best Security Inc.

c/o Aimee Koffee

5482 Wilshire Blvd. Ste. 219

Los Angeles, CA 90036

Amoifo Koffee

9955 Durant Drive, Unit 304

Beverley Hills, CA 90212-1601

Arriva Best Security Inc.

2435 N. Central Express Way, 12th Floor

Richardson, Texas 75080

/s/ Josh Sanford

 Josh Sanford

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