Jenkins v. North Texas Maintenance, Inc. et al

Filing 31

ORDER re 19 MOTION for default judgment against Clint Hemby, North Texas Maintenance, Inc. filed by Antonio Jenkins. Plaintiffs' Motion for Entry of Default Final Judgment Against Defendants, North Texas Maintenance, Inc. and Cli nt Hemby 19 is GRANTED as to Plaintiffs Michael Martinez and Clint Hemby. The Clerk shall enter judgment in favor of Plaintiff Michael Martinez and against Defendants North Texas Maintenance, Inc. and Clint Hemby in the amount of $3,897.60 in unpaid overtime wages, plus an equal amount for liquidated damages, for a total of $7,795.20, jointly and severally. The Clerk shall further enter judgment in favor of Plaintiff David Clay and against Defendants North Texas Maintenance, Inc. a nd Clint Hemby in the amount of $4,889.40 in unpaid overtime wages, plus an equal amount for liquidated damages, for a total of $9,778.80, jointly and severally. The Clerk is thereafter directed to terminate all previously scheduled deadli nes and CLOSE the file. The Court will continue to retain jurisdiction over this matter for the sole purpose of determining the issue of attorney's fees and costs. As Plaintiffs were previously granted leave to do so, Plaintiffs may file a motion for attorney's fees and costs on or before July 31, 2013. The Clerk is directed to provide a copy of this Order to all Defendants at the last known address in the Court file. Signed by Judge Sheri Polster Chappell on 7/17/2013. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

ANTONIO JENKINS, MICHAEL
MARTINEZ and DAVID CLAY, on his
own behalf and on behalf of those
similarly situated,
Plaintiffs,
v.

Case No: 2:12-cv-677-FtM-38DNF

NORTH TEXAS MAINTENANCE,
INC. and CLINT HEMBY,
Defendants.
/
ORDER1
This matter comes before the Court on Plaintiffs’ Motion for Entry of Default Final
Judgment Against Defendants, North Texas Maintenance, Inc. and Clint Hemby (Doc.
#19) filed on April 8, 2013.

Plaintiff Antonio Jenkins and Opt-In Plaintiffs Michael

Martinez and David Clay, request that final default judgment be entered in their favor
against Defendants. The Court previously granted Plaintiff Jenkins’ request for default
judgment and entered default in the amount of $22,845.30, against the Defendants.
(Doc. #21). In that Order, the Court denied Opt-In Plaintiffs Martinez and Clay’s request
for entry of final default because the Complaint did not provide any detailed factual

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allegations as to these Plaintiffs, and it was not clear from the record that Defendants
were provided notice of the amounts in overtime wages claimed by Martinez and Clay.
Thus, the Court found that Defendants were entitled to notice and a hearing as to the
amount of damages suffered by the Opt-In Plaintiffs, Martinez and Clay. The Court held
a hearing on July 17, 2013.

Plaintiff’s counsel appeared in person and Martinez

appeared telephonically. Copies of all Court Orders pertaining to the default issue and
the notices of hearing were mailed by the Court to Defendants North Texas
Maintenance, Inc. and Clint Hemby’s last known addresses. Therefore, Defendants
were provided notice of the hearing and were afforded the opportunity to appear and
defend regarding the amount of damages alleged to be due and owing in this matter but
failed to appear.
On February 20, 2013, the Magistrate Judge issued an Order (Doc. # 15)
granting Plaintiff’s Motion for Clerk’s Default against Defendant North Texas
Maintenance, Inc. for its failure to respond to Plaintiff’s Complaint after service. A
Clerk's Entry of Default (Doc. # 16) was issued on February 21, 2013, against
Defendant North Texas Maintenance, Inc. On March 6, 2013, the Magistrate Judge
issued an Order (Doc. # 17) granting Plaintiff’s Motion for Clerk’s Default against
Defendant Clint Hemby for his failure to respond to Plaintiff’s Complaint after service. A
Clerk's Entry of Default (Doc. # 18) was issued on March 7, 2013, against Defendant
Clint Hemby.
“A defendant, by his default, admits the plaintiff's well-pleaded allegations of fact,
is concluded on those facts by the judgment, and is barred from contesting on appeal
the facts thus established. [ ] A default judgment is unassailable on the merits, but only

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so far as it is supported by well-pleaded allegations. [ ] A default defendant may, on
appeal, challenge the sufficiency of the complaint, even if he may not challenge the
sufficiency of the proof.” Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561
F.3d 1298, 1307 (11th Cir. 2009) (internal quotations and citations omitted).
On January 28, 2010, Plaintiff Antonio Jenkins filed a Complaint and Demand for
Jury Trial (Doc. #1) on behalf of himself and others against Defendants North Texas
Maintenance, Inc., Clint Hemby, and Peter McNeal 2 to recover overtime compensation
under the Fair Labor Standards Act (FLSA).

Plaintiff alleges that Defendant North

Texas is a foreign profit corporation operating and conducting business in Lee County,
Florida and the State of Texas. Defendant Hemby resides in the State of Texas and
was the Director of North Texas. Plaintiff alleges that Defendant Hemby is an employer
in that he acted, directly or indirectly, in the interests of North Texas against Plaintiff and
all other similarly situated employees. Plaintiff further alleges that Defendants are a
covered enterprise with at least two employees engaged in interstate commerce and
over $500,000 a year in gross sales.

Plaintiff alleges that he was “engaged in

commerce” and an “employee” subject to individual coverage and is a non-exempt
employee under the FLSA.
The Court received sworn testimony from Martinez at the hearing. The record
further reflects a sworn affidavit filed by Martinez at Doc. #19-6. He testified and swears
that he was employed by Defendants from approximately January 18, 2012 until May
21, 2012, to perform lawn maintenance duties. He generally worked 5-7 days per week,
and approximately 50-75 hours per week. During his employment, he was paid a bi-

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On February 12, 2013, Plaintiff filed a notice of voluntary dismissal of the only other Defendant, Peter
McNeal. (Doc. #14).

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weekly salary of $650.00. He understood that his weekly salary was to compensate him
for a 40-hour workweek. He had reviewed the records and hours kept by Plaintiff and
the records were accurate to his recollection.

He calculated that he worked 320

overtime hours during his employment. Based upon the testimony of Martinez, his
sworn affidavit, and after affording the Defendant notice of the amount of damages
claimed by Martinez, as well as the opportunity to defend, the Court finds that default
judgment is due to be entered in favor of Martinez, against Defendants in the amount of
$3,897.60 in unliquidated damages, and an equal amount of liquidated damages, for a
total of $7,795.20.
With regard to Plaintiff Clay, who did not appear at the hearing, there is a sworn
affidavit in the record before the Court. (Doc. #19-7). The Court accepted argument of
his counsel regarding Plaintiff Clay and the amount of damages he is owed. He swears
that he was employed by Defendants from approximately September 1, 2011 until
December 4, 2011, and then from April 2012 until May 2012, to perform lawn
maintenance duties. He generally worked 5-7 days per week, and approximately 50-75
hours per week. During his employment, he was paid a bi-weekly salary of $750.00.
He understood that his weekly salary was to compensate him for a 40-hour workweek.
He had reviewed the records and hours kept by Plaintiff and the records were accurate
to his recollection.

He calculated that he worked 348 overtime hours during his

employment. Based upon Plaintiff Clay’s sworn affidavit and the argument of counsel,
and after affording the Defendant notice of the amount of damages claimed by Clay, as
well as the opportunity to defend, the Court finds that default judgment is due to be

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entered in favor of Clay, against Defendants in the amount of $4,889.40 in unliquidated
damages, and an equal amount of liquidated damages, for a total of $9,778.80.
Accordingly, it is now
ORDERED:
(1) Plaintiffs’ Motion for Entry of Default Final Judgment Against Defendants,
North Texas Maintenance, Inc. and Clint Hemby (Doc. #19) is GRANTED as
to Plaintiffs Michael Martinez and Clint Hemby.
(2) The Clerk shall enter judgment in favor of Plaintiff Michael Martinez and
against Defendants North Texas Maintenance, Inc. and Clint Hemby in the
amount of $3,897.60 in unpaid overtime wages, plus an equal amount for
liquidated damages, for a total of $7,795.20, jointly and severally.
(3) The Clerk shall further enter judgment in favor of Plaintiff David Clay and
against Defendants North Texas Maintenance, Inc. and Clint Hemby in the
amount of $4,889.40 in unpaid overtime wages, plus an equal amount for
liquidated damages, for a total of $9,778.80, jointly and severally.
(4) The Clerk is thereafter directed to terminate all previously scheduled
deadlines and CLOSE the file. The Court will continue to retain jurisdiction
over this matter for the sole purpose of determining the issue of attorney’s
fees and costs.
(5) As Plaintiffs were previously granted leave to do so, Plaintiffs may file a
motion for attorney’s fees and costs on or before July 31, 2013.
(6) The Clerk is directed to provide a copy of this Order to all Defendants at the
last known address in the Court file.

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DONE and ORDERED in Fort Myers, Florida this 17th day of July, 2013.

Copies: All Parties of Record

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