JOEL B. TOOMEY, Magistrate Judge.
Plaintiff brought the instant action pursuant to the Fair Labor Standards Act ("FLSA"), as amended, 29 U.S.C. § 201, et seq., against Taste 1 Group, LLC ("Taste"), its owner Chris Dallo ("Dallo"), and Randy Salazar ("Salazar"), alleging the following claims: "Minimum Wage Violation Under FLSA (Against Defendants Taste and Dallo)" ("Count I"), "Recovery of Overtime Compensation (Against Defendants Taste and Dallo)" ("Count II"), and "Breach of Contract (Against all Defendants)" ("Count IV").
Count IV, containing the only claim against Salazar, was voluntarily dismissed without prejudice. (Docs. 46 & 47.) Default has been entered against Taste (Doc. 43) and Dallo (Doc. 11). Plaintiff now seeks a default judgment against both remaining Defendants on Counts I and II. (Doc. 44.)
Rule 55 of the Federal Rules of Civil Procedure establishes a two-step process for obtaining a default judgment. First, when a defendant fails to plead or otherwise defend a lawsuit, the clerk of court is authorized to enter a clerk's default against the defendant. See Fed. R. Civ. P. 55(a). Second, after receiving the clerk's default, the plaintiff must apply to the court for a default judgment, except in limited circumstances when application may be made to the clerk. See Fed. R. Civ. P. 55(b). A default judgment may be entered "against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person." Fed. R. Civ. P. 55(b). A default judgment may be entered "against a defendant who never appears or answers a complaint, for in such circumstances the case never has been placed at issue." Solaroll Shade & Shutter Corp. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1134 (11th Cir. 1986).
All well-pleaded allegations of fact are deemed admitted upon entry of default, but before entering a default judgment, the court must ensure that it has jurisdiction over the claims and that the complaint adequately states a claim for which relief may be granted. See Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975); see also GMAC Commercial Mortg. Corp. v. Maitland Hotel Assocs., 218 F.Supp.2d 1355, 1359 (M.D. Fla. 2002) ("A default judgment cannot stand on a complaint that fails to state a claim.") (citations omitted). A sufficient basis must exist in the pleadings for the judgment entered. See Nishimatsu Constr. Co., 515 F.2d at 1206. A defendant "is not held to admit facts that are not well-pleaded or to admit conclusions of law." See id.; see also Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978) (stating that "facts which are not established by the pleadings of the prevailing party, or claims which are not well-pleaded, are not binding and cannot support the judgment").
Rule 8 provides that a complaint must include (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for relief. See Fed. R. Civ. P. 8(a). A complaint meets the requirements of Rule 8 if, in light of the nature of the action, the complaint provides factual allegations, that are assumed to be true, sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.").
A "plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Twombly, 550 U.S. at 555. Indeed, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions," which simply "are not entitled to [an] assumption of truth." Iqbal, 556 U.S. at 664, 678. Thus, in ruling on a motion for final default judgment, the Court must determine whether a sufficient factual basis exists in the complaint for a judgment to be entered. See Nishimatsu Constr. Co., 515 F.2d at 1206.
Finally, when a plaintiff seeks the entry of a default judgment against an individual defendant, the plaintiff must comply with Section 521 of the Servicemembers Civil Relief Act ("SCRA"), which requires, inter alia, the filing of an affidavit by the plaintiff:
50 U.S.C. App'x § 521(b)(1).
Upon review of the Complaint, the Motion, and other relevant filings, the undersigned recommends that default judgment be entered against both Defendants on Counts I and II. The Court has federal question jurisdiction over these counts pursuant to 28 U.S.C. § 1331. Additionally, Plaintiff has established that Taste and Dallo were properly served, and defaults have been entered against them.
To prevail on a claim for payment of unpaid minimum wages or unpaid overtime wages under the FLSA, plaintiff must establish the following:
See Eleventh Circuit Pattern Jury Instruction (Civil Cases) 4.14 (2013).
The Complaint sufficiently alleges that Plaintiff was employed by Defendants during the relevant time period. Under the FLSA, an "employee" is "any individual employed by an employer." 29 U.S.C. § 203(e)(1). An "employer" "includes any person acting directly or indirectly in the interest of an employer in relation to an employee," 29 U.S.C. § 203(d), and the term "employ" "includes to suffer or permit to work," 29 U.S.C. § 203(g). The Complaint contains the following allegations regarding the employer-employee relationship between Plaintiff and Defendants:
(Doc. 1 at 2-4.)
The undersigned recommends that these allegations are sufficient to establish that an employer-employee relationship existed between Plaintiff and both Defendants. As to Dallo specifically, "[w]hile there is no requirement that an individual must be a corporate officer in order to be an employer under the FLSA, to be individually liable, an officer must either be involved in the day-to-day operation or have some direct responsibility for the supervision of the employee." Hernandez v. Anderson, Case No. 5:14-cv-577-Oc-39PRL, 2015 WL 3514483, at *4 (M.D. Fla. June 4, 2015) (citation and quotations omitted). The undersigned recommends that the above allegations regarding Dallo are sufficient to establish that Dallo was involved in the day-to-day operation of Taste and had some direct responsibility for the supervision of its employees. Therefore, Dallo and Taste are jointly and severally liable for Plaintiff's damages as his employers.
With respect to coverage under the FLSA, plaintiff must establish either (1) "individual coverage," meaning that the employee was "engaged in commerce or in the production of goods for commerce," or (2) "enterprise coverage," meaning that the employee was "employed in an enterprise engaged in commerce or in the production of goods for commerce." 29 U.S.C. § 206(a); 29 U.S.C. § 207(a)(1); Thorne v. All Restoration Servs., Inc., 448 F.3d 1264, 1265-66 (11th Cir. 2006). The undersigned recommends that Plaintiff has sufficiently alleged individual coverage.
The Complaint contains the following allegations relating to individual coverage:
FLSA in that:
(Doc. 1 at 2-3.) Thus, Plaintiff does not allege that he was "engaged in the production of goods for commerce," and the only issue, for purposes of individual coverage, is whether plaintiff has sufficiently alleged that he was "engaged in commerce." See 29 U.S.C. § 206(a); 29 U.S.C. § 207(a)(1); Thorne, 448 F.3d at 1265-66.
As explained by the Eleventh Circuit:
Thorne, 448 F.3d at 1266 (citations omitted).
The undersigned recommends that Plaintiff's allegation regarding regular interstate orders of equipment and uniforms in paragraph 16(a) is sufficient to meet the standard requiring regular and recurrent use of the instrumentalities of interstate commerce because Plaintiff necessarily used mail, telephone, internet, or some other instrumentality of interstate commerce in placing the orders. Thus, the undersigned recommends that the Court need not address the sufficiency of Plaintiff's allegations regarding enterprise coverage.
The undersigned also recommends that Plaintiff adequately alleges that Defendants failed to pay him minimum and overtime wages as required by the FLSA. Specifically, the Complaint alleges the following regarding minimum wages:
(Doc. 1 at 8.)
Additionally, the Complaint alleges the following regarding overtime wages:
which they failed to pay his salary. (Id. at 9.) The undersigned recommends that these allegations are sufficient to establish that Defendants failed to pay the minimum wage and overtime pay required by law.
"[A] judgment by default may not be entered without a hearing [on damages] unless the amount claimed is a liquidated sum or one capable of mathematical calculation." United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979) (per curiam). See also SEC v. Smyth, 420 F.3d 1225, 1231 (11th Cir. 2005). The undersigned recommends that an evidentiary hearing on the issue of damages is not necessary in this case because the record contains sufficient information to mathematically calculate the amount of damages.
It is an employee's burden to prove, "with definite and certain evidence, that he performed work for which he was not properly compensated." Reeves v. Int'l Tel. & Tel. Corp., 616 F.2d 1342, 1351 (5th Cir. 1980), implicitly overruled on other grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133-34 (1988). "Inaccurate wage and hour information, however, is not always fatal to a claim for minimum wage or overtime compensation," and if "the inaccuracy is due to the employer's failure to keep adequate records as required by statute, imprecise evidence on quantum can provide a `sufficient basis' for damages." Id.
Id. at 1352.
Plaintiff alleges that "[a]t all times material hereto, Defendants TASTE and DALLO failed and continue to fail to maintain proper time records as mandated by the FLSA." (Doc. 1 at 9.) Moreover, Defendants have presented no time records showing the number of hours worked by Plaintiff because they have defaulted. (Docs. 11 & 43.) Therefore, the undersigned recommends that Plaintiff's affidavit regarding the number of hours worked is "sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Id.
Plaintiff's affidavit provides the following information regarding his compensation:
(Doc. 44-1 at 2-3.) Based on this affidavit, the undersigned recommends that Plaintiff be awarded $8,749.77 for unpaid minimum and overtime wages.
The undersigned further recommends that Plaintiff be awarded liquidated damages in an equal amount of $8,749.77. Under the FLSA, "if the employer shows to the satisfaction of the court that the act or omission giving rise to [the] action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA], as amended, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216." 29 U.S.C. § 260. "Even if the district court determines that the employer's actions were taken in good faith and based on reasonable grounds, the district court still retains the discretion to award liquidated damages." Heidtman v. Cty. of El Paso, 171 F.3d 1038, 1042 (5th Cir. 1999).
In the present case, there appears to be no basis not to award liquidated damages. Defendants have made no showing of good faith or reasonable grounds. Moreover, the Complaint alleges that Defendants had "specific knowledge that they failed to pay Plaintiff at least the minimum wage," and that they "willfully failed to pay Plaintiff the applicable minimum wage." (Doc. 1 at 8.) Further, Plaintiff alleges that Defendants' actions "were willful and/or showed reckless disregard for the provisions of the FLSA, as evidenced by their failure to compensate Plaintiff at the statutory rate of one and one-half times Plaintiff's regular rate of pay for the hours worked in excess of forty (40) hours per week[] when they knew, or should have known, such was, and is due." (Id. at 9.) Therefore, the undersigned recommends that an award of liquidated damages in an amount equal to the amount of compensatory damages is appropriate. Accordingly, the undersigned recommends that Plaintiff be awarded a total of $17,499.54 for unpaid wages and liquidated damages.
In the Motion, Plaintiff requests an unspecified extension of time in which to file a motion for reasonable attorneys' fees and costs. (Doc. 44 at 7.) The undersigned recommends that 30 days from entry of the Court's order on this Report and Recommendation is sufficient.
Based on the foregoing, the undersigned recommends that Plaintiff be awarded damages for unpaid minimum and overtime wages in the amount of $8,749.77, and liquidated damages in an equal amount, totaling $17,499.54. Additionally, the undersigned recommends that Plaintiff have 30 days from entry of the Court's order on this Report and Recommendation to file a motion for attorneys' fees and costs.
Accordingly, it is respectfully
1. The Motion (
2. The Clerk of Court be directed to enter judgment in favor of Plaintiff Kevin J. Santos, Jr., c/o Morgan & Morgan, P.A., 600 North Pine Island Road, Suite 400, Plantation, Florida 33324, and against Defendants Taste 1 Group, LLC and Chris Dallo, 9726 Touchton Road, Suite 105, Jacksonville, FL 32246, jointly and severally, in the total amount of $17,499.54, representing $8,749.77 in compensatory damages and $8,749.77 in liquidated damages, plus costs pursuant to 28 U.S.C. § 1920. Post-judgment interest will accrue at the statutory rate set forth in 28 U.S.C. § 1961.
3. Plaintiff have 30 days from entry of the Court's order on this Report and Recommendation to file a motion for attorneys' fees and costs.
4. The Clerk of Court be directed to terminate any pending motions and close the file.
