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Moreno v. Palmetto Printing, Inc.

United States District Court, S.D. Florida

June 9, 2017

NINOSKA MORENO, individually and on behalf of others similarly situated, Plaintiff,


          MARCIA G. COOKE United States District Judge.

         This is an action for damages under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201, et seq. (“FLSA”), and the Florida Minimum Wage Act, Fla. Stat. 448.110, et seq., (“FMWA”), to recover, inter alia, unpaid minimum and overtime wages. I have jurisdiction under 28 U.S.C. §§ 1331 and 1367.

         Pending is Plaintiff Ninoska Moreno's Motion for Partial Summary Judgment against Eduardo Alberto Rivas and Eduardo Rivas (the “Individual Defendants”) (ECF No. 42). For the reasons that follow, I grant Moreno's Motion.


         The Individual Defendants ran Palmetto Printing, Inc. (“Palmetto”) and New Print, Inc. (“New Print”) (together, the “Corporate Defendants”) during the period relevant to this lawsuit (ECF No. 28 ¶¶ 6-7). From approximately 2007 through March 2014, they employed Moreno as a non-exempt bookkeeper. (Id. ¶ 11). Her duties involved data entry, mathematical work, and interstate communication. (Id.).

         From 2007 through 2010, Moreno worked fifty (50) hours per week and received a $400.00 weekly salary. (Id. ¶ 13). She did not receive overtime wages. (Id.). From 2010 until the end of her employment, Moreno worked twenty (20) hours per week for a $100.00 weekly salary. (Id. ¶ 15). That compensation amounted to $5.00 per hour, $2.25 below the statutory federal minimum wage. (Id.). Her wages also violated the FMWA, which required hourly rates ranging from $7.31 to $7.93 per hour during that period. (Id. ¶ 23).

         Moreno sued Defendants for FLSA/FMWA violations in Miami-Dade County Court in July 2015. (ECF No. 1-2 at 7-18). Defendants removed the action to this Court in August 2016. (ECF No. 1). Counsel for the Corporate Defendants withdrew in January 2017. (ECF No. 32). The Corporate Defendants failed to retain substitute counsel and, as a result, the Clerk entered default against them in March 2017.[1] (ECF No. 47). I granted Moreno's Motion for Entry of Default against the Corporate Defendants (ECF No. 48) in May 2017 (ECF No. 51).

         In the meantime, Moreno moved for partial summary judgment against the Individual Defendants in March 2017. (ECF No. 42). She asks that I hold them individually liable to her because they exercised “operational control of the business[es] and [her] employment.” (ECF No. 42 at 1). The Individual Defendants' response to the Motion was due on or before April 5, 2017, but they failed to file one. (ECF No. 55).

         Despite the Individual Defendants' inaction, I cannot grant Moreno's Motion “merely for lack of any response by the opposing party, since the district court must review the motion and the supporting papers to determine whether they establish the absence of a genuine issue of material fact.” Kinder v. Carson, 127 F.R.D. 543, 545 (S.D. Fla. 1989) (quoting Jaroma v. Massey, 873 F.2d 17, 20 (1st Cir. 1989)). I therefore ordered the Individual Defendants to file a response to Moreno's Motion by May 30, 2017, or alternatively to show cause why I should not decide the Motion on the record as it stands. (Id.). That day has come and gone, and the Individual Defendants still have not filed a response or explained their failure to do so.

         Accordingly, I rule on Moreno's Motion based on the record before me.


         Summary judgment “shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir. 1997) (quoting Fed.R.Civ.P. 56(c)) (internal quotations omitted); Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1358 (11th Cir. 1999). Thus, the entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         “The moving party bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Id.

         Rule 56 “requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file, ' designate ‘specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324. Thus, the nonmoving party “may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing that there is ...

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