CHARLESTON — The defendants in a case want a previous default judgment order that was granted to be set aside.
"WeCare never received the complaint or any documents purportedly sent by plaintiff...and only became aware of this action after receiving notice of the Default Order, which was sent by the Court," the defendant wrote in a Dec. 8 motion. "Moreover, Plaintiff failed to file any certificates of service and never attempted to serve his Motion for Entry of Default on WeCare."
WeCare argues that due to the lack of actual notice, the court should set aside its default order and allow the case to proceed on the merits.
WeCare argues it never received the alleged documents from the West Virginia Secretary of State, which is how the plaintiff claims she served them.
The defendant contends it is prepared to immediately participate in the case upon entry of an order by the court setting aside the prior default order.
WeCare is represented by Travis L. Brannon of K&L Gates Center in Pittsburgh, Pa.
Dana Kirk Powell filed the lawsuit against WeCare and Brandon Bailes in Kanawha Circuit Court in July, claiming that it violated the West Virginia Wage Payment and Collection Act.
Powell worked for WeCare Medical's Kanawha County location from February 2020 until Jan. 20, 2021, initially as a driver/technician and then a driver/manager. The app used for their timekeeping automatically deducted 30 minutes for a lunch break and there wasn't a way to opt-out of the deduction.
Powell claims he was also not provided a timekeeping adjustment sheet to report missed lunch breaks, but that he was expressly discouraged from taking his lunch break. He was afraid to report the missed lunch breaks out of fear of retaliation.
The plaintiff also received a raise, but was never actually provided the raise, according to the suit. Powell was then terminated from his employment.
Powell is seeking compensatory and punitive damages. He is represented by Kurt Entsminger and W. Scott Evans of Estep Entsminger Law Group in Charleston.
The case is assigned to Circuit Judge Tera Salango.
Kanawha Circuit Court case number: 21-C-600