A federal judge has set aside a default judgment against a Silver Spring restaurant and its owner after the defendant showed she thought she had retained counsel to respond to the lawsuit by a former employee and she had meritorious defenses.
The plaintiff, Marina Portillo, filed suit in U.S. District Court in Greenbelt in December 2015, alleging that she was not paid overtime hours at Intipuqueno Restaurant, did not receive compensation other than tips and was not paid in full each month. She also claimed she was fired in retaliation for having a seizure and work and that the owner, Telbis Elizabeth Garcia, failed to address complaints that Garcia’s boyfriend was harassing Portillo.
Garcia, who is not fluent in English or familiar with the American justice system, did not respond to the lawsuit, and a default judgment was entered last December. She retained counsel and filed a motion to set aside the default judgment in March, which U.S. District Judge Paul W. Grimm partially granted Wednesday.
Grimm set aside the nearly $155,000 in damages as well as liability on the discrimination claims but allowed liability on several of the wage claims to remain in place because Garcia did not provide evidence the restaurant paid Portillo direct wages in regular intervals. An answer to the complaint is due Nov. 22.
Jon D. Pels of the Pels Law Firm LLC in Bethesda, a lawyer for the defendants, in an email Friday called Grimm’s order “extraordinary relief.”
According to a translated affidavit, Garcia retained Mark Chalpin, a Gaithersburg solo practitioner, to defend her against Portillo’s claims. When she received the judgment she was frightened about its implications and learned Chalpin had not filed responsive pleadings like she believed, the affidavit states.
Grimm found sufficient evidence to show Garcia thought her attorney would resolve the matter and his alleged failure to do so was excusable neglect, but Chalpin said Friday he was retained only for settlement negotiations and not to represent Garcia and the restaurant in litigation.
“Our retainer agreement was explicit,” he said.
Garcia also alleged that the entire case was a “fraud upon the court” but Grimm found the rules she cited as grounds for relief did not apply to the circumstances of her case because Portillo’s alleged falsehoods did not prevent Garcia from presenting a defense or having a fair trial.
Portillo’s allegation that Garcia’s boyfriend made unwanted sexual advances, which Garcia called “a complete and utter fabrication,” were not a basis for the judgment but were made in an Equal Employment Opportunity Commission complaint, according to the affidavit. Garcia claims Portillo was “enamored” with Garcia’s boyfriend and made advances toward him as well as posting photographs with him on her Facebook page.
Garcia also said Portillo was not discharged for having a seizure and no one at the restaurant was aware of the incident she named in her statement.
Portillo’s attorney, Daniel Adlai Katz, said Friday he and his client look forward to proving the liability and damages that were set aside.
“My client worked and for a period of time and wasn’t paid anything other than tips and that’s not legal,” said Katz, a partner/senior counsel at Gilbert Employment Law in Silver Spring.
The case is Marina Portillo v. Intipuqueno Restaurant et al., 8:15-cv-03909-PWG.
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