Mark D. Clarke, United States Magistrate Judge
FINDINGS AND RECOMMENDATION
Mark D. Clarke, United States Magistrate Judge
Plaintiffs move the Court, pursuant to Fed.R.Civ.P. 55(b), for entry of a default judgment against defendants BT Ventures, LLC and Thomas Dubiel for failure to plead or otherwise defend this action. Plaintiffs also move for attorney fees and costs. For the reasons below, Plaintiffs' Motion for Default Judgment (#17) and Motion for Attorney Fees (#21) should be GRANTED.
BACKGROUND
Plaintiffs allege that they are seasonal agricultural workers who were recruited by an unlicensed contractor to work at defendants' hemp processing warehouse located in Josephine County, Oregon. Plaintiffs allege that from approximately November 10, 2019, until December 6, 2019, they performed work for defendants such as cutting, packing, and hanging industrial hemp plants. Plaintiffs allege that they worked twelve-hour days on most days, and that they were promised to be paid nineteen dollars per hour.
Plaintiffs claim that defendants did not give them employment disclosures or employment contracts and failed to pay them their final wages. Defendants allegedly paid Plaintiffs their wages in cash for the first two weeks that they worked but failed to pay them for the last 120 hours worked. Plaintiffs' last day of work was December 6, 2019, and they were told to return to the warehouse the following Monday, December 9, 2019, to collect their final pay. When they returned as instructed, Plaintiffs allege that the warehouse was empty, and no one was there to pay them. Plaintiffs further allege that they were never given wage statements or W-2 forms.
LEGAL STANDARD
The decision to grant or deny a motion for default judgment is within the discretion of the court. Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986). In exercising its discretion, the court must consider seven factors, often referred to as the Eitel factors: (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).
Upon entry of default, plaintiffs well-pleaded allegations of fact regarding liability, except allegations relating to the amount of damages, will be taken as true. Geddes v. United Fin-Group, 559 F.2d 557, 560 (9th Cir. 1978). Plaintiff must establish damages by proof, unless the amount is liquidated or otherwise susceptible of computation. Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir. 1981) (internal citation omitted). Relief for cases of default judgment “must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Rule 54(c).
DISCUSSION
The Court has federal question jurisdiction over this action pursuant to 28 USC § 1331, as this action is brought under the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”), 29 USC §§ 1801-1872. Pursuant to 28 U.S.C. § 1367, this Court has supplemental jurisdiction over the claims based on Oregon law, as they are so related to claims within the Court's original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) because the events giving rise to the claims occurred in this district and judicial division, and all parties are subject to this Court's personal jurisdiction with respect to this suit.
This Court entered a Clerk's Order of Default against defendants BT Ventures, LLC and Thomas Dubiel on October 19, 2021. Plaintiffs now move under FRCP 55(b) for judgment against the defaulting defendants in the amount of $36, 180.00 for unpaid wages and statutory violations. Plaintiffs also move for reasonable attorney fees in the amount of $9, 886.80, plus courts costs of $402. The total judgment amount requested is $46, 468.80. Plaintiffs' motions should be granted.
I. The Eitel factors weigh in favor of entering default judgment against the defendants.
All of the factors weigh in favor of granting default judgment, or they are neutral, except the policy factor favoring a judgment on the merits. On balance, the factors strongly favor granting the motion., a. The possibility of prejudice to Plaintiffs weighs in favor of default judgment.
First, if default judgment were denied, Plaintiffs would be denied a legal remedy against the defaulting defendants for their allegedly unlawful actions and “would be left without a remedy given defendant's failure to appear and defend themselves.” J & J Sports Prods., Inc. v. Frei, No. 4:12-cv-0127-BLW, 2013 WL 3190685, *1 (D. Idaho Jun. 21, 2013). Here, defendants Thomas Dubiel and BT Ventures, LLC were served with Summonses and Complaints in this action on September 4, 2021, by certified and first-class mail on Thomas Dubiel as a defendant and registered agent for Defendant BT Ventures, LLC. These defendants have not answered the Complaint nor otherwise appeared in this action, and the time within which defendants may answer or otherwise respond has expired. Therefore, without a default judgment, Plaintiffs would be left without a remedy for the actions of Thomas Dubiel and BT Ventures, LLC.
b. The sufficiency of the complaint and the merits of Plaintiffs' substantive claims also weigh in favor of default judgment.
Next, Plaintiffs' Complaint sufficiently states a claim for relief, thus meeting the second, and third Eitel factors. See Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978) (stating the second and third factors require a plaintiffs allegation “state a claim on which the [plaintiff] may recover”). Because the Clerk of the Court has entered default, the well-pleaded allegations of the complaint are taken as true and are binding against the defaulting parties. Garcia v. Pacwest Contracting LLC, 2016 WL 526236, 1 (D. Or. Feb 9, 2016) (citing Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). Thus, the question is whether Plaintiffs are entitled to recover on the facts set forth in the Complaint. The Court concludes that Plaintiffs are . so entitled.
In the Complaint, Plaintiffs allege that they were employed by defendants to perform agricultural labor such as cutting, packing, and hanging industrial hemp plants at defendants' hemp processing warehouse. Complaint ¶17-20. Defendants allegedly failed to provide Plaintiffs with written terms and conditions of employment upon recruitment or at the time of hire, and they failed to post worker rights and protections under the AWPA at the job site. Complaint ¶ 26. Defendants failed to pay Plaintiffs all of their wages owed for the time worked. Complaint ¶ 30. Defendants failed to provide itemized wage statements or W-2 forms for the work performed. Complaint ¶ 24, 33. Defendants failed to make and preserve Plaintiffs' wage records. Complaint ¶ 24, 32-33. Finally, defendants used an unregistered farm labor contractor to hire Plaintiffs. Complaint ¶ 11.
These allegations sufficiently state a claim under the AWPA, 29 USC §§ 1801-1872, and under the Oregon Contractor Registration Act (“OCRA”), ORS 658.440, for failure to provide written disclosures of employment terms, failure to keep, preserve, or provide accurate payroll records and wage statements, failure to post the AWPA poster at the worksite, failing to pay all wages owed, and using an unlicensed farm labor contractor. Plaintiffs have also sufficiently stated claims for nonpayment of wages in violation of ORS 652.145 and late payment of wages in violation of ORS 652.150. Therefore, Plaintiffs have satisfied the second and third Eitel factors.
c. The possibility of a dispute concerning material facts is a neutral factor, or it weighs in favor of granting default judgment.
As discussed above, two of the defendants in this case have been properly served but have not appeared. Without an appearance by the defendants and their version of the facts, or any other countervailing evidence, and because all well-pleaded allegations of the complaint are deemed true after entry of default, there is “no likelihood that any genuine issue of material fact exists” after default has been entered. Elektra Entm't Grp. Inc v. Crawford, 226 F.R.D. 388, 393 (C.D. Cal. 2005). This factor is neutral or weighs in favor of granting default judgment.
d. The sum of money at stake in the action weighs in favor of granting default judgment.
“One of the factors the court is free to consider in exercising its discretion to grant or deny default judgment is the sum of money at stake.” J & J Sports Prods., Inc. v. Rafael, No. CIV S-l0-1046 LKK GGH, 2011 WL 445803, at *2 (E.D. Cal. Feb 8, 2011). Under this factor, a court considers the sum of money “in relation to the seriousness of [the defendant's] conduct.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1176 (C.D. Cal. 2002). Here, Plaintiffs seek damages in the amount $36, 180 for unpaid wages and statutory violations, plus courts costs of $402, and reasonable attorney fees in the amount of $9, 886.80. The total judgment amount requested is $46, 468.80. This sum of money in relation to the seriousness of the defendants' conduct weighs in favor of granting Plaintiffs' motion.
e. No evidence suggests default was due to excusable neglect; this factor is neutral or weighs in favor of granting default judgment.
No evidence exists to suggest the defendants' failure to respond to the Complaint was due • to excusable neglect. Plaintiffs provided sworn proof of service of process. No evidence of excusable neglect exists or is apparent in the record. This factor is neutral or weighs in favor of granting default judgment.
f. Policy favors a decision on the merits of the case; this factor weighs against default judgment.
The one factor that weighs in favor of the defendants, and against default judgment, is the strong policy favoring decisions on the merits. However, this factor, without more, is not sufficient to preclude default judgment. “Although ‘cases should be decided upon their merits whenever reasonably possible,' ‘the mere existence of Fed.R.Civ.P. 55(b) indicates that this preference, standing alone, is not dispositive.'” Garcia v. Pacwest Contracting LLC, 2016 WL 526236, at *4 (D. Or. Feb. 9, 2016) (quoting PepsiCo, Inc., 238 F.Supp.2d. at 1177). Here, the defendants' “failure to defend against [Plaintiffs'] claims makes a decision on the merits . impossible. Accordingly, the policy favoring decision on the merits does not preclude the Court from entering default judgment against [the defendants].” Id.
g. Conclusion
The Eitel factors weigh in favor of granting Plaintiffs' motion for default judgment because the only factor that weighs against default judgment is the final, policy factor, which is not dispositive. Without an appearance by the defendants and their side of the facts or any other countervailing evidence, the factors weigh in Plaintiffs' favor, and the Court cannot find a reason to deny the motion for default judgment.
IL Plaintiffs' request for damages and motion for attorney fees should be granted.
Rule 54(c) of the Federal Rule of Civil Procedure provides that “[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Here, Plaintiffs' Complaint includes a prayer for relief requesting the payment of statutory damages of $500.00 per AWPA violation, per worker; statutory damages of $ 1, 000.00 per OCRA violation, per worker; unpaid wages in the amount of $2, 280.00 for each Plaintiff; statutory penalty wages of $4, 560.00 per worker; prejudgment interest on Plaintiffs' unpaid and penalty wages; and Plaintiffs costs and attorney fees.
In moving for default judgment, Plaintiffs' request the following damages:
1. Plaintiff Amulfo Hernandez Gaspar seeks $18, 340, itemized as follows:
a. AWPA statutory damages of $3500 ($500 for each of seven violations, including failing to provide written work disclosures in violation of
29 U.S.C. § 1821(a); failing to make and keep wage and hour records, in violation of
29 U.S.C. § 1821(d)(1); failing to post an AWPA poster at worksite in violation of
29 USC § 1821(b); breaching the working agreement in violation of
29 USC § 1822(c); failing to provide itemized wage statements in violation of
29 U.S.C. § 1821(d)(2); failing to pay Plaintiffs their wages when due, in violation of
29 U.S.C. § 1822(a); and using an unlicensed farm labor contractor, in violation of 29 U.S.C. §18420);
b. Unpaid wages of $2, 280;
c.
ORS 652.150 statutory penalties of $4, 560;
d. OCRA statutory damages of $8, 000 ($ 1, 000 for each of eight violations, including failing to pay plaintiff's wages when due in violation of
ORS 658.440(1)(c); assisting an unlicensed person to violate the OCRA by using an unlicensed contractor to recruit Plaintiffs in violation of
ORS 658.440(3)(e); failing to carry a contractor's license in violation of
ORS 658.440(1)(a); failing to provide Plaintiffs with written disclosures, in violation of
ORS 658.440(1)(f); failing to provide Plaintiffs with a written work agreement at time of hire, in violation of
ORS 65 8.440(1)(g); failing to comply with the contract entered into, in violation of
ORS 658.440(1)(d); failing to furnish wage statements to Plaintiffs, in violation of
ORS 658.440(1)(h); and failing to timely file certified payroll records with the Oregon Bureau of Labor and Industries, in violation of
ORS 658.440(1)(i)).
2. Plaintiff Jaime Bucio Sanchez seeks $17, 840, itemized as follows:
a. AWPA statutory damages of $3, 000 ($500 for each of six violations, including failing to make and keep wage and hour records, in violation of
29 U.S.C. § 1831 (c)(1); failing to post an AWPA poster at worksite in violation of
29 USC § 1831(b); breaching the working agreement in violation of
29 USC § 1832(c); failing to provide itemized wage statements in violation of
29 U.S.C. § 1831(c)(2); failing to pay Plaintiffs their wages when due, in violation of
29 U.S.C. § 1832(a); and using an unlicensed farm labor contractor, in violation of
29 U.S.C. §1842);
b. Unpaid wages of $2, 280;
c.
ORS 652.150 statutory penalties of $4560;
d. OCRA statutory damages of $8, 000 ($1, 000 for each of eight violations, including failing to pay plaintiffs wages when due in violation of
ORS 658.440(1)(c); assisting an unlicensed person to violate the OCRA by using an unlicensed contractor to recruit Plaintiffs in violation of
ORS 658.440(3)(e); failing to carry a contractor's license in violation of
ORS 658.440(1)(a); failing to provide Plaintiffs with written disclosures, in violation of
ORS 658.440(1)(f); failing to provide Plaintiffs with a written work agreement at time of hire, in violation of
ORS 658.440(1)(g); failing to comply with the contract entered into, in violation of
ORS 658.440(1)(d); failing to furnish wage statements to Plaintiffs, in violation of
ORS 658.440(1)(h); and failing to timely file certified payroll records with the Oregon Bureau of Labor and Industries, in violation of
ORS 658.440(1)(i)).
In support of the relief sought, Plaintiffs submit sworn declarations detailing the hours and days worked by Plaintiffs for defendants. The declarations also attest to the facts alleged in the Complaint. The Court finds damages thus sufficiently proven and sufficiently the same in kind to what is demanded in the pleadings.
Plaintiffs have prevailed on all of their state law claims for relief, each of which allows for the recovery of attorney fees. The Oregon wage claim statutes have specific provisions for attorney fees. The Oregon wage payment statute, ORS 652.200(2), provides in relevant part: “...[T]he court shall, upon entering judgment for the plaintiff, include in such judgment, in addition to the costs and disbursements otherwise prescribed by statute, a reasonable sum for attorney fees on trial and on appeal for prosecuting said action...” The Oregon Contractor Registration Act likewise allows recovery of attorney fees under ORS 658.453(4): “In any such action the court may award to the prevailing party, in addition to costs and disbursements, reasonable attorney fees at trial and on appeal.”
The Court has reviewed the statutes and Plaintiffs' submitted materials and finds that the factors weigh heavily in favor of granting Plaintiffs' motion for attorney fees. The amount of attorney fees sought is a reasonable sum calculated by the number of hours spent on the case by Plaintiffs' attorney Azanet Hayden, multiplied times an appropriate hourly rate, based on years of experience and specialized practice. Plaintiffs do not seek any upward adjustment of the lodestar amount. Plaintiffs seek attorney fees in the amount of $9, 886.80. The hourly rate requested is reasonable; the number of hours is modest (46.2). The amount of attorney fees requested is reasonable under the circumstances of this case.
RECOMMENDATION
For the reasons stated above, the Court recommends that Plaintiffs' Motion for Default Judgment (#17) and Motion for Attorney Fees (#21) be GRANTED. Default Judgment should be entered in favor of Plaintiffs against defendants BT Ventures, LLC and Thomas Dubiel in the amount of $36, 180.00 in damages, plus courts costs of $402, and reasonable attorney fees in the amount of $9, 886.80.
Default Judgement should be entered for $46, 468.80, itemized as follows:
1. Plaintiff Amulfo Hernandez Gaspar should be awarded $ 18, 340:
a. AWPA statutory damages of $3500 ($500 for each of seven violations);
b. Unpaid wages of $2, 280;
c. ORS 652.150 statutory penalties of $4, 560;
d. OCRA statutory damages of $8, 000 ($1, 000 for each of eight violations).
2. Plaintiff Jaime Bucio Sanchez should be awarded $ 17, 840:
a. AWPA statutory damages of $3, 000 ($500 for each of six violations);
b. Unpaid wages of $2, 280;
c. ORS 652.150 statutory penalties of $4560;
d. OCRA statutory damages of $8, 000 ($1, 000 for each of eight violations).
3. Court costs in the amount of $402.
4. Attorney fees in the amount of $9, 886.80.
SCHEDULING
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure Rule 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Report and Recommendation will be referred to a district judge. Objections to this Report and Recommendation, if any, are due fourteen (14) days from today's date. If objections are filed, any response to the objections is due fourteen (14) days from the date of the objections. See Fed.R.Civ.P. 72, 6.