Vicenti v. Bakers Specialties, LLC et al

Filing 17

ORDER: Plaintiff's Motion for Default Judgment 15 is GRANTED as specified herein. Plaintiff's Motion for Attorney's fees 16 is GRANTED as specified herein. The Clerk is directed to enter a non-final Default Judgment in favor of Mario Vicenti and against Bakers Specialties, LLC in the amount of $3,272.62. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 12/12/2013. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARIO VICENTI,
Plaintiff,
v.

Case No. 8:13-cv-2399-T-33EAJ

BAKERS SPECIALTIES,
STEVEN E. BAKER,

LLC,

and

Defendants.
________________________________/
ORDER
This cause is before the Court pursuant to Plaintiff
Mario Vicenti’s Motion for Default Judgment (Doc. # 15) and
accompanying Motion for Attorney’s fees (Doc. # 16), both
filed on November 25, 2013. For the reasons that follow, the
Court enters a non-final Default Judgment against Bakers
Specialties, LLC and grants the Motion for Attorney’s Fees in
part.
I.

Background
On

September

17,

2013,

Vicenti

filed

a

one

count

Complaint against Bakers Specialties, LLC and Steven E. Baker
alleging violation of the minimum wage provision of the Fair
Labor Standards Act. (Doc. # 1).

Among other allegations,

Vicenti contends that he “was employed by Defendants from
approximately

February

of

2013

through

April

2013

[and]

Plaintiff was not paid any wages for the entire period of his

employment by the Defendants.” (Id. at ¶ 13).
Steven Baker filed a pro se Answer to the Complaint.
(Doc. # 6).

On October 16, 2013, the Court entered an Order

warning Bakers Specialties, LLC that it is not permitted to
appear in this action pro se and that all submissions filed on
behalf of Bakers Specialties, LLC must be signed by counsel
admitted to practice in this Court. (Doc. # 7).

The record

reflects that Vicenti effected service of process on Bakers
Specialties, LLC on September 25, 2013, and that Bakers
Specialties, LLC did not file a response to the Complaint.
(Doc. # 9).
On October 30, 2013, Vicenti filed a Motion for entry of
Clerk’s default against Bakers Specialties, LLC. (Doc. # 12).
The Clerk entered a default against Bakers Specialties, LLC
pursuant to Rule 55(a), Fed. R. Civ. P., on October 31, 2013.
(Doc. # 13).

At this juncture, Vicenti requests a Default

Judgment and an award of attorney’s fees as against Bakers
Specialties, LLC, only.
II.

Default
Federal Rule of Civil Procedure 55(a) sets forth the

following regarding an entry of default:
(a) Entering a Default. When a party against
whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend,
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and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s
default.
A district court may enter a default judgment against a
properly served defendant who fails to defend or otherwise
appear pursuant to Federal Rule of Civil Procedure 55(b)(2);
DirecTV, Inc. v. Griffin, 290 F. Supp. 2d 1340, 1343 (M.D.
Fla. 2003).
The mere entry of a default by the Clerk does not, in
itself, warrant the Court entering a default judgment.

See

Tyco Fire & Sec. LLC v. Alcocer, 218 F. App’x 860, 863 (11th
Cir. 2007)(citing Nishimatsu Constr. Co. v. Hous. Nat’l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975)).

Rather, a court must

ensure that there is a sufficient basis in the pleadings for
the judgment to be entered.

Id.

A default judgment has the

effect of establishing as fact the plaintiff’s well-pled
allegations of fact and bars the defendant from contesting
those facts on appeal.

Id.

Furthermore, pursuant to Federal Rule of Civil Procedure
54(b), “the court may direct the entry of a final judgment as
to one or more but fewer than all of the claims or parties
only upon an express determination that there is no just
reason for delay and upon an express direction for the entry
of judgment. Otherwise, an adjudication of fewer than all the
3

claims or the rights and liabilities of all the parties is not
an appealable final decision.” ABS-SOS Plus Partners Ltd. v.
Vein Assoc. of Am., Inc., No. 6:08-cv-1409-Orl-31DAB, 2008 WL
5191701, at *3 (M.D. Fla. Dec. 10, 2008) (citing In re
Southeast Banking Corp., 69 F.3d 1539, 1547 (11th Cir. 1995)).
As is the case here, where liability remains to be determined
against a co-defendant, a non-final judgment of default is
appropriate.
III. Analysis
Based upon the Clerk’s Entry of Default, the well-pleaded
factual
Motions,

allegations
the

Court

contained
determines

in

the

that

Complaint,
a

non-final

and

the

Default

Judgment is warranted as to Vicenti’s FLSA minimum wage claim
and that Vicenti is entitled to reasonable attorney’s fees.
The Court further determines that a hearing on this matter is
not needed because the amounts due are capable of accurate and
ready mathematical computation or ascertainment.
A.

FLSA Unpaid Minimum Wages

Vicenti

explains

that

he

worked

for

89

hours

from

February 2013, through April 2013, and was never compensated
for his time. Vicenti seeks to recover the FLSA minimum wage,
liquidated damages, and contractual wages of $12.00 per hour.
In his affidavit, Vicenti explains:
4

•
•

•

•

Plaintiff’s FLSA minimum wage damages are as
follows: $7.67/hr. X 89 hr = $682.63.
Plaintiff is entitled to liquidated damages
due to Defendant’s violation of the minimum
wage provisions of the FLSA in the amount of
$682.63.
The claim of the Plaintiff for contractual
wages ($12.00/hr) which were not paid by the
Defendant are computed as follows: 89 hr X
$4.33/hr ($12.00/hr - $7.67/hr)= $385.37.
Plaintiff is entitled to a total judgment of
$1,750.63 as follows: (a) Contract Wage
damages of $385.37; (b) Minimum Wage damages
of $682.63; and (c) liquidated damages of
$682.63.

(Doc. # 15-1).
The Court grants Vicenti’s request for the payment of
minimum wages, but notes that the applicable minimum wage is
$7.79 per hour, instead of the requested rate of $7.67.
Crediting Vicenti’s assertion that he worked for 89 hours for
which he was not compensated, the Court grants Vicenti wages
in the amount of $693.31 and liquidated damages in the amount
of $693.31, for a total of $1,386.62.

However, the Complaint

is silent regarding the existence of an employment contract
between

Vicenti

and

Bakers

Specialties,

LLC,

upon

which

Vicenti now claims entitlement to wages at the hourly rate of
$12.00.

Further, Vicenti has not provided the Court with an

employment contract supporting his affidavit statement that

5

such a contract exists.1

Thus, the Court declines to award

any additional contractual wages based upon the existence of
the alleged employment contract.
B.

Attorney’s Fees and Costs

Vicenti’s

counsel

seeks

an

award

of

$2,480.00

in

attorney’s fees and costs and has supported the Motion with
his affidavit.

He explains that he expended 9.7 hours at the

hourly rate of $200.00 per hour and that he incurred $500.00
in recoverable costs.

Based on the Court’s review of the

record, the fees requested are excessive.

As directed by

the Eleventh Circuit in Silva v. Miller, 307 F. App’x 349
(11th Cir. 2009), this Court is duty-bound to scrutinize the
attorney’s fees requested in FLSA cases.

In Silva, the

Eleventh Circuit opined:
FLSA requires judicial review of the reasonableness
of counsel’s legal fees to assure both that counsel
is compensated adequately and that no conflict of
interest taints the amount the wronged employee
recovers under a settlement agreement.
FLSA
provides for reasonable attorney’s fees; the
parties cannot contract in derogation of FLSA’s
provisions. To turn a blind eye to an agreed upon
contingency fee in an amount greater than the
amount determined to be reasonable after judicial
scrutiny runs counter to FLSA’s provisions for

1

The Court also notes that Vicenti’s affidavit contains
a demand for $7,577.60, which is completely unsupported and in
conflict with other statements in the affidavit. The Court
disregards Vicenti’s errant request for $7,577.60.
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compensating the wronged employee.
Id. at 352.
Here, the Court finds it appropriate to approve the costs
sought of $500, but to reduce the attorney’s fees requested by
30%.

This Court is afforded broad discretion in addressing

attorney’s fees issues. See Villano v. City of Boynton Beach,
254

F.3d

1302,

1305

(11th

Cir.

2001)(“Ultimately,

the

computation of a fee award is necessarily an exercise of
judgment because there is no precise rule or formula for
making these determinations.”)(internal citation omitted).
The

fee

applicant

bears

the

burden

of

establishing

entitlement to the hours requested as well as to the hourly
rate.

Webb v. Bd. of Educ. of Dyer Cnty., 471 U.S. 234, 242

(1985).

Thus, the fee applicant must produce satisfactory

evidence that the requested rate is within the prevailing
market rate.

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

Further, the fee applicant must support the number of hours
worked. Id.

If an attorney fails to carry his or her burden,

the Court “is itself an expert on the question [of attorney’s
fees] and may consider its own knowledge and experience
concerning reasonable and proper fees.” Norman v. Hous. Auth.
of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988).
This action was resolved as against Bakers Specialties,
7

LLC on the basis of a default. Vicenti’s attorney was not
required to participate in any hearings, draft any contested
dispositive motions, or participate in any discovery.
In determining that an across-the-board fee reduction of
30% is warranted, the Court has given consideration to the
following well-known factors: the time and labor required, the
novelty and difficulty of the questions, the preclusion of
other employment by the attorney due to the acceptance of the
case, and the amount involved and the results obtained.2
This case has not involved complex issues or required
labor-intensive inquires. It is a rare FLSA case that presents
novel or difficult questions for the Court or counsel.
Concerning the issue of preclusion of other employment,
the Court notes that this case was pending for less than three
months before resolution as against Bakers Specialties, LLC,
and consumed only less than ten hours of attorney time. It can
hardly be said that acceptance of the present case precluded
Vicenti’s counsel from accepting other cases.

Finally, the

amount obtained for Vicenti was not substantial.

2

The Court recognizes that the present Order does not
address each and every one of the factors set forth in Johnson
v. Ga. Highway Exp. Inc., 488 F.2d 714, 719 (5th Cir. 1974)
and Norman in detail. Nevertheless, the Court has given due
consideration to each factor in reaching the decision to
reduce Vicenti’s counsel’s fees.
8

Upon due consideration, and for the reasons specified
above, the Court applies an across-the-board reduction of 30%
to the requested fee of $1,980.00, for an adjusted award of
$1,386.00.3

Plaintiff’s attorney is entitled to $500 in

costs.
IV.

Conclusion
After considering the Motions and the exhibits attached

thereto, the Court finds that Vicenti is entitled to a nonfinal Default Judgment against Bakers Specialties, LLC in the
amount of $3,272.62 (comprised of wages in the amount of
$1,386.62, fees in the amount of $1,386.00, and costs in the
amount of $500.00).

Accordingly, the Court directs the Clerk

to enter a non-final Default Judgment in favor of Vicenti and
against Bakers Specialties, LLC in the amount of $3,272.62.
This action shall remain pending as between Vicenti and Steven
Baker, individually.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff’s Motion for Default Judgment (Doc. # 15) is
GRANTED as specified herein.

3

See St. Fleur v. City of Ft. Lauderdale, 149 F. App’x
849, 853 (11th Cir. 2005)(per curiam)(approving a 30% acrossthe-board reduction of requested attorney’s fees).
9

(2)

Plaintiff’s Motion for Attorney’s fees (Doc. # 16) is
GRANTED as specified herein.

(3)

The Clerk is directed to enter a non-final Default
Judgment in favor of Mario Vicenti and against Bakers
Specialties, LLC in the amount of $3,272.62.
DONE and ORDERED in Chambers in Tampa, Florida, this 12th

day of December, 2013.

Copies: All Parties and Counsel of Record

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