Pree et al v. Pickle Pro, LLC et al
Filing
37
OPINION AND ORDER granting in part and denying in part 33 Motion for Default Judgment. The motion is granted as to Count II and denied without prejudice as to Count I. Count III is dismissed without prejudice as to Pickle Pro. Judgment in favor of Kane Pree and against Pickle Pro in the amount of $36,265.25 shall be withheld until the conclusion of the case. Signed by Judge John E. Steele on 12/18/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KANE PREE, an individual and
BLAKE PREE, an individual,
Plaintiffs,
v.
Case No:
2:17-cv-42-FtM-29CM
PICKLE PRO, LLC, a Florida
limited
liability
corporation and TODD PREE,
an individual,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiffs' Motion for
Final Default Judgment Against Defendant Pickle Pro, LLC (Doc.
#33) filed on October 2, 2017.
No response has been filed, and
the time to respond has expired.
I.
Procedural History
On January 24, 2017, plaintiffs Kane Pree and Blake Pree
(plaintiffs) initiated a Complaint (Doc. #1) against Pickle Pro,
LLC
(defendant
or
Pickle
Pro)
and
Todd
Pree.
In
Count
I,
plaintiffs seek unpaid overtime compensation, liquidated damages,
interest, and attorney fees from Pickle Pro under the Fair Labor
Standards Act (FLSA).
In Count II, plaintiff Kane Pree seeks
damages and attorney fees under Fla. Stat. § 448.08 from defendants
for the breach of a contract between the parties for compensation
at an hourly basis.
No contract is attached.
In Count III, pled
in the alternative, Kane Pree alleges that he detrimentally relied
upon the representations of defendants that he would be paid on an
hourly basis, and now seeks to enforce the promise, with costs and
attorney’s
initially
fees
under
appeared
Fla.
through
Stat.
§
counsel
Affirmative Defenses (Doc. #16).
448.08.
and
Both
filed
an
defendants
Answer
and
Thereafter, counsel sought to
withdraw as counsel of record for defendants.
(Doc. #27.)
The
motion was granted, and Pick Pro was granted until August 23, 2017
to retain new counsel.
(Doc. #28.)
Finding no appearance, the
Magistrate Judge issued an Order (Doc. #29) for Pickle Pro to show
cause why it should not be sanctioned for failure to retain new
counsel.
Finding no response, the Magistrate Judge recommended
that a default be entered against Pickle Pro.
(Doc. #30.)
On September 26, 2017, the Court adopted the Magistrate
Judge’s Report and Recommendation (Doc. #30), deemed stricken
defendant Pickle Pro, LLC’s Answer and Affirmative Defenses (Doc.
#16) for the failure to comply with orders to retain counsel, and
directed the entry of a default against this defendant.
#31.)
(Doc.
On September 27, 2017, a Clerk’s Entry of Default (Doc.
#32) was entered.
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II.
Factual Basis
Plaintiffs Kane Pree and Blake Pree are individuals who “at
all times had enterprise and individual coverage under the FLSA
during his employment” with Pickle Pro.
(Doc. #1, ¶¶ 2-3.)
Plaintiff Kane Pree was a production manager who was paid on an
hourly basis, and plaintiff Blake Pree was an hourly employee.
(Id.)
Defendant Pickle Pro is alleged to a covered employer under
the FLSA with the authority to hire, fire, assign work, supervise
and
control
employment.
plaintiffs’
(Id., ¶ 4.)
work
schedules
and
conditions
of
Defendant Todd Pree is an individual and
a covered employer who is also the biological parent of plaintiffs
and sole manager with authority to hire, fire, and assign work to
plaintiffs.
In 2013, Kane Pree founded Pickle Pro but he was a minor and
incorporated the company in his father’s name.
(Id., ¶¶ 5, 10.)
Todd Pree did not have significant knowledge of how to construct
a pickle ball paddle, which it is assumed was the nature of the
business.
(Id., ¶ 11.)
Both plaintiffs began working for Todd
Pree in 2013, through April 18, 2016, when their employment was
terminated after plaintiffs sided with their mother in the divorce
of the parents.
(Id., ¶¶ 12-14.)
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Both plaintiffs worked in excess of 40 hours each week without
proper overtime compensation, and were required to work 60 hours
each week.
(Id., ¶¶ 15, 22.)
“Defendant”, which is a collective
reference to both defendants, id., ¶ 6, sent written correspondence
admitting to the failure to pay monies owed, id., ¶ 23.
Defendant
failed to pay Kane Pree approximately $20,835.00 in overtime, and
failed to pay Blake approximately $17,362.50 in overtime.
¶¶ 26-27.)
(Id.,
Plaintiffs allege that they are covered, non-exempt
employees, and that “Defendant” was the employer with operational
control who violated the FLSA by failing to pay the rate of one
and one-half times the regular rate of pay for overtime.
(Id.,
¶¶ 29-33.)
III. Legal Basis
“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).
“The defendant, by his default, admits the
plaintiff’s well-pleaded allegations of fact, is concluded on
those facts by the judgment, and is barred from contesting on
appeal the facts thus established.”
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Nishimatsu Const. Co. v.
Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
“A default
judgment is unassailable on the merits, but only so far as it is
supported by well-pleaded allegations.”
Eagle Hosp. Physicians,
LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009)
(quoting Nishimatsu, 515 F.2d at 1206).
an
unadorned,
This requires “more than
the-defendant-unlawfully-harmed-me
accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
IV.
Count I - FLSA
To establish a prima facie case for overtime compensation, 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).
Although
plaintiffs
only
refer
to
defendants
generically
as
“Defendant”, plaintiffs do allege that each of the defendants,
Pickle Pro and Todd Pree individually, were both employers.
#1, ¶¶ 4-5.)
of
40
hours
compensation.
(Doc.
Plaintiffs also allege that they worked in excess
“almost
each
(Id., ¶ 15.)
week”
without
proper
overtime
As to the second element, plaintiffs’
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allegation that they each “had enterprise and individual coverage
under the FLSA” is inadequate.
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).
For a plaintiff to have been “engaged in commerce”,
the plaintiff:
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
themselves that are determinative.
character
of
To determine
the
activities
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
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commerce as one with an annual gross volume of sales not less than
$500,000).
The conclusory allegation that plaintiffs are individuals who
“at all times had enterprise and individual coverage under the
FLSA during [their] employment” is insufficient to establish the
element of an enterprise engaged in commerce covered under the
FLSA.
There are no factual statements in the Complaint as to what
plaintiffs did for their employers, or what commerce Pickle Pro
was actually engaged in, or how Pickle Pro impacted interstate
commerce through its activities.
Additionally, there are no
factual allegations as to the gross revenues, or as to how many
employees worked for Pickle Pro.
By Declaration (Docs. ## 33-1, 33-2), both Kane Pree and Blake
Pree state that Pickle Pro manufactures pickle ball paddles, which
are similar to tennis racquets.
They state that Pickle Pro ships
throughout the United States, and internationally through online
sales and through Amazon’s website.
A large part of their job was
to unload goods from out of state suppliers and then ship finished
goods to interstate customers. 1
During employment, sales were
1
The Court notes that Kane Pree’s Answers to Court’s
Interrogatories (Doc. #24) describe a more managerial role as a
production manager:
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over $1.7 million, and then exceeded $2 million for each year
thereafter during their employment.
While relevant, none of these
factual allegations are contained in the Complaint and therefore
are not deemed admitted by Pickle Pro.
As currently pled, the Complaint does not establish that
Pickle Pro is an enterprise engaged in interstate commerce.
result, default judgment must be denied as to Count I.
As a
This is
without prejudice to plaintiffs seeking a summary judgment, if
appropriate, as to Count I.
V.
Count II – Breach of Contract
For a breach of contract claim, Kane Pree must establish: (1)
the existence of a contract; (2) that the contract was breached,
and (3) that damages resulted from the breach.
Rollins, Inc. v.
Butland, 951 So. 2d 860, 876 (Fla. 2d DCA 2006).
This claim is
Worked directly with all the employees to do
what needed to be done.
Monitored the employees to insure they were
getting their jobs done.
Randomly selected and checked the quality of
product.
Solved customer service issues.
Loading and unloading materials used in
production of paddles
Conducted inventory of all products.
Research and development.
Operated a CNC machine.
Shipping and handling.
(Doc. #24, pp. 1-2.)
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presented only by Kane Pree against both defendants, and only
Pickle Pro is currently in default.
Kane Pree alleges that a contract existed between him and
“Defendant”, which includes Pickle Pro; that the terms of the
contract were that Kane Pree would be compensated for his services
on
an
hourly
basis;
that
Kane
Pree
fully
and
satisfactorily
performed his duties under the contract; that defendants breached
the contract by refusing to pay the wages due under the clear and
unambiguous terms of the contract; that defendants in fact often
failed to pay Kane Pree; and Kane Pree has been damaged as a result
of the breach.
(Doc. #1, ¶¶ 38-43.)
As damages, Kane Pree seeks
$36,265.25 in damages on the breach of contract claim.
p. 9.)
(Doc. #33,
This is sufficient to state a claim for breach of contract,
and therefore a default judgment will be granted as to Count II in
favor of Kane Pree and against Pickle Pro only.
Plaintiffs
both
filed
Answers
to
Court’s
Interrogatories
(Docs. #24, 25) detailing their work schedules, job duties, regular
rate of pay, and attorney fees and costs.
sworn in the presence of a Notary Public.
Both were signed and
(Doc. #25, p. 4.)
Kane
Pree was employed by Pickle Pro from April 2013 through April 18,
2016.
Kane Pree’s regular rate of pay was $15.00 per hour in June
2013, which increased to $18.00 an hour on April 19, 2014.
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(Doc.
#24, ¶¶ 1, 5.)
Attached is a list of the dates worked, the regular
hours worked, a few overtime hours, the partial pay received as
compensation, and the total amount of wages claimed.
The Court
finds this is sufficient to determine a sum certain for unpaid
compensation and overtime compensation during employment, and no
evidentiary hearing is required.
Plaintiffs cite Fla. Stat. § 448.08 for purposes of seeking
attorney fees, which is broadly construed to encompass unpaid wage
contracts.
Costa v. MGM Contracting Inc., No. 6:13-CV-1411-ORL-
37TBS, 2015 WL 12852956, at *2 (M.D. Fla. Oct. 28, 2015), report
and recommendation adopted, No. 6:13-CV-1411-ORL-37TBS, 2016 WL
7437613 (M.D. Fla. Feb. 10, 2016).
Therefore, attorney’s fees may
be awarded.
Accordingly, it is hereby
ORDERED:
1. Plaintiffs'
Motion
for
Final
Default
Judgment
Against
Defendant Pickle Pro, LLC (Doc. #33) is GRANTED IN PART
AND DENIED IN PART.
The motion is granted as to Count II
and denied without prejudice as to Count I.
Count III is
dismissed without prejudice as to Pickle Pro as it was pled
in the alternative and no damages were being sought by the
motion for default judgment.
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2. Judgment will be entered in favor of Kane Pree and against
Pickle Pro as to Count II in the amount of $36,265.25 in
damages, and Count III will be dismissed without prejudice.
All counts remain pending against Todd Pree.
3. The Clerk shall withhold the entry of judgment until the
conclusion of the case.
Any request for attorney’s fees
may be filed within FOURTEEN (14) DAYS of the entry of
judgment.
DONE and ORDERED at Fort Myers, Florida, this
of December, 2017.
Copies:
Todd Pree
Counsel of Record
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18th
day
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