PESTANA v. PORTO ALEGRE BRAZILIAN GRILL & BAR, CORP.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 1:22-22405-CIV-MARTINEZ/SANCHEZ

ALEJANDRO J. PESTANA

and other similarly situated individuals,

Plaintiff(s),

v.

PORTO ALEGRE BRAZILIAN GRILL & BAR,

CORP., and JANOUSKY A. TORRES,

individually,

Defendant.

_______________________________________/

REPORT AND RECOMMENDATION ON PLAINTIFF’S AMENDED

MOTION FOR DEFAULT JUDGMENT AGAINST ALL DEFENDANTS

This matter is before the Court on the Plaintiff’s second Amended Motion for Default

Judgment Against All Defendants (“Amended Motion”), ECF No. 18. The Honorable Jose E.

Martinez, United States District Judge, referred Plaintiff’s Amended Motion to the undersigned.

ECF No. 20. The Defendants did not file a response to the Plaintiff’s complaint or the Plaintiff’s

Amended Motion (or to the Plaintiff’s two prior motions for default judgment), and the deadlines

to do so have long passed. After careful consideration of the Plaintiff’s filings, the relevant

authority, and for the reasons discussed below, the undersigned RESPECTFULLY

RECOMMENDS that Plaintiff’s Amended Motion for Default Judgment Against All Defendants,

ECF No. 18, be GRANTED.

I. BACKGROUND

The Plaintiff’s complaint alleges violations of the Fair Labor Standards Act (“FLSA”), 29

U.S.C. § 201 et seq. See ECF No. 1. More specifically, the Plaintiff alleges that from June 1,

2021, through March 3, 2022, Defendants failed to properly pay the Plaintiff for overtime hours

(Count I) and also failed to pay the Plaintiff the minimum wages he is owed for the final three

weeks of his work (Count II). Id. The Plaintiff now moves for default final judgment against the

Defendants, and he seeks damages in the following amounts: $3,900 in unpaid overtime, $1,200

in unpaid minimum wages, and $5,100 in statutory liquidated damages, as well as $6,120 for his

attorney’s fees and $587 in costs. ECF No. 18.1

The Clerk of Court entered default against the Defendants on December 22, 2022, ECF

No. 11, and the Plaintiff filed an initial motion seeking default final judgment against the

Defendants, ECF No. 12. However, the Plaintiff’s initial motion was denied by the Court without

prejudice because “it contained inconsistent and inaccurate information regarding the amount of

damages sought.” ECF No. 14. The Plaintiff then filed an amended motion, ECF No. 15, which

was again denied because it also “contain[ed] incorrect and inconsistent information regarding

damages.” ECF No. 17. The Plaintiff’s second Amended Motion, ECF No. 18, is now before the

Court. ECF No. 18.

II. LEGAL STANDARD

“When a defendant has failed to plead or defend, a district court may enter judgment by

default.” Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1244 (11th Cir. 2015) (citing Fed. R.

Civ. P. 55(b)(2)). A “defendant, by his default, admits the plaintiff’s well-pleaded allegations of

fact,” as set forth in the operative complaint. Eagle Hosp. Physicians, LLC v. SRG Consulting,

Inc., 561 F.3d 1298, 1307 (11th Cir. 2009); see also Giovanno v. Fabec, 804 F.3d 1361, 1366 (11th

Cir. 2015) (“When a defendant defaults, he ‘admits the plaintiff’s well-pleaded allegations of

1 The Plaintiff’s Complaint also sought to recover $3,000 in unpaid tips for the three weeks for

which the Plaintiff was allegedly not paid. ECF No. 1 at ¶ 18. However, the Plaintiff’s Amended

Motion does not seek damages for unpaid tips and does not provide any information or evidence

to substantiate a claim for $3,000 in unpaid tips. See ECF No. 18. Accordingly, the Plaintiff’s

claim for unpaid tips is deemed abandoned. See, e.g., Gandol v. Constr. Servicing Ctr., Inc., No.

23-24924-CIV, 2024 WL 1420902, at *2 (S.D. Fla. Feb. 23, 2024).

fact.’”) (quoting Lary v. Trinity Physician Fin. & Ins. Servs., 780 F.3d 1101, 1106 (11th Cir. 2015)).

Following the entry of default judgment, damages may be awarded “without a hearing [if the]

amount claimed is a liquidated sum or one capable of mathematical calculation,” so long as all

essential evidence is a matter of record. Adolph Coors Co. v. Movement Against Racism & the

Klan, 777 F.2d 1538, 1543-44 (11th Cir. 1985); see also, e.g., S.E.C. v. Smyth, 420 F.3d 1225, 1231,

1232 n.13 (11th Cir. 2005); Jenkins v. Clerk of Court, 150 F. App’x 988, 989 (11th Cir. 2005) (“A

default judgment may only be entered without a hearing if the amount claimed is a liquidated sum

or one capable of mathematical calculation.”); Tropical Paradise Resorts, LLC v. JBSHBM, LLC,

343 F.R.D. 443, 448 (S.D. Fla. 2023) (“[W]here all the essential evidence to determine damages is

on the paper record, an evidentiary hearing on damages is not required.”).

III. ANALYSIS

A. FLSA Overtime Claim (Count I)

The first issue is whether the Plaintiff is entitled to final default judgment on his overtime

wage claim. The FLSA requires that employers pay their employees at least one and a half times

the “regular rate” for any work in excess of 40 hours per week. See 29 U.S.C. § 207(a)(1)

(prohibiting a “workweek longer than forty hours unless such employee receives compensation for

his employment in excess of the hours above specified at a rate not less than one and one-half

times the regular rate at which he is employed”). When a covered employee is not paid the

overtime wage, the FLSA provides a private cause of action against the employer for unpaid wages.

See 29 U.S.C. § 216(b); Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1298

(11th Cir. 2011).

“To state a claim for failure to pay overtime compensation under the FLSA, an employee

must show: (1) an employment relationship; (2) that the employee is subject to individual or

enterprise coverage; and (3) that the employee worked over forty hours per week but was not paid

overtime wages.” Gomez v. Kern, 2012 WL 1069186, at *1 (S.D. Fla. Mar. 29, 2012) (citing

Freeman v. Key Largo Volunteer Fire & Rescue Dep’t, Inc., 841 F. Supp. 2d 1274 (S.D. Fla. 2012);

Josendis, 662 F.3d at 1315). “Alleging enterprise liability is not onerous; rather, it requires that a

plaintiff identify his work and ‘provide only straightforward allegations connecting that work to

interstate commerce,’ as well as at least ‘bare bones’ allegations that gross sales exceed $500,000.”

Brown v. Everest Moving & Storage, Inc., 2013 WL 12126001, at *2 (S.D. Fla. Aug. 20, 2013)

(quoting Ceant v. Aventura Limousine & Transp. Serv., Inc., 2012 WL 2428536, at *4 (S.D. Fla.

June 27, 2012)).

Here, in both the complaint and the affidavit attached to the Plaintiff’s Amended Motion,

the Plaintiff has alleged that (1) he was employed by the Defendants between June 1, 2021, and

March 3, 2022, see ECF No. 1 at ¶¶ 8, 17, 24; ECF No. 18-1 at ¶ 5; (2) the Defendant was a

restaurant engaged in interstate commerce by accepting and soliciting funds from non-Florida

sources and authorizing credit card transactions, and the Plaintiff and the Defendants’ other

employees were engaged in interstate commerce by regularly handling and working on goods and

materials that were moved across state lines, see ECF No. 1 at ¶¶ 22, 23; ECF No. 18-1 at ¶ 8; and

(3) the Plaintiff worked 20 hours of overtime each week but Defendants failed to pay the Plaintiff

his earned overtime wages, see ECF No. 1 at ¶¶ 10, 13, 35, 38; ECF No. 18-1 at ¶ 15.

On the question of FLSA coverage, the Plaintiff has sufficiently alleged that the Defendants

were an enterprise engaged in commerce within the meaning of the FLSA because they “had more

than two employees recurrently engaged in commerce or in the production of goods for commerce”

and because the Defendants’ annual gross revenue exceeds the $500,000 threshold needed to be a

covered enterprise under the FLSA. See ECF No. 1 at ¶ 22. Although Plaintiff’s allegations largely

track the statutory language, the undersigned finds them to be, although just barely, sufficiently

“factual in nature and [] distinct from the conclusory, formulaic assertions that fail to adequately

allege that an enterprise is engaged in interstate commerce.” Rosell v. Area Performance, Inc., No.

12-21117-CIV, 2012 WL 12915303, at *3 (S.D. Fla. June 6, 2012); see also, e.g., Perez v. Paul

Newman Dazzling Detailing, Inc., No. 6:23-CV-1222-PGB-EJK, 2024 WL 3342215, at *3 (M.D.

Fla. June 21, 2024) (concluding that allegations that “Defendant[s] [have] more than two

employees recurrently engaged in commerce or the production of goods for commerce by regularly

and recurrently using the instrumentalities of interstate commerce to accept and solicit funds from

non-Florida sources; by using electronic devices to authorize credit card transactions by ordering

products and supplies produced out of State” sufficiently demonstrated enterprise coverage),

report and recommendation adopted, 2024 WL 3757647 (M.D. Fla. July 10, 2024).

The Plaintiff’s allegations, which are deemed admitted, are sufficient to establish coverage

under the FLSA and state a claim for unpaid overtime wages. Eagle Hosp. Physicians, LLC, 561

F.3d at 1307 (a “defendant, by his default, admits the plaintiff’s well-pleaded allegations of fact”);

see also Gaviria v. Maldonado Bros., No. 13-60321-CIV, 2013 WL 3336653, at *3 (S.D. Fla. July

2, 2013) (“[I]t is the defendants, not the plaintiffs, who generally enjoy pre-suit possession of

information concerning the annual revenue of the defendants. Because of this informational

imbalance, a plaintiff’s bare-bones revenue allegations may be ‘sufficient’ even without the

pleading of more detailed factual allegations.”) (citations omitted).

Accordingly, the undersigned finds that the Plaintiff has established that he is entitled to

default final judgment as to liability on Plaintiff’s claim for unpaid overtime wages (Count I).

B. FLSA Minimum Wage Claim (Count II)

The next issue is whether the Plaintiff is entitled to final default judgment on his minimum

wage claim. The FLSA requires employers to pay workers a minimum wage. 29 U.S.C.

§ 206(a)(1). As with a claim for overtime wages, a minimum wage claim requires a plaintiff to

establish: (1) that the plaintiff was employed during the time period involved, and (2) that the

plaintiff was engaged in commerce or the production of goods for commerce, or was employed by

an enterprise engaged in commerce or the production of goods for commerce. Payne v. Security

& Crime Prevention Serv., Inc., 2013 WL 5446466, at *2 (S.D. Fla. Sept. 30, 2013); see also, e.g.,

Morales v. Storm Roofing & Constr. LLC, No. 2:23-cv-390-SPC-KCD, 2024 WL 1835955, at *2

(M.D. Fla. Apr. 10, 2024) (“To prevail on both an overtime wage claim and a minimum wage

claim, Plaintiff must establish the same initial elements. He must show: 1) the defendants

employed him; and (2) he was employed by an enterprise engaged in commerce.”). In other words,

the Plaintiff must again allege coverage—individual or enterprise—under the FLSA. To establish

a minimum wage claim, the Plaintiff must also allege “that the employer failed to pay the minimum

wage required by law.” Payne, 2013 WL 5446466, at *2.

As discussed above, the Plaintiff’s allegations concerning his employment and FLSA

coverage, allegations which are equivalent for Counts I and II, sufficiently establish coverage

under the FLSA because he alleges that he was employed by Defendants during the time period

relevant to his claim, see ECF No. 1 at ¶¶ 8, 17, 45, 50, and that the Defendants were an enterprise

engaged in interstate commerce, see ECF No. 1 at ¶¶ 42-43; ECF No. 18-1 at ¶¶ 5, 8, 15. The

Plaintiff also meets the third element because he alleged that he did not receive payment for the

last three weeks of his employment with Defendants. ECF No. 1 at ¶¶ 17, 50-51, 53, 58. Because

the Plaintiff has met all three elements of an FLSA minimum wage claim, the undersigned finds

that the Plaintiff is entitled to default final judgment as to liability on Plaintiff’s claim for unpaid

minimum wages (Count II).

C. Damages

The Court must next determine the appropriate amount of damages for each of the

Plaintiff’s FLSA claims.

1. Overtime Damages

As stated above, a plaintiff is entitled to be compensated for one and one-half times the

regular rate for all hours worked in excess of forty hours per work week. See 29 U.S.C.

§ 207(a)(1). The Plaintiff has alleged that he consistently worked 20 hours of overtime each week

over the course of his 39-week employment but was not paid for those hours at the required

overtime rate. E.g., ECF No. 1 at ¶¶ 10, 13, 24, 26, 28; see also id. at ¶ 34. Defendants have not

answered the complaint or otherwise contested those allegations. In his affidavit, moreover, the

Plaintiff again states that, during the 39 weeks that he worked for Defendants, he worked 20 hours

per week in excess of a 40-hour work week but was paid only at his regular rate and not for

overtime wages. See ECF No. 18-1 at ¶¶ 11-12, 15. Under these circumstances, the Plaintiff’s

“affidavit is sufficient evidence to show the amount and extent of the work [he] performed.”

Gomes v. Nationwide Janitorial & Flooring Servs. Inc., 2007 WL 737584, at *2 (M.D. Fla. Mar.

7, 2007); see also, e.g., De Renzis v. Bos. Mkt. Corp., No. 23-24649-CIV-ALTONAGA/Reid, 2024

WL 3488307, at *2 (S.D. Fla. Mar. 25, 2024) (“In the context of an FLSA default judgment,

affidavits may be the only means of establishing a plaintiff’s damages when a defendant employer

has not come forward with time records of its own.”); Schmitt v. Courtesy Prof’l Sec., Inc.,

618CV493ORL37TBS, 2018 WL 5268755, at *2 n.2 (M.D. Fla. Aug. 22, 2018) (“Plaintiff[’s] use

of estimates to arrive at his damage calculation is acceptable in the FLSA context where the

employer does not maintain or produce accurate time records . . . .”), report and recommendation

adopted, 2018 WL 5263458 (M.D. Fla. Oct. 23, 2018).

Here, the Plaintiff has established that he was paid at a regular rate of $10.00 per hour, see,

e.g., ECF No. 1 at ¶¶ 10, 12, 26-27, 34(b); ECF No. 18-1 at ¶¶ 10-11, 15(b), so the unpaid overtime

component of his wages equates to $5.00 for each overtime hour. Because he worked 20 hours of

overtime each week, that amounts to $100.00 per week ($5.00 per hour x 20 hours per week) for

each of the 39 weeks that the Plaintiff was employed by the Defendants. Plaintiff is accordingly

owed $3,900 ($100.00 per week x 39 weeks) for uncompensated overtime.

2. Minimum Wage Damages

Under the FLSA, employees are entitled to be paid an hourly minimum wage. The federal

minimum wage is $7.25. 29 U.S.C. 206(a)(1)(C). The Plaintiff is therefore entitled under this

statute to be paid $7.25 per hour for up to 40 hours of work in a week. Id. Here, the Plaintiff has

established that he was not paid any wages for the final three weeks of his employment, during

which he worked more than 40 hours weekly. See ECF No. 18-1 at ¶¶ 16-17. He seeks minimum

wages for three 40-hour weeks of work. Accordingly, the Plaintiff is entitled to $870.00 (3 weeks

x 40 hours per week x $7.25 per hour) in unpaid minimum wages.2

2 Although the Plaintiff seeks minimum wages at the rate of $10.00 per hour based on the 2022

Florida minimum hourly wage, see ECF No. 1 at ¶ 57(b); ECF No. 18-1 at ¶ 17, the Plaintiff “has

failed to take into account that, under the FLSA, he is only entitled to the federal minimum hourly

wage.” Bowers v. Trading Card World LLC, 22-22897-CIV, 2023 WL 5154316 (S.D. Fla. July 26,

2023), report and recommendation adopted, 2023 WL 5139371 (S.D. Fla. Aug. 10, 2023); see

also, e.g., Pioch v. IBEX Eng’g Servs., 825 F.3d 1264, 1269 n.3 (11th Cir. 2016) (“[The Plaintiff]

does not explain why, if he is seeking minimum wage recovery under the FLSA, he is entitled to

recover his hourly rate, which far exceeds the minimum wage.”); Moser v. Action Towing Inc. of

Tampa, Case No. 8:16-cv-420-T-35JSS, 2017 WL 10276702, at *3 (M.D. Fla. Feb. 6, 2017)

(“Although states are entitled to set a minimum wage rate that is higher than the federal minimum

wage rate, the FLSA contains no provision requiring the payment of the higher state minimum

wage,” and, thus, a plaintiff “is only entitled to recover the lower minimum wage rate mandated

under the FLSA.”). As such, the Plaintiff’s damages are limited to the minimum wage rate

available under the FLSA.

3. Liquidated Damages

Under the FLSA, if a Plaintiff is entitled to unpaid minimum or overtime wages, he is

entitled to “an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). Accordingly,

the Defendant is liable to the Plaintiff for liquidated damages in the total amount of unpaid

overtime and minimum wages owed to him, that is, $4,770.00 ($3,900.00 + $870.00).

D. Attorneys’ Fees and Costs

The Plaintiff also seeks attorneys’ fees in the amount of $6,120.00, for 15.3 hours of work

at a rate of $400 per hour, and $587.00 in costs. ECF No. 18 at 6. When the Court denied the

Plaintiff’s initial motion for default judgment, it noted that Plaintiff’s counsel stated that he

expended 17.5 hours on this action, “which appear[ed] excessive” for “a straightforward FLSA

case that was quickly resolved via default with very little record activity.” ECF No. 14. The Court

cautioned the Plaintiff’s counsel about including “administrative or otherwise non-compensable

tasks.” Id. In this context, the undersigned reviews Plaintiff’s counsel’s renewed submissions.

“It is well established that a prevailing FLSA plaintiff is entitled to recover attorneys’ fees

and costs, based upon the plain language of the FLSA, which provides that ‘[t]he court . . . shall,

in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee

to be paid by the defendant, and costs of the action.’” Williams v. R.W. Cannon, Inc., 657 F. Supp.

2d 1302, 1306 (S.D. Fla. 2009) (quoting 29 U.S.C. § 216(b)). To determine whether requested

attorneys’ fees have been reasonably calculated, courts in this Circuit apply the lodestar method,

which requires that a reasonable hourly rate be multiplied by the reasonable number of hours

expended. See Gray v. Lockheed Aeronautical Sys. Co., 125 F.3d 1387, 1389 (11th Cir. 1997);

Walker v. Iron Sushi LLC, 752 F. App’x 910, 913 (11th Cir. 2018). “A reasonable hourly rate is

the prevailing market rate in the relevant legal community for similar services by lawyers of

reasonably comparable skills, experience, and reputation.” Norman v. Hous. Auth. of City of

Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). Regarding the reasonableness of hourly rates,

the Court “is itself an expert on the question and may consider its own knowledge and experience

concerning reasonable and proper fees and may form an independent judgment either with or

without the aid of witnesses as to value.” Id. at 1303. Reasonable hours, in turn, are “billable

hours—that is, work that would be paid for by a reasonable client of means seriously intent on

vindicating the rights in issue.” Perkins v. Mobile Hous. Bd., 847 F.2d 735, 738 (11th Cir. 1988)

(citing Norman, 836 F.2d at 1301). In the Eleventh Circuit, “the measure of reasonable hours is

determined by the profession’s judgment of the time that may be conscionably billed and not the

least time in which it might theoretically have been done.” Norman, 836 F.2d at 1306.

Here, the Plaintiff asserts that his counsel expended 15.3 hours working on this case, and

he has provided a breakdown of the time that his attorney, Zandro E. Palma, spent on each specific

activity. ECF No. 18 at 6; ECF No. 18-2 (Declaration of Attorney Palma). Given the nature of

this case, the issues that were raised, and the work that was required to seek and obtain a default

judgment in this case, the undersigned finds that 15.3 hours was a reasonable number of hours to

expend litigating this case. Notably, the Plaintiff seeks 2.2 hours fewer in fees for his counsel than

in his initial motion for default judgment and appears to have removed certain “administrative or

otherwise non-compensable tasks” from his billing records. Compare ECF No. 12-2 with ECF

No. 18-2.3

3 The undersigned notes that the Plaintiff’s itemization of attorney time still includes a number of

entries with references to administrative or clerical non-compensable tasks of uploading and

efiling, but given that those time entries appear to primarily address substantive work and the

uploading and efiling components appear to be negligible parts of a catch-all description of the

work expended, see ECF No. 18-2 at 6-7, the undersigned finds that the time billed for those entries

is reasonably compensable. In the future, however, counsel would do well to exclude even de

minimis clerical time devoted to uploading or efiling.

Plaintiff’s counsel’s hours were billed at the rate of $400 per hour, which attorney Palma

has explained has been his hourly rate for several years. ECF No. 18-2. As further support for the

Plaintiff’s requested fees, attorney Palma’s declaration describes the work that he performed and

his experience in the area of employment law. Id. Under these circumstances and given attorney

Palma’s experience, the undersigned finds that the requested $400 rate is a reasonable hourly rate

for the work that was performed. See Norman, 836 F.2d at 1299; see also, e.g., Valley v. Ocean

Sky Limo, 82 F. Supp. 3d 1321, 1328-29 (S.D. Fla. 2015) (ruling that attorney’s rate of $400/hour

was reasonable in FLSA case). The resulting lodestar amount for attorney’s fees is thus $6,120

(15.3 hours x $400/hour).

As a result, the undersigned finds that the Plaintiff is entitled to an award of attorneys’ fees

of $6,120 and costs in the requested amount of $587.4

IV. CONCLUSION

Based on the foregoing considerations, the undersigned RESPECTFULLY

RECOMMENDS that the Plaintiff’s Amended Motion for Default Judgment Against All

Defendants, ECF No. 18, be GRANTED; that judgment be entered in favor of the Plaintiff and

against Defendants Porto Alegre Brazilian Grill & Bar, Corp. and Janousky A. Torres; and that the

Plaintiff be awarded $9,540.00 in damages and liquidated damages under the FLSA against the

Defendants, jointly and severally, and $6,120.00 in attorneys’ fees and $587.00 in costs against

Defendants, jointly and severally.

Pursuant to Local Magistrate Rule 4(b), the Court finds good cause to EXPEDITE the

period to serve and file written objections to this Report and Recommendation. Accordingly,

4 The Plaintiff seeks costs totaling $587.00 for the filing fee in this case ($402.00), the expense of

serving two defendants (2 x $80.00), and copying costs ($25.00). See ECF No. 18-2 at 7. Such

costs are taxable under Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920. Accordingly, the Plaintiff is

entitled to recovery of those costs.

within three (3) days from the date of this Report and Recommendation, that is, by September 26,

2024, the parties shall serve and file written objections, if any, to this Report and Recommendation

with the Honorable Jose E. Martinez, United States District Judge. Failing to file timely objections

will bar a de novo determination by the District Judge of any issue addressed in the Report and

Recommendation, will constitute a waiver of a party’s “right to challenge on appeal the district

court’s order based on unobjected-to factual and legal conclusions,” and will only allow appellate

review of the district court order “for plain error if necessary in the interests of justice.” 11th Cir.

R. 3-1; 28 U.S.C. § 636(b)(1); Thomas vy. Arn, 474 U.S. 140 (1985); Henley v. Johnson, 885 F.2d

790, 794 (11th Cir. 1989); see also Harrigan v. Metro-Dade Police Dep't Station #4, 977 F.3d

1185, 1191-92 (11th Cir. 2020).

RESPECTFULLY RECOMMENDED in Chambers in Miami, Florida, this 23rd day of

September 2024.

Zl

—

UNITED STATES MAGISTRATE JUDGE

ce: Hon. Jose E. Martinez

Counsel of Record

12