Kim v. Andy Lee Liquor, inc.et Al

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.
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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.
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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
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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.
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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
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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
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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,
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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).
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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
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(“[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).
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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.
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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
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