The opinion
United States District Court
for the
Southern District of Florida
David Betancourt, Plaintiff, )
)
v. )
Civil Action No. 23-21184-Civ-Scola
)
Buggy Technologies Inc and Isabel )
Berney, Defendants. )
Omnibus Order
Previously, the Court referred Plaintiff David Betancourt’s two motions
for default judgment (Pl.’s Mots., ECF Nos. 15, 30) to United States Magistrate
Judge Jonathan Goodman for a report and recommendations. (Court’s Ref.,
ECF Nos. 16, 31.) Judge Goodman issued a report, recommending that the
Court deny Betancourt’s first motion, without prejudice (1st Rep. & Rec., ECF
No. 18), which the Court adopted, after no objections were filed. (ECF No. 19.)
In adopting that report and its recommendations, the Court ordered
Betancourt to file an amended complaint, to address the deficiencies Judge
Goodman identified. (Id.) Following that order, Betancourt amended his
complaint and then moved for default judgment again. (Am. Compl., ECF No.
21; Pl.’s 2nd Mot. for Def. J., ECF No. 30.) Judge Goodman has reviewed that
motion and recommends that it also be denied, without prejudice, based on
various defects. (2nd Rep. & Rec., ECF No. 32.) In the meantime, Betancourt
has filed yet another motion for default judgment (his third attempt). (Pl.’s Am.
Mot. for Def. J., ECF No. 33.) No objections have been lodged against Judge
Goodman’s second report nor has any opposition been filed to Betancourt’s
amended motion for default judgment and the time to do either has passed.
After review, the Court adopts Judge Goodman’s second report and
recommendation (ECF No. 32), thus denying, without prejudice,
Betancourt’s second motion for default judgment (ECF No. 30). At the same
time, the Court grants in large part and denies in small part Betancourt’s
third motion for default judgment (ECF No. 33).*
Despite the lack of objections, the Court has nonetheless made a de novo
review of Judge Goodman’s recommendations. After careful consideration of his
report, the record, and the relevant legal authorities, the Court agrees with the
entirety of Judge Goodman’s findings and conclusions: although Betancourt
succeeded in establishing the Defendants’ liability, he failed to supply adequate
* Both Defendants have defaulted and so there is no possibility of inconsistent liability between
the Defendants in this case.
support for the Court to determine the amount of damages he is entitled to.
The Court therefore affirms and adopts Judge Goodman report and
recommendation that Betancourt’s second motion for default judgment be
denied without prejudice.
In response to the deficiencies identified by Judge Goodman, Betancourt
has since filed an amended motion for default judgment. (Pl.’s Am. Mot., ECF
No. 33.) Having previously established the Defendants’ liability under the Fair
Labor Standards Act and the Florida Minimum Wage Act, Betancourt has now
adequately supported his entitlement to statutory and liquidated damages as
well as some of his claimed attorney’s fees and costs.
1. Damages
“Once a plaintiff has established a sufficient basis for liability,” where the
Defendants have defaulted, “the [c]ourt must conduct an inquiry to determine
the appropriate damages.” Gov’t Emps. Ins. Co. v. Compass Med. Ctrs. Inc., No.
21-CV-23623, 2022 WL 17653816, at *2 (S.D. Fla. Nov. 10, 2022) (Damian,
Mag. J.), rep. & recs. adopted, No. 21-23623-CIV, 2022 WL 17602650 (S.D. Fla.
Dec. 13, 2022) (Gayles, J.). “[W]here the record adequately supports an award
of damages, an evidentiary hearing is not required.” Id. An employer who
violates the FLSA is liable to the employee affected in the amount of his unpaid
wages “and in an additional equal amount as liquidated damages.” 29 U.S.C. §
216(b). The FLSA additionally authorizes an award of attorney’s fees to the
prevailing plaintiff in a proceeding to enforce its wage provisions. Id.
As to Betancourt’s claims for minimum-wage and overtime damages, he
has set forth, through his amended motion and its accompanying revised
sworn declaration (Pl.’s Decl., ECF No. 33-1), a “legitimate basis” from which
the Court can infer “a reasonable estimate of damages.” Hornady v. Outokumpu
Stainless USA, LLC, 118 F.4th 1367, 1385–86 (11th Cir. 2024). Betancourt
worked for the Defendants, as a driver, from about August 22 to December 9,
2022. (Pl.’s Am. Mot. at 9; Pl.’s Decl. ¶ 3.) During the first six weeks of his
employment (until about September 30, 2022), the Defendants paid Betancourt
$700 per work week. (Pl.’s Am. Mot. at 9; Pl.’s Decl. ¶ 6.) Then, although his
hours remained the same, Betancourt’s weekly salary was reduced to $600
from October 1 through November 20, 2022. (Pl.’s Am. Mot. at 9; Pl.’s Decl. ¶
7.) After November 20, however, until his last day, on December 9, Betancourt
says he was not compensated at all. (Pl.’s Am. Mot. at 9; Pl.’s Decl. ¶ 8.b.)
While Betancourt recounts his compensation with precision, he is less
exact as to the hours he worked. On the one hand, he describes “regularly
work[ing] up to . . . 65[] hours per workweek” but then also says he “regularly
worked 13-hour days, Monday through Friday.” (Pl.’s Decl. ¶ 5 (emphasis
added).) While providing he worked “up to” 65 hours a week is not particularly
helpful, recounting that he regularly worked thirteen hours, five days a week, is
more informative. The Court finds this sufficient, in this case, to establish,
though barely, that Betancourt worked 65 hours a week for the Defendants.
Schmitt v. Courtesy Prof. Sec., Inc., No. 618CV493ORL37TBS, 2018 WL
5268755, at *2 n. 2 (M.D. Fla. Aug. 22, 2018), rep. & recs. adopted, No.
618CV493ORL37TBS, 2018 WL 5263458 (M.D. Fla. Oct. 23, 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, as alleged here.”). Based on that figure, the Court agrees with
Betancourt’s calculations as follows.
As for Betancourt’s minimum-wage claims, during the time he was
compensated only $600 a week, he was not paid at least the minimum wage of
$11 an hour ($600 divided by 65 hours = $9.23). Accordingly, for that period,
of eight weeks, the Defendants owe him an additional $1.77 an hour for each
hour he worked ($11 minus $9.23 = $1.77). This amounts to $940.20 ($1.77
multiplied by 65 hours multiplied by 8 weeks). Additionally, the Defendants
failed to compensate Betancourt at all for the eleven days he worked between
November 21 and December 9, 2022. Accordingly, he is owed an additional
minimum wage compensation of $1,573 for that period ($11 multiplied by 13
hours multiplied by 11 days = $1573). In sum, the total the Defendants owe
Betancourt for his unpaid minimum wages is $2,493.40.
Turning to Betancourt’s overtime-wage claims, Betancourt was not paid
the time and a half he was due for the twenty-five hours he worked in excess of
forty hours each week. For the six weeks during which the Defendants paid
Betancourt $700 per week, this amounts to $807 (half of $10.76/hour
multiplied by 25 hours multiplied by six weeks = $807.) For the remaining ten
weeks, this amounts to $1,375 (half of $11.00/hour multiplied by 25 hours
multiplied by ten weeks = $1375). In sum, then, the Defendants owe
Betancourt $2,182.00 for unpaid overtime. This amounts to a total award of
$4,675.40 in wage damages.
As already found by Judge Goodman, due to the Defendants’ default and
consequent failure to make a showing of good faith, the Court must also award
Betancourt liquidated damages, in an amount equal to the total wage awards
calculated above: $4,675.40 ($2,493.40 in unpaid minimum wages plus
$2,182.00 in unpaid overtime = $4,675.40).
2. Fees and Costs
Betancourt also seeks an award of his attorney’s fees and costs. The
FLSA mandates that in any action brought by an employee to enforce section
206 or 207 of the Act, the 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.” 29 U.S.C. 216(b). To determine the amount
of fees due, courts use the lodestar approach and multiply the number of
hours reasonably expended by a reasonable hourly rate. Hensley v. Eckerhart,
461 U.S. 424, 433-34 (1983). When considering what constitutes a reasonable
hourly rate, the court may consider the following factors: (1) the time and labor
required; (2) the novelty and difficulty of the questions; (3) the skill requisite to
perform the legal service properly; (4) the preclusion of other employment by
the attorney due to acceptance of the case; (5) the customary fee in the
community; (6) whether the fee is fixed or contingent; (7) time limitations
imposed by the client or the circumstances; (8) the amount involved and the
results obtained; (9) the experience, reputation, and the ability of the attorneys;
(10) the “undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar cases.
Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir. 1974).
Betancourt seeks to apply a rate of $350 per hour for the work of his
counsel, Nathaly Saavedra, who has been a labor and employment attorney for,
he says, over eight years. Betancourt also proffers that Saavedra is “known in
the South Florida legal community for performing respectably in labor and
employment matters” and that she has been “approved for an hourly rate of
$350.” (Pl.’s Am. Mot. at 13.) While Betancourt does not specify, in his motion,
the number of hours Saavedra seeks compensation for, he says he seeks an
award of $4,761.50 in attorney’s fees. (Id.)
Since a movant “bears the burden of producing satisfactory evidence that
the requested rate is in line with prevailing market rates,” the Court ordinarily
expects counsel to do more than simply argue, in conclusory fashion, that their
rate and hours are reasonable. Norman v. Hous. Auth. of City of Montgomery,
836 F.2d 1292, 1299 (11th Cir. 1988). Here, Betancourt provides no evidence
regarding the prevailing market rate for lawyers of comparable skill, experience,
and reputation or any real information about Saavedra’s credentials. Nor is
there any information about who “approved” her $350 hourly rate. Based on
this scant information, the straightforward nature of this ordinary FLSA action,
the fact that the Defendants defaulted, and the Court’s own knowledge of the
hourly rates awarded for similar work, the Court finds the rate Saavedra seeks
somewhat excessive. Indeed, other Courts in this district have reached similar
conclusions, noting a general failure for this attorney to justify her hourly rate.
See, e.g., Porto-Lebron v. Peter's Plumbing, Inc., No. 22-20941-CIV, 2022 WL
16639052, at *4 (S.D. Fla. Oct. 19, 2022) (McAliley, Mag. J.) (concluding that
an hourly rate of $310 for Saavedra would be excessive and recommending a
$250 rate instead), rep. & recs. adopted, No. 22-CIV-20941, 2022 WL
16635819 (S.D. Fla. Nov. 2, 2022) (Williams, J.); see also Ramos v. Arba Constr.
Inc., No. 20-25192-CIV, 2021 WL 4482659, at *2 (S.D. Fla. Aug. 25, 2021)
(McAliley, Mag. J.) (same), rep. & recs. adopted, No. 20-25192-CV, 2021 WL
4480169 (S.D. Fla. Sept. 30, 2021) (Graham, J.). That said, the Court has
found at least one case, fortunately for Saavedra, where she was recently
awarded $325 an hour, in a default-judgment case, and so that previously
approved hourly rate will be adopted here. See Mikail v. 24/7 Glob. Sec., Inc.,
No. 1:22-CV-23450-KMM, 2024 WL 555142, at *2 (S.D. Fla. Jan. 24, 2024)
(Louis, Mag. J.), rep. & recs. adopted, No. 1:22-CV-23450-KMM, 2024 WL
552153 (S.D. Fla. Feb. 12, 2024) (Moore, J.).
Next, the Court reviews the number of hours counsel claims to have
expended in this litigation. First, however, the Court notes a discrepancy. In
Betancourt’s motion he does not specify the number of hours Saavedra
expended and simply reports that the total fee award sought is $4,761.50. (Pl.’s
Am. Mot. at 13.) The subtotal listed for Saavedra’s fees within her timekeeper
report, in contrast, is only $4,686.50. (Inv., ECF No. 33-2, 2.) Since the lower
figure appears supported by the actual billing records, the Court assumes the
higher figure, relayed in the motion, was in error. Dividing this lower figure by
Saavedra’s billed rate of $350, it appears Saavedra seeks to be compensated for
about 13.4 hours of work in this case.
Next, the Court has reviewed Saavedra’s time records and finds a
handful of entries “excessive, redundant or otherwise unnecessary.” Norman,
836 F.2d at 1301. Among such entries are one hour spent reviewing a half-
page order reopening this case; time spent on an amended complaint to
address deficiencies in Betancourt’s initial complaint; and extra time entries
necessitated by counsel’s various default-motion drafting insufficiencies.
Norman, 836 F.2d at 1301. Based on these problematic entries, the Court
applies an across-the-board reduction of 20% to the total hours Saavedra seeks
compensation for. See Valdes v. Kendall Healthcare Group, Ltd., No. 1:22-CV-
22046-KMM, 2024 WL 4133869, at *7 (S.D. Fla. July 19, 2024) (Louis, Mag. J.)
(“When a request for attorney’s fees is unreasonably high, courts may conduct
an hour-by-hour analysis or may reduce the requested hours with an across-
the-board cut.”), rep. & recs. adopted, No. 1:22-CV-22046-KMM, 2024 WL
3811099 (S.D. Fla. Aug. 14, 2024) (Moore, J.).
Accordingly, on the record before it, the Court finds Betancourt entitled
to a fee award of $3,484 (13.4 hours reduced by 20% (which is 10.72 hours),
multiplied by a rate of $325 hours = $3,484).
Finally, as to the 28 U.S.C. § 1920 costs Betancourt seeks, he is entitled
to only $532 of the $901.45 he requests. The Court’s total is comprised of
$402 for the Clerk’s filing fee; and $130 for service of process on the two
Defendants by a private process server.
The $470 Betancourt seeks for service of the complaint on the two
Defendants impermissibly exceeds the cost of having a U.S. Marshal effect
service. See U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 624 (11th Cir. 2000) (“[A]
district court does not abuse its discretion in taxing private process server fees
that do not exceed the statutory fees authorized in § 1921.”). Since Betancourt
fails to supply any justification for the overage, the Court limits his
reimbursement to the $65 per hour, per Defendant, as allocated under 28
C.F.R. § 0.114(a)(3). Betancourt also includes a couple dozen entries that
reflect mailing costs. None of these costs, however, are recoverable under §
1920.
3. Conclusion
In sum, the Court adopts Judge Goodman’s second report and
recommendation (ECF No. 32), thus denying, without prejudice,
Betancourt’s second motion for default judgment (ECF No. 30). At the same
time, the Court grants in large part and denies in small part Betancourt’s
third motion for default judgment (ECF No. 33).
The Court grants final default judgment in Betancourt’s favor, awarding
him $4,675.40 in wage damages plus $4,675.40 in liquidated damages;
$3,484 in attorney’s fees; and; $532 in costs. A separate judgment will follow.
The Clerk is directed to close this case. Any other pending motions are
denied as moot.
The Court also directs the Clerk to mail a copy of this order to the
Defendants at the addresses indicated below.
Done and ordered in Miami, Florida, on December 6, 2024.
[oe N. Scola, Jr.
United States District Judge
Copies via U.S. mail to:
Buggy Technologies Inc.
c/o Isabel Berney, registered agent
64 SW 18 RD
Miami, FL 33130
Isabel Berney
64 SW 18 RD
Miami, FL 33130