Anguelov v. Event Parking, Inc. et al
Filing
41
OPINION AND ORDER denying without prejudice 40 Motion for Default Judgment. Plaintiff may file an amended motion or file and serve an amended complaint within 14 days. See Opinion and Order for details. Signed by Judge John E. Steele on 4/14/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KALOYAN
ANGUELOV,
for
himself and on behalf of
those similarly situated,
and NIKOLAY KORICHKOV, optin plaintiff,
Plaintiffs,
v.
Case No: 2:16-cv-273-FtM-29CM
EVENT
PARKING,
INC.,
a
Florida profit corporation
and
KENNETH
BENSON,
individually,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of plaintiffs'
Motion for Final Default Judgment (Doc. #40) filed on January 31,
2017.
No response has been filed and the time to respond has
expired.
For the reasons stated below, the motion will be denied
without prejudice.
On April 12, 2016, plaintiff Kaloyan Anguelov (plaintiff or
Anguelov) filed a Complaint (Doc. #1) against Event Parking, Inc.
(Event
Parking)
and
Kenneth
Benson
(Benson)
(collectively
defendants) seeking recovery of minimum wage under both the Fair
Labor Standards Act (FLSA) and Article X, Section 24 of the Florida
Constitution, as well as for unpaid overtime compensation under
the FLSA.
On April 13, 2016, Nikolay Korichkov (opt-in plaintiff
or Korichkov) filed a Consent to Join the lawsuit.
In 2009, defendants hired plaintiff as a valet attendant to
park cars.
(Doc. #1, ¶ 15.)
From at least 2009 continuing through
June 2015, defendants failed to pay plaintiff proper minimum wage
for all his hours, and failed to maintain proper time records.
(Id., ¶ 21.)
Plaintiff asserts that he had no set hourly rate of
pay, and that the tips he received were to constitute his pay.
(Doc. #31-1; Doc. #40-1, Exh. 1, ¶ 5.)
Plaintiff alleges that he
was engaged in commerce while an employee of defendants, and Benson
had authority to hire and fire employees, determine work schedules,
and control the finances and operations of Event Parking at all
relevant times.
(Doc. #1, ¶¶ 6-9.)
Plaintiff further alleges
that Event Parking’s annual gross revenue was in excess of $500,000
per annum.
(Id., ¶ 12.)
Plaintiff alleges that Event Parking was
an enterprise engaged in commerce and an enterprise engaged in
commerce and an enterprise engaged in the production of goods for
commerce within the meaning of the FLSA.
(Id., ¶ 11.)
Plaintiff
alleges that defendants had 2 or more employees handling, selling,
or otherwise working on goods or materials that had been moved in
or produced for commerce, such as automobiles.
(Id., ¶ 13.)
Under the FLSA, an employer is required to pay each of his or
her employees “who in any workweek is engaged in commerce or in
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the
production
of
goods
for
commerce,
or
is
employed
in
an
enterprise engaged in commerce or in the production of goods for
commerce, wages” at the listed minimum wages.
29 U.S.C. § 206(a).
An exception is provided for tipped employees to allow payment of
“pay less than the general minimum wage—$2.13 per hour—to a “tipped
employee” as long as the employee’s tips make up the difference
between the $2.13 minimum wage and the general minimum wage.”
Montano v. Montrose Rest. Assocs., Inc., 800 F.3d 186, 188 (5th
Cir. 2015) (citing 29 U.S.C. § 203(m)).
203(t)
(A
“tipped
employee”
is
“any
See also 29 U.S.C. §
employee
engaged
in
an
occupation in which he customarily and regularly receives more
than $30 a month in tips.”).
Plaintiff does not address the amount
of tips he received, and seeks the minimum wage for all hours work.
Plaintiff also does not indicate what credit should be applied for
tips, or whether the employer retained the tips so that no credit
is due.
Plaintiff also does not discuss or argue how Event Parking is
an enterprise engaged in commerce, or more specifically what goods
or materials were being handled, sold, or worked on.
There are
two types of coverage under the FLSA: individual coverage (where
an employee is engaged in commerce) and enterprise coverage (where
an employee works for an enterprise engaged in commerce).
plaintiff to have been “engaged in commerce”, plaintiff:
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For
must be directly participating in the actual
movement of persons or things in interstate
commerce by (i) working for an instrumentality
of interstate commerce, e.g., transportation
or communication industry employees, or (ii)
by regularly using the instrumentalities of
interstate commerce in his work, e.g., regular
and recurrent use of interstate telephone,
telegraph, mails, or travel.
Thorne v. All Restoration Servs., Inc., 448 F.3d 1264, 1266 (11th
Cir. 2006) (citations omitted).
“Commerce” is defined to include
trade, commerce, transportation, transmission, or communication
among or between states.
individual
coverage,
it
29 U.S.C. § 203(b).
is
the
character
of
To determine
the
activities
themselves that are determinative, in this case, the parking of
vehicles.
Jimenez v. S. Parking, Inc., No. 07-23156-CIV, 2008 WL
4279618, at *7 (S.D. Fla. Sept. 16, 2008) (citing Overstreet v. N.
Shore Corp., 318 U.S. 125, 132 (1943)).
See also 29 U.S.C. §
203(s)(1) (defining enterprise engaged in commerce as one with an
annual gross volume of sales not less than $500,000).
Plaintiff’s allegation in the Complaint that both types of
coverage apply is a legal conclusion and insufficient to be deemed
admitted without a supporting factual statement as to why Event
Parking was engaged in interstate commerce.
Some courts that have
addressed claims by a valet attendant under the FLSA have thus far
found that parking cars is a service and not the production of
goods, and that parking cars that were manufactured outside the
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state or that had travelled in interstate commerce was not engaging
in commerce.
See, e.g., Jimenez, 2008 WL at *8 (on summary
judgment, finding plaintiff was not engaged in commerce, and
“activities merely affecting commerce” are insufficient); Asalde
v. First Class Parking Sys. LLC, No. 16-20027-CIV, 2016 WL 5464599,
at *2 (S.D. Fla. Sept. 29, 2016) (finding that production of goods
for commerce was not applicable to valet parking), appeal filed,
No. 16-16814 (11th Cir. Oct. 28, 2016).
Other courts have not
addressed the issue, or the case is distinguishable.
See, e.g.,
Weisel v. Singapore Joint Venture, Inc., 602 F.2d 1185, 1187 & n.2
(5th Cir. 1979 1) (finding plaintiff was an employee of the hotel
serving as a parking valet with additional duties like cleaning
the hotel entrance); Farasat v. RP Managing Partners, LLC, No.
3:13-CV-270-L, 2016 WL 304871, at *1 (N.D. Tex. Jan. 26, 2016)
(issue not raised or addressed).
After review of the Complaint, plaintiff’s Answers to Court’s
Interrogatories, the Motion, and the Affidavits in support by
plaintiff and the opt-in plaintiff, the Court finds that the facts
do not support finding that Event Parking is covered by the FLSA.
The motion will be denied without prejudice, and plaintiff will be
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc) the Eleventh Circuit adopted as binding
precedent all the decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981.
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provided an opportunity to respond to the issues identified herein,
if the claims can be supported.
In the alternative, plaintiff may
amend the complaint and serve defendants pursuant to Fed. R. Civ.
P. 4.
Accordingly, it is hereby
ORDERED:
1. Plaintiffs' Motion for Final Default Judgment (Doc. #40)
is DENIED without prejudice.
2. Plaintiff may file an amended motion within FOURTEEN (14)
DAYS of this Order to include argument and affidavits that
adequately addressing the tip issue, and whether Event
Parking is an enterprise engaged in commerce.
alternative,
plaintiff
may
file
and
serve
an
In the
amended
complaint that contains sufficient factual allegations.
DONE and ORDERED at Fort Myers, Florida, this
of April, 2017.
Copies:
Counsel of Record
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14th
day
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