MEMORANDUM OPINION AND ORDER

PAUL W. GRIMM, District Judge.

Plaintiff Marina Portillo claims that she worked for Intipuqueno Restaurant and its owner Telbis Elizabeth Garcia (together, "Intipuqueno") but was not paid for the overtime hours she regularly worked, did not receive any compensation other than tips, and was not paid "in full at least twice each month." Compl., ECF No. 1. According to Portillo, her employment ended when she was fired in retaliation for an epileptic seizure that she had while at work. Thereafter, she filed suit against Intipuqueno on December 22, 2015, bringing claims of discrimination in violation of federal, state, and local law, as well as claims of violations of federal and state wage payment laws.1 Id. Intipuqueno did not answer or otherwise respond, and on December 28, 2016, I granted Portillo's Motion for Default Judgment against Intipuqueno, awarded $154,710.36 in damages, and allowed Portillo to file a motion for attorney's fees and costs. J. & Order 2-3, ECF No. 9.

Portillo moved for attorney's fees. ECF No. 11. On February 2, 2017, Intipuqueno responded for the first time in the case, opposing the motion, ECF No. 12, and seeking leave to file a motion to set aside default judgment that had been entered just over one month earlier, ECF No. 13. I granted leave for Intipuqueno to file the motion, and I dismissed the motion for attorney's fees without prejudice to renewal following the resolution of this matter. ECF No. 23.

Intipuqueno filed the pending Motion to Set Aside Default Judgment on March 16, 2017, asserting that "Garcia speaks little English and believed that her attorney was responding to the pleadings in this matter," and "[s]he moved as quickly as possible to obtain [counsel] once she learned of the default judgment." Defs.' Mot. 4-5, ECF No. 26. Portillo filed an opposition. ECF No. 30. Defendants did not file a reply, and the time for doing so has passed. See Loc. R. 105.2(a). A hearing is not necessary. See Loc. R. 105.6. Because Intipuqueno has presented a meritorious defense and shown excusable neglect in its efforts to respond to Portillo's complaint, I will grant Intipuqueno's Motion and set aside the default judgment.

Discussion

There is a "strong policy that cases be decided on their merits." United States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993); see also Offer v. Golden Sands Club Condo., Inc., No. ELH-16-3695, 2017 WL 2335596, at *3 (D. Md. May 26, 2017) ("[T]he Fourth Circuit has repeatedly expressed a strong preference that, as a matter of general policy, `default should be avoided and that claims and defenses be disposed of on their merits.'"). Yet, when a party fails to respond to a pleading or otherwise defend, entry of judgment by default may be appropriate. See Fed. R. Civ. P. 55; S.E.C. v. Lawbaugh, 359 F.Supp.2d 418, 421 (D. Md. 2005). After the Court enters a default judgment, the party against whom the judgment was entered may seek relief from the judgment pursuant to Rule 60(b). See Fed. R. Civ. P. 55(c).

Rule 60(b) provides:

Fed. R. Civ. P. 60(b). The Court must "balance[] against the manifest preference for trials on the merits" its "interests in finality and repose" and its "concern lest an already-burdened judicial system by compromised by frivolous and unnecessary proceedings." United States v. Moradi, 673 F.2d 725, 727-28 (4th Cir. 1982). Therefore, in addition to establishing one of these reasons, the movant must "act in a timely fashion, to avoid prejudice to the non-movant, and . . . proffer a meritorious defense in order to obtain relief." Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808, 811 (4th Cir. 1988) (per curiam). Defendants identify mistake and fraud as bases for relief. See Defs.' Mot. 6, 7. "When a Rule 60(b)(1) motion is made, the District Court denies or grants relief based on its discretionary appraisal of the particular facts of the case." Universal Film Exchanges, Inc. v. Lust, 479 F.2d 573, 576 (4th Cir. 1973).

Mistake2

In considering the reason offered for a defendant's failure to defend, the Court considers whether it was the party or its counsel that was responsible for the default. Augusta Fiberglass, 843 F.2d at 811.

Id. This is because "justice also demands that a blameless party not be disadvantaged by the errors or neglect of his attorney which cause a final, involuntary termination of proceedings." Moradi, 673 F.2d at 728. Thus, "when the party is blameless, his attorney's negligence qualifies as a `mistake' or as `excusable neglect' under Rule 60(b)(1)." Augusta Fiberglass, 843 F.2d at 811 (citing Moradi, 673 F.2d at 727-28). Notably, in Moradi, the Fourth Circuit held that the Moradi should not be punished for his counsel's failure to respond or defend the lawsuit when Moradi himself bore "no personal responsibility for the failure to answer punctually or to appear at [a court-ordered] pre-trial conference." Moradi, 673 F.2d at 728.

In an affidavit translated to English from Spanish, Garcia asserts that she "retained the attorney Mark Chalpin and believed that he would defend [her] and Intipuqueno in this action, including filing responsive pleadings." Garcia Aff. ¶ 4, Defs.' Ex. 2, ECF No. 26-2. According to Garcia, she "speak[s] very little English, and need[s] a translator to understand what is happening in this matter." Id. ¶ 6. She would take documents she received in this case "to Mr. Chalpin and [she] believed he was taking the appropriate actions to represent [her] interests in this action." Id. ¶ 5. She received the Order and Judgment in this case in December, "was frightened as to what [she] thought it might mean," and "realized that [her] attorney Mr. Chalpin had not been doing his job and [she] immediately proceeded to try to find new counsel." Id. ¶ 7.

Portillo contends that Chalpin only represented Defendants for the limited purpose of settlement, noting that they have not "provide[d] any documentation establishing that Defendant Garcia retained Mr. Chalpin and the scope of representation they agreed upon, such as a retainer agreement or any other correspondence," and therefore Garcia cannot show that she, as a selfrepresented litigant, exercised due diligence in defending herself in this case. Defs.' Opp'n 10-11. Certainly, in a February 18, 2016 email to Portillo's counsel, Chalpin stated: "I have been retained by Telvis Elizabeth Garcia and the Intipuqueno Restaurant to try to settle this lawsuit." Emails 9, Pl.'s Ex. D, ECF No. 30-4. But, he did not state that he only represented Defendants for settlement purposes. Having reviewed this evidence, I find that Garcia, having retained counsel in this case, has shown that she reasonably believed that her attorney would take the actions necessary to resolve the matter, including responding to pleadings. Therefore, Defendants are not responsible for the failure to defend, and their attorney's failure to act qualifies as mistake or excusable neglect under Rule 60(b)(1). See Augusta Fiberglass, 843 F.2d at 811; Moradi, 673 F.2d at 727-28.

Timeliness

As for the timeliness of Intipuqueno's action, although Portillo filed suit more than a year earlier, Defendants retained counsel and sought to set aside the default judgment on February 2, 2017, just over a month after its entry on December 28, 2016. "Whether a party has taken `reasonably prompt' action, of course, must be gauged in light of the facts and circumstances of each occasion and the exercise of discretion by the trial judge will not be disturbed lightly." Moradi, 673 F.2d at 727. Given that Garcia believed that counsel was acting on her behalf until she received the Order and Judgment, I find that she acted promptly. And, a delay of just over a month in seeking to set aside the judgment certainly did not prejudice Portillo.

Meritorious Defense

"[A]ll that is necessary to establish the existence of a `meritorious defense' is a presentation or proffer of evidence, which, if believed, would permit either the Court or the jury to find for the defaulting party." Moradi, 673 F.2d at 727. To determine whether Intipuqueno has established a meritorious defense to any of Portillo's claims, I must consider the elements of each claim.

To prevail on her claim of wrongful discharge in violation of federal, state and local laws (Counts I-III), Portillo must show, inter alia, that "she was discharged" and that "the circumstances of her discharge raise a reasonable inference of unlawful discrimination." Rohan v. Networks Presentations LLC, 375 F.3d 266, 273 n.9 (4th Cir. 2004) (discussing ADA); see Sillah v. Burwell, 244 F.Supp.3d 499, 507 (D. Md. 2017) ("For Plaintiff's claims of disability discrimination, because Maryland has applied the Montgomery County Human Rights Act and Maryland Human Relations Act by looking to ADA case law, it is appropriate to consider those claims of disability discrimination together." (citing Anderson v. Discovery Commc'ns, LLC, 517 Fed. App'x 190, 193 n.3 (4th Cir. 2013), as amended (May 3, 2013) (citing Ridgely v. Montgomery Cty., 883 A.2d 182, 193 (Md. Ct. Spec. App. 2005)))). Intipuqueno offers evidence in the form of affidavits that Portillo was not discharged for having a seizure, and no one knew at the restaurant that Portillo had a seizure on the day in question. Garcia Aff. ¶ 13; Canales Aff. ¶ 14, Defs.' Ex 7, ECF No. 26-7; Lizama Aff. ¶ 12, Defs.' Ex. 8, ECF No. 26-8; Paredes Alvarado Aff. ¶¶ 8, 34, Defs.' Ex. 9, ECF No. 26-9; Ganuza Aff. ¶¶ 11-13. Moreover, Intipuqueno offers evidence that she was not discharged; she quit. Garcia Aff. ¶ 15; Ganuza Aff. ¶ 14, Defs.' Ex. 10, ECF No. 26-10. If the trier of fact believed Intipuqueno's evidence that Portillo was not discharged and that her employer was unaware of her disability, it would prevent Portillo from proving these elements. Thus, Intipuqueno has established a meritorious defense to these claims. Moradi, 673 F.2d at 727. Because Defendants also have shown excusable neglect and that they acted promptly to obtain relief, I will set aside the judgment as to these claims. See Augusta Fiberglass, 843 F.2d at 811; Fed. R. Civ. P. 55(c), 60(b)(1).

As for Portillo's claims for overtime wages under the FLSA, the MWHL, and the MWPCL in Counts IV, V, and VI,3 she must prove that she worked in excess of forty hours per week. See 29 U.S.C. § 207 ("[An employer cannot] employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."); Peters v. Early Healthcare Giver, Inc., 97 A.3d 621, 625-26 (Md. 2014) ("[B]oth the [M]WHL and the [M]WPCL are vehicles for recovering overtime wages."). Intipuqueno offers evidence that, despite being scheduled for more than forty hours per week, Portillo often did not show up for work, left early, was absent for extended periods, and never worked more than forty hours per week. Garcia Aff. ¶¶ 17-21; Canales Aff. ¶¶ 10-11; Lizama Aff. ¶¶ 8-9; Paredes Alvarado Aff. ¶¶ 10, 15-18, 20; Ganuza Aff. ¶¶ 5-8. If the trier of fact believed this evidence, Defendants could prevail on the overtime claims under the FLSA, MWHL, and MWPCL. Therefore, they sufficiently have shown a meritorious defense to these claims.

Counts IV, V, and VI also include claims for minimum wages under the FLSA, MWHL, and MWPCL.

Barnhart v. Chesapeake Bay Seafood House Assocs., L.L.C., No. JFM-16-01277, 2017 WL 1196580, at *3 (D. Md. Mar. 31, 2017). The MWHL "requirements directly track the FLSA requirements with respect to the minimum wage and tipped employee provisions." Id. at *6 (citing McFeeley v. Jackson St. Entm't, LLC, 825 F.3d 235, 245-46 (4th Cir. 2016)). Under the MWHL, however, the direct wage that must be paid is $3.63 instead of $2.13. See Md. Code Ann., Lab. & Empl. § 3-419(c). The MWPCL, like the MWHL, "allow[s] employees to recover unlawfully withheld wages from their employer." Peters, 97 A.3d 621, 625.

Certainly, Garcia stated in her affidavit that Portillo "regularly earned approximately $450 per week in tips." Garcia Aff. ¶ 24.4 Thus, Portillo easily qualified as a "tipped employee." Barnhart, 2017 WL 1196580, at *3. If Portillo worked no more than forty hours per week, as Intipuqueno asserts, she would have earned at least $11.25 per hour, well over the minimum wage. And, Intipuqueno offered a photograph as evidence that the laws were posted in the workplace; this postings may have included information about the "tip credit." See Garcia Aff. Ex. 6. But, there is no evidence that Intipuqueno paid Portillo the direct wage required under federal ($2.13/hour) or Maryland ($3.63/hour) law. Barnhart, 2017 WL 1196580, at *3. Consequently, this evidence does not provide a meritorious defense to Portillo's claim for minimum wages. It does, however, provide a defense to a claim for $7.25 per hour in minimum wages, as Portillo may have been entitled to only the direct wage due to tipped employees. See id. And, it provides a defense to the number of hours Portillo claims to have worked. Accordingly, I will grant the motion to set aside the judgment as to damages on the FLSA, MWHL, and MWPCL minimum wage claims, but deny it as to liability on these claims. See Augusta Fiberglass, 843 F.2d at 811; Fed. R. Civ. P. 55(c), 60(b)(1).

Portillo also includes a claim in Count VI for failure to pay wages at least twice a month, in violation of the MWPCL. See Alvarez-Soto v. B. Frank Joy, LLC, No. TDC-15-1120, 2017 WL 2731300, at *6 (D. Md. June 23, 2017) ("The MWPCL requires an employer to set regular pay periods and pay each employee at least every two weeks or twice a month. . . ." (citing Md. Code Ann., Lab. & Empl. § 3-502(a)(1))). As noted, Intipuqueno does not offer any evidence that it paid any direct wages to Portillo, let alone wages in regular, statutorily-required intervals. But, as also noted, the amount of damages is in question, as Portillo may have been entitled to only the direct wage due to tipped employees and she may have worked fewer hours than she alleges. Therefore, I will grant the motion to set aside the judgment as to damages on this MWPCL wage payment claim, but deny it as to liability on this claim. See Augusta Fiberglass, 843 F.2d at 811; Fed. R. Civ. P. 55(c), 60(b)(1).

Conclusion

In sum, because Intipuqueno has shown excusable neglect, moved promptly to set aside the default judgment, such that Portillo was not prejudiced, and has shown meritorious defenses with regard to Portillo's discrimination and overtime claims, I will set aside the judgment as to liability and damages on the discrimination and overtime claims. Because Intipuqueno has shown meritorious defenses with regard to the damages due on her minimum wage and bimonthly wage payment claims but not as to liability on those claims, I will set aside the judgment as to damages, but not liability, on those claims. The following chart summarizes the status of Portillo's claims.

ORDER

Accordingly, it is, this 8th day of November, 2017, hereby ORDERED that