United States District Court, S.D. Florida
NINOSKA MORENO, individually and on behalf of others similarly situated, Plaintiff,
PALMETTO PRINTING, INC., NEW PRINT, INC., EDUARDO ALBERTO RIVAS and EDUARDO RIVAS, individually, Defendants.
ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT
G. COOKE United States District Judge.
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
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.
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.
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).
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. (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).
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).
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
I rule on Moreno's Motion based on the record before me.
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).
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.
“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 ...