United States District Court, S.D. Florida
ALTMAN, UNITED STATES DISTRICT JUDGE
CAUSE came before the Court upon the Plaintiff's
Second Amended Motion (“SAM”) for Entry of Final
Default Judgment, filed on June 12, 2019 [ECF No. 27]. A
Clerk's Default was entered against the Defendant,
Michael Smarkusky, on April 30, 2019 [ECF No. 17]. Smarkusky
failed to appear, answer, or otherwise respond to the
Complaint, despite having been served on January 7, 2019 [ECF
No. 7]. The Court has carefully considered the SAM, the
record, and the applicable law.
to Federal Rule of Civil Procedure 55(b)(2), the Court is
authorized to enter a final judgment of default against a
party who has failed to plead in response to a complaint.
“[A] defendant's default does not in itself warrant
the court entering a default judgment. There must be a
sufficient basis in the pleadings for the judgment
entered.” Nishimatsu Constr. Co., Ltd. v. Houston
Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
See also Buchanan v. Bowman, 820 F.2d 359, 361 (11th
Cir. 1987) (“[L]iability is well-pled in the complaint,
and is therefore established by the entry of default.”
Plaintiff brought this action to recover unpaid minimum wages
as well as liquidated damages under the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 201 et
seq. SAM ¶ 1. A defendant who fails to pay an
employee in accordance with the FLSA “shall be liable
to the employee or employees affected in the amount of their
unpaid minimum wages, or their unpaid overtime compensation,
as the case may be, and in an additional equal amount as
liquidated damages.” 29 U.S.C. § 216(b). To the
extent the Plaintiff purports to state a claim for unpaid
wages under Section 216(b), his claims fail. The FLSA does
not provide a plaintiff with a remedy for unpaid wages that
exceed the statutorily mandated minimum wage. See Bolick
v. Brevard County Sheriff's Dep't., 937 F.Supp.
1560, 1568 (M.D. Fla. 1996). Section 216(b) is only available
when an employee is owed unpaid minimum wages or unpaid
overtime compensation as a result of a minimum-wage or
upon a review of the Plaintiff's submissions, there is
sufficient evidence to support the entry of a default
judgment in his favor. On a motion for default final
judgment, the Defendant is deemed to have admitted the
well-pleaded allegations in the Complaint. The Plaintiff has
submitted an uncontested declaration, in which he states that
he was not paid for 234 regular hours worked. Nicaty
Declaration ¶ 4 [ECF No. 27-2]. The Plaintiff therefore
presents sufficient evidence to support the proposition that
he is entitled to $1, 930.50 in unpaid minimum wages and $1,
930.50 in minimum wage liquidated damages,  for a total of
Plaintiff is also entitled to attorney's fees and costs.
Under Section 216(b), an employee may recover “a
reasonable attorney's fee to be paid by the defendant,
and costs of the action.” The proper method for
determining attorney's fees is to multiply a reasonable
hourly rate by a reasonable number of hours expended. See
Gray v. Lockheed Aeronautical Sys. Co., 125 F.3d 1387,
1389 (11th Cir. 1997). A reasonable hourly rate is “the
prevailing market rate in the relevant legal community for
similar services by lawyers of reasonably comparable skills,
experience, and reputation.” Id.
Plaintiff seeks $4, 335.00 in attorney's fees and $515.00
in costs. Plaintiff's counsel indicates his hourly rate
is $425.00 per hour. Declaration of Robert S. Norell, Esq.
[ECF No. 27-3 at ¶ 5]. Mr. Norell's affidavit also
details his work in the case, which amounts to 10.2 hours.
Id. ¶ 7. The Court finds counsel's hourly
rate excessive and concludes that a rate of $375.00 is more
appropriate. Echavarria v. Am. Valet Parking, No.
14-80770-CIV, 2015 WL 12746113, at *2 (S.D. Fla. July 1,
2015) (finding that $375.00 per hour is “at the high
end of the range of rates charged in the Southern District of
Florida for . . . FLSA lawyers”). The Court does find,
however, that the number of hours counsel expended on this
matter is reasonable. Therefore, the total amount of
recoverable attorney's fees is $3, 825.00. Additionally,
the Plaintiff seeks to recover $515.00 in costs, including
filing and process server fees, which the Court finds
reasonable. Decl. Norell ¶ 8. Accordingly, the Court
AND ADJUDGES as follows:
1. The SAM [ECF No. 27] is GRANTED in part and DENIED
in part as described above.
2. Default judgment is entered in favor of the Plaintiff and
against the Defendant, Michael Smarkusky, in the amount of
$8, 201.00, which consists of a total of $1, 935.00 in unpaid
minimum wages, $1, 930.50 in liquidated damages, and $4,
340.00 in attorney's fees and costs to the
Plaintiff's counsel, Robert S. Norell, Esq., for which
sums let execution issue.
3 This case is DISMISSED with prejudice 4.
All other pending motions are DENIED as
5. The Clerk is directed to ADMINISTRATIVELY
CLOSE this case.
6. The Court retains jurisdiction over this case and over the
parties for the purpose of entering any post-judgment orders
that may be just and proper.