White v. OSP, Inc.

Filing 29

OPINION AND ORDER denying without prejudice 28 Motion for Default Judgment. Signed by Judge John E. Steele on 10/27/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL WHITE, on his own
behalf and on the behalf of
those similarly situated,
Plaintiff,
v.

Case No: 2:13-cv-709-FtM-29CM

OSP,
INC.,
Corporation,

a

Florida

Defendant.

OPINION AND ORDER
This matter comes before the Court upon review of plaintiff’s
Motion for Default Final Judgment (Doc. #28) filed on July 10,
2014.

No response has been filed and the time to respond has

expired.
On

For the reasons set forth below, the motion is denied.
October

4,

2013,

plaintiff

Michael

White

(White

or

plaintiff) filed a Complaint (Doc. #1) against OSP, Inc. (OSP)
alleging violation of the Fair Labor Standards Act (FLSA) relating
to unpaid overtime compensation. OSP does business as a franchisee
of Papa John’s Pizza selling and delivering pizza to its customers.
(Doc. #1, ¶ 7.)

White was hired by OSP as a pizza delivery driver,

and worked there from December 2012 through April 13, 2013.

(Id.

at ¶ 15.) Plaintiff was compensated at a rate of $4.79, plus tips,
while delivering pizzas.

(Id. at ¶ 18.)

While this amount was

below minimum wage, plaintiff concedes it was lawful for a delivery
driver because tips were available.

(Id. at ¶ 19.)

When

plaintiff was not delivering pizza, he was assigned to in-store
duties

including

cleaning,

preparing

food,

cooking

food,

customer service, but was paid at the same $4.79 rate.
¶19.)

and

(Id. at

Plaintiff alleges that OSP failed to properly compensate

him for in-store work because his pay rate was below the minimum
wage standard, (id. at ¶¶ 19-22), and failed to properly compensate
him for hours worked in excess of 40 hours in a workweek because
he was never paid the required overtime premium, (id. at ¶ 23.)
After

proper

service

of

process,

plaintiff

sought

and

obtained a Clerk’s Entry of Default (Doc. #27), which was entered
on June 30, 2014.

By virtue of this default, defendant “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.”
v.

SRG

Consulting,

Inc.,

561

Eagle Hosp. Physicians, LLC

F.3d

1298,

1307

(11th

Cir.

2009)(internal quotations and citations omitted).
While the facts alleged may support claims for both failure
to pay minimum wages and failure to pay overtime wages, only the
overtime wages are sought in the Complaint.

The introductory

paragraph describes the Complaint as an “action for unpaid overtime
compensation, liquidated damages, declaratory relief and other
relief under the Fair Labor Standards Act. . . .”

2

(Doc. #1, p.

1.)

One of the jurisdictional allegations asserts that “this is

a claim for Unpaid Overtime . . . to recover overtime wages, an
additional and equal amount in liquidated damages, and attorneys’
fees and costs.”

(Doc. #1, ¶ 1.)

After setting forth its

“Statement of Facts” (id. at ¶¶ 15-28), Count I seeks “Unpaid
Overtime Wages” and asserts plaintiff worked in excess of forty
hours per week during his employment.
II

seeks

Declaratory

compensation.

Relief

relating

(Id. at ¶¶ 30-36.)
to

plaintiff’s

Count

overtime

(Id. at ¶¶ 38-51.)

The instant motion, however, does not seek relief for overtime
compensation, and indeed plaintiff now attests that he only worked
30 hours per workweek.

(Doc. #28, p. 7; Doc. #28.1, ¶ 5.)

The

relief requested in the instant motion is for unpaid minimum wages
plus associated liquidated damages, attorney fees and costs. (Doc.
#28, pp. 7-8.)
The Court finds that the relief requested in the plaintiff’s
motion cannot be granted because it is not available for the claims
set forth in the Complaint.

Federal Rule of Civil Procedure 54(c)

provides that unlike other final judgments, “[a] default judgment
must not differ in kind from, or exceed in amount, what is demanded
in the pleadings.”

Because the Complaint does not state a claim

for failure to pay minimum wages, plaintiff’s motion seeking a
default judgment for such minimum wages is denied.

3

Accordingly, it is now
ORDERED:
Plaintiff's Motion for Entry of Default Final Judgment (Doc.
#28) is DENIED without prejudice.
DONE AND ORDERED at Fort Myers, Florida, this
of October, 2014.

Copies: Counsel of record

4

27th

day