Frizzell v. Tar-Mak USA, Inc.
Filing
13
ORDER granting 11 Motion for Default Judgment. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 11/10/2015. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARK FRIZZELL,
Plaintiff,
v.
Case No.: 8:15-cv-1890-T-33EAJ
TAR-MAK USA, INC. a Florida
Profit Corporation,
Defendant.
______________________________/
ORDER
This
Plaintiff
matter
Mark
comes
before
Frizzell’s
the
Motion
Court
for
in
Entry
consideration
of
Default
of
Final
Judgment (Doc. # 11), filed on November 10, 2015. For the reasons
that follow, the Court grants the Motion as set forth herein.
I.
Background
On August 14, 2015, Frizzell initiated this action against
Tar-Mak USA, Inc. (Doc. # 1). The Complaint seeks relief for unpaid
overtime wages under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201,
et seq. (Id.). Within the Complaint, Frizzell
provides that he “was at all times material, employed by [Tar-Mak]
as a warehouse/forklift operator, was an employee as defined by 29
U.S.C. § 203(e), and during his employment with [Tar-Mak] was
engaged in commerce or in the production of goods for commerce
within the meaning of 29 U.S.C. § 207(a).” (Id. at ¶¶ 4).
Frizzell further alleges that:
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Since . . . February 2013, up to and including July 16,
2015, Defendant [Tar-Mak] has willfully violated the
provisions of §7 of the Act [29 U.S.C. §207] by employing
employees engaged in commerce for workweeks longer than
40 hours without compensating them for their employment
in excess of 40 hours at rates not less than one and
one-half times the regular rates at which they were
employed: specifically [Frizzell], since February 2013,
has worked in excess of 40 hours a week virtually every
week of his employment, and was not compensated for the
work in excess of 40 hours at a rate not less than one
and one-half times the regular rate at which he was
employed.
The failure to pay overtime compensation to [Frizzell]
is unlawful in that he was not exempted from the overtime
provisions of the Act pursuant to the provisions of 29
U.S.C. § 213(a), in that he neither was a bona fide
executive, administrative or professional employee.
[Tar-Mak’]s actions were willful and purposeful as it
was well aware of the Fair Labor Standards Act and
[Frizzell’s] status as non-exempt, but chose not to pay
him in accordance with the Act.
(Id. at ¶¶ 6-8).
Frizzell effected service of process on Tar-Mak on September
1, 2015. (Doc. # 5). Tar-Mark failed to respond to the Complaint.
As a result, on October 8, 2015, Frizzell filed an application for
Clerk’s default against Tar-Mak (Doc. # 8), and the Clerk issued
its entry of default on October 19, 2015 (Doc. # 9). Thereafter,
Frizzell filed the present Motion.
Based upon the Clerk’s entry of default, the well-pled factual
allegations in the Complaint, and the Motion itself, the Court
determines that the Motion is due to be granted as set forth herein
and further determines that a hearing on this matter is not needed.
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II.
Legal Standard
Federal Rule of Civil Procedure 55(a) provides: “When a party
against whom a judgment for affirmative relief is sought has failed
to
plead
or
otherwise
defend,
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 Fed. Appx. 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.
III. Discussion
A.
Damages
Frizzell argues that he is entitled to an award of $6,210.00,
which represents unpaid overtime compensation, liquidated damages,
and unpaid wages due. Upon review of the Motion, the Court agrees
that Frizzell is entitled to such relief, and this amount is
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capable
of
accurate
and
ready
mathematical
computation
and
ascertainment from Frizzell’s Declaration attached to the Motion.
The Court’s determination is based on Frizzell’s representation
that:
I was employed by the Defendant from February 28, 2013
through July 16, 2015, or approximately 124 workweeks as
a forklift operator and was paid $13.50 per hour. . . .
At first, I worked only 40 hours per week; however, after
my first 12 weeks of employment, my schedule was changed
to 42.5 hours per week, for which I was only paid the
straight time rate of $13.50 per hour for all hours
worked, despite the fact that I was working overtime.
After a review of some of my time and pay records, I was
able to estimate my total workweeks at 112, my total
unpaid overtime at 2.5 hours per week, and determined
that I worked approximately 280 hours of overtime, for
which I only received my straight time rate of $13.50
per hour. I am still owed the half-time premium of $6.75
per hour for each of the 280 hours of overtime that I
worked. Accordingly, I am owed $1,890.00 in unpaid ½
time premiums, plus an additional $1,890.00 for
liquidated damages.
During my employment in the Summer of 2014, I worked on
a special project from home. . . . I would work nights
and weekends to complete the list. My employer was well
aware that I completed this assignment from home. I
estimate that I worked about 60 hours on the list during
that time, for which I received no compensation
whatsoever. Accordingly I am owed 60 hours at the
overtime rate of $20.25 ($13.50 + $6.75OT Premium) for
a total of $1,215.00 in unpaid overtime plus an
additional $1,215.00 for liquidated damages.
All told, I am owed $3,105.00 in unpaid overtime premiums
and $3,105.00 for liquidated damages, for a total of
$6,210.00.
(Doc. # 11-1)(emphasis original).
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Furthermore, the Court agrees that liquidated damages are
appropriate in this case. By statute, “[a]ny employer who violates
the provisions 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 equal amount as liquidated damages.” 29 U.S.C. § 216(b);
see Davila v. Menendez, 717 F.3d 1179, 1185 (11th Cir. 2013) (“An
employee ordinarily is entitled to liquidated damages if her
employer violated the minimum wage laws.”). Moreover, “[w]hen, as
here, the defendant[] [has] not presented a defense that the
failure to pay . . . overtime compensation was in good faith, the
Court must also require the employer to pay liquidated damages in
an additional amount equal to ‘the amount of their unpaid . . .
overtime compensation . . . .’” Fernandez v. Belly, Inc., No. 6:05cv-1074-Orl-31KRS, 2006 WL 5159188, at *5 (M.D. Fla. May 23, 2006).
Accordingly, the Court finds that Frizzell is entitled to a
judgment against Tar-Mak in the amount of $6,210.00, representing
his unpaid overtime wages of $2,295.00, $810.00 in unpaid wages
due, and an award of liquidated damages in the amount of $3,105.00.
The Clerk is directed to enter judgment in favor of Frizzell and
against Tar-Mak in the amount of $6,210.00.
B.
Attorneys’ Fees and Costs
Frizzell “further requests this Court to reserve jurisdiction
to determine the Plaintiff’s entitlement and amount of reasonable
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attorney’s fees and costs upon the filing of a separate and proper
motion.” (Doc. # 11-1 at 2). The Clerk is directed to enter
judgment in favor of Frizzell as set forth herein and, thereafter,
close this case. However, Plaintiff may, if he so chooses, file a
proper motion for attorney’s fees and costs within 14 days of the
date hereof.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Plaintiff Mark Frizzell’s Motion for Entry of Default Final
Judgment (Doc. # 11) is GRANTED as set forth herein.
(2)
The Clerk is directed to enter judgment in favor of Plaintiff
and against Tar-Mak USA, Inc. in the amount of $6,210.00.
(3)
Upon entry of judgment, the Clerk is directed to CLOSE THIS
CASE.
(4)
Plaintiff may, if he so chooses, file a proper motion for
attorney’s fees and costs within 14 days of the date hereof.
DONE and ORDERED in Chambers in Tampa, Florida, this 10th day
of November, 2015.
Copies: All Counsel and Parties of Record
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