Escalona v. Gulf Coast Readers, Inc. et al

Filing 22

ORDER granting 20 Plaintiff, Annia Escalona's Motion for Default Judgment against Defendants and judgment shall issue in favor of Plaintiff and against Defendants as provided herein. a. Plaintiff is awarded statutory damages, including liquidated damages, against Defendants jointly and severally in the amount of $1,506.96. b.Plaintiff is awarded $3,185.00 in attorney's fees and $400.00 in costs incurred as the prevailing party pursuant to 29 U.S.C. § 216(b) against Defendants jointly and severally. The Clerk of Court is DIRECTED to enter judgment accordingly, terminate all deadlines, and close the file. Signed by Judge Sheri Polster Chappell on 11/29/2016. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANNIA ESCALONA, an individual
Plaintiff,
v.

Case No: 2:16-cv-302-FtM-38CM

GULF COAST READERS, INC., a
Florida profit corporation, ARCO
MEDIA, INC., a Florida profit
corporation, ANTHONY E.
MOULDER, an individual, and
RHONDA MOULDER, an individual,
Defendants.
/
ORDER1
This matter is before the Court on review of Plaintiff, Annia Escalona’s Motion for
Default Judgment (Doc. #20) filed on September 28, 2016. In support, Escalona filed the
Declaration of her counsel of record, Bradley Paul Rothman (Doc. #20-4). Defendants,
Gulf Coast Readers, Inc., Arco Media, Inc., Anthony E. Moulder, and Rhonda Moulder
(collectively “Defendants”) have not filed a response in opposition, and the time to do so
has expired. Thus, the matter is now ripe for review.

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BACKGROUND
On March 10, 2015, Escalona filed a one-count Complaint against the Defendants,
alleging that they failed to pay her minimum wage for hours she worked from December
1, 2015 through December 17, 2015, in violation of the Fair Labor Standards Act (FLSA).
(Doc. # 1 at ¶¶ 1, 20). Specifically, Escalona alleges that she was employed by the
Defendants from approximately 2010 through December 17, 2015, and that at some point
prior to December 17, 2015, she lodged a sexual harassment complaint with the
Defendant.2

(Doc. #1 at ¶ 20).

While it is unclear if Escalona was subsequently

terminated or quit on her own volition, her employment with the Defendants ceased on
December 17, 2015. (Doc. #1 at ¶ 20). She claims that Defendants retaliated against
her by withholding her pay from December 1, 2015 to December 17, 2015. (Doc. #1 at ¶
20).
Escalona served Defendants with the Complaint on May 3, 2016. (Docs. #9, #10,
#11, #12). Despite service, Defendants have failed to make an appearance in the case.
Thereafter, Escalona moved for, and was granted, a Clerk’s Default on June 29, 2016.
(Doc. #17).

Escalona now moves for default final judgment, seeking relief under 29

U.S.C. § 206 for failure to pay her wages; an award of liquidated damages in an amount
equal to the federal minimum wage compensation owed under 29 U.S.C. §216(b); and

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Although Escalona suggests that Defendants retaliated against her for complaining about sexual harassment,
she is not seek damages for retaliation under 29 U.S.C. § 215(a)(3).

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an award of post-judgment interest, reasonable attorneys’ fees, and costs under 29
U.S.C. § 216(b). (Doc. #1 at ¶ 28).
LEGAL STANDARD
Federal Rule of Civil Procedure 55 establishes a two-step procedure for obtaining
default judgment. See Fed. R. Civ. P. 55. First, when a defendant fails to plead or
otherwise defend a lawsuit, the clerk of the court must enter a clerk's default against the
defendant. Cohan v. Rist Properties, LLC, No. 2:14-cv-439-FTM, 2015 WL 224640, at
*1-2 (M.D. Fla. Jan. 15, 2015) (citing Fed. R. Civ. P. 55(a)). Second, after receiving the
clerk’s default, the court can enter a default judgment provided the defendant is not an
infant or incompetent. Id. (citing Fed. R. Civ. P. 55(b)(2)); see also Solaroll Shade &
Shutter Corp. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1134 (11th Cir. 1986) (stating a
default judgment may be entered “against a defendant who never appears or answers a
complaint, for in such circumstances the case never has been placed at issue”).
An entry of a clerk’s default, however, does not per se warrant an entry of default
judgment.

Rather, a court may enter a default judgment only if "the well-pleaded

allegations in the complaint, which are taken as true due to the default, actually state a
substantive cause of action and that there is a substantive, sufficient basis in the
pleadings for the particular relief sought.” Tyco Fire & Sec., LLC v. Alcocer, 218 F. App’x
860, 863 (11th Cir. 2007); Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d
1200, 1206 (5th Cir. 1975). “The defendant, by his default, admits the plaintiff’s wellpleaded allegations of fact . . . A default judgment is unassailable on the merits but only
so far as it is supported by well-pleaded allegations, assumed to be true.” Nishimatsu,
515 F.2d at 1206. “The defendant is not held to admit facts that are not well-pleaded or

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to admit conclusions of law . . . a default is not treated as an absolute confession of the
defendant of his liability and of the plaintiff’s right to recover.” Id. In considering a motion
for default judgment, courts must “examine the sufficiency of plaintiff’s allegations to
determine whether the plaintiff is entitled to” relief. PNC Bank, N.A. v. Starlight Props. &
Holdings, LLC, No. 6:13-cv-408, 2014 WL 2574040, at *1 (M.D. Fla. June 9, 2014)
(internal citation omitted).
DISCUSSION
I.

Minimum Wage Compensation Due Under FLSA
In order for a plaintiff to prevail on a claim for payment of minimum wages, he or

she must meet the requirements set forth in FLSA, 29 U.S.C. § 206, which provides that
“[e]very employer shall pay to each of his employees who in any workweek is engaged in
commerce or in the production of goods for commerce, or is employed in an enterprise
engaged in commerce or in the production of goods for commerce, wages…” in
accordance with the minimum wage requirements. Pursuant to 29 U.S.C. § 203(s),
“enterprise engaged in commerce or in the production of goods for commerce” means an
enterprise that:
(A)(i) has employees engaged in commerce or in the production of goods
for commerce, or that has employees handling, selling, or otherwise working
on goods or materials that have been moved in or produced for commerce
by any person; and
(ii) is an enterprise whose annual gross volume of sales made or business
done is not less than $500,000 (exclusive of excise taxes at the retail level
that are separately stated).
29 U.S.C. § 203(s)(1).
In the Complaint, Escalona alleges that she was employed by Defendants and
engaged in the commerce or production of goods for commerce and that Defendants had
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an annual gross sales volume of not less than $500,000. (Doc. #1 at ¶¶ 15-17). Taking
these allegations as true when determining default, Plaintiff has adequately pled that she
is entitled to minimum wage compensation under the FLSA.
In support of the amount of wages she is due, Plaintiff submitted her Declaration,
in which she states that from December 1, 2015 through December 17, 2015, she worked
on a full-time basis but received no compensation.

(Doc. #20-1). This time period

represents 93.6 hours of work, multiplied by $8.50 per hour which is the minimum wage
rate in Florida, which totals $753.48 in minimum wages. (Id.; Doc. #20, p. 8).
In further regards to liability, Escalona alleges that all Defendants are joint
employers under the FLSA as Defendants Gulf Coast Readers, Inc. and Arco Media, Inc.
were owned and operated by Defendants Anthony E. Moulder and Rhonda Moulder.
(Doc. #1 at ¶¶ 7-8). Plaintiff alleges that Anthony and Rhonda exercised authority to hire
and fire employees, determine their work schedules, and controlled the finances of the
corporation. (Id. at ¶ 8). “The 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 632, 637-38 (11th Cir. 1986) (quoting Donovan v. Agnew, 712 F.2d
1509, 1511 (1st Cir. 2983)). Based upon Plaintiff’s allegations, the Court finds that
Defendants are jointly and severally liable for Plaintiff’s unpaid wages.
II.

Liquidated Damages
“Any employer who violates the provisions of sections 206 or section 207 of…[the

FLSA] shall be liable to the employee…affected in the amount of their unpaid minimum
wages, or their unpaid overtime compensation, as the case may be, and in an additional

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equal amount as liquidated damages.” 29 U.S.C. § 216(b). In this regard, Plaintiff alleges
that Defendants intentionally withheld Plaintiff’s final paycheck in retaliation for Plaintiff
making a complaint of sexual harassment in the workplace. (Doc. #1 at ¶ 20).
Based upon Plaintiff’s well-pled allegations and Defendants’ failure to oppose the
imposition of liquidated damages, the Court finds that Plaintiff is entitled to liquidated
damages.

As previously noted, courts in the Middle District of Florida have found

defendants jointly and severally liable for the purposes of liquidated damages. Wallace
v. The Kiwi Grp., Inc., 247 F.R.D. 679, 684 (M.D. Fla. 2008).
III.

Attorney’s Fees and Costs
The plain language of 29 U.S.C. § 216(b) states that when a plaintiff prevails in a

cause of action under the FLSA “[t]he court…shall, in addition to any judgment awarded
to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant,
and costs of the action.”

29 U.S.C. § 216(b).

A reasonable hourly rate is based

“according to the prevailing market rates in the relevant community.” Gaines v. Dougherty
County Bd. Of Educ., 775 F.2d 1565, 1571 (11th Cir. 1985). “The fee applicant bears the
burden of . . . documenting the appropriate hours and hourly rates.” ACLU v. Barnes,
168 F.3d 423, 427 (11th Cir. 1999). Furthermore, courts in the Middle District of Florida
have ordered defendants, jointly and severally, to pay attorney’s fees and costs in addition
to the unpaid wages and liquidated damages. Wallace v. The Kiwi Grp., Inc., 247 F.R.D.
679, 684 (M.D. Fla. 2008).
Here, Escalona seeks $3,185.00 in attorney’s fees for the services provided by her
attorney in connection with this case, plus reimbursement for the filing fee of $400.00. In
support, Plaintiff submitted the declaration of her counsel, Bradley P. Rothman, Esq., as

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well as Mr. Rothman’s time records. (Doc. #20-3; Doc. #20-4). Mr. Rothman sets forth
the number of years he has been in practice (13), as well as his experience in the area of
employment law, in support of his $350.00 per hour rate. Upon review, the Court finds
this reasonable in the absence of objection, and awards Plaintiff this amount. With regard
to the filing fee, the Eleventh Circuit has held that in FLSA cases, courts may award as
costs those expenses permitted by 28 U.S.C. § 1920. Glenn v. Gen. Motors Corp., 841
F.2d 1567, 1575 (11th Cir. 1988). The filing fee and costs of service are permitted under
§ 1920. See EEOC v. W & O, Inc., 213 F.3d 600, 624 (11th Cir. 2000).
CONCLUSION
Taking the well-pled factual allegations in the Complaint as true and considering
evidence in support of the request for default judgment, the Court finds that a default
judgment is warranted. Escalona is entitled to damages for unpaid wages in the amount
of $753.48, liquidated damages in the amount of $753.48, attorney’s fees in the amount
of $3,185.00, and reimbursement of the $400.00 filing fee against the Defendants jointly
and severally.
Accordingly, it is now
ORDERED:
(1)

Plaintiff, Annia Escalona’s Motion for Default Judgment against Defendants

(Doc. #20) is GRANTED and judgment shall issue in favor of Plaintiff and against
Defendants as provided herein.
a. Plaintiff is awarded statutory damages, including liquidated damages,
against Defendants jointly and severally in the amount of $1,506.96.

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b. Plaintiff is awarded $3,185.00 in attorney’s fees and $400.00 in costs
incurred as the prevailing party pursuant to 29 U.S.C. § 216(b) against
Defendants jointly and severally.
(2)

The Clerk of Court is DIRECTED to enter judgment accordingly, terminate

all deadlines, and close the file.
DONE and ORDERED in Fort Myers, Florida this 29th day of November, 2016.

Copies: All Parties of Record

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