United States Court of Appeals, District of Columbia Circuit
May 15, 2017
from the United States District Court for the District of
Columbia (No. 1:13-cv-00410) Denise M. Clark argued
the cause and filed the briefs for the
appellee/cross-appellant. John A. DiNucci argued the
cause and filed the briefs for the
Before: Garland, Chief Judge, and Henderson and Wilkins,
HENDERSON CIRCUIT JUDGE.
LeCraft Henderson, Circuit Judge: Manuel Montes sued
his employer for wage underpayment. When his employer failed
to respond, Montes obtained a default judgment for himself
and two fellow employees. But there was a problem: the
statute he sued under required the fellow employees to
formally "opt in" to the lawsuit. They had not done
so. Reacting to their failure, the district court vacated its
default judgment as to Montes's two fellow employees,
concluding it had lacked subject matter jurisdiction to enter
it. That was error. The opt-in omission did not oust the
court of subject matter jurisdiction of their claims.
Nevertheless, the judgment may be void for a different
reason: two defendants claim they were never served with the
complaint. To decide the service issue, the district court
must hold an evidentiary hearing on remand.
Partners, Inc. (JPI) is a Virginia corporation that provides
janitorial services throughout the District of Columbia
(D.C.) metropolitan area. For several years, it employed
Montes as a janitor. In March 2013, Montes sued JPI and four
of its officers, including President Ray Park. He asserted
claims under the Fair Labor Standards Act (FLSA), 29 U.S.C.
§§ 201 et seq. and two D.C. statutes,
alleging the defendants failed to
pay, inter alia, minimum wage or overtime.
styled his lawsuit as an FLSA collective action. In a
collective action, the named plaintiff sues on behalf of
himself and other similarly-situated employees. 29 U.S.C.
§ 216(b). Section 16(b) of the FLSA provides that
"[n]o employee shall be a party plaintiff to [a
collective] action unless he gives his consent in writing . .
. and such consent is filed in the court in which such action
is brought." Id. Montes alleged that
"there [were] 2 similarly-situated persons" whose
"harms suffered . . . were the same as or substantially
similar" to his. Compl. ¶¶ 57, 59, Joint
Appendix 19. He also alleged that collective-action
"[c]onsents . . . have [been] and continue to be
executed." Id. ¶ 10, Joint Appendix 11.
But he did not file the consents with his complaint.
issued for each defendant. According to process server Dervin
Romero's two affidavits, service was effectuated on Park
both individually and as JPI's registered agent on June
6, 2013, at JPI headquarters.This meant JPI and Park had until
June 27 to answer but neither did. The clerk of court
therefore declared them in default on July 2. Montes's
counsel subsequently moved for entry of default judgment on
behalf of "Plaintiffs Marcos Montes, Victor Palma, and
Sandra Zelaya." Joint Appendix 52. Although a supporting
memorandum asserted that Palma and Zelaya "consented to
th[e] action, " Joint Appendix 54 n.2, their consent
forms remained unfiled. The district court nonetheless
entered a default judgment for Montes, Palma and Zelaya. It
also awarded costs and attorney's fees.
three soon began efforts to collect on their judgment. But
because the judgment caption listed only Montes's name,
they could not register it in the Virginia courts.
Accordingly, they requested the district court to "issue
a new Order and Judgment with the full caption." Joint
Appendix 89. The district court obliged. Several months
later, they sought and obtained an entry of judgment and writ
of execution against PNC Bank, N.A., JPI's and Park's
garnishee. The bank then paid Montes, Palma and Zelaya the
full amount of the default judgment.
Park moved to vacate the default judgment under Federal Rule
of Civil Procedure 60(b). They argued, inter alia,
that the judgment was void because Palma and Zelaya had not
opted in. JPI and Park also claimed they had never been
served and therefore the district court lacked personal
jurisdiction of them. In support, they submitted several
declarations. Park's declaration asserted that he
generally worked from home, not at JPI headquarters where
Romero allegedly served him. Park also noted that
Romero's affidavit described him as thirty-five years old
when in fact he was over fifty. According to the declaration
of JPI general manager, Donald Garrett, Romero went to JPI
headquarters but did not serve Park while there. In another
declaration, Jeffrey Lawson, a former JPI business advisor,
stated he e-mailed Park on June 6, 2013 shortly after 3:00
pm. Had Park come in that day, Lawson said, the two would not
have corresponded by email. In light of this evidence, JPI
and Park requested the district court to conduct a hearing
before crediting Romero's affidavit.
September 2015, the district court rejected JPI's and
Park's defense without a hearing. It emphasized that
Romero's "affidavits unequivocally state[d] that . .
. Park . . . was served . . . at 2:24PM on June 6,
2013." Montes v. Janitorial Partners, Inc., 128
F.Supp.3d 188, 192 (D.D.C. 2015). The court did not find
Park's, Garrett's or Lawson's declarations
sufficiently credible. Nevertheless, it set aside its
judgment for Palma and Zelaya. Reasoning that the FLSA's
opt-in requirement was "more than just a procedural
technicality, " id. at 193, the court concluded
it lacked subject matter jurisdiction because Palma and
Zelaya were not party plaintiffs and vacated the judgment in
their favor. It then referred the case to a magistrate judge
for a report and recommendation regarding Montes's
attorney's fees award in light of the partial vacatur.
party challenges one of the district court's rulings.
Montes principally attacks the substance of the district
court's vacatur decision, arguing that "the District
Court's judgment in Ms. Zelaya and Mr. Palma's favor,
while perhaps granted in error, was not void."
Cross-Appellant Br. 13. JPI and Park challenge the district