United States District Court, M.D. Florida, Fort Myers Division
REPORT AND RECOMMENDATION
McCOY UNITED STATES MAGISTRATE JUDGE.
Plaintiff filed a Motion for
Default Judgment on April 8, 2019, asking the Court to enter
a default judgment against Defendant Tire Recycling Services
of Florida, Inc. (“TRS”). (Doc. 23).
Defendant TRS has not appeared in the case and has not timely
responded to the motion as required by M.D. Fla. R.
3.01(b). Nevertheless, the Undersigned respectfully
RECOMMENDS that the motion be DENIED
WITHOUT PREJUDICE because it presents a risk of
brings this action against entity Defendant TRS and
individual Defendant Christopher Johnson, alleging overtime
and minimum wage violations under the Fair Labor Standards
Act, 29 U.S.C. §§ 206-207 (“FLSA”).
(Doc. 1). In the Complaint, Plaintiff alleges that
TRS is “a Florida Profit Corporation engaged in
business in Florida, with a principal place of business in
Lee County, Florida.” (Id. at 3 ¶ 11).
Plaintiff also alleges that Johnson is “an individual
resident of the State of Florida, ” (id. at
¶ 12), and “President of TRS and owned and
operated TRS, ” (id. at ¶ 14). Plaintiff
alleges that Johnson is “an ‘employer' as
defined by 29 U.S.C. § 201, et seq., ” (Doc. 1 at
¶ 13), and that Johnson “regularly hired and fired
employees of TRS, ” (id. at ¶ 15),
“regularly determined the work schedules for the
employees of TRS, ” (id. at ¶ 16), and
“controlled the finances and operations of TRS, ”
(id. at ¶ 17). Plaintiff alleges that he was
“an ‘employee' of Defendants within
the meaning of the FLSA, ” (id. at ¶ 18
(emphasis added)), and that “Defendants were,
and continue to be ‘employers' within the meaning
of the FLSA, ” (id. at ¶ 19 (emphasis
added)). Specifically, Plaintiff alleges that he
“worked for Defendants from approximately February 2018
through June 21, 2018 as a general laborer, ” (id.
at 4 ¶ 26), whose duties included “picking up
tires from Defendants' customers, and taking the tires to
the appropriate disposal facility, ” (id. at 4
¶ 27). Plaintiff claims that during his employment,
both Defendants violated the FLSA by failing to pay overtime
for hours worked in excess of 40 hours per week and failed to
pay him the applicable minimum wage. (Id. at 6-7).
obtained clerk's defaults against both Defendants.
(See Docs. 13, 15). Plaintiff then moved for entry
of default judgment against both Defendants. (Doc.
17). While that motion was pending, Defendant Johnson,
acting pro se, filed a motion to set aside the
clerk's default against him individually. (Doc. 18). The
Court granted Johnson's motion and set aside the
clerk's default against him. (Doc. 21). The
Court also denied Plaintiff's motion for entry of default
judgment without prejudice to Plaintiff's ability to
refile the motion against Defendant TRS. (Doc. 22).
Plaintiff promptly renewed his motion for default judgment
against TRS, which is the motion sub judice.
(See Doc. 23). Thereafter, Defendant Johnson filed a
motion requesting that he be allowed to represent TRS in the
litigation because he cannot afford to hire an attorney for
TRS. (Doc. 24). Johnson also filed a separate motion on
behalf of TRS seeking to set aside the clerk's default
against TRS. (Doc. 25). The Court denied
Johnson's request to represent TRS and also struck his
motion on behalf of TRS to set aside the clerk's default
against TRS. (Doc. 27). The Court also required TRS
to obtain counsel to represent it no later than May 10, 2019.
(Id.). TRS failed to do so and the Court entered an
Order to Show Cause requiring TRS to retain counsel to
represent it and show cause why default judgment should not
be entered against it. (Doc. 28). The Court set a deadline of
June 10, 2019 for TRS to comply. (Id.). Defendant
Johnson attempted to respond to the Court's Order to Show
Cause by letter on behalf of TRS. (Doc. 29). The
Court struck Johnson's letter response because it was not
filed by counsel appearing on behalf of TRS. (Doc. 30). As of
the date of this Order, no attorney has appeared in this case
on behalf of TRS.
on the foregoing procedural background, this case is
proceeding against the individual Defendant, Christopher
Johnson, and the entity Defendant, TRS, has failed to appear
or otherwise defend.
district court may enter a default judgment against a
properly served defendant - like TRS - who fails to plead or
otherwise defend. See Fed. R. Civ. P. 55. However,
Fed. R. Civ. P. 54(b) provides:
Judgment on Multiple Claims or Involving Multiple Parties.
When an action presents more than one claim for
relief-whether as a claim, counterclaim, crossclaim, or
third-party claim-or when multiple parties are involved,
the court may direct entry of a final judgment as to one or
more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for
delay. Otherwise, any order or other decision, however
designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties does not
end the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights
practical matter, Fed. R. Civ. P. 54(b) means:
when a default is entered against one defendant in a
multi-defendant case, the preferred practice is for the court
to withhold granting a default judgment until after trial on
the merits against the remaining defendants. Northland
Ins. Co. v. Cailu Title Corp., 204 F.R.D. 327, 330 (W.D.
Mich. 2000). This practice grew out of the case of Frow
v. DeLaVega, 82 U.S. 552 (1873), in which the Supreme
Court held that the risk of inconsistency precluded the entry
of default judgment against one alleged conspirator whose
alleged co-conspirators were proceeding to trial. Within [the
Eleventh Circuit], the preferred practice has been extended
beyond situations in which the defaulting defendant may be
jointly liable with non-defaulting defendants to situations
in which the defaulting defendant is merely similarly
situated to those who continue to contest the allegations on
the merits. See Gulf Coast Fans, Inc. v. Midwest
Electronics Importers, Inc., 740 F.2d 1499, 1512 (11th
Cir. 1984) (in contract case, vacating default judgment in
favor of plaintiff that had been found, in separate case
against different defendant who proceeded to trial, to have
breached same contract).
North Pointe Ins. Co. v. Global Roofing & Sheet
Metal, Inc., No. 6:12-cv-476-Orl-31TBS, 2012 WL 5378740,
at *1 (M.D. Fla. Oct. 31, 2012) (Presnell, J.), adopting
and confirming report andrecommendation,
2012 WL 5378826, at *4 (M.D. Fla. Sept. 4, 2012)
(“Courts have interpreted this to mean that [w]hen a
default is entered against one defendant in a multi-defendant
case, the preferred practice is for the court to withhold
granting a default judgment until the trial of the action on
the merits against the remaining defendants.”); see
alsoOwners Ins. Co. v. Shamblinand
Shamblin Builders, Inc., No. 8:13-cv-1929-T-30MAP, 2013
WL 6170597, at *1 (M.D. Fla. Nov. 21, 2013) (Moody, J.)
(“When there are multiple ...