United States District Court, D. New Jersey
J. JAFFE JAFFE GLENN LAW GROUP, P.A. On behalf of Plaintiff
L. HILLMAN, U.S.D.J.
before the Court is the motion of Plaintiff, Mark Lurty, for
default judgment in his favor on his claims against
Defendants concerning Defendants' failure to pay him
proper overtime wages. Plaintiff alleges violations of the
Federal Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201 et seq., and the New Jersey State Wage and Hour
Law (“NJWHL”), N.J.S.A. 34:11-56 et seq. For the
reasons expressed below, Plaintiff's motion will be
denied without prejudice.
Court takes its facts from Plaintiff's complaint.
Defendant 2001 Towing & Recovery, Inc., owned by
Defendant Gary Francis, is in the business of towing and
roadside assistance, with its corporate office located in
Bordentown, New Jersey. According to Plaintiff's
complaint, from May 2017 through October 2017, Plaintiff was
employed by Defendants to perform tire and battery services.
Plaintiff claims that he routinely worked for Defendants five
days per week from 7:00 am to 11:00 p.m., averaging
approximately 80 hours a week. Additionally, Plaintiff claims
he was paid $800.00 per week. Plaintiff claims he was not
compensated at an overtime rate for the hours he worked in
excess of 40 hours per workweek.
alleges that Defendants knowingly and willfully failed to pay
Plaintiff at time and one half of his regular pay for
overtime hours worked within a work period, in violation of
both the FLSA and the NJWHL. Plaintiff alleges that as a
direct and proximate result of Defendants' actions, he
suffered damages including past lost earnings.
filed his complaint on April 12, 2018, and it was served on
Defendants on June 19, 2018. Defendants failed to file a
responsive pleading in a timely manner and have not answered
or otherwise moved with respect to Plaintiff's complaint.
The Clerk entered default at Plaintiff's request on July
5, 2018. Thereafter, Plaintiff filed the instant motion for
default judgement, seeking recovery for all overtime
compensation due him and an equal amount in the form of
liquidated damages, as well as reasonable attorney's fees
and costs of suit.
Subject Matter Jurisdiction
Court has original federal question jurisdiction over this
controversy under 29 U.S.C. § 216(b) and 28 U.S.C.
§ 1331, and has supplemental jurisdiction over the New
Jersey state law claims pursuant to 28 U.S.C. § 1332 and
first step in obtaining a default judgment is the entry of
default. “When 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,
the Clerk must enter the party's default.”
Fed.R.Civ.P. 55(a). The Clerk entered default against
Defendants on July 5, 2018.
Rule of Civil Procedure 55(b)(2) authorizes courts to enter a
default judgment against a properly served defendant who
fails to a file a timely responsive pleading.”
Chanel v. Gordashevsky, 558 F.Supp.2d 532, 535
(D.N.J. 2008) (citing Anchorage Assoc. v. Virgin Is. Bd.
of Tax Rev., 922 F.2d 168, 177 n.9 (3d Cir. 1990)).
However, a party seeking default judgment “is not
entitled to a default judgment as of a right.”
Franklin v. Nat'l Maritime Union of America,
1991 U.S. Dist. LEXIS 9819, at *3-4 (D.N.J. 1991) (quoting 10
Wright, Miller & Kane, Federal Practice and Procedure
§ 2685 (1983)), aff'd, 972 F.2d 1331 (3d
Cir. 1992). The decision to enter a default judgment is
“left primarily to the discretion of the district
court.” Hritz v. Woma Corp., 732 F.2d 1178,
1180 (3d Cir. 1984).
every “well-pled allegation” of the complaint,
except those relating to damages, are deemed admitted,
Comdyne I. Inc. v. Corbin, 908 F.2d 1142, 1149 (3d
Cir. 1990), before entering a default judgment the Court must
decide whether “the unchallenged facts constitute a
legitimate cause of action, since a party in default does not
admit mere conclusions of law, ” Chanel, 558
F.Supp.2d at 535 (citing Directv, Inc. v. Asher, No.
03-1969, 2006 WL 680533, at *1 (D.N.J. Mar. 14, 2006)).
“Three factors control whether a default judgment
should be granted: (1) prejudice to the plaintiff if default
is denied, (2) whether the defendant appears to have a
litigable defense, and (3) whether defendant's delay is
due to culpable conduct.” Chamberlain v.
Giampapa, 210 F.3d 154, 164 (3d Cir. 2000); United
States v. $55, 518.05 in U.S. Currency, 728 F.2d 192,
195 (3d Cir. 1984). If a review of the complaint demonstrates
a valid cause of action, the Court must then determine
whether plaintiff is entitled to default judgment.