Pree et al v. Pickle Pro, LLC et al

Filing 42

OPINION AND ORDER denying 38 Motion for Attorney Fees without prejudice to refiling after the entry of judgment as to all counts; granting 39 Motion for summary judgment in favor of plaintiffs and against defendant Pickle Pro on Count I as set forth in the Opinion and Order. The Clerk shall continue to withhold the entry of judgment as to all counts until the conclusion of the case against Todd Pree, but terminate Pickle Pro as a pending defendant. Signed by Judge John E. Steele on 2/9/2018. (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 the plaintiffs Kane
Pree and Blake Pree’s Motion for Summary Judgment (Doc. #39) filed
on December 29, 2017. Plaintiffs seek summary judgment as to Count
I against the defaulted party, Pickle Pro, LLC (Pickle Pro) only.
The case otherwise remains pending against Todd Pree.

Also before

the Court is plaintiff’s Motion for Attorney’s Fees (Doc. #38)
filed on the same day.

No response has been filed to either

motion, and the time to respond has expired.
I.
Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”

Fed. R. Civ. P. 56(a).

“An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material”

if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The

motion must be supported by citing to materials in the record, or
or by showing that the nonmoving party cannot produce admissible
evidence.

Fed. R. Civ. P. 56(c)(1).

If a party fails to properly respond, the Court may consider
the facts undisputed and “grant summary judgment if the motion and
supporting materials--including the facts considered undisputed-show that the movant is entitled to it. . . .”
56(e).

Fed. R. Civ. P.

The “complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other
facts immaterial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). In such a case, the moving party is “entitled to a judgment
as a matter of law”, much like a directed verdict under Fed. R.
Civ. P. 50(a).

Id. (citing Anderson, 477 U.S. at 250).
II.

On December 18, 2017, the Court issued an Opinion and Order
(Doc. #37) granting in part plaintiffs’ Motion for Final Default
Judgment Against Defendant Pickle Pro, LLC (Doc. #33) as to Count
II, brought by Kane Pree only, and dismissing Count III without
prejudice as pled in the alternative.

2

The motion was denied as to

Court I without prejudice to filing a request for summary judgment
because the Court found:
There 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.
(Doc. #37, p. 7.)

The Court withheld the entry of judgment in

favor of Kane Pree on Count II for breach of contract in the amount
of $36,265.25 for unpaid wages pending the conclusion of the case.
In the Opinion and Order, the Court set forth the factual
basis for a default judgment deemed admitted by Pickle Pro by
virtue of its default.

(Id., pp. 3-4.)

The facts are hereby

incorporated herein. The Court further noted that additional facts
set forth by Declaration supported judgment in favor of plaintiffs,
but that “none of these factual allegations are contained in the
Complaint and therefore are not deemed admitted by Pickle Pro.”
(Id., p. 8.)

Plaintiffs have now filed their request for summary

judgment, and have incorporated and re-submitted the previously
filed Declarations in support of summary judgment. 1

1

The Declaration of Blake Pree was filed under separate
Notice of Filing Missing/Corrected Exhibit (Doc. #41).
Counsel
states that it was not included with the motion “when docketed by
the Clerk of Court”, however the Court notes that the motion and
exhibits were electronically filed by counsel.

3

The Court finds that plaintiffs have sufficiently stated a
claim for a violation of the Fair Labor Standards Act (FLSA), and
are entitled to summary judgment.

Plaintiffs have established

that they were not paid their overtime compensation for hours
worked in excess of the forty hour workweek.

Plaintiffs seek

damages for the unpaid overtime wages, as well as an equal amount
for liquidated damages as authorized under the FLSA.

The amounts

set forth in the Declarations will be awarded as requested.
III.
Plaintiff Kane Pree seek attorney fees under Fla. Stat. §
448.08 as to Count II.

The Court previously found that attorney

fees could be awarded for unpaid wage contracts, and directed that
the motion be filed separately after the entry of judgment.
#3, p. 10.)

(Doc.

The Court is herein granting summary judgment in favor

of both plaintiffs as to Count I, and plaintiffs collectively have
made a demand for attorney fees under the FLSA, see doc. #1, p. 6.
Since the FLSA also permits an award of a “reasonable attorney’s
fee to be paid by the defendant, and costs of the action”, 29
U.S.C. § 216(b), the Court will deny the motion without prejudice
to seeking all attorney’s fees in a single motion to be filed after
the entry of judgment.
Accordingly, it is now
ORDERED:

4

1. Defendant’s Motion for Summary Judgment (Doc. #39) is
GRANTED in favor of plaintiffs and against defendant
Pickle Pro on Count I of the Complaint as follows:
A. In favor of Kane Pree in the amount of $20,835.00 for
unpaid overtime wages, and an additional $20,835.00 in
liquidated damages; and
B. In favor of Blake Pree in the amount of $17,362.50 for
unpaid overtime wages, and an additional $17,362.50 in
liquidated damages.
2. Plaintiff’s Motion for Attorney’s Fees (Doc. #38) is
DENIED without prejudice to re-filing after judgment is
entered as to all counts against Pickle Pro.
3. The Clerk shall continue to withhold the entry of judgment
as to all counts until the conclusion of the case against
Todd

Pree,

but

terminate

Pickle

Pro

as

a

pending

9th

day of

defendant.
DONE AND ORDERED at Fort Myers, Florida, this
February, 2018.

Copies:
Parties of record

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