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Lurty v. 2001 Towing & Recovery, Inc.

United States District Court, D. New Jersey

July 23, 2019

MARK LURTY, Plaintiff,
2001 TOWING & RECOVERY, INC., and GARRY FRANCIS, individually, Defendants.

          JODI J. JAFFE JAFFE GLENN LAW GROUP, P.A. On behalf of Plaintiff


          NOEL L. HILLMAN, U.S.D.J.

         Presently 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.


         This 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.[1] Plaintiff claims he was not compensated at an overtime rate for the hours he worked in excess of 40 hours per workweek.

         Plaintiff 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.

         Plaintiff 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.


         A. Subject Matter Jurisdiction

         This 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 1367.

         B. Default

         The 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.

         C. Default Judgment

         “Federal 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).

         Although 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.

         D. ...

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