Santana v. The Duke, LLC et al
ORDER adopting 41 REPORT AND RECOMMENDATIONS re 1 Complaint filed by Edward Santana. The Report and Recommendation 41 is ACCEPTED and ADOPTED and the findings are incorporated herein. The Court enters default against the Defendants bu t RESERVES RULING on final default judgment. The issue of default final judgment will be set by separate order of the Magistrate Judge who will conduct whatever proceedings are required to render a Report and Recommendation on damages, attorney's fees, and costs. Signed by Judge Sheri Polster Chappell on 10/14/2016. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No: 2:16-cv-190-FtM-99MRM
THE DUKE, LLC and FABIO
This matter comes before the Court on United States Magistrate Judge Mac R.
McCoy’s Report and Recommendation (Doc. #41) filed on September 21, 2016,
recommending that the Court enter default against pro se Defendants Fabio Bonifacio
and The Duke, LLC for failure to comply with this Court’s Orders to obtain counsel. No
objections have been filed and the time to do so has now expired. The matter is ripe for
A district judge “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). If no specific
objections to findings of fact are filed, the district judge is not required to conduct a de
novo review of those findings. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir.
1993). However, the district judge must review legal conclusions de novo, even in the
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absence of an objection. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604
(11th Cir. 1994)
After careful consideration of the Report and Recommendation and an
independent review of the file, the Court adopts, accepts, and approves the Report and
Recommendation and finds that the entry of default against the Defendants is
appropriate. The Court notes that the pro se Defendants have been afforded ample
opportunity to obtain new counsel to defend this action, and given more than sufficient
forewarning that default would be entered against them if they failed to do so. Therefore,
the Court agrees that defaults should be entered for failure to comply with this Court’s
However, “[a]lthough a defaulted defendant admits well-pleaded allegations of
liability, allegations relating to the amount of damages are not admitted by virtue of
default. Rather, the Court determines the amount and character of damages to be
awarded.” Miller v. Paradise of Port Richey, Inc., 75 F. Supp. 2d 1342, 1346 (M.D. Fla.
1999) (emphasis added). Thus, even where a default judgment is warranted, the Court
may first hold a hearing for the purposes of assessing damages. Fed. R. Civ. P. 55(b)(2);
see also SEC v. Smyth, 420 F.3d 1225, 1232 n.13 (11th Cir. 2005). “The Federal Rules
of Civil Procedure make a clear distinction between the entry of default and the entry of
a default judgment. The default is entered upon the defendant’s failure to plead or
otherwise defend, Fed. R. Civ. P. 55(a), but if an evidentiary hearing or other proceedings
are necessary in order to determine what the judgment should provide, such as the
amount of damages that the defaulting defendant must pay, those proceedings must be
conducted before the judgment is entered. See Rule 55(b)(2)’” Smyth, 420 F.3d at 1231-
32 (quoting Lowe v. McGraw-Hill Cos., 361 F.3d 335, 339-40 (7th Cir. 2004)) (emphasis
added). However, such a hearing is not necessary if the record contains sufficient
evidence to support the request for damages. Id. at 1232 n.13.
In this case for minimum wage violations and retaliation under the Fair Labor
Standards Act (FLSA), the only evidence of Plaintiff pro se Edward Santana’s damages
and costs are those listed in his Answers to the Court’s Interrogatories, which the Court
notes were declared under the penalty of perjury as true and correct. 2 (Doc. #26). While
proof of damages in FLSA cases “may be put forth by affidavit averments alone, the Court
is not required to accept such evidence unquestioningly.” Roberts v. Lee A. Stephens
Security, Inc., 2007 WL 2579599 at *1 (M.D. Fla. May 10, 2007) (internal citations
omitted). Thus, the Court withholds entry of final default judgment pending the outcome
of a damages determination.
ACCORDINGLY, it is hereby
The Report and Recommendation (Doc. #41) is ACCEPTED and
ADOPTED and the findings are incorporated herein.
The Court enters default against the Defendants but RESERVES RULING
on final default judgment.
The issue of default final judgment will be set by separate order of the
Magistrate Judge who will conduct whatever proceedings are required to render a Report
and Recommendation on damages, attorney’s fees, and costs.
Plaintiff did file a “Damages Statement” (Doc. #21), but the Court notes that this is duplicative of his
Answers to the Court’s Interrogatories.
DONE and ORDERED in Fort Myers, Florida this 14th day of October, 2016.
Copies: All Parties of Record
Judge Mac R. McCoy
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