Cancienne v. Drain Master of South Florida, Inc. et al

Filing 21

Default Final Judgment re: Liability as to Defendant Drain Master of South Florida, Inc. Signed by Judge William J. Zloch on 12/3/2008. (bc)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. DAVID J. CANCIENNE, Plaintiff, vs. DRAIN MASTER OF SOUTH FLORIDA, INC., MICHAEL MILLER, and PETER GURECKIS, Defendants. / THIS MATTER is before the Court upon Plaintiff David J. Cancienne's Motion For Default Final Judgment (DE 19). The Court DEFAULT FINAL JUDGMENT Re: LIABILITY AS TO DEFENDANT DRAIN MASTER OF SOUTH FLORIDA, INC. 08-61123-CIV-ZLOCH

has carefully reviewed said Motion and the entire court file and is otherwise fully advised in the premises. By prior Order (DE 17), the Court allowed counsel for

Defendants to withdraw.

In said Order, the Court noted that

Defendant Drain Master of South Florida, Inc. (hereinafter "Drain Master") cannot proceed pro se and allowed it until October 31, 2008, to retain representation and have a Notice of Appearance filed by the same. Drain Master failed to obtain representation

and have a Notice of Appearance filed by the same within the time prescribed. The Court then entered a default (DE 18) against said

Defendant and ordered Plaintiff to file the instant Motion For Default Final Judgment. The well-pleaded allegations made in Plaintiff's Complaint (DE

1) are deemed admitted by Drain Master by virtue of the default entered against it. Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d Thus, Drain

1267, 1277-78 (11th Cir. 2005) (citations omitted).

Master admits the following by its default: it is covered by the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (hereinafter "FLSA"), it employed Plaintiff, and it failed to comply with the FLSA for one or more workweeks by failing to pay either a minimum wage, overtime, or both. the Complaint. The instant Motion briefly recounts the procedural history of this case and then boldly claims that Plaintiff is entitled to damages totaling over $26,000. DE 19, ¶ 10. In support of this There is no allegation as to damages in

claim for damages, Plaintiff cites only his own Statement Of Claim (DE 8). Said Statement Of Claim states as follows: "It is believed

Plaintiff worked an estimated average of at least sixty (60) hours per week for Defendants for a regular rate of pay estimated at approximately $13.33 per hour for the relevant period of July 2005 through July 2008." DE 8, ¶ 2 (emphasis added). Plaintiff's

Affidavit (DE 8, Ex. A) attached to the Statement Of Claim likewise approximates and estimates. above, Drain Master's See DE 8, Ex. A, ¶¶ 3-4. deems only the As stated

default

well-pleaded The instant

allegations admitted.

Cotton, 402 F.3d at 1277-78.

Motion (DE 19), with its supporting Statement Of Claim (DE 8) and

2

Affidavit (DE 8, Ex. A), does not establish facts upon which judgment as to damages can be entered. By apparently seeking to

avoid limiting his recovery, Plaintiff has made abstruse the facts upon which judgment is to be entered. See William Strunk, Jr. &

E.B. White, The Elements of Style 71 (3d ed. 1979) ("Write with nouns and verbs, not with adjectives and adverbs. The adjective

hasn't been built that can pull a weak or inaccurate noun out of a tight place."). Because Plaintiff has failed to establish his damages, the Court will enter Default Final Judgment Re: Liability as to

Defendant Drain Master of South Florida, Inc.

The Court will take

up the issue of Plaintiff's damages at a later stage in the litigation, after discovery is completed. Then, Plaintiff will be

able to establish his damages through the appropriate exhibits and testimony. This action will otherwise proceed through the normal

course of a law suit. Accordingly, after due consideration, it is ORDERED AND ADJUDGED as follows: 1. The Court has jurisdiction over the Parties hereto and the subject matter herein; 2. Plaintiff David J. Cancienne's Motion For Default Final Judgment (DE 19) be and the same is hereby GRANTED as to liability only; 3

3. Pursuant to Federal Rules of Civil Procedure 55 and 58, Default Final Judgment Re: Liability be and the same is hereby ENTERED in favor of Plaintiff David J. Cancienne and against Defendant Drain Master of South Florida, Inc.; and 4. Final Judgment Re: Damages as to Defendant Drain Master of South Florida, Inc. shall be entered by separate Order upon Motion of Plaintiff after discovery has taken place. DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 3rd day of December, 2008.

WILLIAM J. ZLOCH United States District Judge Copies furnished: All Counsel of Record Michael Miller, pro se 1717 SW 1st Way, Ste. 20 Deerfield Beach, FL 33441 Peter Gureckis, pro se 1717 SW 1st Way, Ste. 20 Deerfield Beach, FL 33441

4