UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

COLBY SCURLOCK,

Plaintiff,

V. Case No. 2:18-cv-064

JUDGE GEORGE C. SMITH

FLETCHER'S TOWING, INC,

Defendant.

Magistrate Judge Vascura

OPINION AND ORDER

This matter is before the Court upon FlaintifTs Second Motion for Default Judgment.

(Doc. 21). The Clerk of this Court previously entered default against Defendant on September

17,2018, and Plaintiff moved for Default Judgment on September 18,2018. Upon consideration

ofthe foregoing, the Court finds that Defendantis in default for failure to timely file a responsive

pleading to the Complaint and that default judgment on Plaintiffs claims for declaratory

judgment is authorized and appropriate pursuantto Fed. R. Civ. P. 55(b)(1) and (b)(2).

I. BACKGROUND

Plaintiff Colby Scurlock argues that Defendant Fletcher's Towing, Inc. violated the Fair

Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq.; Article II, § 34 of the Ohio

Constitution; and the Ohio Minimum Fair Wage Standards Act, Ohio Revised Code Chapter

4111, et seq. ("Fair Wage Act") by failing to pay Plaintiff the federal and state minimum wage.

(Doc. 1, Compl. at 13-26). Plaintiff was employed by Defendant as a tow truck driver fi-om

May 31,2016 until October 16, 2017. (Id. at H5). Plaintiff was employed on a "48 hours on/48
hours off' schedule which meant that "his normal schedule would cause him to work 72 hours

every-other week, and 96 homs on the other week." (Id. at ^ 6). Plaintiff earned "35% of

whatever was collected for the tow truck runs he performed for the Defendant." (Id. at ^ 7).

Plaintiffs schedule and pay formula "caused him to not be paid at Ohio's statutory minimum

wage" and also "did not account for time-and-a-half for overtime" or compensate for "hours

worked each week over 40 hours." (Id. at ^ 9). Defendant was not subject to any exception that

would exempt Defendant from the federal or state minimum wage requirement. (Id. at ^ 10,

11).

II. STANDARD OF REVIEW

This is an action for default judgment governed by Federal Rule of Civil Procedure 55

and Local Rule 55. In relevant part. Rule 55 states that "when a party against whom a judgment

for afhrmative relief is sought has failed to plead or otherwise defend, and that failure is shown

by affidavitor otherwise, the clerk must enter the party's default." Fed. R. Civ. P. 55(a). "Then,

pursuant to Rule 55(c), the defendant has an opportionity to seek to have the default set aside"

and "if that motion is not made or is unsuccessful, and if no hearing is needed to ascertain

damages, judgment by default may be entered by the court " United Coin Meter Co. v.

Seaboard C. R.R., 705 F.2d 839, 844 (6th Cir. 1983)(citing Meehan v. Snow, 652 F.2d 274, 276

(2d Cir. 1981)). However, even if a court finds that defaultjudgment is appropriate that "does

not resolve issues relating to damages" as default judgment only binds parties on "the issue of

liability." Antoinev. Atlas Tucker, Inc., 66 F.3d 105,110-11 (6th Cir. 1995).

III. DISCUSSION

In the Complaint, Plaintiff alleges that Defendant violated the FLSA, Ohio Constitution,

and Fair Wage Act by failing to pay Plaintiff the applicable minimum wage and requisite
overtime pay for the duration of his employment. As default has been entered against

Defendant, they are "bound on the issue of liability" but "the issue of damages" remains.

Antoine, 66 F.3d at 111). "Ordinarily, a district court must hold an evidentiaryhearing in order

to give the defaulting defendant an opportunity to contest the amount ofdamages." O'Neal v.

Nationstar Mortg., No. l:07-CV-505, 2009 WL 1795305, at *4 (S.D. Ohio June 23, 2009)

{(\\xo\mg Antoine, 66 F.3d at 110)). However, "an evidentiaryhearing is not a prerequisite to the

entry of default judgment if damages are contained in documentary evidence or detailed

affidavits and can be ascertained on the record before the court." Joe Hand Promotions, Inc. v.

RPMMgmt. Co. LLC, No. 2:ll-CV-377, 2011 WL 5389425, at *1 (S.D. Ohio Nov. 7, 2011)

(Graham, J.) (quoting J & J Sports Production, Inc. v. IwAes,No. l:10-CV-535, 2010 WL

4105663 at *1 (N.D. Ohio Oct.18, 2010)). Here, no evidentiary hearing is necessary because

Plaintiff has provided an affidavit and accompanying "damages worksheet" which lay out the

basis for the alleged damages. (Docs. 22, Mot. for Default J. at 2; 22-1, Scurlock Aff.; 22-2,

Damages Worksheet). After review, the Court accepts the affidavit as sufficiently detailed to

rule on damages without conductingan evidentiary hearing. Therefore, the Court will turn to the

damages analysis.

A. Damages

i. Minimum Wage Claim

Plaintiffonly seeks to pursuedamages on his "Ohio Minimum Wage underpayment" as

pursuing "damages for his minimum wage claim under the Fair Labor Standards Act.. . would

be duplicative ofhis damagesimderthe Ohio Minimum Wage laws." (Doc. 22, Mot. for Default

J. at 3). Article II, Section 34a ofthe Ohio Constitution states that "where an employer is found

by the state or a court to have violated any provision of this section, the employer shall within
thirty days ofthe finding pay the employee back wages, damages, and the employee's costs and

reasonable attorney's fees." Furthermore, "damages shall be calculated as an additional two

times the amount of back wages " Ohio Const, art. II, § 34a.

Plaintiff alleges that the "total Ohio Minimum Wage underpayment was ... $7,908.47."

(Docs. 22, Mot. for Default J. at 2; 22-2, Damages Worksheet). This amount was determined by

first calculating the hourly pay rate. Without proofof a specific rate of pay, the court must infer

that "the regular rate actually paid was substantially that obtained by dividing the weekly wage

payable for the working of the schedule workweek by the number of hours in such schedule

workweek." 149 Madison Ave. Corp. v. Asselta, 331 U.S. 199, 204 (1947). In this case, the

proper pay rate should be the Ohio minimum wage for all hours worked. The record contains no

evidence of an agreement between the parties regarding Plaintiffs specific rate of pay during his

employment with Defendant. However, Plaintiffs Damages Worksheet uses Ohio's minimum

wage rate to calculate damages. Plaintiff is not seeking damages for pay periods in which his

rate of pay exceeded the statutorily prescribed minimum rate. Ohio's minimum wage was $8.10

per hour in 2016 and $8.15 per hour in 2017. (Doc. 22, Mot. for Default J. at 1-2). The

difference between the amount paid and the amount that would have been paid had the Ohio

minimum wage requirement been met ($7,908.47) is the underpayment amovmt. The Ohio

Constitution permits damages, calculated "as an additional two times the amount of back

wages," which equal $15,816.94 in this instance. See Ohio Const, art. II, § 34a. The damages

and the underpaymenttogetheramount to $23,725.41,which constitute the total damage award.

ii. Overtime Claim

Plaintiff maintains that he "should have been paid time and half for hours worked beyond

40 hours for each pay week." (Doc. 22, Mot. for Default J. at 3). Plaintiff seeks damages
pursuant to 29 U.S.C. § 207(a) and "will not pursue damages for his Ohio overtime claim." {Id.

at 3-4). Plaintiffstates that the "total underpayment of the additional one-half overtime pay for

hours worked beyond 40 hours pay per week . . . was $9,830.50." {Id. at 3). Under 29 U.S.C.

§ 216(b), Plaintiffis also entitled to "additional liquidated damages equal to the underpayment of

overtime wages." {Id. at 3). The amount of actual damages attributable to the non-payment of

overtime is $9,830.50. The addition of liquidated damages in the same amount brings the total

amount ofovertime-related damages to $19,661.00.

Damages shall be awarded to Plaintiff in the amount of $23,725.41 for the minimum

wage claim and $19,661.00 for the overtime claim.

B. Attoraeys Fees

Plaintiff argues that he should be awarded attomeys fees and costs totaling $6,600

pursuant to Article II, § 34a ofthe Ohio Constitution and 29 U.S.C. § 216(b). (Doc. 22, Mot. for

Default J. at 8). Article II, § 34a of the Ohio Constitution states that "where an employer is

found by the state or a court to have violated any provision of this section, the employer shall

within thirty days ofthe find pay the employee .. . costs and reasonable attorney's fees." Ohio

Const, art. II, § 34a. Similarly, 29 U.S.C. § 216(b) states that the court shall "allow a reasonable

attorney's fee to be paid by the defendant, and the costs ofthe action." 29 U.S.C. § 216(b).

As this Court has entered default judgment against Defendant for its violations of the

Ohio Constitution and the FLSA, the remaining determination is whether the attomeys fees, as

calculated by Plaintiff, are reasonable. "The initial estimate of a reasonable attorney fee is

properly calculated by multiplying the number of hours reasonably expended on litigation times

a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888 (1984) (citing Hensley v.

Eckerharty 461 U.S. 424, 433 (1983)). Plaintiffs counsel "has spent a total of 24.8 hours in
researching and prosecuting the matter" and "asserts he is entitled to be paid $250 per hour for

time spent pursuing this matter." (Doc. 22, Mot. for Default J. at 4). This calculation results in a

total award of $6,200 in attorneys fees. Once that calculation is completed, courts have the

ability to increase or decrease the amoimt but there is an assumption that the figure is reasonable.

Pennsylvania v. Delaware Valley Citizens' Counsel for Clean Air, 478 U.S. 546, 565 (1986).

Here, the Court has been given no reason to doubt the reasonableness of the attorneys fees.

Plaintiff is also entitled to recover court costs which in this case total $400.00 (filing fee). {Id. at

4). The total recoverable amount is $6,600.00 for attorneys fees and costs.

IV. CONCLUSION

Based on the aforementioned discussion, the Court GRANTS Plaintiffs Motion for

Default Judgment (Doc. 21). Final judgment shall be entered in favor of Plaintiffin the amount

of $49,986.41, which includes damages pursuant to Article II, Section 34a of the Ohio

Constitution,29 U.S.C. § 216(b) as well as attorneys fees and costs.

The Clerk shall remove Document 21 from the Court's pending motions list, enter

judgmentin favorof Plaintiff, and remove this case from the Court's pending caseslist.

IT IS SO ORDERED.

/s/Georee C. Smith

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT