United States District Court, W.D. Oklahoma
R. ALEXANDER ACOSTA, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Plaintiff,
ERICK C. NICKERSON and BIG E'S TRANSPORTATION & PILOT SERVICE, LLC, Defendants. TOTAL AMOUNT DUE
TIMOTHY D. DEGIUSTI, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion for
Default Judgment [Doc. No. 6]. Plaintiff filed this action on
December 10, 2018, alleging that Defendants violated
provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.
§ 201 et seq. (“FLSA”).
Clerk's Entry of Default was entered against Defendants
on March 19, 2019 [Doc. No. 5]. Plaintiff filed his Motion
for Default Judgment on May 13, 2019 [Doc. No. 6]. Defendants
have made no appearance in this case, and the time for Defendants to
respond to Plaintiff's motion has expired. See
on the foregoing, the Court finds Defendants are in default.
Once the default is established, the “well-pleaded
factual allegations of the plaintiff's complaint are
taken as true, except those allegations relating to the
amount of damages.” See Mathiason v. Aquinas Home
Health Care, Inc., 187 F.Supp.3d 1269, 1274 (D. Kan.
2016). A court may enter a default judgment without a hearing
“if the amount claimed is a liquidated sum or one
capable of mathematical calculation.” Hunt v.
Inter-Globe Energy, Inc., 770 F.2d 145, 148
(10th Cir. 1985). The Court, taking the factual
allegations of Plaintiff's Complaint as true, finds that
Plaintiff is entitled to default judgment against Defendants
and orders as follows:
IS ORDERED, ADJUDGED, AND DECREED that Defendants
Big E's Transportation & Pilot Service, LLC, and
Erick C. Nickerson, and their officers, agents, servants,
employees, and those persons in active concert or
participation with them who receive actual notice of this
injunction be, and hereby are, permanently enjoined and
restrained from violating the provisions of §§ 206,
207, 211(c), 215(a)(2) and 215(a)(5) of the FLSA, in any of
the following manners:
shall not, contrary to §§ 206 and 215(a)(2) of the
FLSA, fail to pay to their employees engaged in commerce or
the production of goods for commerce or in an enterprise
engaged in commerce or the production of goods for commerce,
within the meaning of the FLSA, wages at rates not less than
$7.25, or any rate subsequently made applicable by amendment
to the FLSA, for every hour worked by Defendants'
shall not, contrary to §§ 207 and 215(a)(2) of the
FLSA, employ any non-exempt employees in commerce or in the
production of goods for commerce or in an enterprise engaged
in commerce or the production of goods for commerce, within
the meaning of the FLSA, for workweeks longer than 40 hours
without compensating such non-exempt employees for their
employment in excess of 40 hours per workweek at rates not
less than one and one-half times the regular rates at which
they are employed.
shall not, contrary to §§ 211(c) and 215(a)(5) of
the FLSA, fail to make, keep, and preserve adequate and
accurate records of its non-exempt employees, and of the
wages, hours, and other conditions and practices of
employment maintained by Defendants as prescribed by the
regulations issued and from time to time amended pursuant to
§ 211(c) of the FLSA (29 C.F.R. Part 516). Defendants
shall make such records available at all reasonable times to
representatives of Plaintiff.
including Erick C. Nickerson, are jointly and severally
liable for the back wages due to Defendants' employees,
and are hereby enjoined from withholding and are ordered to
pay the total sum of $18, 903.20 in overtime compensation,
for FLSA violations that occurred during the period covering
March 1, 2017 through November 29, 2017. Defendants are
further ordered to pay the total additional sum of $18,
903.20 as liquidated damages for their violations of the
shall pay these wages and liquidated damages by cashier's
check, in the amount of $37, 806.40, made payable to the U.S.
Department of Labor-Wage Hour, and sent to the Wage Hour
Regional Office, 525 So. Griffin St., Suite 800, Dallas, TX
75202, no later than September 30, 2019.
payment is more than five days late, Defendants will be in
default. Any defaulted balance shall be subject to the
assessment of interest and penalty interest rates and
collection costs, as required by the Debt Collection
Improvement Act of 1996 (Public Law 104-134).
receipt of full payment, Plaintiff's counsel shall file
with the Court a certificate of payment and representatives
of Plaintiff shall distribute such amounts due to each
employee as reflected in Exhibit A, less
appropriate deductions for federal income tax withholding and
the employee's share of the social security (F.I.C.A.)
tax to the employees, or their legal representatives, as
their interests may appear. Defendants are responsible for
the employer's share of F.I.C.A arising from or related
to the back wages distributed by Plaintiff.
back wages which cannot be distributed to the employees or to
their personal representatives, because of the inability of
Plaintiff to locate the proper persons or because of any
person's refusal to accept payment, shall be deposited by
Plaintiff in a special deposit account to be paid to the
rightful employee. If such back wages are not claimed by the
employee (or a personal representative of the employee)
within three years, Plaintiff shall deposit them into the
United States Treasury as miscellaneous receipts.
Plaintiffs Motion for Default Judgment [Doc. No. 6] is
GRANTED. Default judgment is hereby entered in favor of R.
Alexander Acosta, Secretary of Labor, United States
Department of Labor, against Defendants Erick C. Nickerson
and Big ...