Ortiz v. Street, et al., Civil Action No. 1:09-cv-00962-JFA (E.D. Va., February 16, 2010). This case arose under the Fair Labor Standards Act (“FLSA”). Ortiz was employed by Street as a pool service technician. In his complaint, he alleged that he worked more than forty hours a week and that Street had failed to compensate him fully for the regular and overtime hours he worked. He alleged that his hourly pay was $10. The complaint did not state the amount claimed for compensatory damages, liquidated damages or attorney’s fees and costs. The complaint was served on August 31, 2009, and after twenty-one days, the defendants had failed to respond.
On plaintiff’s request, the clerk entered a default against the defendants. On December 9, 2009, the plaintiff filed a motion for default judgment and supported it with affidavits from counsel and Ortiz. On the night before the hearing on the default judgment motion, Street’s counsel made a first appearance. The Court extended the hearing date by a month and Street filed a brief in opposition to the default. The only reason given by the defendant for failing to respond in time was that he had a “hectic” schedule. The court did not find that this was a good cause to set aside the default. With respect to the damages and fees, though, the Court held that the defendant could put on evidence opposing the plaintiff’s claim, because the plaintiff had not expressly alleged the amount of damages in the complaint.