United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. MILLER UNITED STATE DISTRICT JUDGE.
before the court is plaintiff Aquino Anders's motion for
default judgment against defendant Kashmir Road Lines, LLC
("Kashmir"). Dkt. 8. Kashmir has not responded to
the motion. Having considered the motion and applicable law,
the court is of the opinion that the motion should be
seeks to recover $6, 939.21 plus interest for Kashmir's
violations of the overtime provisions of the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 207(a).Dkt. 1 at 1-2;
Dkt. 8 at 1-3. Anders worked as a store clerk for Kashmir, a
company that owns and operates gas stations, and convenience
stores in Houston, Texas. Dkt. 1 at 1, 3. There, Anders
interacted with customers, sold merchandise (including fuel,
food, and drinks), operated the cash register, processed
credit card transactions, and maintained the store.
Id. at 3.
set Anders's schedule, duties, and pay. Id.
Kashmir paid her eight dollars per hour. Dkt. 8, Ex. E at 1.
On average, Anders worked 9.36 hours per day. Id. at
4. When Anders started her shifts early or ended her shifts
late, Kashmir rounded to the next previous full hour to
determine hours worked. Dkt. 1 at 3. As a result, Anders was
not compensated accurately. Id.
when Anders worked overtime (in excess of forty hours in a
week), Kashmir paid her for those hours at eight dollars per
hour instead of an overtime rate of twelve dollars per hour
(at least one-and-a-half times the hourly rate). Dkt. 1 at 4;
Dkt. 8, Ex. E.
February 13, 2017, Anders sued Kashmir for violating the
FLSA's overtime provisions. Dkt. 1. A summons was issued
on the same day. Dkt. 2. On March 28, 2017, a Certified
Process Server served Kashmir's registered agent, Gurdeep
Singh, with a true copy of the summons by in-person delivery.
Dkt. 8, Ex. A. at 4. Kashmir did not file an answer or
otherwise defend the suit.
August 2, 2017, Anders filed the instant motion, seeking a
default judgment against Kashmir for $6, 939.21 plus
interest. Dkt. 8 at 3. Anders alleges that amount represents
unliquidated damages of $3, 112.20 (for unpaid overtime and
unpaid standard time), liquidated damages of $3, 112.20, and
costs of $715.11. Id. at 2. Anders will seek
attorneys' fees via a separate motion after the default
judgment has been entered. Id. at 3. Anders served
the motion via certified mail return receipt requested. Dkt.
9. Kashmir has not responded. The motion is now ripe for
Federal Rule of Civil Procedure 55(a), "[w]hen a party
against whom judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is
shown by | affidavit or otherwise, the clerk must enter the
party's default." Fed.R.Civ.P. 55(a). Under Rule
55(b)(2), a party may apply for the court to enter a default
judgment, and the "court may conduct hearings or make
referrals-preserving any federal statutory right to a jury
trial-when, to enter or effectuate judgment, it needs to: (A)
conduct an accounting; (B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or (D)
investigate any other matter." Fed.R.Civ.P. 55(b)(2).
default judgment is a "drastic remedy, not favored by
the Federal Rules[, ] and resorted to by courts only in
extreme situations." Sun Bank of Ocala v. Pelican
Homestead & Sav. Ass 'n, 874 F.2d 274, 276 (5th
Cir. 1989). "The Federal Rules of Civil Procedure are
designed for the just, speedy, and inexpensive disposition of
cases on their merits, not for the termination of litigation
by procedural maneuver." Id. A default
judgment, thus, "must be 'supported by well-pleaded
allegations' and must have 'a sufficient basis in the
pleadings.'" Wooten v. McDonald Transit Assoc,
Inc., 788 F.3d 490, 498 (5th Cir. 2015) (quoting
Nishimatsu Constr. Co. v. Hou. Nat'l Bank, 515
F.2d 1200, 1206 (5th Cir. 1975)). The well-pleaded
allegations in the complaint are assumed to be true, except
regarding damages. Nishimatsu, 515 F.2d at 1206;
see also United States v. Shipco Gen.,
Inc., 814 F.2d 1011, 1014 (5th Cir. 1987). However,
"the defendant is not held to admit facts that are not
well-pleaded or to admit conclusions of law."
Nishimatsu, 515 F.2d at 1206.
may not enter a default judgment against a minor or
incompetent person unless the person is represented by a
general guardian, conservator, or other like fiduciary who
has appeared. Fed.R.Civ.P. 55(b). Additionally, a court may
not enter a default judgment if the plaintiff does not file
an affidavit regarding the defendant's military status.
50 App. U.S.C. § 521(1). If the defendant is in the
military service, "the court may not enter a judgment
until after the court appoints an attorney to represent the
defendant." Id. § 521(2). Local Rule 5.5
requires that motions for default judgment "be served on
the defendant-respondent by certified mail (return receipt
requested)." S.D. Tex. L.R. 5.5.