United States District Court, M.D. Florida, Orlando Division
SHAWN D. BRAXTON, Plaintiff,
OVATIONS FOOD SERVICES, L.P., Defendant.
REPORT AND RECOMMENDATION
B. SMITH, UNITED STATES MAGISTRATE JUDGE.
case comes before me on referral from the district judge on
Plaintiffs' Motion for Entry of Default Final Judgment
(Doc. 16) and Supplemental Motion for Entry of Default Final
Judgment and for Attorney's Fees and Costs (Doc. 18).
After due consideration, I respectfully recommend that the
motion, as supplemented, be granted.
Shawn D. Braxton brings this collective action against his
former employer pursuant to the Fair Labor Standards Act, 29
U.S.C. §§ 201 - 219 (“FLSA”), seeking
to recover unpaid overtime wages “and unpaid regular
wages” on behalf of himself and all others
similarly-situated to him who were formerly, or are
currently, employed as hourly paid employees of Defendant,
Ovations Food Services, L.P., the owner and operator of
Spectra Food Services & Hospitality (Docs. 1, 4).
Plaintiff alleges that he worked for Defendant from May 2017
through November 2018 as a hourly paid warehouse clerk/event
worker in Orlando, Florida, at Spectra Stadium (Doc. 4,
¶ 11; Doc. 16-1, ¶ 2). Plaintiff was employed at an
hourly rate of $15.00 (Doc. 16-1, ¶ 3). Plaintiff
During the entirety of [his] employment, [his] work time was
manipulated in such a way that resulted in wage theft. For
example, many times during my employment I would not take a
meal break, or I would only take at 10-15 minute break;
however, my work times were manually entered by my supervisor
to reflect that I clocked out for exactly 30 minutes. I
rarely if ever took a meal break that was exactly 30 minutes.
I also noticed that my clock in and out times were also being
modified to reflect less hours worked. My times were adjusted
[s]o that it appeared as though I was clocking in and out on
the dot causing it to appear I clocked in at a later time or
(Doc. 16-1, ¶ 3); see also (Doc. 4, ¶
process server served a summons and copy of the complaint on
Ovations by serving Donna Moch, supervisor of CT Corporation
System, as registered agent, on January 17, 2019 (Doc. 10).
Defendant has not appeared and on February 14, 2019, the
Clerk entered default against it, pursuant to Fed.R.Civ.P.
55(a) (Doc. 13). Plaintiff now seeks entry of a default
judgment against Defendant (Doc. 16, supplemented at Doc.
18). Defendant has not responded to the motion.
a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend as provided by
these rules and that failure is shown by affidavit or
otherwise, the clerk must enter the party's
default.” Fed.R.Civ.P. 55(a). However, a
defendant's default alone does not require the court to
enter a default judgment. DIRECTV, Inc. v. Trawick,
359 F.Supp.2d 1204, 1206 (M.D. Ala. 2005). Before judgment
may be entered pursuant to Fed.R.Civ.P. 55(b), there must be
a sufficient basis in the pleadings to support the relief
sought. Id. “The defendant is not held to
admit facts that are not well-pleaded or to admit conclusions
of law. In short ... a default is not treated as an absolute
confession of the defendant of his liability and of the
plaintiff's right to recover.” Nishimatsu
Constr. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d
1200, 1206 (5th Cir. 1975).
facts in the complaint are sufficient to establish liability,
then the court must c o nduc t an inquiry to as c er tain the
am o unt o f dam ages . See Adolph Coors Co. v. Movement
Against Racism & the Klan, 777 F.2d 1538, 1543-44
(11th Cir. 1985). “Damages may be awarded only if the
record adequately reflects the basis for the award via a
hearing or a demonstration of detailed affidavits
establishing the necessary facts.” See id. at
plaintiff may serve a corporate defendant by,
[D]elivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process and-if the agent is one authorized by statute and the
statute so requires-by also mailing a copy of each to the
Fed. R. Civ. P. 4(h)(1)(B). A plaintiff may also serve a
defendant by “following state law for serving a summons
in an action brought in courts of general jurisdiction in the
state where the district court is located or where service is
made[.]” Fed.R.Civ.P. 4(h)(1)(A), 4(e)(1). Florida
Statutes permit process to be served on a corporation by
serving, inter alia, the president, general manager,
or an agent designated by the corporation under Fla. Stat.
48.091. See Fla. Stat. § 48.081. The
return of service shows that Donna Moch, a supervisor at CT
Corporation System was served on behalf of Defendant as its
registered agent (Doc. 10). Under Rule 4(h) and Fla. Stat.
§§ 48.081, 48.091, service on Defendant was proper.
being served with the summons and complaint on January 17,
2019, Defendant was required to respond on or before February
7, 2019. See Fed.R.Civ.P. 12(a)(1)(A)(i) (“A
defendant must serve an answer within 21 days after being
served with the summons and complaint[.]”). Defendant
has failed to respond and the time within ...