United States District Court, M.D. Florida, Tampa Division
C. BUCKLEW JUDGE
cause comes before the Court on Defendant Lori Jacobus'
Motion to Vacate Default. (Doc. No. 48). Plaintiffs oppose
the motion. (Doc. No. 49). As explained below, the motion is
allege the following in their complaint (Doc. No. 1):
Plaintiff Paul Quinn is the sole owner of Plaintiff PDQ
Group, Inc. (“PDQ”). (¶ 23). Defendant
Dermatech Research, LLC (“Dermatech”) is a
beauty-focused technology company. (¶ 3).
allege that Quinn and/or his company, PDQ, was hired by
Dermatech. (¶ 9-11). Plaintiffs further allege that
Quinn began working at Dermatech in August of 2013, where he
held the position of Vice President of Sales with a starting
salary of $70, 000, and he reported to Dermatech executives,
Defendants Lori Jacobus and Dennis Young. (¶ 4-5, 11,
14). Plaintiffs contend that Defendants stopped paying them
wages/amounts due under their contract with Dermatech, and
after Quinn complained, Dermatech fired him in August of
2016. (¶ 19-21).
16, 2018, Plaintiffs filed the instant lawsuit. Plaintiffs
assert seven claims in their complaint: (1) violation of the
Fair Labor Standards Act (“FLSA”); (2)
retaliation in violation of the FLSA; (3) violation of the
Florida Minimum Wage Act; (4) violation of the California
Labor Code; (5) breach of contract; (6) unjust
enrichment; and (7) breach of fiduciary duties. This Court
has federal question subject matter jurisdiction due to the
FLSA claims; the Court does not have diversity subject matter
jurisdiction over this case. (Doc. No. 7).
served Defendants, and they did not respond to the complaint.
With regard to Jacobus, the Proof of Service indicates that
she was served on June 14, 2018 at her house by service on
Liliana Jara, a co-occupant. (Doc. No. 11). Despite
Jacobus' failure to respond, Plaintiffs did not move for
entry of default until the Court issued an Order to Show
Cause regarding their lack of prosecution on August 21, 2018.
(Doc. No. 12). On September 5, 2018, Plaintiffs moved for
entry of default against Jacobus, which was entered the next
day. (Doc. No. 17, 18).
August 21, 2018, the Court issued an Order to Show Cause to
Plaintiffs regarding service on the remaining defendants.
(Doc. No. 13). In response, Plaintiffs alluded to the fact
that Dermatech was dissolved, and the Court's review of
the California Secretary of State's website indicated
that Dermatech was dissolved in 2017. (Doc. No. 20). On
September 18, 2018, the Court directed Plaintiffs to serve
Young and Dermatech via substitute service and to file proof
of service by October 5, 2018. (Doc. No. 20). Plaintiffs did
not timely comply, and the Court issued another Order to Show
Cause regarding their lack of prosecution as to these two
defendants. (Doc. No. 21). The Court again extended the
deadline to file proof of service on Young (until December 7,
2018) and Dermatech (until October 24, 2018). (Doc. No. 23).
October 23, 2018, Plaintiffs filed proof of service on
Dermatech. (Doc. No. 26). Despite Dermatech's failure to
respond, Plaintiffs did not move for entry of default. On
December 10, 2018, the Court again issued an Order to Show
Cause to Plaintiffs regarding their lack of prosecution as to
Dermatech, which resulted in Plaintiffs moving for entry of
default against Dermatech on December 14, 2018. (Doc. No. 27,
30). Default was entered against Dermatech on December 14,
2018. (Doc. No. 34).
December 10, 2018, the Court also issued an Order to Show
Cause to Plaintiffs for their failure to comply with the
Court's prior order to file proof of service on Young by
December 7, 2018. (Doc. No. 28). Plaintiffs asked for another
extension to serve Young due to Plaintiffs' counsel's
serious illness, and the Court extended the deadline to file
proof of service on Young until January 25, 2019. (Doc. No.
31, 33). Plaintiffs ultimately served Young and moved for
entry of default, which was entered on February 11, 2019.
(Doc. No. 35-38).
Court waited for more than a month for Plaintiffs to move for
default judgment against Defendants and then issued an Order
regarding their lack of prosecution and directing that they
file a motion for default judgment by April 5, 2019. (Doc.
No. 39). On April 5, 2019, Plaintiffs filed their motion for
default judgment, but it was deficient, so the Court denied
it without prejudice and directed Plaintiffs to file an
amended motion by April 26, 2019. (Doc. No. 40, 41).
Plaintiffs failed to comply and the Court issued an Order
warning that if they did not file a motion for default
judgment by May 1, 2019, the Court would dismiss the case.
(Doc. No. 42). Plaintiffs failed to timely comply, but they
filed the motion on May 2, 2019. (Doc. No. 43). On May 8,
2019, Jacobus appeared in this case.
Motion to Vacate Default
moves to vacate the default and makes various arguments as to
why Plaintiffs' claims against her lack merit. She
alludes to the fact that she was not properly served when
service was made on her housekeeper. She argues that this
Court does not have personal jurisdiction over her. She
argues that she was not Plaintiffs' employer (but rather
she was a co-employee) and/or that Plaintiffs were
independent contractors. She argues that if Quinn was an
employee, he is exempt under the FLSA as a highly paid
her failure to respond to the complaint, Jacobus tells the
Court that she relied on poor legal advice that she should
simply write a letter to Plaintiffs, which she did on June
25, 2018, and to which Plaintiffs never responded. She
acknowledges her failure in following up with Plaintiffs
regarding her letter, and she notes that her distraction was
exacerbated by a wildfire that destroyed her house and took
everything in it in November of 2018. In mid-April of 2019,
she received a copy of Plaintiffs' motion for default