Whetsell v. M&M Realty Solutions, LLC et al

Filing 30

ORDER granting 28 Motion for Default Judgment in favor of plaintiff as to Count I as set forth in the Order; dismissing without prejudice Counts II and III. The Clerk shall enter judgment accordingly, terminate all deadlines, and close the case. Signed by Judge John E. Steele on 2/10/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RONALD
WHETSELL,
individual,

an

Plaintiff,
v.

Case No: 2:14-cv-316-FtM-29MRM

M&M REALTY SOLUTIONS, LLC, a
Florida limited liability
company and ANGEL GONZALEZ,
an individual,
Defendants.
ORDER
This matter comes before the Court on plaintiff’s Motion for
Entry of Default Final Judgment (Doc. #28) filed on July 20, 2015.
No responses have been filed and the time to respond has expired.
The Court finds that an evidentiary hearing is not required in
this case and will render a decision based on the documents
submitted.
I.
On June 9, 2014, plaintiff filed a Complaint (Doc. #1) and is
currently proceeding on his Amended Complaint (Doc. #4) against
his previous employer M&M Realty Solutions, LLC (M&M Realty), and
operator of the company Angel Gonzalez (Gonzalez).

Plaintiff

seeks damages for unpaid overtime compensation under the Fair Labor
Standards Act 29 U.S.C. § 201, et seq. (FLSA) (Count I), violations

of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA),
Fla. Stat. § 501.201 et seq. (Count II), and violations of 26
U.S.C. § 7434 due to defendants’ policy of misclassifying plaintiff
(Count III).
Defendants answered the Complaint on July 24, 2014.
#13.)

(Doc.

Counsel for both defendants moved to withdraw on February

16, 2015.

(Doc. #20.)

The Court granted the motion and directed

Gonzalez to retain new counsel or notify the Court that he intended
to proceed pro se.

(Doc. #21.)

Because corporations cannot

represent themselves, the Court instructed M&M Realty to retain
new counsel and have new counsel file a notice of appearance in
this matter within thirty (30) days.

(Id.)

The Court made clear

that failure to comply with the Court’s Order may result in a
default entered against the defendants.

(Id.)

Defendants failed to comply with the Court’s Order.

An Order

to Show Cause was issued and defendants failed to respond.
#22.)

(Doc.

Consequently, a Clerk’s Entry of Default (Doc. #26) was

issued against both defendants.
with the

Therefore, plaintiff has complied

necessary prerequisite under Fed. R. Civ. P. 55(a) for

a default judgment.
II.
“A defendant, by his default, admits the plaintiff’s wellpleaded allegations of fact, is concluded on those facts by the
judgment, and is barred from contesting on appeal the facts thus

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established.

[ ] A default judgment is unassailable on the merits,

but only 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).
A. Allegations of the Complaint
Upon information and belief at all relevant times, M&M Realty
was an enterprise engaged in interstate commerce, or the production
of goods for interstate commerce, with an annual gross revenue in
excess of $500,000.

(Doc. #4, ¶ 6.)

Defendant Gonzalez owned

and/or operated M&M Realty and exercised his authority to hire and
fire employees, determine work schedules, and control finances.
Plaintiff was an employee of defendants.

(Id. ¶ 7.)

Plaintiff was employed by defendants as a property manager
from

approximately

May

2012

to

May

30,

2013.

(Id.

¶

25.)

Plaintiff was paid $400.00 per week for a forty (40) hour workweek.
(Id.

¶

14.)

contractor.

Plaintiff
(Id. ¶ 31.)

was

misclassified

as

an

independent

Plaintiff was not compensated at a rate

of one and one-half times his regular rate of pay for hours worked
in excess of the forty hour workweek.

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(Id. ¶ 26.)

B. FLSA Claim
“[T]he requirements to state a claim of a FLSA violation are
quite straightforward.”

Sec'y of Labor v. Labbe, 319 F. App’x

761, 763 (11th Cir. 2008).
unpaid

wages,

relationship;

an
(2)

employee
that

the

To state a claim under the FLSA for
must

allege

employer

or

(1)

an

employee

employment
engaged

in

interstate commerce; and (3) that the employer failed to pay
overtime compensation and/or minimum wages.

Morgan v. Family

Dollar Stores, Inc., 551 F.3d 1233, 1277 n. 68 (11th Cir. 2008);
Sec’y of Labor v. Labbe, 319 F. App’x 761, 763 (11th Cir. 2008);
Vestey v. Publix Super Markets, Inc., No. 13–CV–2281, 2013 WL
5929061, at *2 (M.D. Fla. Nov. 1, 2013).
By defaulting, defendants admit that plaintiff was employed
by them during the relevant time period; admits that it was an
enterprise within the definition of the FLSA; and admits that it
failed to pay overtime compensation as required by the FLSA.

This

is sufficient to establish that defendants are liable to pay
plaintiff overtime wages he is owed for his work.

Deeming all

factual allegations as true and admitted, the Court finds that the
Amended Complaint is adequately pled to support the entry of a
default judgment against defendants as to Count I.
Finding no evidence presented or damages sought as to Counts
II and III, the Court will dismiss these counts without prejudice.

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III.
In his Declaration (Doc. #28-1), Plaintiff states that he was
employed from approximately May 7, 2012, through May 31, 2013 and
worked approximately 41-48 hours per week.
total

of

66

overtime

hours

throughout

Plaintiff worked a
his

defendants for which he received no compensation.

employment

with

Plaintiff seeks

$990.00 in unpaid overtime compensation (one and one half times
the $10.00 per hour equivalent of his salary).

Plaintiff also

seeks liquidated damages equal to the total of the unpaid overtime
compensation

in

the

amount

of

$990.00.

Finding

no

records

available to the contrary, the Court finds that plaintiff is
entitled to the requested actual damages of $990.00, and liquidated
damages of $990.00 for a total of $1,980.00.
Plaintiff also seeks attorney’s fees and costs.

A Court, in

addition to any judgment awarded to plaintiff, “shall . . . allow
a reasonable attorney’s fees to be paid by the defendant[s], and
costs of the action.”

29 U.S.C. § 216(b).

Plaintiff has provided

the Declaration of Bradley Paul Rothman (Doc. #28-4) of Weldon &
Rothman, PL., a Board Certified Labor and Employment Law attorney.
Mr. Rothman provided legal services to plaintiff at the rate of
$300.00 per hour.

Mr. Rothman expended 21.9 hours of time on the

case for a total of $6,570.00 in attorney’s fees.

Plaintiff also

incurred the cost of the filing fee in the amount of $400.00.

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Considering the procedural history of the case, the Court
finds that the rate and the hours expended on this matter are
reasonable.

Therefore, attorney fees will be granted.

The costs

are otherwise taxable and therefore will also be granted.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff’s Motion for Entry of Default Final Judgment

(Doc. #28) is GRANTED in favor of plaintiff as to Count I as
follows:
A.

Plaintiff

is

compensation,

awarded
plus

an

$990.00

equal

amount

for

overtime

of

liquidated

damages, for a total of $1,980.00; and
B.

Plaintiff is awarded $6,570.00 in attorney’s fees and
$400.00 in taxable costs pursuant to 29 U.S.C. §
216(b).

2.

Counts II and III are dismissed without prejudice.

3.

The Clerk shall enter judgment accordingly, terminate
all deadlines as moot, and close the case.

DONE and ORDERED in Fort Myers, Florida on this
of February, 2016.

Copies: All Parties of Record

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10th

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