Kim v. Andy Lee Liquor, inc.et Al

• Court: District Court, District of Columbia
• Decided: September 29, 2023
• Docket: Civil Action No. 2020-3283
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HYUN YUL KIM,

Plaintiff,

v. Civil Action No. 1:20-cv-3283 (CJN)

ANDY LEE LIQUOR, INC., et al.,

Defendants.

MEMORANDUM OPINION

Before the Court is Plaintiff’s Motion for Default Judgment as to Defendants Andy Lee

Liquor, Inc., Eun Sun Kim, 1 and John Kang, ECF No. 36, and Defendant Kim’s Motion to Vacate

Default, ECF No. 41. For the following reasons, both motions will be DENIED.

I. Background

According to the operative complaint, Defendants employed Plaintiff at a liquor store in

Washington, D.C. from 2018 to 2020. See ECF No. 17 (“Compl.”) ¶¶ 1, 5–7, 14, 35. Plaintiff

alleges that Defendants paid him less than the minimum wage and did not pay him overtime when

he worked more than 40 hours per week. Id. ¶ 25. He therefore brings a claim for overtime

violations under the Fair Labor Standards Act (“FLSA”) and a claim for overtime and minimum

wage violations under the District of Columbia Wage Payment and Collection Law and the District

of Columbia Minimum Wage Act (the “D.C. Wage Laws”). Id. ¶¶ 43–58.

1 Plaintiff names this Defendant as “Eun JUNG, also known as Eun Sun Kim,” ECF No. 17 at 1 (emphasis omitted), but the Court will refer to her as “Defendant Kim” because she has indicated that “Eun Sun Kim” is her real name, see ECF No. 41 at 7.

1 Plaintiff served the complaint on Andy Lee Liquor and Defendant Kim on September 28,

2021, and on Kang on October 7, 2021. ECF Nos. 22–24. They did not respond. Accordingly,

on September 30, 2022, Plaintiff moved for entry of default. ECF No. 30. These Defendants again

did not respond, so the Clerk entered default. ECF Nos. 34–35. Plaintiff later moved for this

Court to enter a default judgment. ECF No. 36. Then, on December 19, 2022, Defendant Kim

finally responded, both by filing a motion to vacate her default and by opposing Plaintiff’s motion.

ECF No. 41. Andy Lee Liquor and Kang, however, have still failed to respond or enter an

appearance in this litigation.

II. Legal Standard

“The court may set aside an entry of default for good cause . . . .” Fed. R. Civ. P. 55(c).

“In exercising its discretion under Rule 55(c), a district court is supposed to consider whether

(1) the default was willful, (2) a set-aside would prejudice plaintiff, and (3) the alleged defense

was meritorious.” Khochinsky v. Republic of Poland, 1 F.4th 1, 7 (D.C. Cir. 2021) (quotation

omitted), cert. denied, 142 S. Ct. 771 (2022). Because “[t]here is an interest favoring the resolution

of genuine disputes on their merits, . . . all doubts are resolved in favor of the party seeking relief.”

Id. (quotation omitted).

Whether to enter default judgment is committed to the Court’s discretion. Sanchez v.

Devashish Hosp., LLC, 322 F.R.D. 32, 36 (D.D.C. 2017). A default judgment is only appropriate

when the absent defendant is “essentially unresponsive.” Jackson v. Beech, 636 F.2d 831, 836

(D.C. Cir. 1980) (quotation omitted). But even then, “entry of default judgment . . . is not

automatic.” Bozzuto Contractors, Inc. v. Evans, No. 19-cv-3292, 2021 WL 1564437, at *2 (D.D.C.

Apr. 21, 2021) (quotation omitted). The Court must be sure that it has subject matter jurisdiction

over the case and personal jurisdiction over the absent defendant. Mwani v. bin Laden, 417 F.3d

2 1, 6 (D.C. Cir. 2005); Bozzuto, 2021 WL 1564437, at *2. It must make sure that the plaintiff’s

“complaint states a claim for relief.” N’Jai v. U.S. Dep’t of Educ., No. 19-CV-02712, 2022 WL

4078948, at *2 (D.D.C. Sept. 6, 2022). And it must “make an independent evaluation of the sum

to be awarded unless the damages are certain.” Bricklayers & Trowel Trades Int’l Pension Fund

v. NY Big Apple Constr. Corp., No. 19-cv-3552, 2020 WL 6683061, at *2 (D.D.C. Nov. 12, 2020)

(quotation omitted).

III. Analysis

A. Motion to Vacate Default

The Court first addresses Defendant Kim’s Motion to Vacate Default, ECF No. 41, and

declines to vacate her default because she has not shown “good cause,” Fed. R. Civ. P. 55(c). The

Court evaluates whether she has shown good cause using the three-factor framework in

Khochinsky v. Republic of Poland, 1 F.4th 1 (D.C. Cir. 2021).

The first factor supports denying the motion because the Court finds that Defendant Kim’s

default was “willful.” Khochinsky, 1 F.4th at 7 (quotation omitted). Defendant Kim was

personally served with Plaintiff’s complaint and a summons warning her that “[a] lawsuit has been

filed against you” and that she needed to respond within 21 days. ECF No. 23 at 1–2. Yet she

failed to respond for over a year. ECF No. 23 at 2 (service on September 28, 2021); ECF No. 41-1

(“Answer”) (filed on December 19, 2022). These facts suggest that Defendant Kim was aware of

the suit against her but consciously decided not to respond. Indeed, she even appears to suggest

in her motion that she did not respond because she thought the suit was meritless. See ECF No.

41 at 8. But even if that is true, Defendant Kim had an obligation to litigate the suit—one that she

appears to have willfully disregarded.

3 Defendant Kim’s counterarguments do not alter this conclusion. She first claims (without

explanation) that she acted in a “reasonably timely manner after becoming aware of the default.”

ECF No. 41 at 9. Even if true, that argument does not address the right issue, which is whether

she acted willfully prior to the entry of default. See Khochinsky, 1 F.4th at 7; Jackson, 636 F.2d

at 836. Next, Defendant Kim appears to imply that she was not aware she had been sued because

notice of Plaintiff’s Motion for Entry of Default was addressed to “Eun Jung,” not “Eun Sun Kim.”

See ECF No. 41 at 7–8. But again, this cannot excuse her failure to respond to the complaint—

which referenced her proper name and was accompanied by a summons referencing her proper

name—before the entry of default. See Compl. at 1 (naming “Eun JUNG, also known as Eun Sun

Kim,” as a defendant (emphasis omitted)); ECF No. 23 at 1–2 (summons addressed to “Eun JUNG

(aka Eun Sun Kim)”).

On the other hand, the second factor supports granting the motion because the Court finds

that vacating the default would not significantly “prejudice [the] plaintiff.” Khochinsky, 1 F.4th

at 7 (quotation omitted). Plaintiff claims that vacating the default will prejudice him because he

“will face a substantial challenge in participating in the litigation from South Korea,” ECF No. 43

at 12, where he apparently now lives. But Plaintiff’s attorney is based in the United States, Plaintiff

can participate in some litigation activities virtually, and Plaintiff waited a year after serving

Defendant Kim before moving for entry of default. See ECF No. 23 at 2 (service of complaint on

September 28, 2021); ECF No. 30 (Motion for Entry of Default filed on September 30, 2022).

That suggests he bears at least partial responsibility for any prejudice and “counsels setting aside

the default.” Luna v. Rambo, 273 F.R.D. 346, 349 (D.D.C. 2011).

Finally, the third factor counsels against vacating Defendant Kim’s default because the

Court finds that she has not put forward a meritorious defense. Khochinsky, 1 F.4th at 7. The bar

4 for this factor is low: It is enough for Defendant Kim’s assertions to contain “even a hint of a

suggestion which, proven at trial, would constitute a complete defense.” Id. (quotation omitted).

Even so, she fails to clear it.

Start with Defendant Kim’s jurisdictional argument. She contests jurisdiction, although

she does not specify whether she believes the Court lacks subject matter jurisdiction, personal

jurisdiction, or both. Answer at 1. Regardless, this contention is meritless. The Court has subject

matter jurisdiction over Plaintiff’s FLSA claim under 28 U.S.C. §1331 because it “aris[es] under

the . . . laws . . . of the United States.” The Court also has supplemental jurisdiction over Plaintiff’s

D.C. Wage Laws claim under 28 U.S.C. § 1367 because it shares a “common nucleus of operative

fact” with the FLSA claim. Taylor v. District of Columbia, 626 F. Supp. 2d 25, 28 (D.D.C. 2009)

(quotation omitted). Finally, the Court has personal jurisdiction over Defendant Kim because she

admits to purposefully availing herself of this forum in connection with this suit. Her verified

answer acknowledges that she participated in managing and operating liquor stores, Plaintiff

performed “some work” at one of them, and that she had a role in managing Plaintiff. See Answer

at 3–4; see also Compl. ¶¶ 9, 14, 17.

Her merits arguments are no more meritorious. Defendant Kim’s motion asserts in passing

that she “never interacted with Plaintiff in a managerial or supervisory capacity.” ECF No. 41

at 1–2. Even if this could show the existence of a meritorious defense, Defendant Kim contradicts

these statements in her verified answer, as noted above. See Answer at 3–4; see also Compl. ¶¶ 9,

14, 17. Defendant Kim also insists that she is not an owner of Andy Lee Liquor. Answer at 2–3;

Compl. ¶¶ 1, 6, 8. But an ownership in the business that employs the plaintiff is not necessary for

a defendant to qualify as an “employer” under the FLSA and D.C. Wage Laws. See 29 U.S.C.

§ 203(d) (defining “employer” as “any person acting directly or indirectly in the interest of an

5 employer in relation to an employee”); D.C. Code § 32-1002(3) (similar definition for employer

under the D.C. Minimum Wage Act); see also Serrano v. Chicken-Out, Inc., 209 F. Supp. 3d 179,

189 (“Determinations of employer or employee status under the FLSA apply equally under the

District of Columbia wage laws.” (quotation omitted and alteration adopted)).

Defendant Kim also quotes at length from Plaintiff’s responses to discovery served by Peter

Jung, the only Defendant who timely appeared in this litigation. See ECF No. 41 at 2–7. Plaintiff’s

answers acknowledge that he has no documentary evidence to corroborate some of his claims,

especially as to Peter Jung. Id. The absence of only one type of evidence in Plaintiff’s possession,

however, does not say much about whether Defendant Kim has a meritorious defense, and she

does not offer any other allegations of her own that (if true) might show she has one. 2

* * * * *

Weighing these factors, the Court determines that Defendant Kim’s willfulness and lack of

a meritorious defense warrant denying her motion. Although Plaintiff has not shown prejudice,

the absence of prejudice does not entitle a defendant to vacatur of a default. Cap. Yacht Club v.

Vessel AVIVA, 228 F.R.D. 389, 394 (D.D.C. 2005). Because the first and third factors firmly

counsel against vacating Defendant Kim’s default, the Court will deny her motion.

B. Motion for Default Judgment

The Court next addresses Plaintiff’s Motion for Default Judgment. ECF No. 36. Andy

Lee Liquor and Kang “ha[ve] not responded to the summons, complaint, entry of default, or motion

for default judgment”—the textbook situation in which a defendant is “essentially unresponsive.”

Reyes v. Kimuell, 270 F. Supp. 3d 30, 33–34 (D.D.C. 2017) (quotation omitted). Defendant Kim,

2 Defendant Kim also asserts several specific defenses (such as laches) in passing, Answer at 5, but fails to provide any support for them. As a result, she has failed to show that there is even a “hint” that these defenses could be meritorious. Khochinsky, 1 F.4th at 7 (quotation omitted).

6 however, is no longer “essentially unresponsive.” She is now participating in this litigation by

moving to set aside her default and opposing Plaintiff’s motion for default judgment. ECF No. 41.

Accordingly, a default judgment against her is no longer appropriate given the legal system’s

preference for the resolution of disputes on the merits. Jackson, 636 F.2d at 836. Defendant Kim

will have to face the consequences of her default—she is “deem[ed] to [have] admit[ted] every

well-pleaded allegation in the complaint,” Bozzuto, 2021 WL 1564437, at *3 (quotation

omitted)—but the Court will deny Plaintiff’s motion as to her at this time.

As for Andy Lee Liquor and Kang, the Court must undertake three additional inquiries.

First is jurisdiction. Mwani, 417 F.3d at 6; Bozzuto, 2021 WL 1564437, at *2. The Court finds

that it has subject matter jurisdiction over the claims against these Defendants for the same reasons

that it has subject matter jurisdiction over Defendant Kim. Accepting Plaintiff’s well-pleaded

allegations as true, the Court also has personal jurisdiction over these Defendants. The Court has

general personal jurisdiction over Andy Lee Liquor because it is incorporated in the District of

Columbia, see Compl. ¶ 5, and specific personal jurisdiction over Kang because he managed the

District of Columbia liquor store where Plaintiff worked during the events at issue here, Compl.

¶¶ 5, 7.

Next, the Court must make sure that the complaint states a claim. N’Jai, 2022 WL

4078948, at *2. It does. Plaintiff has adequately alleged that Andy Lee Liquor and Kang were

employers and that he was an employee under the FLSA and D.C. Wage Laws. Portillo v. Smith

Commons DC, LLC, No. 20-cv-49, 2022 WL 3354730, at *4 (D.D.C. Aug. 13, 2022). Courts

analyze those two issues by examining such factors as the defendant’s power to control and

discipline the plaintiff. Zaldaña v. Morrogh, No. 20-cv-3810, 2022 WL 203471, at *4 (D.D.C.

Jan. 24, 2022) (providing frameworks for FLSA); see also Serrano, 209 F. Supp. 3d at 189

7 (“[D]eterminations of employer or employee status under the FLSA apply equally under the

District of Columbia wage laws.” (quotation omitted)). Here, Plaintiff alleges that these

Defendants managed and supervised him, assigned him work, told him where and when to work,

and had the authority to discipline him. Compl. ¶¶ 17–18. Further, in connection with his status

as an employee, Plaintiff also alleges that working for Defendants did not require special skill, that

he did not bring his own tools and equipment to work, and that he did not set his own hours.

Compl. ¶¶ 19–22; see also Zaldaña, 2022 WL 203471, at *4 (noting that these factors are relevant

to employee status).

Plaintiff has also adequately alleged that Defendants violated the FLSA and D.C. Wage

Laws, which require Defendants to pay Plaintiff a minimum wage and time-and-a-half overtime.

Portillo, 2022 WL 3354730, at *4. Specifically, Plaintiff alleges that Defendants failed to pay him

the minimum wage set by D.C. law and failed to pay him a higher wage when he worked for more

than 40 hours a week. Compl. ¶¶ 34–35.

Finally, in connection with the FLSA, Plaintiff has adequately alleged that he was an

employee engaged in interstate commerce. Zaldaña, 2022 WL 203471, at *5. He alleges that he

participated in handling and selling goods produced outside of the District of Columbia and

brought into the District of Columbia through interstate commerce. Compl. ¶¶ 14–15. That is

enough. See Zaldaña, 2022 WL 203471, at *5.

The Court bears one last obligation before it can enter default judgment against Andy Lee

Liquor and Kang: an “independent” inquiry into damages. Bricklayers, 2020 WL 6683061, at *2

(quotation omitted). Plaintiff “must prove the amount sought to a reasonable certainty.” Bozzuto,

2021 WL 1564437, at *3 (quotation omitted). And in assessing damages, the Court “may rely on

detailed affidavits or documentary evidence in their assessment.” Id. (quotation omitted).

8 The Court finds that Plaintiff has not yet carried his burden. Plaintiff has provided an

affidavit detailing the hours he worked every week and the wage he was paid. ECF No. 36-2

¶¶ 34–35. He has also provided a table calculating on a weekly basis the difference between the

amount he was paid and the amount he was owed. ECF No. 36-3; see also ECF No. 36 at 9–11

(explaining calculations). But the Court has reviewed these calculations, and there appear to be

errors. For example, Plaintiff states that he worked 15 hours per week from June 29, 2020 to

July 25, 2020, but appears to have calculated the damages for those weeks based on a 40-hour

workweek. ECF No. 36-3 at 3. He also does not state the number of hours he worked during that

period in his affidavit. See ECF No. 36-2 at 5. In addition, Plaintiff appears to have calculated

attorney’s fees and costs on the assumption he would win a default judgment against Defendant

Kim. See ECF No. 36-5; ECF No. 36-6. Those numbers need to be revised to reflect the fact that

the Court only anticipates that it will enter a default judgment against Andy Lee Liquor and Kang.

The Court will therefore deny Plaintiff’s motion as to Andy Lee Liquor and Kang at this

time. Even so, the Court currently anticipates that it would grant a renewed motion for default

judgment if Plaintiff provides updated support for his damages, costs, and attorney’s fees

calculations. In the event that he does so, Plaintiff is encouraged to provide electronic copies of

any tables he provides to the Court in excel format to help it determine the proper size of any

award. The Court may also determine that it is appropriate to hold a hearing on damages.

9 IV. Conclusion

For the foregoing reasons, Plaintiff’s Motion for Default Judgment is DENIED and

Defendant Kim’s Motion to Vacate Default is DENIED. An order will issue contemporaneously

with this opinion.

DATE: September 29, 2023 CARL L JJ.. NICHOLS United States District Judge