Perez v. Margaritas V&P, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

JUAN PEREZ,

Plaintiff,

v. Case No: 6:22-cv-1133-RBD-EJK

MARGARITAS V&P, INC.,

Defendant.

REPORT AND RECOMMENDATION

This cause comes before the Court on Plaintiff's Motion for Entry of Final

Default Judgment (the “Motion”). (Doc. 20.) Upon consideration, I respectfully

recommend that the Motion be granted.

I. BACKGROUND1

This is an action for one count of unpaid overtime wage compensation under

the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201–219 (“FLSA”). (Doc. 1.)

Plaintiff sued Defendant, Margaritas V&P, Inc. (“Margaritas”), asserting that he was

a non-exempt employee working as a dishwasher at Defendant’s Mexican restaurant.

(Id. ¶¶ 7–11.)

Plaintiff served Defendant on July 23, 2022. (Doc. 11.) No answer was filed by

Defendant. Thus, after the undersigned granted Plaintiff’s motion for a clerk’s default,

1 On default, a defendant admits the well-pleaded allegations of fact in the complaint.

Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir.

2009).

the Clerk entered default against Defendant on October 4, 2022. (Docs. 18, 19.)

Plaintiff thereafter filed the instant Motion, supplemented by his Declaration and a

Declaration from his Attorney, Joseph C. Wood. (Docs. 20, 21, 23.)

II. STANDARD

A district court may enter a default judgment against a properly served

defendant who fails to defend or otherwise appear. Fed. R. Civ. P. 55(b)(2). The mere

entry of a default by the Clerk does not, in itself, warrant the Court entering a default

judgment. See Tyco Fire & Sec. LLC v. Alcocer, 218 F. App’x 860, 863 (11th Cir. 2007)

(unpublished). Rather, a defaulted defendant is deemed only to admit the plaintiff’s

well-pled allegations of fact. Id. “Thus, before entering a default judgment for damages,

the district court must ensure that the well-pleaded allegations in the complaint, which

are taken as true due to the default, actually state a substantive cause of action and that

there is a substantive, sufficient basis in the pleadings for the particular relief

sought.” Id. (emphasis in original).

“Once liability is established, the court turns to the issue of relief.” Enpat, Inc. v.

Budnic, 773 F. Supp. 2d 1311, 1313 (M.D. Fla. 2011). “Pursuant to Federal Rule of

Civil Procedure 54(c), ‘[a] default judgment must not differ in kind from, or exceed in

amount, what is demanded in the pleadings,’ and a court may conduct hearings when

it needs to determine the amount of damages, establish the truth of any allegation by

evidence, or investigate any other matter.” Id. (citing Fed. R. Civ. P. 55(b)(2)).

III. DISCUSSION

A. Personal Jurisdiction

Upon review of the allegations in the Complaint and the service of process, the

undersigned finds that there is personal jurisdiction over Defendant. “‘Personal

jurisdiction is a composite notion of two separate ideas: amenability to jurisdiction, or

predicate, and notice to the defendant through valid service of process.’” Prewitt Enters.,

Inc. v. Org. of Petroleum Exp. Countries, 353 F.3d 916, 925 n.15 (11th Cir. 2003) (quoting

DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1264 (5th Cir. 1983)). The party moving

for default judgment must demonstrate that a court has jurisdiction over the party

against whom the default judgment is sought. See Nationwide Mut. Fire Ins. Co. v.

Creation’s Own Corp., S.C., No. 6:11-cv-1054-Orl-28DAB, 2011 WL 6752561, at *2

(M.D. Fla. Nov. 16, 2011), report and recommendation adopted, 2011 WL 6752557 (M.D.

Fla. Dec. 22, 2011) (“In addition to a showing of adequate service of process (or a

showing sufficient to establish waiver of same), a Court . . . must assure itself of

jurisdiction over the action and the parties.”).

The undersigned finds that there is personal jurisdiction over Defendant because

it is a Florida corporation that operates and conducts business in Brevard County,

Florida. (Doc. 1 ¶ 3.) Additionally, in the Order granting Plaintiff’s Second Motion for

Clerk Default, the undersigned concluded that service on Defendant was effective

under Florida Statute § 48.081. (Doc. 18 at 2–4.)

B. Subject Matter Jurisdiction

Plaintiff alleges that there is federal question jurisdiction over his unpaid

overtime wage claim brought pursuant to the FLSA. (Doc. 1 ¶ 1.) Federal question

jurisdiction exists in civil actions arising under the Constitution, laws, or treaties of the

United States. 28 U.S.C. § 1331. “The presence or absence of federal-question

jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that

federal jurisdiction exists only when a federal question is presented on the face of the

plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392

(1987) (citation omitted). Here, federal question jurisdiction is apparent on the face of

the Complaint.

C. Venue

Pursuant to 28 U.S.C. § 1391(b)(2), a civil action can be brought in “a judicial

district in which a substantial part of the events or omissions giving rise to the claim

occurred, or a substantial part of property that is the subject of the action is situated.”

Venue is appropriate in the Middle District of Florida, Orlando Division, because a

substantial portion of the events giving rise to the claim at issue occurred in Brevard

County, Florida. (Doc. 1 ¶ 4); Local Rule 1.04(a) (stating that the Orlando Division

encompasses Brevard County).

D. Entitlement to Default Judgment and Damages

1. FLSA Claim

Plaintiff asserts one count of unpaid overtime wage compensation. (Doc. 1 ¶¶

14–26.) The FLSA prohibits an employee from working more than 40 hours a week

unless he is compensated at “a rate not less than one and one-half times the regular

rate at which he is employed.” 29 U.S.C. § 207(a)(2). Any employer who violates

the FLSA’s overtime wage provisions is “liable to the employee . . . affected in the

amount of . . . their unpaid overtime compensation . . . and in an additional equal

amount as liquidated damages.” Id. § 216(b).

The FLSA establishes overtime wage standards for employees who are

“engaged in commerce or in the production of goods for commerce” or “employed in

an enterprise engaged in commerce or in the production of goods for commerce.” 29

U.S.C. § 207(b). “To trigger liability under the FLSA’s overtime . . . wage provision[s],

a plaintiff must show: (1) an employee-employer relationship exists between the

parties, and (2) he is ‘covered’ by the FLSA.” Cabreja v. SC Maint., Inc., No. 8:19-cv-

296-T-33CPT, 2019 WL 2931469, at *3 (M.D. Fla. June 19, 2019) (citing Josendis v.

Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011)), report and

recommendation adopted, 2019 WL 2929325 (M.D. Fla. July 8, 2019). “To state a claim

for failure to pay minimum (or overtime) wages under the FLSA, a plaintiff must

demonstrate that (1) he is employed by the defendant, (2) the defendant engaged in

interstate commerce, and (3) the defendant failed to pay him minimum or overtime

wages.” Freeman v. Key Largo Volunteer Fire & Rescue Dep’t, Inc., 494 F. App’x 940, 942

(11th Cir. 2012) (citing Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1277 n.68

(11th Cir. 2008)) (unpublished).

Plaintiff’s allegations sufficiently demonstrate an employee-employer

relationship between himself and Defendant. Plaintiff alleges he was employed by

Defendant as a non-exempt hourly employee working as a dishwasher from September

2021 to March 2022. (Doc. 1 ¶¶ 7–10.)

With respect to the coverage element, “a plaintiff employee must establish one

of two types of coverage under the [FLSA]: (1) ‘enterprise coverage,’ which applies to

the defendant employer, or (2) ‘individual coverage,’ which applies to the plaintiff

employee.” Gaviria v. Maldonado Brothers, Inc., No. 13-60321-CIV-

ROSENBAUM/HUNT, 2014 WL 12531281, at *3 (S.D. Fla. Mar. 31, 2014) (citing

Martinez v. Palace, 414 F. App’x 243, 244–45 (11th Cir. 2011) and Thorne v. All

Restoration Servs., 448 F.3d 1264, 1265–66 (11th Cir. 2006)). An employer falls within

the FLSA’s enterprise coverage where:

(1) it ‘has employees engaged in commerce or in the

production of goods for commerce, or . . . has employees

handling, selling, or otherwise working on goods or

materials that have been moved in or produced for

commerce by any person’ and (2) has an ‘annual gross

volume of sales made or business done . . . not less than

$500,000.

Id. (quoting 29 U.S.C. § 203(s)(1)(A)).

In the Complaint, Plaintiff alleges that Defendant satisfies the enterprise

coverage element because it has annual gross revenue that totaled $500,000 or more

and was engaged in interstate commerce within the meaning of the FLSA, since “it

has employees handling, selling, or otherwise working on goods or materials including

food, drinks, and supplies, that have been moved in or produced for commerce, as well

as handling credit card transactions and accepting orders online and over the phone.”

(Doc. 1 ¶¶ 12–13) (footnote omitted). Accepting these allegations as true, I find

Plaintiff sufficiently demonstrates enterprise coverage.

Having established a violation of § 207, Plaintiff is entitled to an award of

damages, consisting of his unpaid overtime wages and an equal amount of liquidated

damages. See 29 U.S.C. § 216(b). Based on the information Plaintiff provided, the

undersigned makes the following calculation:

The overtime rate is one and a half times an employee’s regular rate of pay.

Plaintiff states in his Declaration in support of the Motion that he was compensated

$740.29 weekly, and that he worked 60 hours per week, resulting in 20 overtime hours.

(Doc. 23 ¶¶ 4, 5.) As a result, Plaintiff’s regular hourly rate was $12.34, with an

overtime premium of $6.17 ($12.34/2).

There is a discrepancy between the Complaint and Plaintiff’s Declaration

regarding the exact number of overtime hours Plaintiff worked. The Complaint alleges

Plaintiff worked 540 overtime hours. (Doc. 1 ¶ 22.) However, Plaintiff’s Declaration

stated he worked 560 overtime hours, and the Complaint contains a miscalculation of

hours. (Doc. 23 ¶ 7 n.4.) On a motion for default judgment, the Court cannot award

more than the amount requested in the Complaint. Fed. R. Civ. P. 54(c). Therefore,

despite Plaintiff’s miscalculation in his Complaint, the undersigned finds it would not

be appropriate to award Plaintiff more than what he has pleaded in his complaint.

Therefore, Plaintiff is entitled to an overtime premium of $6.17 for 540 overtime hours,

for a total of $3,331.80. However, Plaintiff’s Complaint alleges Plaintiff is owed

$3,331.31 in overtime, for a difference of $0.49. (Doc. 1 ¶ 22.) As $3,331.31 was

pleaded in Plaintiff’s Complaint, the undersigned finds it appropriate to award that

amount.

Additionally, Plaintiff is owed an equal amount of damages in liquidated

damages. Therefore, the undersigned respectfully recommends Plaintiff be awarded

$3,331.31 in actual damages for his unpaid overtime wages and $3,331.31 in

liquidated damages, for a total award of $6,662.62.

2. Entitlement to Attorney’s Fees

In the Complaint, Plaintiff makes a claim for attorney’s fees and costs pursuant

to the FLSA. (Doc. 1 at 5.) A party that prevails on an FLSA claim is entitled to

reasonable attorney’s fees and costs. See 29 U.S.C. § 216(b) (“The court in such action

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.”). Here,

as discussed above, the undersigned recommends granting default judgment in favor

of Plaintiff and awarding $6,662.62. Therefore, Plaintiff is the prevailing party in this

case and is entitled to an award of attorney’s fees under §216(b) of the FLSA. See

Morillo-Cedron v. Dist. Dir. for the U.S. Citizenship & Immigr. Servs., 452 F.3d 1254, 1257

(11th Cir. 2006) (stating that “‘a prevailing party’ is one who has been awarded some

relief by the court”).

After determining a prevailing party’s entitlement to fees, the Court must then

consider the reasonableness of the amount of fees and costs award. To calculate a

reasonable award of attorney’s fees, courts multiply the reasonable hourly rate by the

reasonable hours expended. See Hensley v. Eckerhart, 461 U.S. 424, 433–34 (1983);

Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). In

determining this lodestar figure, a “reasonable hourly rate” consists of “the prevailing

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

reasonably comparable skills, experience, and reputation.” Norman, 836 F.2d at 1299

(citations omitted). In this context, “market rate” means the hourly rate charged in the

local legal market by an attorney with expertise in the area of law who is willing and

able to take the case, if indeed such an attorney exists. Am. Civil Liberties Union of Ga.

v. Barnes, 168 F.3d 423, 437 (11th Cir. 1999). The fee applicant bears the burden of

establishing the requested rates are in line with the prevailing market rates by

producing direct evidence of rates charged in similar circumstances or opinion

evidence of reasonable rates. Norman, 836 F.2d at 1299. At a minimum, satisfactory

evidence consists of more than the affidavit of the attorney performing the work;

instead, “satisfactory evidence necessarily must speak to rates actually billed and paid

in similar lawsuits.” Id.

After determining the reasonable hourly rate, courts must then determine the

number of hours reasonably expended on the litigation. In submitting a fee petition,

counsel must exercise proper billing judgment and thus exclude any hours that are

“excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434.

Accordingly, counsel may not bill any hours to their adversary which they would not

bill to their client. Id. “[W]here the time or fees claimed seem expanded or there is a

lack of documentation or testimonial support the court may make the award on its

own experience.” Norman, 836 F.2d at 1303.

Plaintiff seeks reimbursement for 15.2 total hours of attorney time at a rate of

$400 and $450 per hour for Attorneys Joseph C. Wood and Maurice Arcadier,

respectively. (Doc. 20 at 7.) Plaintiff also seeks reimbursement for 6.7 hours of

paralegal time at a rate of $125 per hour for Paralegal Elizabeth M. Waryk. (Id.)

Plaintiff seeks a total fee award of $6,967.50. Plaintiff’s attorney, Mr. Wood, also filed

a Declaration in support of this fee request. (Doc. 21.)

Mr. Wood has practiced law for 11 years and is a partner at his law firm. (Doc.

20 at 7.) Mr. Wood cites to caselaw where he was awarded an hourly rate of $350 per

hour in another FLSA matter. (Id. at 8) (citing Sumner v. Garner, 6:18-cv-40-Orl-28GJK

(Docs. 59 at 3, 61).) Mr. Wood asserts that, given inflation, a rate of $350 in 2019 has

a fair market value today of $403.67, using the U.S. Department of Labor Statistics

CPI Inflation Calculator. (Id.) As such, Mr. Wood seeks an hourly rate of $400 per

hour.

The undersigned finds that an hourly rate of $400 an hour is appropriate for Mr.

Wood, given inflation and awards in prior cases in the Orlando Division of the Middle

District of Florida. See, e.g., Bishop v. VIP Transportation Group, LLC, No. 6:15-cv-2118-

Orl-22KRS, Doc. 46 at 7 (M.D. Fla. Apr. 7, 2017) (recommending a rate of $350 per

hour as reasonable for an attorney with more than 20 years of experience as a labor

and employment attorney), report and recommendation adopted, Doc. 47 (M.D. Fla. Apr.

27, 2017); Curbelo et al. v. Mallard Cleaning Systems, LLC, No. 6:14-cv-2103-Orl-37DAB,

Doc. 24 at 4 (M.D. Fla. Apr. 14, 2015) (recommending a rate of $350 per hour as

reasonable for an attorney who had been a member of the Florida Bar for 9 years and

practiced extensively in employment related matters for 8 years), report and

recommendation adopted, Doc. 26 (Apr. 15, 2016).

Mr. Arcadier is the managing partner of his law firm and has practiced law for

25 years. (Doc. 20 at 9.) He is board certified in the area of Labor and Employment.

(Id.) Mr. Arcadier cites to caselaw where he was awarded an hourly rate of $400 per

hour in another FLSA matter. (Id.) (citing Sumner, 6:18-cv-40-Orl-28GJK (Docs. 59,

61).) He likewise asserts that, given inflation, a rate of $400 in 2019 has a fair market

value today of $461.34, using the U.S. Department of Labor Statistics CPI Inflation

Calculator. (Id.). As such, Mr. Arcadier seeks an hourly rate of $450 per hour. The

undersigned finds that an hourly rate of $450 an hour is appropriate for Mr. Arcadier

given inflation and awards in prior cases in Orlando Division of the Middle District of

Florida.

Finally, Ms. Waryk is a Florida Registered Paralegal who has seven years of

experience. (Doc. 20 at 10.) Her billable rate is $125, and Plaintiff seeks to recover her

time at that hourly rate. (Id.) Plaintiff asserts that $125 per hour is the median hourly

rate for paralegals according to the Florida Bar’s 2018 Economics and Law Office

Management Survey published in March 2019. (Doc. 20 at 10) (citing HealthPlan

Servs., Inc. v. Dixit, No. 8:18-cv-2608-T-23AAS, 2019 WL 7041837, at *4 (M.D. Fla.

Dec. 20, 2019) (awarding paralegal $125 hourly rate in trade secret case)). Other courts

in the Middle District have awarded experienced paralegals hourly rates in the range

of $90 to $125. See HealthPlan Servs., 2019 WL 7041837, at *4; see also Johnson v. Potter,

No. 8:08–cv–1279–T–24 TGW, 2011 WL 672347, at *2–3 (M.D. Fla. Feb. 17, 2011)

(awarding paralegals hourly rates of $115 and $90 per hour in employment

discrimination case). In light of this persuasive authority and relying on the Court's

own experience and expertise in these matters, the undersigned finds it appropriate to

award Ms. Waryk an hourly rate of $125 per hour.

With respect to the hours expended, the timesheet reflects the attorneys and

paralegal expended a reasonable amount of time on the matter. Mr. Wood seeks

reimbursement for 14.2 hours of time. (Doc. 21 Ex. A.) Most of this time entails

preparing docket filings. (Id.) Mr. Arcadier seeks reimbursement for a 1 hour meeting

with Plaintiff about this case. (Id.) Finally, Ms. Waryk seeks reimbursement for 6.7

hours of time. (Id.) Her time was spent preparing docket filings and maintaining the

case file. (Id.) Upon review, the undersigned finds that the hours expended in this case

are reasonable.

3. The Lodestar

Based upon the foregoing recommendations, the undersigned calculates a

lodestar of $6,967.50 as follows:

Rate Hours Total

Joseph C. Wood $400 14.2 $5,680

Maurice Arcadier $450 1.0 $450

Elizabeth M. $125 6.7 $837.50

Waryk (Paralegal)

$6,967.50

4. Entitlement to Costs

Plaintiff requests costs in the amount of $461. (Doc. 21 ¶ 12.) The costs

recoverable by a prevailing plaintiff in FLSA cases under § 216(b) are limited to those

costs enumerated in 28 U.S.C. § 1920. See Glenn v. Gen. Motors Corp., 841 F.2d 1567,

1575 (11th Cir. 1988). Here, Plaintiff seeks to recover costs associated with the filing

fee ($402) and service of process fees ($59). These costs are properly recoverable under

§ 1920. See 28 U.S.C. § 1920(1). The evidence provided by Plaintiff supports this

award. (See Doc. 21.) Therefore, it is recommended that costs be awarded in the

amount of $461.

IV. RECOMMENDATION

Upon consideration of the foregoing, I RESPECTFULLY RECOMMEND

that the Court:

1. GRANT Plaintiff's Motion for Entry of Final Default Judgment (Doc. 20);

2. ENTER a default judgment against Margaritas V&P, Inc. by awarding:

a. $3,331.31 in actual damages for Plaintiff's unpaid overtime wages and

$3,331.31 in liquidated damages, for a total damages award of

$6,662.62.

b. $6,967.50 in attorney’s fees and $461 in costs.

3. Thereafter, DIRECT the Clerk of Court to close the case.

NOTICE TO PARTIES

The party has fourteen days from the date the party is served a copy of this

report to file written objections to this report’s proposed findings and

recommendations or to seek an extension of the fourteen-day deadline to file written

objections. 28 U.S.C. § 636(b)(1)(C). A party’s failure to file written objections waives

that party’s right to challenge on appeal any unobjected-to factual finding or legal

conclusion the district judge adopts from the Report and Recommendation. See 11th

Cir. R. 3-1; 28 U.S.C. § 636(b)(1).

Recommended in Orlando, Florida on March 14, 2023.

aM J. KIDD

UNITED STATES MAGISTRATE JUDGE