JAMES LAWRENCE KING, District Judge.
THIS CAUSE comes before the Court upon Plaintiff HECTOR ISAULA's Motion for Final Default Judgment Regarding Damages as to Counts I and III of the Complaint (the "Motion") (DE 13), filed on May 13, 2014. Plaintiff filed his three-count Complaint (DE 1) seeking damages for Defendants' alleged violations of the Fair Labor Standards Act ("FLSA") on December 5, 2013. Defendants were served with the Complaint on December 14, 2013, but failed to answer or otherwise defend against the Complaint's allegations within the prescribed time to do so. Plaintiff obtained a Clerk's Default (DE 6) on January 17, 2014. Plaintiff subsequently filed his Motion for Final Default Judgment (DE 7) on January 27, 2014, which the Court granted in favor of Plaintiff as to liability only with respect to Counts I and III, and dismissed Count II as insufficient. See DE 9. The instant Motion, which seeks an award of damages for Counts I and III, as well as an award of attorney's fees and costs, followed. After providing a brief background of the factual allegations of the Complaint, the Court will fix the amount of damages to which Plaintiff is entitled, followed by an analysis of the award of attorney's fees and costs to which Plaintiff is entitled.
Defendant Chicago Restaurant Group ("CRG") is a restaurant and bar which grossed in excess of $500,000.00 per annum and was engaged in commerce or the production of goods for commerce. DE 1, ¶¶ 7-8. Plaintiff began working for CRG as a busboy on October 24, 2012. Id., ¶¶ 9-10. Plaintiff worked approximately fifty-five hours per week for the entire period of his employment. Id. Plaintiff was not paid any overtime. Id. Plaintiff was paid at the rate of $4.50 per hour for all hours worked, except for one week's work for which he was not paid at all. Id. CRG willfully and intentionally refused to pay Plaintiff wages as required by the FLSA. Id., ¶ 13. Plaintiff was terminated on February 19, 2013 in retaliation for complaining about his unpaid wages on multiple occasions.
A court may enter a default judgment only if the factual allegations of the complaint, which are assumed to be true, provide a sufficient legal basis for entry of a default judgment. Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) ("The defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law.") Therefore, in considering a motion for default judgment, a court must examine the sufficiency of the allegations in the complaint to determine whether plaintiff is entitled to a default judgment.
"Although a defaulted defendant admits well-pleaded allegations of liability, allegations relating to the amount of damages are not admitted by virtue of default. Rather, the Court determines the amount and character of damages to be awarded." Miller v. Paradise of Port Richey, Inc., 75 F.Supp.2d 1342, 1346 (M.D. Fla. 1999). If a default judgment is warranted, the Court may hold a hearing for purposes of assessing damages. Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (citing Federal Rule of Civil Procedure 55(b)(2)). However, a hearing is not necessary if sufficient evidence is submitted to support the request for damages. Id.
The plaintiff has the burden of proving the amount of damages to be awarded. When the employer has violated its duty to keep adequate records, the employee satisfies this burden by producing "sufficient evidence to prove that he `performed work for which he was improperly compensated' and `sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.'" McLaughlin v. Stineco, Inc., 697 F.Supp. 436, 450 (M.D. Fla. 1988) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)). If the employer does not come forward with evidence of the precise amount of work performed or other evidence to negate the plaintiff's prima facie case, the "court may award approximate damages based on the employee's evidence." Id; see also Etienne v. Inter-County Sec. Corp., 173 F.3d 1372, 1375 (11th Cir. 1999) ("[W]here the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes . . . an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.").
Count I is Plaintiffs claim for unpaid regular, minimum, and overtime wages under the FLSA. Based on his Complaint and affidavit in support of his Motion for Final Default Judgment, Plaintiff seeks $4,080.88 in compensatory damages for his unpaid regular, minimum, and overtime wages, plus an equal amount in liquidated damages, for a total of $8,161.76. The Court finds that Plaintiff's calculation of his damages is in error, but finds that a hearing is unnecessary to determine the appropriate damages in this case. Plaintiff's sworn affidavit, attached to the Motion, is sufficient evidence to show the amount and extent of work for which Plaintiff was improperly compensated. DE 13, Ex. A.
Based on his affidavit, Plaintiff: began working for Defendant on October 24, 2012, (Id., ¶ 6), received hourly wages and tips, (Id., ¶ 4), was paid at the rate of $4.50 per hour, (Id., ¶ 5), worked approximately fifty-five hours per week, but was never paid time-and-a-half for hours worked in excess of forty per week, (Id., ¶ 7), received no pay at all for one week of work, (Id., ¶ 8),
Accordingly, with respect to Count I, Plaintiff is entitled to the following damages for unpaid regular, minimum, and overtime wages:
As Defendant has admitted its violation of the FLSA was willful, Plaintiff is additionally entitled to liquidated damages in an amount equal to the total above, which brings Plaintiff's total damages for Count I to $1,859.26.
Count III is Plaintiff's claim for retaliatory termination under the FLSA. Based on his Complaint and affidavit in support of his Motion for Final Default Judgment, Plaintiff seeks $9,971.20 in back pay because he was unemployed for eight months following his termination, plus an equal amount in liquidated damages, and $5,000 in damages for emotional distress suffered as a result of his retaliatory termination, plus an equal amount in liquidated damages, for a total of $29,942.40. The Court finds that Plaintiff's request for eight months of back pay is excessive. Additionally, the Court finds that Plaintiff's request for $5,000 in emotional damages is excessive based on the harm Plaintiff suffered. The Court will address each category of damages in turn.
With respect to his entitlement to back pay, Plaintiff testified only that, after being terminated by Defendant, he "stayed unemployed for [eight] months" and that he "had no other source of income." Id., ¶ 15. The Court finds that Plaintiffs requested back pay is excessive given the circumstances of this case. Plaintiff was employed as a busboy at a restaurant, which is an unskilled position. Moreover, Plaintiff neither testified that he was looking for a job during this period, nor that he was unable to find a job during this period. The Court finds that Plaintiff should be awarded back pay for two months, which is a reasonable period of time to seek and obtain employment given the circumstances presented. Accordingly, Plaintiff is entitled to $2,492.80 in back pay,
In Count III, Plaintiff requested damages for "emotional distress and humiliation, and pain and suffering," but provided no facts related to any such distress, humiliation, pain, or suffering. In his affidavit, Plaintiff testified, "I am also seeking mental damages because of all the pain and suffering I endured as a result of [Defendant] firing me from my job. I seek at least $5,000 in mental damages because due to the fact that I lost my job I became depressed and anxious and lost sleep worried that I need to get a job and that I should not have been fired [sic]." Id., ¶ 17. Plaintiff also seeks an equal amount in liquidated damages.
The Court finds Plaintiffs requested damages are excessive. Given the circumstances of this case, and the emotional distress Plaintiff testified he suffered, the Court finds that $2,500 is an appropriate amount of compensatory damages for Plaintiff's emotional distress. 29 U.S.C. § 216(b) (employers "shall be liable for such legal or equitable relief as may be appropriate for the purposes of [the anti-retaliation provision of the FLSA]"),
Plaintiff seeks an award of $4,650.00 in attorneys' fees and $500.00 in costs.
The Court has reviewed the billing time sheets submitted by Plaintiff and concludes that certain requested fees are improper or excessive, including fees for: clerical tasks, non-legal work, reviewing the CM/ECF e-mail for documents prepared and filed by Plaintiff's counsel, repetitive entries, and work which was plainly copied-and-pasted from other similar actions. See id.; see also Peress v. Wand, M.D., 597 F.Supp.2d 1320 (S.D. Fla. 2008). The Court will address each category in turn.
The following time entries are for clerical tasks, non-legal work, or reviewing CM/ECF e-mail for documents prepared and filed by Plaintiff's counsel, for which Plaintiff is not entitled to an award of attorney's fees:
Accordingly, Plaintiffs award of attorneys' fees will be reduced by 3.6 billable hours.
The following entries are repetitive or excessive, and will be reduced as indicated:
Accordingly, Plaintiff's award of attorneys' fees will be further reduced by 3.2 billable hours.
The following entries were plainly copied-and-pasted, in whole or in part, from another similar action.
Accordingly, Plaintiff's award of attorneys' fees will be further reduced by 2.0 billable hours.
The Court must determine whether the hourly rate requested by Plaintiff's counsel, $300 per hour, is reasonable. "A reasonable hourly rate is the prevailing rate in the relevant legal community for similar service by lawyers of reasonably comparable skills, experience, and reputation." Norman, 836 F.3d at 1299.
Attached to the Motion is the affidavit of Plaintiffs counsel, Mr. Ruben Martin Saenz, which states that the focus of his practice for the past ten years has been employment law, that eighty-five percent of his work as an attorney is dedicated to FLSA litigation on behalf of plaintiffs, and that his regular hourly rate of $300.00 per hour is reasonable in light of the relevant legal marketplace. DE 13, Ex. A. Mr. Saenz's affidavit additionally states that he was assisted by Mr. Peter Andresky, Esq., and Ms. Ilona Anderson, Esq., in the prosecution of this matter, that their regular hourly rates are also $300.00 per hour, and that these rates are reasonable in light of the relevant legal marketplace and their respective experience. Id.
Based on its own experience with Plaintiff's counsels' poor billing judgment, failure to exclude unnecessary hours, excessive claims for time expended on work that was plainly copied-and-pasted from another action, and the concomitant "skill" which results in such practices, the Court finds that the requested hourly rates for all three of Plaintiff's attorneys are unreasonable. Accordingly, the Court concludes that $200 per hour is a reasonable rate for each of Plaintiff's counsel, and the fee award will be reduced accordingly.
Accordingly, after careful consideration and the Court being otherwise fully advised, it is
DONE and ORDERED in Chambers at the James Lawrence King Federal Justice Building and United States Courthouse, Miami, Florida, this 11th day of July, 2014.
