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

Filing 66

ORDER Dismissing with prejudice Plaintiff's claims against Defendant Stamp Concrete & Pavers, Inc. Please see Order for details. Notice of Termination delivered by US Mail to Stamp Concrete & Pavers, Inc. Signed by Magistrate Judge Barry S. Seltzer on 6/4/2015. (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 DISMISSING CLAIMS AGAINST STAMP CONCRETE & PAVERS, INC.
THIS CAUSE is before the Court sua sponte.
Plaintiff Diederich Mayorga brought this action against Stamp Concrete & Pavers,
Inc. (“Stamp Concrete” or the “corporate defendant”) and Moises H. Pizana Chavero
(“Pizana”) under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-206. The
Complaint alleged that Stamp Concrete was Plaintiff’s “FLSA employer” from
approximately June 15, 2013, through November 30, 2013. The Complaint further alleged
that Defendant Pizana was “an officer and/or owner and/or manager” of the corporate
defendant and that he was also Plaintiff’s employer within the meaning of the FLSA in that
he ran the day-to-day operations of Stamp Concrete, controlled Plaintiff’s work and
schedule, and was responsible for paying Plaintiff’s wages. According to the Complaint,
Defendants failed to pay him overtime wages for work in excess of 40 hours per week and
that Defendants are jointly and severally liable for the payment of those overtime wages.

Defendants Stamp Concrete and Pizana filed a Joint Answer (DE 20), denying the
material allegations of the Complaint and asserting affirmative defenses.1 At the time they
filed their Answer, Defendants were represented by Bernando Levine LLP and Daniel
Levine of that law firm. During the course of the litigation, however, Defendants’ counsel
moved to withdraw their representation (DE 43). When it set a hearing on the Motion (DE
39), the Court advised Defendants that were it to permit counsel to withdraw, Defendant
Pizana (as an individual) could appear on his own behalf but that Stamp Concrete would
be required to retain counsel as a corporation may only appear through counsel.2 The
Court advised Stamp Concrete that failure to retain new counsel could result in a default
judgment being entered against it.

Neither Defendant appeared at the hearing.

Thereafter, the Court permitted Defendants’ counsel to withdraw their representation and
required Defendants to retain new counsel by a date certain. The Court again cautioned
Stamp Concrete that if it failed to do so, a default judgment could be entered against it (DE
43). Neither Defendant, however, retained counsel.3 Upon Plaintiff’s Motion (DE 46), the
Court directed the Clerk to enter a default against the corporate defendant, Stamp

1

Pursuant to the consent of the parties, on June 17, 2014, the District Judge
transferred the case to the undersigned “for all further proceedings and the entry of
judgment.” Order of Transfer (DE 33).
2

See Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194,
202 (1993) (“It has been the law for the better part of two centuries . . . that a corporation
may appear in federal courts only through licensed counsel.”); 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.”).
3

The Court assumed that Defendant Pizana would be proceeding pro se.
2

Concrete (DE 49), and the Clerk did so (DE 50).4
Beginning on May 11, 2015, a two-day jury trial was held. Plaintiff Mayorga was
represented by counsel, and Defendant Pizana proceeded pro se. The primary issue
before the jury was whether Plaintiff Mayorga was owed overtime wages.5

Only two

witnesses testified – Plaintiff Mayorga and Defendant Pizana. Plaintiff testified that during
the approximately six month period he was employed by Stamp Concrete and Pizana, he
worked 98 hours per week and, therefore, was due overtime wages for 58 hours each of
those weeks. By contrast, Defendant testified that Plaintiff never worked more than 40
hours per week and, therefore, was not owed any overtime wages. The jury found that
Plaintiff failed to prove by a preponderance of the evidence that Defendant Pizana failed
to pay him overtime wages due him under the law. See Verdict Form, Interrogatory No.
2 (DE 64). Accordingly, the Court entered Final Judgment in favor of Defendant Pizana
(DE 65).
The issue now before the Court is the status of the defaulting defendant – Stamp
Concrete – in light of the jury finding that no overtime wages were due Plaintiff. The
general rule, derived from the seminal case of Frow v. De La Vega, 82 U.S. 552 (1872),

4

See Barnett v. AS & I, LLC, No. 3:13-cv-2464-BN, 2014 WL 1641905, at *1-2
(N.D. Tex. Apr. 24, 2014) (default entered against limited liability corporation where its
attorney withdrew and it failed to obtain new counsel after being ordered by the 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 Federal Rule of Civil Procedure
55).
5

By special interrogatory, the jury was also asked to decide whether Defendant
Pizana was Plaintiff Mayorga’s employer within the meaning of the FLSA. The jury
answered in the affirmative. See July Verdict Form (DE 64).
3

is that “when one of several defendants who is alleged to be jointly liable defaults,
judgment should not be entered against that defendant until the matter has been
adjudicated with regard to all defendants, or all defendants have defaulted.” Hitachi
Medical Sys. Am. v. Horizon Med. Group, No. 5: 07CV02035, 2008 WL 5704471, at *3
(N.D. Ohio Jan. 28, 2008) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 2690 (3rd ed. 1998)). The concern of the Court
in Frow was avoiding inconsistent adjudications. Id. Although some circuits have declined
to apply the rule in Frow where liability is joint and several (as opposed to joint), see e.g.,
In re Uranium Antitrust Litig., 617 F.2d 1248, 1257 (7th Cir. 1980), “[s]everal circuits,
including the Eleventh, have found Frow applies to situations where defendants are jointly
and severally liable, or have closely related defenses.” Febles v. S & G Investco Inc., No.
09-60988, 2010 WL 2893345, at *3 (S.D. Fla. July 22, 2010) (Cohn, D.J.) (citing Gulf Coast
Fans, Inc. v. Midwest Elecs. Importers, Inc., 740 F.2d 1499, 1512 (11th Cir. 1984) (noting
that “when defendants are similarly situated, but not jointly liable, judgment should not be
entered against defaulting defendant if the other defendant prevails on the merits”). As
one district court has explained, “[t]he relevant distinction . . . is not whether liability is joint
or joint and several. Instead, the question turns on ‘whether under the theory of the
complaint, liability of all the defendants must be uniform.’” Hitachi Medical Sys., 2008 WL
5704471, at *3 (quoting Shanghai Automation Instrument Co. Ltd. v. Kuei, 194 F. Supp.
2d 995, 1008 (N.D. Cal. 2001)) (internal citations omitted).
Here, both Stamp Concrete and Pizana were co-employers of Plaintiff and, hence,
were similarly situated. And Plaintiff asserted the same claim for overtime wages against
both Defendants. Additionally, the defenses of both Defendants were identical. It would
4

be “incongruous and unfair” to permit Plaintiff Mayorga to collect a judgment against Stamp
Concrete (the defaulting defendant) for overtime wages where the jury found that Plaintiff
failed to prove that Pizana (the answering defendant) owed him any overtime wages. See
Gulf Coast Fans, 740 F.2d at 1511 (noting that it would be “incongruous and unfair” to
permit a plaintiff to collect a judgment against a defaulting defendant on a contract when
a jury in another case against a defendant under the same contract had found that the
plaintiff itself had breached that contract). Accordingly, it is hereby ORDERED that all
claims against Defendant Stamp Concrete & Pavers, Inc. are DISMISSED with prejudice.
DONE AND ORDERED in Fort Lauderdale, Florida, this 4th day of June 2015.

Copies to:
Counsel of record
Moises H Pizano Chavero
c/o Denise Spiva
230 Cherry Avenue
Merritt Island, Florida 32953
Moises H Pizano Chavero
3225 N. Grapevine Mills Blvd.
Apt. 3412
Grapevine, TX 76051
Stamp Concrete & Pavers, Inc.
c/o Denise Spiva
230 Cherry Avenue
Merritt Island, FL 32953
5