Pieta et al v. CDE Security and Automation, LLC et al
ORDER finding as moot 20 Motion for Default Judgment; finding as moot 21 Motion to Amend/Correct; granting 22 Motion for Default Judgment as set out. Signed by District Judge William H. Steele on 7/15/21. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
DENNIS PIETA and MICHAEL BELL,
CDE SECURITY & AUTOMATION, LLC )
and BRAD JOSEPH CANOVA,
CIVIL ACTION 21-0034-WS-N
This matter comes before the Court on plaintiffs’ First Amended Motion for Entry of
Default Judgment (doc. 22).1
Plaintiffs, Dennis Pieta and Michael Bell, brought this action against defendants, CDE
Security & Automation, LLC, and Brad Joseph Canova, alleging violations of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§ 206 and 215, as well as breach of a personal guaranty. In
particular, the well-pleaded facts in the Complaint allege that Pieta and Bell worked as
employees of CDE Security from approximately May 2019 to September 2020, and from
approximately July 2019 to September 2020, respectively. (Doc. 1, ¶¶ 3-4.) The Complaint
further alleges that while CDE Security “issued some payments to Plaintiffs during the course of
their employment,” such payments were “never for the proper or sufficient amounts.” (Id., ¶ 10.)
According to the Complaint, “Defendants did not pay Plaintiffs their full compensation for work
performed.” (Id., ¶ 12.) On that basis, plaintiffs bring a claim against CDE Security for
Also pending are plaintiffs’ Motion for Entry of Default Judgment (doc. 20) and
plaintiffs’ filing styled Notice of Errata in Motion for Entry of Default Judgment (doc. 21). The
First Amended Motion for Entry of Default Judgment supersedes these predecessor filings;
therefore, the original Motion for Entry of Default Judgment (doc. 20) and the ensuing Notice of
Errata (doc. 21) (to the extent it may be deemed a motion to amend that original motion) are both
violation of the FLSA, and specifically section 206 (minimum wage). As for defendant Canova,
the Complaint alleges that Canova “is the principal member and officer of CDE,” and that he
executed a written guaranty in favor of Pieta and Bell personally guaranteeing CDE Security’s
obligations to them. (Doc. 1, ¶¶ 7, 23, 24.) Based on those allegations, plaintiffs assert a
separate claim against defendant Canova for breach of the personal guaranty.
The court file reflects that both defendants were properly served with process months
ago. In particular, a return of service indicates that defendant CDE Security was properly served
with the Summons and Complaint via United States mail delivered to its registered agent for
service of process on February 24, 2021. (Docs. 4-1, 4-2.) Likewise, a second return of service
confirms that plaintiffs served the Summons and Complaint on defendant Canova when a private
process server personally served those items on him at a location in Baton Rouge, Louisiana on
May 1, 2021. (Doc. 13.) When neither defendant appeared or filed a responsive pleading within
the time prescribed by Rule 12(a), Fed.R.Civ.P., plaintiffs moved for entry of default. (Docs. 4
& 15.) On March 9, 2021 and June 16, 2021, a Clerk’s Entry of Default was entered against
defendant CDE Security and defendant Canova, respectively, for failure to plead or otherwise
defend within the time prescribed by the rules. (Docs. 6 & 18.) Notwithstanding entry of default
against them, defendants neither appeared in this litigation nor took action to attempt to set aside
the entry of default. Defendants simply did not acknowledge the summonses, the defaults or the
pendency of this lawsuit at any time in any manner. When plaintiffs first moved for default
judgment on June 25, 2021, they served notice of the Motion for Default Judgment on each
defendant via U.S. mail addressed to his or its address where service of process was perfected.
(Doc. 20.) Despite actual notice that plaintiffs are actively pursuing default proceedings,
defendants have not responded to the Motion or otherwise undertaken to forestall entry of default
judgment against them.
Entry of Default Judgment is Appropriate.
In this Circuit, “there is a strong policy of determining cases on their merits and we
therefore view defaults with disfavor.” In re Worldwide Web Systems, Inc., 328 F.3d 1291, 1295
(11th Cir. 2003); see also Varnes v. Local 91, Glass Bottle Blowers Ass’n of U.S. and Canada,
674 F.2d 1365, 1369 (11th Cir. 1982) (“Since this case involves a default judgment there must be
strict compliance with the legal prerequisites establishing the court’s power to render the
judgment.”). Nonetheless, it is well established that a “district court has the authority to enter
default judgment for failure ... to comply with its orders or rules of procedure.” Wahl v. McIver,
773 F.2d 1169, 1174 (11th Cir. 1985).
Where, as here, defendants have failed to appear or otherwise acknowledge the pendency
of a lawsuit for multiple months after being served, entry of default judgment is appropriate.
Indeed, Rule 55 itself provides for entry of default and default judgment where a defendant “has
failed to plead or otherwise defend.” Rule 55(a), Fed.R.Civ.P. In a variety of contexts, courts
have entered default judgments against defendants who have failed to appear and defend in a
timely manner following proper service of process. In short, “[w]hile modern courts do not
favor default judgments, they are certainly appropriate when the adversary process has been
halted because of an essentially unresponsive party.” Flynn v. Angelucci Bros. & Sons, Inc., 448
F.Supp.2d 193, 195 (D.D.C. 2006) (citation omitted). That is precisely what defendants have
done here. Despite being served with process back in February 2021 and May 2021,
respectively, CDE Security and Canova have declined to appear or defend, and have thereby
stopped the progress of this litigation in its tracks.
The law is clear, however, that defendants’ failure to appear and the Clerk’s Entry of
Default do not automatically entitle Pieta and Bell to a default judgment in the requested (or any)
amount. Indeed, a default is not “an absolute confession by the defendant of his liability and of
the plaintiff's right to recover,” but is instead merely “an admission of the facts cited in the
Complaint, which by themselves may or may not be sufficient to establish a defendant’s
liability.” Pitts ex rel. Pitts v. Seneca Sports, Inc., 321 F.Supp.2d 1353, 1357 (S.D. Ga. 2004);
see also Nishimatsu Const. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1204 (5th Cir. 1975)
(similar); Descent v. Kolitsidas, 396 F.Supp.2d 1315, 1316 (M.D. Fla. 2005) (“the defendants’
default notwithstanding, the plaintiff is entitled to a default judgment only if the complaint states
a claim for relief”). Stated differently, “a default judgment cannot stand on a complaint that fails
to state a claim.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir. 1997);
see also Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir.
2009) (“A default defendant may, on appeal, challenge the sufficiency of the complaint, even if
he may not challenge the sufficiency of the proof.”).
In light of these principles, the Court has reviewed the Complaint and is satisfied that
Counts I and II set forth viable causes of action against CDE Security and Canova, respectively,
under applicable law. Specifically, Count I alleges that CDE Security willfully failed to pay
plaintiffs wages as required by the Fair Labor Standards Act. And Count II alleges that Canova
personally guaranteed CDE Security’s payment obligations to plaintiffs, but then failed to make
good on such guaranty commitments. Because the Complaint’s well-pleaded factual allegations
are deemed admitted by virtue of defendants’ default, and because such allegations are sufficient
to state actionable claims, the Court finds that CDE Security is liable to plaintiffs on Count I and
that Canova is liable to plaintiffs on Count II. Thus, entry of default judgment pursuant to Rule
55 is appropriate against both defendants, given their failure to appear after service of process
and the sufficiency of the well-pleaded factual allegations of the Complaint (all of which
defendants have now admitted) to establish their liability to Pieta and Bell.
Applicable Legal Standard.
Notwithstanding the propriety of default judgment against defendants, it remains
incumbent on Pieta and Bell to prove their damages. “While well-pleaded facts in the complaint
are deemed admitted, plaintiffs’ allegations relating to the amount of damages are not admitted
by virtue of default; rather, the court must determine both the amount and character of damages.”
Virgin Records America, Inc. v. Lacey, 510 F. Supp.2d 588, 593 n.5 (S.D. Ala. 2007); see also
Eastern Elec. Corp. of New Jersey v. Shoemaker Const. Co., 652 F. Supp.2d 599, 605 (E.D. Pa.
2009) (“A party’s default does not suggest that the party has admitted the amount of damages
that the moving party seeks.”). Even in the default judgment context, “[a] court has an
obligation to assure that there is a legitimate basis for any damage award it enters.” Anheuser
Busch, Inc. v. Philpot, 317 F.3d 1264, 1266 (11th Cir. 2003); see also Adolph Coors Co. v.
Movement Against Racism and the Klan, 777 F.2d 1538, 1544 (11th Cir. 1985) (explaining that
damages may be awarded on default judgment only if the record adequately reflects the basis for
award); Everyday Learning Corp. v. Larson, 242 F.3d 815, 818 (8th Cir. 2001) (affirming lower
court’s decision not to award damages on default judgment, where requested damages were
“speculative and not proven by a fair preponderance of the evidence”); Natures Way Marine,
LLC v. North America Materials, Inc., 2008 WL 1776946, *1 (S.D. Ala. Apr. 16, 2008) (in
default judgment setting, district court has obligation “not to award damages that are uncertain or
Under the FLSA, “[a]ny employer who violates the provisions of section 206 … shall be
liable to the employee or employees affected in the amount of their unpaid minimum wages …
and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). Plaintiffs have
submitted evidence via affidavit that the relevant unpaid wages owed by CDE Security to Pieta
total $22,314.92, and that the relevant unpaid wages owed by CDE Security to Bell total $5,000.
Thus, an award of $27,314.92 is properly entered against CDE Security and in favor of Pieta and
Bell for unpaid wages pursuant to Count I. The same amount is properly entered against Canova
and in favor of Pieta and Bell the personal guaranty claim found at Count II; after all, by virtue
of his default, Canova has admitted that he guaranteed payment of Pieta and Bell’s compensation
owed by CDE Security, so those amounts owed by CDE Security for unpaid wages under the
FLSA are likewise owed by Canova pursuant to the guaranty.
Of course, § 216(b) of the FLSA also includes a provision that prevailing plaintiffs under
§ 206 shall be awarded “an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).
As such, the damages award against defendant CDE Security on Count I is properly doubled
from $27,314.92 to $54,629.84 to include an equal amount of liquidated damages. However,
plaintiffs have articulated no legal theory or principle under which defendant Canova’s personal
guaranty to pay plaintiffs their base compensation could translate into liability for Canova under
In that regard, the Eleventh Circuit has explained that “[f]ederal law similarly
requires a judicial determination of damages absent a factual basis in the record,” even where the
defendant is in default. Anheuser Busch, 317 F.3d at 1266. Ordinarily, unless a plaintiff’s claim
against a defaulting defendant is for a sum certain, the law “requires the district court to hold an
evidentiary hearing” to fix the amount of damages. S.E.C. v. Smyth, 420 F.3d 1225, 1231 (11th
Cir. 2005). However, no hearing is needed “when the district court already has a wealth of
evidence from the party requesting the hearing, such that any additional evidence would be truly
unnecessary to a fully informed determination of damages.” Id. at 1232 n.13; see also Virgin
Records, 510 F. Supp.2d at 593-94 (“Where the amount of damages sought is a sum certain, or
where an adequate record has been made via affidavits and documentary evidence to show
statutory damages, no evidentiary hearing is required.”). Pieta and Bell have not requested a
hearing, but instead rely solely on declarations and exhibits that make an adequate record to
show damages. In light of these authorities and circumstances, the Court will fix the amount of
damages based on plaintiffs’ evidentiary submission, without conducting a formal hearing.
Count II for liquidated damages due and owing to Pieta and Bell by CDE Security under the
FLSA. Accordingly, the liquidated damages portion of the award will be confined to defendant
CDE Security, and will not be entered as to defendant Canova.
Attorney’s Fees and Expenses.
The FLSA specifically provides that a court in such an action “shall, in addition to any
judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the
defendant, and costs of the action.” 29 U.S.C. § 216(b). Pursuant to that provision, Pieta and
Bell are entitled to recover their reasonable attorney’s fees and costs from CDE Security under
Count I. Once again, they have articulated no basis under which Canova could be held liable in
Count II under the fee-shifting provisions of the FLSA; therefore, this portion of the award shall
be limited to defendant CDE Security under Count I, and will not be extended to defendant
Canova under Count II.
It is well established that “[t]he starting point for determining the amount of a reasonable
fee is the number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate. … The product of these two figures is the lodestar and there is a strong presumption
that the lodestar is the reasonable sum the attorneys deserve.” Bivins v. Wrap It Up, Inc., 548
F.3d 1348, 1350 (11th Cir. 2008) (internal citations and quotation marks omitted). Of course,
“[t]he product of reasonable hours times a reasonable rate does not end the inquiry. There
remain other considerations that may lead the district court to adjust the fee award upward or
downward.” Cullens v. Georgia Dep’t of Transp., 29 F.3d 1489, 1492 (11th Cir. 1994) (citation
omitted). Plaintiffs’ evidence is that their attorney expended a total of 21.2 hours on this
litigation, for which counsel seeks to charge an hourly rate of $400, for a total claimed fee award
of $8,480.00 (Doc. 22-5, doc. 22-6.) Although plaintiffs have adequately shown the
reasonableness of the time expended under the circumstances, the same cannot be said of the
requested hourly rate. “A reasonable hourly rate is the prevailing market rate in the relevant
legal community for similar services by lawyers of reasonably comparable skills, experience and
reputation.” Norman v. Housing Authority, 836 F.2d 1292, 1299 (11th Cir. 1988). Upon review
of plaintiffs’ fee petition, the Court concludes that they have failed to make an adequate showing
that $400/hour is the prevailing market rate in the relevant legal community for similar services
by lawyers of reasonable comparable skills, experience and reputation. Review of caselaw from
this district reflects a substantially lower prevailing market rate for FLSA plaintiffs’ counsel.
See, e.g., Nail v. Shipp, 2020 WL 1670459, *3 (S.D. Ala. Apr. 3, 2020) (“In FLSA cases, the
undersigned has found $250/hour to be a reasonable hourly rate for an attorney with 19 years and
with 28 years of experience”); Clark v. Northview Health Services, LLC, 2013 WL 3930095, *12 (S.D. Ala. July 30, 2013) (awarding $250 hourly rate to experienced FLSA plaintiff’s counsel).
Plaintiffs have not made a sufficient evidentiary showing to warrant an hourly rate higher than
$250 for the specific circumstances present here. Nor have plaintiffs made any argument that
might warrant diverging from the lodestar calculation in this case. As such, the Court will award
plaintiffs reasonable attorney’s fees of $5,300.00 (21.2 hours x $250/hour).
Plaintiffs have also shown that they incurred costs of $402 for the filing fee, $295 in
service of process fees, and $18 for copying fees. (Doc. 22-6.) As plaintiffs correctly point out,
those costs are recoverable under § 216(b). Therefore, plaintiffs will be awarded their full costs
For all of the foregoing reasons, plaintiff’s First Amended Motion for Entry of Default
Judgment (doc. 22) is granted. Default judgment will be entered in favor of Dennis Pieta and
Michael Bell and against defendant CDE Security & Automation, LLC in the total amount of
$60,644.84, consisting of $27,314.92 in unpaid wages, an equal amount of $27,314.92 in
liquidated damages, $5,300.00 in reasonable attorney’s fees, and $715.00 in costs. Default
judgment will also be entered in favor Pieta and Bell and against defendant Brad Joseph Canova
in the total amount of $27,314.92. The entire amount of the default judgment entered against
Canova is joint and several with the judgment entered against CDE Security.3
DONE and ORDERED this 15th day of July, 2021.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE
Plaintiffs also request that the judgment provide for additional fees to be assessed,
as incurred in future collection efforts, upon motion by plaintiffs. (Doc. 22, at 3.) However,
plaintiffs have provided neither argument nor authority in support of the proposition that the feeshifting provision found at 29 U.S.C. § 216(b) extends to post-judgment collection costs. In the
absence of any legal showing that such collection costs are properly recoverable under the
FLSA, the Court declines to provide for assessment of same.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?