United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
THAI CANNON UNITED STATES MAGISTRATE JUDGE.
case is before the Court on Defendant Robert Clay, Sr.'s,
(“Clay”) Motion to Dismiss Claims (ECF Doc. 66)
and two (2) documents titled Motion to File Claim (ECF Docs.
67, 68). After reviewing Clay's motions and the relevant
law, the undersigned recommends that the motions be summarily
Mark Blackman initiated this action on July 6, 2017, by
filing a complaint alleging Defendants Clay's Hauling,
LLC (“Clay's Hauling”), and Clay violated:
(1) the Fair Labor Standards Act (“FLSA”) by
failing to pay Plaintiff overtime wages; (2) 26 U.S.C. §
7434 by filing false tax returns; and (3) Fla. Stat. §
404.205 by terminating Plaintiff for making a workers'
compensation claim. ECF Doc. 1. Each Defendant was served
with a summons and the complaint on October 4, 2017. ECF
Docs. 4, 5.
Defendants failed to respond to the complaint within the time
allotted by the Federal Rules of Civil Procedure, Plaintiff
moved for entry of default. ECF Docs. 6, 7. A clerk's
default was entered against each Defendant on January 16,
2018. ECF Docs. 8, 9. On January 18, 2018, the individual
Defendant, Clay, filed an untimely pro se answer to
the complaint. ECF Doc. 10.
March 25, 2019, the Court, upon Plaintiff's motion,
entered a default judgment against Clay's Hauling on the
FLSA claim, in the amount of $30, 600, plus an award of
reasonable attorney's fees and costs in the amount of $3,
425.96. ECF Docs. 17, 18. Based on the filing of a notice of
voluntary dismissal by Plaintiff, the Court dismissed Counts
II and III of the complaint with prejudice against both
Defendants (ECF Docs. 24, 41), which leaves the FLSA claim
against Clay as the only claim not dismissed or reduced to
judgment. The Court subsequently set aside the clerk's
default against Clay (ECF Doc. 60)-making his January 18,
2018 answer the operative response to the complaint-and
issued an Initial Scheduling Order (ECF Doc. 61).
has filed a Motion to Dismiss in which he seeks to introduce
“evidence to support the dismissal of all claims
against [himself], and company Clay's
Hauling.” ECF Doc. 66 at 1. Clay argues he has
evidence (ECF Doc. 66 at 7-17, 53-77; ECF Doc. 67 at 4-9; ECF
Doc. 68 at 4-12) which shows Plaintiff is not owed overtime
pay, Clay's Hauling did not engage in interstate commerce
and Plaintiff did not begin work for Clay's Hauling on
the date alleged. ECF Doc. 66 at 3. Clay has attached 70
pages of documents, which include excerpts from
Blackman's deposition in an unrelated case,
unauthenticated documents related to Blackman's
employment with Clay and an order from Judge Vinson in an
unrelated case also involving Blackman's counsel. ECF
Doc. 66 at 7-77. The two documents titled “Motion to
File Claim, ” appear to be unverified affidavits from
Clay, containing accusations of wrongdoing against
Blackman's counsel, including that counsel filed this
action frivolously. ECF Docs. 67, 68. Attached to the motions
are additional documents relating to Blackman.
arguments, and the introduction of evidence for the
Court's consideration, are more appropriately made on a
motion for summary judgment after discovery has
concluded. The Court is confined to the four corners
of the complaint when determining a motion to dismiss.
See Pouyeh v. Bascom Palmer Eye Inst., 613 Fed.Appx.
802, 808 (11th Cir. 2015). Moreover, to the extent
Clay's motions seek judgment on the pleadings without
consideration of the evidence, the motions should be denied
because, as the Court previously found (ECF Doc. 15 at 2-4;
ECF Doc. 17), Plaintiff's complaint (ECF Doc. 1) states a
claim under the FLSA.
Motion to Dismiss Claims also attempts to set aside the
default judgment entered against Clay's Hauling. ECF Doc.
66 at 1-2, 5. Although Clay can represent himself pursuant 28
U.S.C. § 1654, he cannot represent Clay's
Hauling in federal court and cannot move for relief on the
company's behalf; only an attorney representing
Clay's Hauling may move to set aside the default
judgment. See Palazzo v. Gulf Oil Corp., 764 F.2d
1381, 1385 (11th Cir. 1985) (“[A] corporation is an
artificial entity that can act only through agents, cannot
appear pro se, and must be represented by
counsel.”) (citations omitted).
it is RECOMMENDED:
Defendant Clay's Motion to Dismiss Claims (ECF Doc. 66),
Motion to File Claim (ECF Doc. 67) and Motion to File Claim
(ECF Doc 68) be DENIED.
TO THE PARTIES
to these proposed findings and recommendations may be filed
within 14 days after being served a copy thereof. Any
different deadline that may appear on the electronic docket
is for the court's internal use only and does not
control. A copy of objections shall be served upon the
Magistrate Judge and all other parties. A party failing to
object to a Magistrate Judge's findings or
recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to ...