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Braxton v. Ovations Food Services, L.P.

United States District Court, M.D. Florida, Orlando Division

July 11, 2019

SHAWN D. BRAXTON, Plaintiff,



         This 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.


         Plaintiff 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 declares that

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 left early.

(Doc. 16-1, ¶ 3); see also (Doc. 4, ¶ 4).[1]

         A 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.


         “When 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).[2]

         If the 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 1544.

         A. Clerk's Default

         A 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 defendant[.]

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.[3] 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).[4] Under Rule 4(h) and Fla. Stat. §§ 48.081, 48.091, service on Defendant was proper.

         Upon 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 ...

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