The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
)
SONYA PHIFER, )
)
Plaintiff, )
)
v. ) No. 21-cv-2249-SHM
)
SPM ENTERPRISES, INC., and )
STEVEN MILAM, )
)
Defendants. )
)
ORDER GRANTING DEFAULT JUDGMENT AND AWARDING DAMAGES AND
ATTORNEY’S FEES
Before the Court are Plaintiff Sonya Phifer’s June 25, 2021
Motion for Default Judgment (D.E. No. 11.) and July 29, 2021
Motion for Default Judgment and Motion for Award of Damages and
Attorney’s Fees (D.E. No. 14.) (collectively, the “Motion for
Default”). Defendants SPM Enterprises, Inc. and Steven Milam
(“Defendants”) have not responded. For the following reasons,
the Motion for Default is GRANTED.
From August 15, 2015, to March 15, 2021, Defendants employed
Phifer as a hairstylist. (D.E. No. 14-2, ¶ 1.) She received as
compensation her tips and a commission of 40% of her sales. (Id.
at ¶ 5.) Phifer earned on average $1,126.37 a week. (Id. at ¶
8.) Phifer was exposed to COVID-19, and on November 28, 2020,
she was told to quarantine. (Id. at ¶¶ 2-3.) She was cleared
to return to work on December 9, 2020, when her COVID-19 tests
continued to come back negative.1 (Id. at ¶ 4.) Defendants did
not provide paid sick leave. (Id. at ¶ 9.)
Phifer filed her Complaint on April 19, 2021. (D.E. No.
1.) She brings one claim for a violation of the Families First
Coronavirus Response Act (the “Act”), PL 116-127, March 18, 2020,
134 Stat 178. (Id. at ¶¶ 27-36.) On May 27, 2021, Phifer served
Defendants with her Complaint. (D.E. No. 7; D.E. No. 8.)
Defendants failed to respond within 21 days, and Phifer filed a
Motion for Entry of Default with a supporting affidavit from her
counsel. (D.E. No. 10.) On June 21, 2021, the Clerk of Court
entered the Clerk’s Entry of Default. (D.E. No. 10.) Plaintiff
filed a Motion for Default Judgment on June 25, 2021. (D.E. No.
11.) On July 28, 2021, the Court directed Phifer and her counsel
to file affidavits verifying her damages and her counsel’s
attorney’s fees and costs. (D.E. No. 13.) On July 29, 2021,
Phifer filed the requested documents with her Motion for Award
of Damages. (D.E. No. 14.)
Phifer swears that she is owed $2,252.74 in backpay and
2,252.74 in liquidated damages, for a total award of $4,505.48.
(D.E. No. 14-2, ¶¶ 10-12.) Phifer’s counsel and his firm billed
a total of 21.25 hours for a total fee of $7,215.00 and accrued
a total of $515.92 in costs. (D.E. No. 14-3, ¶ 16.) Phifer’s
1 All COVID-19 tests Phifer took were negative. (See D.E. No. 14-2,
¶ 4.)
counsel attached the hours he billed and his hourly rate. (D.E.
No. 14-4.) He has also provided the Court with his firm’s
electronic timesheet for this case. (D.E. No. 14-5.) Phifer’s
counsel swears that his hourly rate of $365 is the reasonable
and customary rate for senior attorneys of his experience level
in the Memphis area. (D.E. No. 14-3.)
Rule 55 creates a two-step process for obtaining a default
judgment. First, the clerk of the court enters a default if the
defendant has failed to answer or defend the complaint. Fed.
Civ. P. 55(a). Then, the plaintiff may move the court for a
default judgment. Fed. R. Civ. P. 55(b). The well pled factual
allegations in the complaint are taken as true when the defendant
is in default. Ford Motor Co. v. Cross, 441 F. Supp. 2d 837,
848 (E.D. Mich. 2006). The court enters judgment in favor of
the plaintiff if the plaintiff’s complaint supports a finding of
liability. Id.
The Court has “an obligation to ensure that there is a
legitimate basis for any award of damages that it enters.” The
record must adequately support a basis for the award. Id.;
Zinganything, LLC v. Imp. Store, 158 F. Supp. 3d 668, 675 (N.D.
Ohio 2016). The Court may rely on affidavits submitted on the
issue of damages in lieu of an evidentiary hearing. Arthur v.
Robert James & Assocs. Asset Mgmt., Inc., No. 3:11-CV-460, 2012
WL 1122892 at *1-2 (S.D. Ohio Apr. 3, 2012). The Court may rely
on affidavits to support liquidated damages. Boards of Trustees
of Ohio Laborers’ Fringe Benefits Programs v. Freisthler Paving,
Inc., No. 2:18-CV-1463, 2019 WL 4142682 at *1 (S.D. Ohio Aug.
30, 2019); see also Zinganything, 158 F. Supp. 3d at 675; Arthur,
2012 WL 1122892 at *1-2. Liquidated damages are damages that are
calculable. Freisthler, 2019 WL 4142682 at *1. Unliquidated
damages require an evidentiary proceeding. See Antoine v. Atlas
Turner, Inc., 66 F.3d 105, 110-111 (6th Cir. 1995).
Under the Act, “[a]n employer shall provide to each employee
employed by the employer paid sick time to the extent that the
employee is unable to work (or telework) due to a need for leave
because” “[t]he employee has been advised by a health care
provider to self-quarantine due to concerns related to COVID-
19.” Pub. L. No. 116-127, § 5102(a)(2), 134 Stat. 178, 195–96
(2020). The Act’s enforcement mechanism adopts the penalties
from the Fair Labor Standards Act (the “FLSA”). § 5105, 134 Stat.
178, 197. Under the Act, “[a]n employer who violates section
5102 shall” “(1) be considered to have failed to pay minimum
wages in violation of Section 6 of the [FLSA] . . .”, and “(2)
be subject to the penalties described in sections 16 and 17 of
[the FLSA]. . . .” Id. Under the Act, “paid sick time” is
defined as “not less than the greater of the” “employee’s regular
rate of pay (as determined under section 7(e) of the [FLSA] . .
.” and the minimum wage. § 5110, 134 Stat 178, 199-200.
Under the FLSA, employees are entitled the “amount of their
unpaid minimum wages, or their unpaid overtime compensation, as
the case may be, and an additional equal amount as liquidated
damages.” 29 U.S.C. § 216(b). Section 7(e) defines the regular
rate of pay as “all renumeration for employment paid to, or on
behalf of, the employee” with various exceptions. 29 U.S.C. §
207. The Department of Labor (the “DOL”) calculates the regular
rate of pay for employees compensated by tips and commission
under the Act by calculating the non-excludable renumeration for
each full work week during the previous six months and dividing
it by the number of hours the employee worked. (DOL Q&As #82-83,
85, https://www.dol.gov/agencies/whd/pandemic/ffcra-questions; citing 29
C.F.R. 778; 29 CFR 531.60).
Taking Phifer’s Complaint as true, Defendants violated the
Act. Phifer alleges that she was exposed to COVID-19 and ordered
by the test administrator to quarantine until she received a
negative COVID-19 test. (D.E. No. 1, ¶¶ 19-24.) On November
28, 2020, she worked and then took a COVID-19 test. (Id. at ¶
23.) Phifer swears she was instructed to quarantine for ten
days. (D.E. No. 14-2, ¶ 3.) Her COVID-19 tests were negative,
and she was cleared to return to work on December 9. (Id. at ¶¶
3-4.) Phifer alleges that Defendants refused to pay her for the
ten days she spent on leave. (See D.E. No. 1, ¶ 26.) The record
establishes that Defendants violated the Act because Phifer was
ordered to quarantine due to concerns related to COVID-19 and
Defendants failed to provide paid sick time.
Phifer has adequately supported her damages award.
Defendants paid Phifer 40% of her sales as a commission, and
Phifer received her tips as part of her compensation. (D.E. No.
14-2, ¶ 5.) She swears she earned $21,784.01 in commissions and
$ 7,501.60 in tips during the six months before her COVID
exposure. (Id. at ¶ 7.) Her total earnings were $ 29,285.61.
(Id.) She earned an average of $1,126.37 a week. (Id. at ¶ 8.)
Phifer has attached receipts showing her hours, commission, and
tips. (D.E. No. 14-2, 8-53.)
Phifer self-quarantined from after work on November 28,
2020, through December 8, 2020. (See Id. at ¶¶ 3-4; D.E. No. 1,
¶ 23.) She swears that those ten days represent two weeks of
missed work. (D.E. No. 14-2, ¶ 9.) Phifer did not receive paid
sick time in accordance with the Act. (See D.E. No. 1, ¶¶ 26.)
There is no evidence that Defendants acted in good faith to
comply with the Act. Phifer’s average weekly pay was $ 1,126.37.
(D.E. No. 14-2, ¶ 8.) She swears she missed two full weeks of
work and is owed $2,252.74 in unpaid sick time. (Id. at ¶ 10.)
There is a legitimate basis to award the backpay Phifer seeks.
Phifer is entitled to an amount equal to her backpay of
$2,252.74 in liquidated damages. 29 U.S.C. § 216(b). No
evidentiary hearing is needed because Phifer’s damages are
liquidated damages. They are calculable. See 29 U.S.C. §
216(b). Phifer’s total damages award is $4,505.48.
Under the FLSA, the Court is required to award reasonable
attorney’s fees and costs “in addition to any judgment awarded
to the plaintiff.” 29 U.S.C. § 216(b). Courts grant attorney’s
fees and costs in FLSA default judgments. See Long v. Morgan,
451 F.Supp. 3d 830, 836-837 (M.D. Tenn. 2020). The Act incorporates
the fee requirement of the FLSA. § 5105, 134 Stat. 178, 197.
The Court must award reasonable attorney’s fees and costs to
Phifer’s counsel.
Phifer’s counsel has provided an affidavit, timesheets, and
a lodestar calculation of his work. (D.E. No. 14-3; D.E. No.
14-4; D.E. No. 14-5.) That evidence supports his reasonable
costs and attorney’s fees. Phifer’s counsel billed 18.75 hours
at $365 an hour, 0.25 hours at $150 an hour, and 2.26 hours at
$165 an hour.2 (D.E. No. 14-4). Phifer’s counsel swears that
he and his firm normally charge $365 an hour to fee-paying
clients. (D.E. No. 14-3, ¶ 4.) He swears that $365 an hour is
a reasonable and customary rate for senior attorneys of his
experience and skill level in Shelby County, Tennessee. (Id.)
Phifer’s counsel seeks $7,214.00 in fees and $515.92 in costs.
2 The lower hourly rates represent the hourly rates for a
paralegal and a legal intern. (See D.E. No. 14-1, 4.)
(D.E. No. 14-3, ¶ 16.) Counsel’s hourly rate and hours are
reasonable.
The Motion for Default is GRANTED. Phifer’s counsel,
Phillip Oliphant and the Crone Law Firm, are entitled to and are
awarded $7,215.00 in attorney’s fees and $515.92 in costs, for
a total of $7,730.92. Phifer is entitled to and is awarded
backpay and liquidated damages in the amount of $4,505.48.
SO ORDERED this 30th day of August, 2021.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE