Roth v. ABCW, LLC et al
Filing
34
OPINION AND ORDER granting in part and denying in part 33 Motion for Default Judgment. The Clerk shall enter default judgment in favor of plaintiff and against defendants on all counts as set forth in the Opinion and Order, terminate all pending matters, and close the file. See Opinion and Order for details. Signed by Judge John E. Steele on 11/30/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES ROTH, an individual,
Plaintiff,
v.
Case No: 2:14-cv-227-FtM-29CM
ABCW, LLC, a Florida limited
liability corporation and
CATARINO
A.
BORREGO,
an
individual,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Plaintiff's Motion for
Final Default Judgment against Defendants (Doc. #33) filed on March
28, 2016.
No response has been filed and the time to respond has
expired. 1
“The mere entry of a default by the clerk does not in itself
warrant the entry of default by the Court.
Rather the Court must
find that there is sufficient basis in the pleadings for the
judgment to be entered.” GMAC Commercial Mortg. Corp. v. Maitland
Hotel Assocs., Ltd., 218 F. Supp. 2d 1355, 1359 (M.D. Fla. 2002)
(citation omitted).
A complaint must state a claim in order for
default judgment to be granted.
1
Id.
The Court finds that an
Mail to Catarino Adrian Borrego, individually and on behalf
of ABCW, LLC was returned as undeliverable in June 2016, and mail
was not resent as unable to forward.
evidentiary hearing is not required in this case and will render
a decision based on the documents submitted.
When a default
judgment occurs, a defendant admits the plaintiff’s well-pled
allegations of fact.
If liability is well pled, it is established
by virtue of a default judgment.
Buchanan v. Bowman, 820 F.2d
359, 361 (11th Cir. 1987).
I.
Plaintiff James Roth (plaintiff) seeks the entry of judgment
against defendants ABCW, LLC dba Manzanillo’s (ABCW) and Catarino
A. Borrego (Borrego) (collectively, defendants) for failure to pay
minimum and overtime compensation under the Fair Labor Standards
Act
29
U.S.C.
§§
206-207
(FLSA)
(Count
I
and
II),
and
for
retaliation under 29 U.S.C. § 215(a) (Count III and IV).
Plaintiff filed his Complaint (Doc. #1) on April 21, 2014,
and defendants filed an Answer (Doc. #12) on August 15, 2014.
Counsel for both defendants moved to withdraw on July 6, 2015.
(Doc. #21.)
The Court granted the motion, directed Borrego to
retain new counsel, or to notify the Court that he intended to
proceed pro se, and instructed ABCW to retain new counsel because
corporations cannot represent themselves under the Local Rules.
(Doc. #22, ¶ 2.)
The Court expressly stated that failure to comply
with the Court’s Order may result in a default being entered
against defendants.
(Id.)
- 2 -
Defendants failed to comply with the Order, and on August 17,
2015, the Magistrate Judge issued an Order to Show Cause.
#25.)
(Doc.
Finding no response, the Magistrate Judge issued a Report
and Recommendation (Doc. #29) recommending that a default be
entered
against
defendants.
The
undersigned
adopted
the
recommendation, and directed the Clerk to strike the Answer and
Affirmative
Defenses
and
to
enter
a
default.
(Doc.
#30.)
Consequently a Clerk’s Entry of Default (Doc. #31) was entered
against defendants on February 3, 2016.
Therefore, plaintiff has
complied with the necessary prerequisite under Fed. R. Civ. P.
55(a) for a default judgment.
II.
A. FLSA Overtime Wage Violations
Counts I and II of the Complaint allege defendants failed to
pay plaintiff minimum wage in violation of the FLSA.
¶¶ 18-37.)
(Doc. #1,
FLSA requires employers to pay their employees at
least the federal or state minimum wage, whichever is greater, for
every hour worked.
See 29 U.S.C. §§ 206, 218(a).
Thus the lowest
wage defendants could have paid plaintiff in 2013 was $7.79 an
hour. 2
To establish a prima facie case for overtime compensation,
2
See 29 U.S.C. § 206(a)(1)(C) (establishing a federal minimum
wage of $7.25 an hour effective July 24, 2009). See also Isaula
v. Chi Rest. Grp., LLC, No. 13-cv-24387-JLK, 2014 WL 3477917 n.3
(S.D. Fla. July 11, 2014) (indicating that the State of Florida
minimum wage in 2013 was $7.79 an hour).
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a plaintiff must show: (1) defendant employed them; (2) defendant
is an enterprise engaged in interstate commerce covered by the
FLSA; (3) plaintiff worked in excess of a 40-hour workweek; and
(4) defendant did not pay overtime wages to him.
Morgan v. Family
Dollar Stores, Inc., 551 F.3d 1233, 1277 n.68 (11th Cir. 2008).
The
Eleventh
Circuit
has
held
“[t]he
overwhelming
weight
of
authority is that a corporate officer with operational control of
a corporation’s covered enterprise is an employer along with the
corporation, jointly and severally liable under the FLSA for unpaid
wages.”
Patel v. Wargo, 803 F.2d 633, 637-38 (11th Cir. 1986).
In the Complaint, plaintiff pled that he was a salaried nonexempt employee of ABCW, and was hired on or about August 9, 2013,
and terminated four weeks later on September 5, 2013.
¶ 9, 12, 15, 19.)
(Doc. #1,
Plaintiff provided the same information in his
Responses to Court’s Interrogatories (Doc. #17, ¶ 1).
Defendant
Borrengo has an ownership stake in and maintained operational
control of ABCW, a restaurant in Naples, Florida, at the time that
plaintiff was employed as an assistant manager.
4,
9.)
Plaintiff
engaged
in
interstate
(Doc. #1, ¶¶ 3-
commerce
by
making
telephone calls and processing credit card transactions as part of
his employment.
(Id., ¶ 5.)
Plaintiff was required to regularly
work 40 hours per week without compensation for the overtime hours,
and without any wages for several weeks.
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(Id., ¶¶ 13-14.)
Pursuant
to
plaintiff’s
sworn
Answers
to
Court’s
Interrogatories (Doc. #17), plaintiff stated that he was a Front
of House Manager who averaged 10 hours a day, 6 days a week, with
a regular rate of pay that was supposed to be $47,000 a year, but
plaintiff only received $400 a week.
Plaintiff stated that he was
misclassified and paid at a rate of $7.69 an hour, and that he is
owed $2,216.66 for the 4 weeks of work, and overtime compensation
for
48
hours
of
overtime
totaling
$542.40.
In
plaintiff’s
Declaration (Doc. #33-1), plaintiff declares that the annual gross
income of ABCW was in excess of $500,000, and ABCW refused to
respond to requests for records on this issue.
(Id., ¶ 5.)
Borrego owns and controls ABCW, and regularly required plaintiff
to work in excess of 40 hours per workweek without compensating
for overtime hours.
(Id., ¶¶ 6, 8.)
Plaintiff states that he was
not paid $2,759.06 of minimum wage and overtime wages.
(Id., ¶
12.)
“As a general rule, the FLSA provides that employees are
entitled to receive overtime pay at one and one-half times their
regular rate for all hours worked in excess of forty per week.”
Avery v. City of Talladega, Ala., 24 F.3d 1337, 1340 (11th Cir.
1994) (referencing 29 U.S.C. § 207(a)(1)).
While plaintiff has
not produced any time sheets or time cards, “the 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
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sufficient evidence to show the amount and extent of that work as
a matter of just and reasonable inference.”
Etienne v. Inter-
County Sec. Corp., 173 F.3d 1372, 1373 (11th Cir. 1999) (citations
omitted).
In this case, plaintiff signed sworn interrogatories
as to this hours and wages.
The Court finds that plaintiff has
adequately pled the failure to pay overtime wages under the FLSA,
which allegations are deemed admitted.
In the motion, plaintiff
only asserts a claim for the unpaid overtime wages in the amount
of $542.40, plus an equal amount for authorized liquidated damages.
This amount was reached by using the hourly rate that plaintiff
was paid, multiplied by time and one half for the overtime rate.
However, the hourly rate is below the legal minimum wage rate of
$7.79 an hour (multiplied by time and one half) for an hourly rate
of $11.69 an hour for the 48 hours claimed.
The Court will grant
the motion as to the requested overtime wages ($561.12) and an
equal amount for liquidated damages 3 ($561.12) for a total of
($1,122.24) as to Counts I and II.
B. FLSA Retaliation Claims
In Counts III and IV of the Complaint (Doc. #1), plaintiff
alleges retaliation in violation of the FLSA.
3
In order to show a
Under the FLSA, liquidated damages are mandatory unless the
employer can show that it acted in good faith and had reasonable
grounds to believe that its actions did not violate the FLSA
overtime requirement. Glenn v. Gen. Motors Corp., 841 F.2d 1567,
1573 (11th Cir. 1988).
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prima facie case for retaliation, a plaintiff must adequately
plead: (1) he engaged in activity protected under the FLSA, (2) he
subsequently suffered an adverse/action by the employer, (3) a
causal connection existed between his protected activity and the
adverse action by the employer.
Wolf v. Coca-Cola Co., 200 F.3d
1337, 1342-43 (11th Cir. 2000).
Plaintiff pled that he was discharged in direct response to
his seeking enforcement and correction of ABCW’s refusal to pay
proper wages, and by seeking enforcement and correction in writing,
plaintiff engaged in protected activity.
(Doc. #1, ¶¶ 39-40.)
Plaintiff suffered an adverse employment action, his termination
from employment, as a direct result of seeking proper payment under
the FLSA.
discharge
(Id., ¶¶ 41-42.)
by
Borrego
was
Plaintiff further pled that his
in
direct
response
to
him
seeking
enforcement and correction of his wages in writing, a protected
activity under 29 U.S.C. §215(a).
(Id., ¶¶ 44-46.)
As a result,
plaintiff was terminated from his employment and the proximate
cause of the termination was that he engaged in the protected
activity.
(Id., ¶ 47.)
Pursuant
to
plaintiff’s
sworn
Answers
to
Court’s
Interrogatories (Doc. #17), plaintiff states that he was a Front
of House Manager who averaged 10 hours a day, 6 days a week, with
a regular rate of pay that was supposed to be $47,000 a year, but
plaintiff only received $400 a week.
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Plaintiff asserted that he
was only paid $1,600 a month, which amount should have been
$3,916.66 a month based on the $47,000 salary.
(Doc. #17, ¶ 7.)
In plaintiff’s Declaration (Doc. #33-1), plaintiff states
that he quit a job that paid $750.00 to accept employment at ABCW’s
Mexican restaurant.
(Id., ¶ 3.)
Borrego owns and controls ABCW,
and regularly required plaintiff to work in excess of 40 hours per
workweek without compensating for overtime hours.
(Id., ¶¶ 6, 8.)
Plaintiff states that ABCW also failed to pay any wages for several
weeks, to which plaintiff objected, and plaintiff was subsequently
terminated.
(Id., ¶¶ 9-10.)
Plaintiff was scheduled to work from
9:00 a.m. through 8:00 p.m., Monday through Friday, and as needed.
(Id., ¶ 11.)
Plaintiff states that he was not paid $2,759.06 of
minimum wage and overtime wages.
(Id., ¶ 12.)
As a result,
plaintiff alleges that he lost $131,208.78 in wages, and that he
has earned $87,210.24, since the termination.
(Id., ¶¶ 13-14.)
The current employment pays at a rate of $1,794.74, and defendants
were supposed to pay plaintiff $3,916.66.
(Id., ¶ 15.)
The Court finds that Counts III and IV of the Complaint
adequately plead retaliation in violation of the FLSA, and when
deemed admitted are sufficient to support a default judgment on
both
counts.
In
the
Complaint,
plaintiff
seeks
liquidated
damages, costs, interest, and attorney’s fees in the Complaint.
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C. Retaliation Damages
Upon establishing a claim for retaliation under the FLSA, 29
U.S.C. § 215(a)(3), an employer is “liable for such legal or
equitable relief as may be appropriate to effectuate the purposes
of section 215(a)(3) of [the FLSA], including without limitation
employment, reinstatement, promotion, and the payment of wages
lost and an additional equal amount as liquidated damages.”
U.S.C. § 216(b).
29
The Eleventh Circuit has determined that as
applied to a Section 215(a)(3) retaliation claim, an award of
liquidated
damages
is
discretionary,
and
that
it
“gives
the
district court discretion to award, or not to award, liquidated
damages, after determining whether doing so would be appropriate
under the facts of the case.”
Moore v. Appliance Direct, Inc.,
708 F.3d 1233, 1243 (11th Cir. 2013).
“[T]he liquidated damage
provision is not penal in its nature but constitutes compensation
for the retention of a workman’s pay which might result in damages
too obscure and difficult of proof for estimate other than by
liquidated damages.”
Snapp v. Unlimited Concepts, Inc., 208 F.3d
928, 934 (11th Cir. 2000).
Therefore, damages are intended to
compensate plaintiff, and punitive damages are not included.
Id.
Back Pay
Plaintiff
seeks
$131,208.78
in
back
wages
from
his
termination date and for the 134 weeks he was out of work, at a
rate $979.17 a week.
Plaintiff has since earned $87,210.24, and
- 9 -
therefore
the
total
amount
of
damages
sought
is
reduced
to
$43,998.54, plus an equal amount for liquidated damages.
“The language of Section 216(b) plainly calls for a deduction
of interim earnings from gross back pay allowable as wages lost
due to a retaliatory discharge.
additional equal amount.
net back pay.”
Liquidated damages are then an
That is, liquidated damages should equal
EEOC v. White & Son Enters., 881 F.2d 1006, 1013
(11th Cir. 1989) (emphasis in original).
Based on the allegations deemed admitted, the Court will award
plaintiff back pay in the amount of $43,998.54, as well as an equal
amount in liquidated damages.
Front Pay
Plaintiff asserts he should be awarded front pay in the amount
of
$25,463.04
based
on
defendants’
retaliatory
behavior
of
terminating him for engaging in protected activity, and for a
period of 12 months.
“Front pay may be particularly appropriate
in lieu of reinstatement where discord and antagonism between the
parties would render reinstatement ineffective as a make-whole
remedy.”
Goldstein v. Manhattan Indus., 758 F.2d 1435, 1449 (11th
Cir. 1985).
Courts
must
However, the Eleventh Circuit has indicated that
be
careful
when
awarding
front
pay
as
it
can
overcompensate a plaintiff, and that it is “warranted only by
egregious circumstances.”
See Lewis v. Fed. Prison Indus., Inc.,
953 F.2d 1277, 1281 (11th Cir. 1992).
- 10 -
“The duty to mitigate
damages by seeking employment elsewhere will, of course, limit the
amount of front pay available.” Castle v. Sangamo Weston, Inc.,
837 F.2d 1550, 1562 (11th Cir. 1988).
In this case, plaintiff was hired and fired in just over a
month, there is no indication of what efforts plaintiff took to
mitigate his damages, if any, during the 134 weeks of unemployment,
and also no information of when plaintiff started his new/current
job.
The
Court
finds
that
plaintiff
is
being
generously
compensated through the back pay award, and the Court exercised
its discretion to award liquidated damages.
The Court declines
to also award front pay in this case.
Accordingly, it is hereby
ORDERED:
A. Plaintiff's
Motion
for
Final
Default
Defendants (Doc. #33) is GRANTED IN PART.
Judgment
against
The Clerk shall
enter default judgment in favor of plaintiff and against
defendants on all counts as follows:
1. As to Counts I and II, unpaid overtime compensation in
the amount of $561.12, and an equal amount for liquidated
damages
in
the
amount
of
$561.12,
for
a
total
of
$1,122.24;
2. As to Counts III and IV, back pay in the amount of
$43,998.54, plus an equal amount in liquidated damages,
for a total of $87,997.08.
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3. Front pay is DENIED.
B. The Clerk is further directed to terminate all pending
matters and to close the file.
C. Any motion for attorney’s fees and/or costs shall be filed
within FOURTEEN (14) DAYS of the entry of judgment.
DONE and ORDERED at Fort Myers, Florida, this
of November, 2016.
Copies:
Counsel of Records
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30th
day
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