United States District Court, S.D. Florida
ORDER GRANTING PLAINTIFF'S MOTION FOR ENTRY OF
FINAL DEFAULT JUDGMENT AGAINST DEFENDANT EWPB LLC, AND
REFERRING CASE FOR EVIDENTIARY HEARING
L. ROSENBERG UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Plaintiff Antonio
Coleman's Motion for Entry of Final Default Judgment
Against Defendant EWPB LLC. DE 16. The Court has reviewed the
Motion and the record and is otherwise fully advised in the
worked as a chef at Emperor's Gentlemen's Club in
Riviera Beach, Florida, from January 23, 2017, until August
16, 2017. The Club was owned, controlled, and/or operated by
EWPB LLC (“EWPB”), and Defendant Michael
Tomkovich, managing member of EWPB, controlled the
personnel-related policies and practices of the club.
Defendants assigned Plaintiff's schedule and instructed
him as to the work to be performed and the times he should
arrive and leave work. Plaintiff was compensated at a rate of
$140.00 per day, regardless of the number of hours he worked.
Plaintiff did not receive overtime compensation at a
time-and-a-half rate when he worked in excess of forty hours
per week. Defendants were either recklessly indifferent to or
intentionally disregarded their obligation to pay Plaintiff
for overtime work, and Defendants failed to maintain adequate
and contemporaneous time records. Plaintiff seeks $3, 900.50
in unpaid overtime, $3, 900.50 in liquidated damages, and
reasonable attorney's fees and costs.
filed the Complaint on June 20, 2019. DE 1. EWPB was served
on July 23, 2019, and its response was therefore due on
August 13, 2019. DE 10. EWPB did not respond, and Plaintiff
moved for a Clerk's Entry of Default on August 14, 2019,
DE 11, which was granted on August 15, 2019. DE 13. Defendant
Michael Tomkovich was not served, and the Court ordered
Plaintiff to file proof of service as to Tomkovich or he
would be dismissed from the case. DE 12. Plaintiff did not
file proof of service as to Tomkovich, and the Court
dismissed him from the case on October 29, 2019. DE 15.
Plaintiff filed the instant Motion on November 5, 2019,
seeking entry of final default judgment as to EWPB. DE 16.
EWPB has not responded to the Motion in any way.
Federal Rule of Civil Procedure 55, if a defendant fails to
plead or otherwise defend a complaint filed against it, the
Clerk of Court may enter a default against that party. Once a
default is entered, a plaintiff may seek entry of a default
judgment against the defaulting defendant. Fed.R.Civ.P.
55(b). By defaulting, a defendant is taken to admit the
well-pleaded allegations of fact in a plaintiff's
complaint. Eagle Hosp. Physicians, LLC v. SRG Consulting,
Inc., 561 F.3d 1298, 1307 (11th Cir. 2009). Although the
facts are admitted as true, conclusions of law are not; a
sufficient basis to state a claim must still exist in the
pleadings before a court may enter a default judgment.
Nishimatsu Constr. Co., Ltd. v. Houston
Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.
1975). Allegations relating to the amount of damages are not
admitted by virtue of default; rather, the Court determines
the amount and character of damages to be awarded. Miller
v. Paradise of Port Richey, Inc., 75 F.Supp.2d
1342, 1346 (M.D. Fla. 1999).
the Complaint alleges that Defendants failed to pay Plaintiff
overtime wages in violation of the Fair Labor Standards Act
of 1938, 29 U.S.C. § 201 et seq.
(“FLSA”). A claim for unpaid overtime requires a
showing that “(1) an employee worked unpaid overtime,
and (2) the employer knew or should have known of the
overtime work.” Bailey v. TitleMax of Ga.,
Inc., 776 F.3d 797, 801 (11th Cir. 2015). Further,
Plaintiff must establish that he was engaged in interstate
commerce or employed by an enterprise engaged in interstate
commerce pursuant to 29 U.S.C. § 207(a).
the FLSA, Plaintiff bears “the burden of proving that
he performed work for which he was not properly
compensated.” Lamonica v. Safe Hurricane Shutters,
Inc., 711 F.3d 1299, 1315 (11th Cir. 2013) (quoting
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,
686-87 (1946)). If an employer's time records are
inadequate, “an employee has carried out his burden if
he proves that he has in fact performed work for which he was
improperly compensated and if he produces sufficient evidence
to show the amount and extent of that work as a matter of
just and reasonable inference.” Id. (quoting
Anderson, 328 U.S. at 686-87). The FLSA requires an
additional award of liquidated damages in an amount equal to
unpaid wages unless the defendant demonstrates that the
violation was in good faith. 29 U.S.C. §§ 216, 260.
Claims for unpaid overtime wages are subject to a two-year
statute of limitations, but the period is extended to three
years in the case of a “willful violation.” 29
U.S.C. § 255(a); see also Alvarez Perez v.
Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1162
(11th Cir. 2008).
Default Judgment is Warranted
Plaintiff has shown that he worked unpaid overtime. Plaintiff
submitted a declaration stating that he worked as a chef in
EWPB's club from January 23, 2017, until August 16, 2017,
and his duties included preparing and cooking food as well as
cleaning the kitchen. DE 16-1 ¶¶ 4, 6. He worked an
average of 65 hours per week at a flat rate of $140.00 per
day, resulting in an hourly rate of about
$10.77. DE 16-1 ¶ 8. Because Plaintiff was
paid the same amount regardless of the hours worked in a
week, he did not receive overtime compensation at the
time-and-a-half rate prescribed by the FLSA. Second,
Plaintiff alleges that Defendants specifically instructed
Plaintiff what to do, when to arrive, and when to leave. DE 1
¶ 27. Taken as true, this demonstrates that Defendants
knew Plaintiff worked in excess of forty hours per week.
Plaintiff has demonstrated that EWPB is an “enterprise
engaged in commerce” by satisfying the two prongs of 29
U.S.C. § 203(s)(1)(A). First, Plaintiff and other
employees handled goods that moved in interstate commerce,
including various office supplies and food items. DE 1
¶¶ 19-20. Second, EWPB had gross revenues in excess
of $500, 000 during the years 2016, 2017, and 2018, and is
expected to do the same in 2019. DE 1 ¶ 21. Accordingly,
the Court concludes that Plaintiff has demonstrated
entitlement to unpaid overtime.
An Evidentiary Hearing is Necessary to ...