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Pree v. Pickle Pro, LLC

United States District Court, M.D. Florida, Fort Myers Division

December 18, 2017

KANE PREE, an individual and BLAKE PREE, an individual, Plaintiffs,
PICKLE PRO, LLC, a Florida limited liability corporation and TODD PREE, an individual, Defendants.



         This matter comes before the Court on plaintiffs' Motion for Final Default Judgment Against Defendant Pickle Pro, LLC (Doc. #33) filed on October 2, 2017. No response has been filed, and the time to respond has expired.

         I. Procedural History

         On January 24, 2017, plaintiffs Kane Pree and Blake Pree (plaintiffs) initiated a Complaint (Doc. #1) against Pickle Pro, LLC (defendant or Pickle Pro) and Todd Pree. In Count I, plaintiffs seek unpaid overtime compensation, liquidated damages, interest, and attorney fees from Pickle Pro under the Fair Labor Standards Act (FLSA). In Count II, plaintiff Kane Pree seeks damages and attorney fees under Fla. Stat. § 448.08 from defendants for the breach of a contract between the parties for compensation at an hourly basis. No contract is attached. In Count III, pled in the alternative, Kane Pree alleges that he detrimentally relied upon the representations of defendants that he would be paid on an hourly basis, and now seeks to enforce the promise, with costs and attorney's fees under Fla. Stat. § 448.08. Both defendants initially appeared through counsel and filed an Answer and Affirmative Defenses (Doc. #16). Thereafter, counsel sought to withdraw as counsel of record for defendants. (Doc. #27.) The motion was granted, and Pick Pro was granted until August 23, 2017 to retain new counsel. (Doc. #28.) Finding no appearance, the Magistrate Judge issued an Order (Doc. #29) for Pickle Pro to show cause why it should not be sanctioned for failure to retain new counsel. Finding no response, the Magistrate Judge recommended that a default be entered against Pickle Pro. (Doc. #30.)

         On September 26, 2017, the Court adopted the Magistrate Judge's Report and Recommendation (Doc. #30), deemed stricken defendant Pickle Pro, LLC's Answer and Affirmative Defenses (Doc. #16) for the failure to comply with orders to retain counsel, and directed the entry of a default against this defendant. (Doc. #31.) On September 27, 2017, a Clerk's Entry of Default (Doc. #32) was entered.

         II. Factual Basis

         Plaintiffs Kane Pree and Blake Pree are individuals who “at all times had enterprise and individual coverage under the FLSA during his employment” with Pickle Pro. (Doc. #1, ¶¶ 2-3.) Plaintiff Kane Pree was a production manager who was paid on an hourly basis, and plaintiff Blake Pree was an hourly employee. (Id.)

         Defendant Pickle Pro is alleged to a covered employer under the FLSA with the authority to hire, fire, assign work, supervise and control plaintiffs' work schedules and conditions of employment. (Id., ¶ 4.) Defendant Todd Pree is an individual and a covered employer who is also the biological parent of plaintiffs and sole manager with authority to hire, fire, and assign work to plaintiffs.

         In 2013, Kane Pree founded Pickle Pro but he was a minor and incorporated the company in his father's name. (Id., ¶¶ 5, 10.) Todd Pree did not have significant knowledge of how to construct a pickle ball paddle, which it is assumed was the nature of the business. (Id., ¶ 11.) Both plaintiffs began working for Todd Pree in 2013, through April 18, 2016, when their employment was terminated after plaintiffs sided with their mother in the divorce of the parents. (Id., ¶¶ 12-14.)

         Both plaintiffs worked in excess of 40 hours each week without proper overtime compensation, and were required to work 60 hours each week. (Id., ¶¶ 15, 22.) “Defendant”, which is a collective reference to both defendants, id., ¶ 6, sent written correspondence admitting to the failure to pay monies owed, id., ¶ 23. Defendant failed to pay Kane Pree approximately $20, 835.00 in overtime, and failed to pay Blake approximately $17, 362.50 in overtime. (Id., ¶¶ 26-27.) Plaintiffs allege that they are covered, non-exempt employees, and that “Defendant” was the employer with operational control who violated the FLSA by failing to pay the rate of one and one-half times the regular rate of pay for overtime. (Id., ¶¶ 29-33.)

         III. Legal Basis

         “The mere entry of a default by the clerk does not in itself warrant the entry of default by the Court. Rather the Court must find that there is sufficient basis in the pleadings for the judgment to be entered.” GMAC Commercial Mortg. Corp. v. Maitland Hotel Assocs., Ltd., 218 F.Supp.2d 1355, 1359 (M.D. Fla. 2002) (citation omitted). “The defendant, by his default, admits the plaintiff's well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established.” Nishimatsu Const. Co. v. Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). “A default judgment is unassailable on the merits, but only so far as it is supported by well-pleaded allegations.” Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009) (quoting Nishimatsu, 515 F.2d at 1206). This requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         IV. Count I - FLSA

         To establish a prima facie case for overtime compensation, a plaintiff must show: (1) defendant employed them; (2) defendant is an enterprise engaged in interstate commerce covered by the FLSA; (3) plaintiff worked in excess of a 40-hour workweek; and (4) defendant did not pay overtime wages to him. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1277 n.68 (11th Cir. 2008). Although plaintiffs only refer to defendants generically as “Defendant”, plaintiffs do allege that each of the defendants, Pickle Pro and Todd Pree individually, were both employers. (Doc. #1, ¶¶ 4-5.) Plaintiffs also allege that they worked in excess of 40 hours “almost each week” without proper ...

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