Mayorga v. Stamp Concrete & Pavers, Inc. et al

Filing 49

ORDER granting 46 Plaintiff's Motion for Entry of Default. The Clerk of the Court is directed to enter a default against Defendant Stamp Concrete & Pavers, Inc., pursuant to Rule 55(a), for failure to "otherwise defend" this action. Signed by Ch. Magistrate Judge Barry S. Seltzer on 3/23/2015. (kas)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-81274-CIV-SELTZER
CONSENT CASE
DIEDERICH MAYORGA, and all others
similarly situated under 29 U.S.C. 216(b),
Plaintiff,
vs.

STAMP CONCRETE & PAVERS, INC.,
MOISES H PIZANA CHAVERO,
Defendants.
___________________________________/
ORDER GRANTING MOTION FOR ENTRY OF DEFAULT
THIS CAUSE is before the Court on Plaintiff’s Motion for Entry of Default (DE 46)
and was referred to the undersigned Magistrate Judge pursuant to the consent of the
parties.
On December 16, 2013, Plaintiff Diederich Mayorga brought this action against
Stamp Concrete & Pavers, Inc. and Moises H Pizana Chavreo, alleging that Defendants
failed to pay him overtime wages in violation of the Fair Labor Standards Act (“FLSA”) (DE
1). On January 31, 2014, Defendants, through counsel, filed a joint Answer and Affirmative
Defenses to the Complaint (DE 20).
On November 3, 2014, Defendants’ counsel, Bennardo Levine LLP, moved to
withdraw its representation (DE 38); a copy of that Motion was served on Defendants at
their last confirmed address. Thereafter, the Court entered an Order (DE 39) setting a
hearing on counsel’s Motion to Withdraw as Counsel for Defendants for December 2,

2014; the Order required Defendants to appear at the hearing. Additionally, the Order
provided:
Defendants are advised that should the Court permit their
counsel to withdraw its representation, Defendant Stamp
Concrete & Pavers, Inc. must retain new counsel. “The rule
is well established that a corporation is an artificial entity that
can only act through agents, cannot appear pro se, and must
be represented by counsel.” Palazzo v Gulf Oil Corp., 764
F.2d 1381, 1385 (11th Cir. 1985). “This rule applies even
where the individual seeking to represent the corporation is an
officer or major shareholder.” Wolfe v. Rodriquez, No. 1360709, 2013 WL 6885176, at *3 (S.D. Fla. Dec. 31, 2013).
Failure of the corporate defendant to retain new counsel
may result in a default judgment being entered against it.
However, Defendant Moises H Pizana Chavero, as an
individual, may proceed on his own behalf without an attorney.
November 20, 2014 Order (DE 39) (emphasis added). Defendants’ counsel was required
to serve a copy of the Court’s Order and a copy of its Motion to Withdraw on both
Defendants by certified mail, return receipt requested.
On December 2, 2014, the Court conducted a hearing on the Motion to Withdraw
as Counsel for Defendants. At the hearing, Defendants’ attorney, Daniel R. Levine,
represented to the Court that he had served (by certified mail) a letter and a copy of the
Order setting the hearing on both Defendants. Neither Defendant, however, appeared at
the hearing. Following the hearing, the Court granted Defendants’ counsel’s Motion to
Withdraw and relieved attorney Levine and Bennardo Levine LLP from all further
responsibility for representing Defendants. January 8, 2015 Order (DE 43). The Court
also afforded Defendants until February 7, 2015, to retain new counsel. Additionally, the
Court reminded Defendant Stamp Concrete & Pavers that a corporation cannot appear
pro se, but rather must be represented by an attorney. And the Court again cautioned the
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corporate defendant that failure to retain new counsel could result in a default judgment
entered against it.1

The Court served the Order on each Defendant at its last known

address, and neither Order was returned as undeliverable.
Defendants, however, failed to retain new counsel by the February 7, 2015
deadline.2 On February 16, 2015, Plaintiff filed the instant Motion for Entry of Default
against Defendant Stamp Concrete & Pavers, Inc. (DE 46) for failing to retain new counsel
as ordered by the Court. The corporate defendant has not responded to the Motion, and
its time for doing so has passed.
As the Supreme Court has observed, “[i]t has been the law for the better part of two
centuries . . . that a corporation may appear in federal courts only through licensed
counsel.” Rowland v. Cal. Men’s Colonly, Unit II Men’s Advisory Coun., 506 U.S. 194, 202
(1993); see also Palazzo v Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir. 1985) (“The rule
is well established that a corporation is an artificial entity that can only act through agents,
cannot appear pro se, and must be represented by counsel.”). Courts have ruled that a
corporation’s failure to retain new counsel after the withdrawal of its initial counsel is a
valid basis for a court to enter a default and a default judgment against the corporation,
notwithstanding that it (through counsel) had previously filed an answer to the complaint.
See, e.g., Barnett v. AS & I, LLC, No. 3:13-cv-2464-BN, 2014 WL 1641905, at *1-2 (N.D.

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The Court also informed Defendant Moises H Pinzana Chavero that by February
7, 2015, he was to either have new counsel appear on his behalf or to notify the Court that
he intended to proceed pro se. The Court further informed Defendant Chavero that if he
failed to do so, the Court would assume he wished to proceed pro se. As no attorney has
yet appeared on behalf of Defendant Chavero, and as he has not notified the Court of his
intentions, the Court assumes that he intends to defend this action without an attorney.
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As of the date of this Order, no counsel has appeared for either Defendant.
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Tex. Apr. 24, 2014) (pursuant to Federal Rule of Civil Procedure 55(a), default entered
against limited liability corporation where its attorney withdrew and it failed to retain new
counsel after being ordered by court to do so); Christa Constr., LLC v. Connelly Drywall,
LLC, 879 F. Supp. 2d 389, 391 (W.D.N.Y. 2012) (corporation’s “refusal to comply with a
court order mandating it to appear by counsel, notwithstanding its filing of answer by
counsel who subsequently withdrew, constitutes a default for failure to ‘otherwise defend’”
under Rule 55; default judgment entered against corporate defendant); Next Proteins, Inc.
v. Distinct Beverages, Inc., No. 09 CV 4534(DRH)(ETB), 2012 WL 314871, at *1-2
(E.D.N.Y. Feb. 1, 2012) (default judgment as to liability entered pursuant to Rule 55(a)
against corporation that failed to retain new counsel after initial counsel withdrew);
Kapusta v. Wings, Etc., LLC, No. 2L20-1388-MBS-BM, 2011 WL 1883033, at *1 (D.S.C
Apr. 15, 2011) (recommending corporate defendants’ answer and counterclaim be
stricken and default be entered against corporation where it failed to obtain substitute
counsel after being required by court to do so) (Report and Recommendation adopted in
2011 WL 1883029 (D.S.C May 18, 2011)); Galtieri-Carlson v. Victoria M. Morton Enter.,
Inc., No. 2:08-cv-01777 FCD KJN PS, 2010 WL 3386473, at *2-3 (E.D. Cal. Aug. 26,
2010) (default judgment entered as sanction pursuant to court’s inherent power against
corporate defendants that failed to comply with court’s order to retain new counsel after
their initial counsel had withdrawn).
Here, after permitting counsel for Defendant Stamp Concrete & Pavers, Inc. to
withdraw, the Court ordered the corporate defendant to retain counsel by February 7,
2015. To date, however, no counsel has entered an appearance on its behalf, despite
this Court having twice cautioned the corporate defendant that failure to retain new
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counsel could result in the entry of a default judgment against it.

Without legal

representation, Stamp Concrete & Pavers, Inc. cannot appear herein to defend this action.
Accordingly, it is hereby ORDERED as follows:
(1)

Plaintiff’s Motion for Entry of Default (DE 46) is GRANTED;

(2)

The Clerk of the Court is directed to enter a default against Defendant

Stamp Concrete & Pavers, Inc., pursuant to Rule 55(a), for failure to “otherwise defend”
this action.
DONE AND ORDERED in Fort Lauderdale, Florida, this 23rd day of March 2015.

Copies to:
All counsel of record
Stamp Concrete & Pavers, Inc.
c/o Denise Spiva
230 Cherry Avenue
Merritt Island, FL 32953
Moises H Pizano Chavero
c/o Denise Spiva
230 Cherry Avenue
Merritt Island, Florida 32953

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