United States District Court, W.D. Texas, San Antonio Division
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE
the Court is the Motion for Default Judgment filed by
Plaintiff Martin Pichardo. See Dkt. No. 29.
Pichardo's sues under the Fair Labor Standards Act
(“FLSA”). See 29 U.S.C. § 201
et seq. The Court has federal question jurisdiction
over his FLSA claims and supplemental jurisdiction over a
related state law breach-of-contract claim. See 28
U.S.C. §§ 1331, 1367. The undersigned has authority
to enter this order via the parties' consent to trial by
U.S. Magistrate Judge. See 28 U.S.C. § 636(c);
Dkt. Nos. 12 & 13. For the reasons set forth below,
Pichardo's Motion for Final Default Judgment, Dkt. No.
29, is GRANTED, as specified herein.
Factual and Procedural Background
December 9, 2016, Plaintiff Pichardo sued his former
employer, Lucky Cousins Trucking, Inc. See Dkt. No.
1. Pichardo-who worked as a truck driver for Lucky Cousins
from April 10, 2015 through May 27, 2016-alleges that Lucky
Cousins failed to pay him at the parties' agreed-upon
rate of $150 per day for time spent training plus 30% of the
revenue received for each barrel Pichardo hauled and a base
rate of $23 per hour when not training. See Id.
Pichardo further alleges that throughout his employment Lucky
Cousins failed to pay him overtime pay for hours worked in
excess of forty per week. See id.
January 23, 2017, Lucky Cousins filed an Answer, generally
denying Pichardo's allegations and asserting various
affirmative defenses. See Dkt. No. 9. A Scheduling
Order was entered. See Dkt. Nos. 14. By April 9,
2018, all deadlines had passed. See id., as
amended by Dkt. No. 17 & Dec. 27, 2017 text order.
Accordingly, the Court set a status conference. See
Dkt. No. 20.
August 23, 2018, the Court held a hearing on this matter.
Pichardo appeared through counsel of record. Lucky Cousins,
however, did not appear. Counsel for Lucky Cousins, Kevin
Pennell, had previously advised the Court's staff through
e-mail correspondence, which copied opposing counsel, that he
had a conflict with the hearing date but that Lucky Cousins
“does not intend to defend this case and thus [counsel
is] not sure [his] participation is necessary.” Dkt.
No. 22. In light of this representation, the Court instructed
counsel for Pichardo at the hearing to file either a properly
supported motion for default or an advisory explaining
whether and how Pichardo intends to proceed. See Id.
In an order following the hearing, the Court also ordered Mr.
Pennell to file an advisory indicating whether Lucky Cousins
would file a response or opposition to a request for default
from Pichardo. See id.
August 29, 2018, Lucky Cousins filed a Notice of No Contest
Against Entry of Default Judgment, in which it advised the
court that “Lucky Cousins Trucking, Inc. will not be
contesting the entry of default judgment.” Dkt. No. 23.
Thereafter, Pichardo moved for and obtained a Clerk's
Entry of Default. Dkt. Nos. 26 & 27. He then filed the
instant Motion for Default Judgment. Dkt. No. 29. Lucky
Cousins has not responded to the Motion.
Rule of Civil Procedure 55 requires the Clerk to enter a
default “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or
otherwise.” Here, Lucky Cousins has indicated that it
does not intend to defend this action. See Dkt. No.
23. Accordingly, the Clerk properly entered a default.
default has been entered, and upon a party's motion, a
court may enter a default judgment. Fed.R.Civ.P. 55(b);
N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th
Cir. 1996). “[A] party, ” however, “is not
entitled to a default judgment as a matter of right, even
where the defendant is technically in default.”
Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001)
(quotation marks omitted). Rather, “[t]here must be a
sufficient basis in the pleadings for the judgment
entered.” Nishimatsu Constr. Co., Ltd. v. Houston
Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
When considering whether such a basis is presented, a court
accepts as true the complaint's well-pleaded factual
allegations-except regarding damages-and must determine
whether those pleaded facts state a claim upon which relief
may be granted. See id.; see also United States
ex rel. M-Co. Constr., Inc. v. Shipco Gen., Inc., 814
F.2d 1011, 1014 (5th Cir. 1987). Accordingly, Pichardo will
be entitled to a default judgment if the facts alleged in the
Complaint state a claim upon which relief may be granted.
through his Complaint, Pichardo claims that he entered into a
verbal contract with Lucky Cousins regarding his
compensation. Pichardo alleges that he performed his
obligations under the contract and that Lucky Cousins
breached that agreement by paying him less than the
contractually-agreed upon amount, resulting in damages.
Accordingly, Pichardo has stated a valid breach-of-contract
claim under Texas law. See Oliphant Fin., LLC v.
Galaviz, 299 S.W.3d 829, 834 (Tex. App.-Dallas 2009, no
pet.) (discussing the elements for breach of contract).
Pichardo further alleges that (1) he is a former Lucky
Cousins employee; (2) Lucky Cousins is subject to the FLSA
and Pichardo was not exempt from the FLSA's overtime
requirements; (3) Lucky Cousins violated the overtime wage
requirements; and (4) he is entitled to $3, 605.25 in
overtime compensation. Accepting these allegations as true,
Pichardo has stated a prima facie case for unpaid overtime
under the FLSA, which Lucky Cousins has failed to rebut.
See Parrish v. Premier Directional Drilling, L.P.,
No. 17-51089, 2019 WL 973091, at *5 (5th Cir. Feb. 28, 2019)
(discussing the elements a plaintiff must prove to recover
overtime pay under the FLSA).
although it is perhaps debatable whether the 7-day notice
requirement of Rule 55(b)(2) applies where, as here, a
hearing is not required,  Pichardo served Lucky Cousins with the
instant motion using the Court's CM/ECF ...