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Pichardo v. Lucky Cousins Trucking, Inc.

United States District Court, W.D. Texas, San Antonio Division

April 10, 2019

MARTIN PICHARDO, Plaintiff,
v.
LUCKY COUSINS TRUCKING, INC., Defendant.

          ORDER

          RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE

         Before 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.

         I. Factual and Procedural Background

         On 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.

         On 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.

         On 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.

         On 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.

         II. Analysis

         Default.

         Federal 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 Judgment.

         Once a 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. They do.

         By and 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).

         Finally, 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, [1] Pichardo served Lucky Cousins with the instant motion using the Court's CM/ECF ...


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