Betancourt v. Buggy Technologies Inc

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 1:23-21184-CIV-SCOLA/GOODMAN

DAVID BETANCOURT,

Plaintiff,

v.

BUGGY TECHNOLOGIES INC.,

a Florida Corporation, and

ISABEL BERNEY, individually,

Defendants.

/

REPORT AND RECOMMENDATIONS ON PLAINTIFF’S

MOTION FOR A DEFAULT JUDGMENT1

In this six-count action brought under the Fair Labor Standards Act (“FLSA”), 29

U.S.C. §§ 201, et seq., and the Florida Minimum Wage Act (“FMWA”), Fla. Stat. §448.110,

Plaintiff David Betancourt (“Plaintiff”) filed a Motion for a Default Judgment against

Defendants Buggy Technologies Inc. ("Defendant Buggy") and Isabel Berney ("Defendant

Berney" and collectively "Defendants"). [ECF No. 30]. Senior United States District Judge

Robert N. Scola, Jr. referred Plaintiff’s motion to the Undersigned for a Report and

1 Judge Scola denied Plaintiff’s initial Motion for Default Judgment [ECF No. 15]

because the Complaint failed “to allege the required connections between [ ] Defendants’

business and Betancourt’s work for [ ] Defendants, on the one hand, and interstate

commerce, on the other.” [ECF No. 19, p. 1]. Plaintiff has since filed an Amended Complaint

and the instant motion. [ECF Nos. 21; 30].

Recommendations. [ECF No. 31]. The Undersigned reviewed the motion and other relevant

portions of the record.2 As explained below, the Undersigned respectfully recommends that

Judge Scola deny Plaintiff’s motion without prejudice.

I. Background

Plaintiff filed this action against Defendants under the FLSA and FMWA. [ECF No.

21]. Plaintiff's Complaint includes six counts: Count I (Violation of FLSA/Minimum Wages

against Defendant Buggy); Count II (Violation of FLSA/Overtime against Defendant

Buggy); Count III (Violation of FLSA/Minimum Wages against Defendant Berney); Count

IV (Violation of FLSA/Overtime against Defendant Berney); Count V (Violation of FMWA

against Defendant Buggy); and Count VI (Violation of FMWA against Defendant Berney).

Id.

Plaintiff states that he used to work as a driver for Defendant Buggy, which is owned

by Defendant Berney. Id. at ¶¶ 5, 16. He worked for Defendants from "on or about August

22, 2022 through December 9, 2022." Id. at ¶ 21. He alleges that Defendants failed to properly

compensate him during his employment, such as taking improper deductions from his

paycheck or simply not paying him. Id. at ¶¶ 25, 26.

After Plaintiff filed his Amended Complaint and Judge Scola reopened this case,

Plaintiff filed his renewed motion for default judgment. [ECF Nos. 21; 27; 30]. He seeks the

2 Defendants did not file a response to Plaintiff’s motion, and the time to do so has now

expired.

entry of a default judgment, as well as damages, including attorney’s fees and costs, against

Defendants. [ECF No. 30].

II. Applicable Legal Standard

Federal Rule of Civil Procedure 55(a) states that “[w]hen a party against whom a

judgment for affirmative relief is sought has failed to plead or otherwise defend, and that

failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” A party

may then apply to the district court for a default final judgment. Fed. R. Civ. P. 55(b)(2); Alfa

Corp. v. Alfa Mortg. Inc., 560 F. Supp. 2d 1166, 1173 (M.D. Ala. 2008). “It is the general rule

that default judgments are ordinarily disfavored because cases should be decided upon their

merits whenever reasonably possible.” Creative Tile Mktg., Inc. v. SICIS Int’l, S.r.L., 922 F.

Supp. 1534, 1536 (S.D. Fla. 1996).

A court may not enter a default final judgment based solely on the existence of a

clerk’s default. “Prior to entering a default judgment, the Court must ensure that it has

subject matter jurisdiction over the action and personal jurisdiction over the defendant, the

defendant has been properly served, and the complaint adequately states a claim upon

which relief may be granted.” Verdejo v. HP Inc., No. 21-20431-CIV, 2021 WL 5933727, at *12

(S.D. Fla. Nov. 8, 2021), appeal dismissed, No. 21-14267-JJ, 2022 WL 758024 (11th Cir. Jan. 20,

2022) (Scola, J.). A court is required to examine the allegations in the complaint to see if they

are well-pleaded and present a sufficient basis to support a default judgment on the causes

of action. Id. (citing Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th

Cir. 1975)).3 Only those factual allegations that are well-pleaded are admitted in a default

judgment. Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987).

If the facts in the complaint are sufficient to establish liability, then the Court must

determine the appropriate amount of damages. See Petmed Express, Inc. v. Medpets.com, Inc.,

336 F. Supp. 2d 1213, 1217 (S.D. Fla. 2004). Where all the essential evidence is in the record,

an evidentiary hearing on damages is not required. See SEC v. Smyth, 420 F.3d 1225, 1232

n.13 (11th Cir. 2005) (“Rule 55(b)(2) speaks of evidentiary hearing in a permissive tone . . .

We have held that no such hearing is required where all essential evidence is already of

record.”).

III. Legal Analysis

A. Jurisdiction

“[B]efore entering a default judgment, the Court must ensure that it has jurisdiction

over the claims and there must be a sufficient basis in the pleadings for the judgment

entered.” Tissone v. Osco Food Servs., LLC, No. 19-CV-61358, 2021 WL 1529915, at *2 (S.D. Fla.

Feb. 10, 2021), report and recommendation adopted, No. 19-61358-CIV, 2021 WL 870526 (S.D.

Fla. Mar. 9, 2021) (citing Nishimatsu, 515 F.2d at 1206.).

3 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), our appellate court held

that all Fifth Circuit decisions issued before the close of business on September 30, 1981

would become binding precedent in the Eleventh Circuit.

1. Subject Matter Jurisdiction

Federal courts are courts of limited subject matter jurisdiction and must be vigilant

in ensuring that they have jurisdiction over a case. “[B]ecause a federal court is powerless

to act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure

that jurisdiction exists over a case, and should itself raise the question of subject matter

jurisdiction at any point in the litigation where a doubt about jurisdiction arises.” Smith v.

GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001). “Courts have an independent obligation to

determine whether subject-matter jurisdiction exists, even when no party challenges it.”

Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405,

410 (11th Cir. 1999) (“Indeed, it is well settled that a federal court is obligated to inquire into

subject matter jurisdiction sua sponte whenever it may be lacking.”).

Moreover, the Court always has jurisdiction to determine whether it has jurisdiction

over a matter. United States v. Ruiz, 536 U.S. 622, 628 (2002) (“[I]t is familiar law that a federal

court always has jurisdiction to determine its own jurisdiction.”).

The Complaint alleges six counts. Four of the counts (Counts I–IV) are alleged FLSA

violations and the remaining two counts (Counts V and VI) are FMWA violations. Here,

Plaintiff states that this Court has jurisdiction pursuant to 29 U.S.C. § 216(b), 28 U.S.C. §

1331, and 28 U.S.C. § 1367. The Undersigned agrees because the majority of the Complaint

arises "under the laws of the United States" -- specifically the FLSA. See 28 U.S.C. § 1331.

Because the FMWA claims arise out of the same controversy as the FLSA claims, the Court

should exercise supplemental jurisdiction over the state law claims. See 28 U.S.C. § 1367.

2. Personal Jurisdiction

In addition to subject-matter jurisdiction, a court must also have personal jurisdiction

over each defendant. “A judgment rendered in the absence of personal jurisdiction is void

and without legal effect.” Strange v. Nescio, No. 20-80947-CV, 2021 WL 8945480, at *1 (S.D.

Fla. Mar. 29, 2021) (citing Juris v. Inamed Corp., 685 F.3d 1294, 1335 (11th Cir. 2012)). For this

reason, “when deciding a motion for default judgment, a court has an affirmative duty to

evaluate whether it has personal jurisdiction over the defendant and may raise the issue sua

sponte.” Id.

“The concept of personal jurisdiction comprises two distinct components:

amenability to jurisdiction and service of process. Amenability to jurisdiction means that a

defendant is within the substantive reach of a forum’s jurisdiction under applicable law.

Service of process is simply the physical means by which that jurisdiction is asserted.”

Baragona v. Kuwait Gulf Link Transp. Co., 594 F.3d 852, 855 (11th Cir. 2010) (citation omitted).

a. Service of Process

Service of process is a jurisdictional requirement. “Generally, where service of

process is insufficient, the court has no power to render judgment and the judgment is void.”

In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1299 (11th Cir. 2003). “[W]ithout proper service

of process, the district court ha[s] no power to enter a default judgment against the

[defendant].” Albert v. Discover Bank, No. 21-12011, 2022 WL 1184405, at *1 (11th Cir. Apr.

21, 2022).

Here, Judge Scola required Plaintiff to submit “either (1) proof of service of [ ] his

amended pleading once he has served [ ] Defendants or (2) a memorandum of law

explaining why service of the amended pleading is not required.” [ECF No. 22]. Plaintiff

filed a legal memorandum in response. [ECF No. 25]. In it, he explained that his Amended

Complaint “does not include any new claims for relief against Defendants and merely

clarifies the allegations set forth in the original complaint.” Id. at 3. He argues that under

Federal Rule of Civil Procedure 5(a)(2),4 he was not required to serve a copy of his Amended

Complaint to Defendants but that he did so anyway. Id. Judge Scola agreed with Plaintiff,

found that “service is not required,” and consequently reopened the case. [ECF No. 27].

Florida courts have held that returns of service are presumptively valid “absent clear

and convincing evidence presented to the contrary.” Ctr. for Individual Rights v. Chevaldina,

16-20905-CIV, 2017 WL 3098790, at *4 (S.D. Fla. Feb. 21, 2017) (citing Telf Corp. v. Gomez, 671

So. 2d 818, 818 (Fla. 3d DCA 1996)). Under Fla. Stat. § 48.081(2) a “domestic corporation or

registered foreign corporation may be served with process required or authorized by law

by service on its registered agent designated by the corporation under chapter 607 or chapter

617, as applicable."

4 Rule 5(a)(2) states: “If a Party Fails to Appear. No service is required on a party who

is in default for failing to appear. But a pleading that asserts a new claim for relief against

such a party must be served on that party under Rule 4.”

Here, prior to filing his Amended Complaint, Plaintiff personally served Defendant

Berney with the Summons, Complaint, and exhibits. [ECF No. 8]. He also served her as

Defendant Buggy’s registered agent.5 [ECF No. 7].

Therefore, Plaintiff properly served Defendants pursuant to both the Federal and

Florida rules.

b. Amenability to Jurisdiction

Both Defendants are amenable to the jurisdiction of this Court because one is a

domestic corporation with its principal place of business in Florida and the other is a Florida

resident. See Shropshire v. Towing & Auto Repair Mgmt. Corp, No. 8:20-CV-1931-TPB-CPT,

2021 WL 2904907, at *2 (M.D. Fla. Apr. 23, 2021), report and recommendation adopted, No. 8:20-

CV-1931-TPB-CPT, 2021 WL 2895741 (M.D. Fla. July 9, 2021) (finding that the court had

jurisdiction over the corporate defendant because it was a Florida corporation with its

principal place of business in Florida); Subic Bay Marine Exploratorium, Inc. v. JV China, Inc.,

257 So. 3d 1139, 1141 (Fla. 5th DCA 2018) (“Florida residents are subject to the general

jurisdiction of Florida courts. Under Florida law, corporations are residents of their state of

incorporation.” (internal citation omitted)).

5 As of October 7, 2024, Defendant Berney is still listed as Defendant Buggy’s registered

agent. See Defendant Buggy’s profile on the State of Florida’s Division of Corporations

website,https://search.sunbiz.org/Inquiry/corporationsearch/SearchResultDetail?inquiryty

pe=EntityName&directionType=Initial&searchNameOrder=BUGGYTECHNOLOGIES%20

P200000334450&aggregateId=domp-p20000033445-ea3a1ea8-9ba9-46d2-8b4e

65debde4aedd&searchTerm=BUGGY%20TECHNOLOGIES%20INC&listNameOrder=BUG

GYTECHNOLOGIES%20P200000334450. (last visited Oct. 7, 2024).

In sum, Plaintiff has demonstrated that this Court has both subject-matter and

personal jurisdiction over Defendants.

B. Liability

Pursuant to the provisions of Federal Rule of Civil Procedure 55, when a party against

whom affirmative relief is sought has failed to plead or otherwise defend, as provided by

the Federal Rules of Civil Procedure, such as Defendants in this action, a default shall be

entered against that party. Because of the default, Defendants have admitted the well-

pleaded allegations of the Complaint. See Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267,

1277–78 (11th Cir. 2005).

As noted earlier, a “[d]efault does not automatically warrant the entry of [a] default

judgment.” Oxebridge Quality Res. Int’l, LLC v. LaBelle, No. 8:20-CV-2176-CEH-SPF, 2023 WL

3227154, at *2 (M.D. Fla. May 3, 2023). Thus, the Undersigned must first determine whether

there is a sufficient basis in the Complaint for a judgment to be entered. See DIRECTV, Inc.

v. Huynh, 318 F. Supp. 2d 1122, 1127 (M.D. Ala. 2004) (internal citation omitted) (“A

defendant’s default does not in itself warrant the court entering a default judgment. There

must be a sufficient basis in the pleadings for the judgment entered[.]”); see also, Buchanan,

820 F.2d at 361 (stating “liability is well-pled in the complaint, and is therefore established

by the entry of default”).

Plaintiff’s Amended Complaint alleges that Defendants’ practices violated both the

FLSA and the FMWA. [ECF No. 21].

1. Liability Under the FLSA

Plaintiff asserts FLSA overtime and minimum wage violations against both

Defendants. [ECF No. 21, pp. 5–10 (Counts I-IV)]. Pursuant to the FLSA, Plaintiff “may file

suit directly against an employer that fails to pay him the statutory wage or may make a

derivative claim against any person who[:] (1) acts on behalf of that employer and (2) asserts

control over conditions of the employee's employment.” Josendis v. Wall to Wall Residence

Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011); See Patel v. Wargo, 803 F.2d 632, 637–38 (11th

Cir.1986) (citing Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir.1983) (explaining that a

person is derivatively liable if he is intimately involved in the day-to-day operations of an

employer that would be directly liable under the FLSA)). Here, Defendant Buggy was

Plaintiff’s employer. Defendant Berney,6 as Defendant Buggy’s corporate officer and

manager, acted on behalf of Defendant Buggy and consequently asserted control of

Plaintiff’s work conditions.

“[T]he requirements to state a claim of a[n] FLSA violation are quite straight

forward.” Sec’y of Labor v. Labbe, 319 F. App’x 761, 763 (11th Cir. 2008). “The FLSA requires

employers who meet its preconditions to pay workers a minimum wage and to provide

overtime pay where workers exceed forty hours per week.” Polycarpe v. E&S Landscaping

Serv., Inc., 616 F.3d 1217, 1220 (11th Cir. 2010) (citing 29 U.S.C. §§ 206(a), 207(a)).

6 Both his initial and subsequent motions for default judgment mistakenly state that

“Miguel A. Selva [ ] is a Joint Employer of Plaintiff [u]nder the FLSA.” [ECF Nos. 15, p. 5;

30, p. 6 (emphasis added)]. Miguel A. Silva is not involved in this action.

“[T]he FLSA prohibits an employee from working more than 40 hours a week unless

that employee is compensated at ‘a rate not less than one and one-half times the regular rate

at which he is employed.’” Perez v. Paul Newman Dazzling Detailing, Inc., No. 6:23-CV-1222-

PGB-EJK, 2024 WL 3342215, at *2 (M.D. Fla. June 21, 2024), report and recommendation adopted,

No. 6:23-CV-1222-PGB-EJK, 2024 WL 3757647 (M.D. Fla. July 10, 2024) (quoting 29 U.S.C. §

207(a)(2)). Any employer who violates the FLSA's minimum or overtime wage provisions is

“liable to the employee . . . affected in the amount of [his or her] unpaid minimum wages,

or [his or her] unpaid overtime compensation . . . and in an additional equal amount as

liquidated damages.” Id. § 216(b).

To state a claim under the FLSA for unpaid wages, an employee must allege: “(1) an

employment relationship; (2) that the employer or employee engaged in interstate

commerce; and (3) that the employer failed to pay overtime compensation and/or minimum

wages.” Ray v. Adams & Assocs., Inc., 599 F. Supp. 3d 1250, 1256 (S.D. Fla. 2022) (Bloom, J.)

(citing Morgan v. Family Dollar Stores, 551 F.3d 1233, 1277 n.68 (11th Cir. 2008)).

a. Employment Relationship

In his declaration and Amended Complaint, Plaintiff states that he “was employed

by Defendants as a full-time driver from on or about August 22, 2022, until on or about

December 9, 2022.” [ECF Nos. 21, ¶ 5; 30-1, ¶ 3]. His “primary job duties” consisted of

transporting children to and from school and running various errands on behalf of

Defendants. [ECF Nos. 21, ¶ 21; 30-1, ¶ 4]. Defendants, by their default, admit Plaintiff's

well-pleaded allegations of fact, as set forth in the Amended Complaint. Eagle Hosp.

Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009). Therefore,

Plaintiff has sufficiently alleged the first element of an employment relationship between

himself and Defendants.

b. Engaged in Interstate Commerce

To be "engaged in commerce" under the FLSA, Plaintiff "must be directly

participating in the actual movement of persons or things in interstate commerce by: “(i)

working for an instrumentality of interstate commerce, e.g., transportation employee,” or

“(ii) by regularly using the instrumentalities of interstate commerce in his work, e.g., regular

and recurrent use of interstate telephone, telegraph, mails, or travel.” Thorne v. All

Restoration Servs., Inc., 448 F.3d 1264, 1266 (11th Cir. 2006) (citations omitted).

There are two different types of coverage under the FLSA: enterprise and individual.

Plaintiff’s FLSA claims are based on enterprise coverage. This type of coverage involves an

employee who was “employed in an enterprise engaged in commerce or in the production

of goods for commerce.” Martinez v. Palace, 414 F. App'x 243, 245 (11th Cir. 2011) (citing 29

U.S.C. §§ 206(a), 207(a)(1); see also Thorne v. All Restoration Servs., 448 F.3d 1264, 1265–66 (11th

Cir. 2006)).

In the FLSA context, enterprise means “the related activities performed (either

through unified operation or common control) by any person or persons for a common

business purpose,” and commerce means “trade, commerce, transportation, transmission,

or communication among the several States or between any State and any place outside

thereof.” Nodell v. Nicky's Rest. Equpment LLC, No. 0:22-CV-62164, 2023 WL 185480, at *4

(S.D. Fla. Jan. 13, 2023) (quoting 29 U.S.C. §§ 203(b);(r)(1)). An enterprise “engaged in

commerce or in the production of goods for commerce” means that the enterprise (1) “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 “annual gross volume of

sales made or business done [of] not less than $500,000.” Id. (quoting 29 U.S.C. §

203(s)(1)(A)).

In his Amended Complaint, Plaintiff described Defendant Buggy as a “private

transportation company, servicing private and public schools in Miami and Broward.” [ECF

No. 21, ¶ 9]. He stated that he worked for Defendant Buggy as a driver and that it employs

two or more individuals “who have regularly sold, handled, or otherwise worked on goods

and/or material that have been moved in or produced for commerce.” Id. at ¶¶ 5; 8. Plaintiff

alleges that Defendant Buggy engaged in interstate commerce because:

10. At all relevant times, Buggy Technologies employs two or more

individuals who engaged in making intrastate trips to pick up children to and

from school using Defendants’ vehicles.

11. Buggy Technologies, upon knowledge and belief, had two or more

employees routinely use the “Telegram” phone application to communicate,

calendar events, and plan their routes. This application transmits data and

information that moves across state lines.

12. Buggy Technologies, upon knowledge and belief, had employees routinely

use the “Buggy” phone application which had a global positioning system

(“GPS”). The GPS application transmits data and information that move

across state lines.

13. Buggy Technologies, upon knowledge and belief, had their employee

drivers use Mercedes-Sprinter vehicles. These vehicles have been moved or

produced for commerce across state lines to be driven in Florida.

14. The Mercedes-Sprinter vehicles, upon knowledge and belief, routinely

required maintenance including but not limited to, the purchase of power

steering fluid and coolant. These products have been moved or produced for

commerce across state lines.

15. Buggy Technologies, upon knowledge and belief, has had gross revenue

which exceeds $500,000 for each of the past three (3) years, and utilizes goods

in the flow of commerce across state lines.

[ECF No. 21, ¶¶ 10–15].

Plaintiff’s Amended Complaint sufficiently alleges enterprise coverage and engaging

in interstate commerce under the FLSA because he stated the nature of his work (driver),

the nature of Defendants’ business (transportation company), and provided straightforward

allegations tying that work to interstate commerce. See Kinne v. IMED Health Prods., LLC,

No. 18-62183-CIV, 2019 WL 2866787, at *3 (S.D. Fla. July 3, 2019) (“[T]o properly allege

individual or enterprise coverage, an FLSA plaintiff need not do much. Aside from stating

the nature of his work and the nature of his employer's business, he must provide only

straightforward allegations connecting that work to interstate commerce.”); Nodell, 2023 WL

185480, at *4 (collecting cases).

c. Failure to Pay Overtime or Minimum Wage

The Amended Complaint states that Plaintiff regularly worked between 50–65 hours

per week for Defendants, and that he “was to receive a salary of $700.00 per week regardless

of the hours worked.” [ECF No. 21, ¶ 24]. “However, during his employment, Defendants

would make improper deductions from Plaintiff’s paycheck. As a result of this practice,

there were times when Defendants failed to compensate Plaintiff at a rate higher or equal to

Florida and federal minimum wage.” Id. at ¶ 25. He additionally contends that Defendants

did not compensate him for any work performed between November 21, 2022 and

December 9, 2022. [ECF Nos. 21, ¶ 5; 30-1, ¶ 7]. He estimates that Defendants owe him

$5,132.007 in unpaid overtime and minimum wages. [ECF No. 30-1, ¶ 9].

Accepting these allegations as true and admitted, Plaintiff has sufficiently

demonstrated that Defendants failed to pay him minimum wages and overtime

compensation.

d. Conclusion on FLSA Liability

Plaintiff’s Amended Complaint sufficiently meets the requirements for establishing

an FLSA claim for overtime compensation and minimum wage. Pursuant to his Amended

Complaint and declaration: (1) Defendants hired him to work as a driver; (2) he worked

7 He alleges that Defendants owe him: $2,145.00 in unpaid minimum wages for work

performed from November 21 and December 9, 2022; $805.00 in unpaid minimum wages

for work performed from October 1 through November 20, 2022; and $2,182.00 in unpaid

overtime wages. [ECF No. 30-1, ¶¶ 7–9].

more than 40 hours a week for Defendants; (3) Defendants did not compensate him

appropriately under the FLSA because they either did not pay him or did not pay him

enough; and (4) Defendants are an enterprise engaged in interstate commerce. Therefore, he

established Defendants’ liability under Counts I through IV.

2. Liability Under the FMWA8

Counts V and VI allege that each Defendant violated the FMWA. [ECF No. 21, pp.

11–13]. Under the Florida Constitution, “Employers shall pay Employees Wages no less than

the Minimum Wage for all hours worked in Florida.” RUTH RAMOS LOBO, et al., Plaintiffs,

v. EC FLORAL DESIGN & EVENTS LLC, et al., Defendants. Additional Party Names: Arianna

Hechavarria Avila, Eleazar Castellanos, Elianis Torres Marrero, No. 23-CV-23373, 2024 WL

4290724, at *2 (S.D. Fla. Mar. 14, 2024) (quoting Fla. Const. Art. X, § 24). The FMWA requires

employers to pay eligible employees an hourly minimum wage. Fla. Stat. § 448.110.

Section 448.110(6)(a) mandates that Plaintiff must first provide Defendants with

written notice of his FMWA claims. This notice “must identify the minimum wage to which

the person aggrieved claims entitlement, the actual or estimated work dates and hours for

which payment is sought, and the total amount of alleged unpaid wages through the date

of the notice.” Fla. Stat. § 448.110(6)(a). The statute provided Defendants with “15 calendar

8 The Undersigned notes that Plaintiff’s motion fails to discuss the elements associated

with FMWA claims. “A passing reference to an issue in a brief is not enough, and the failure

to make arguments and cite authorities in support of an issue waives it.” Hamilton v.

Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012). However, the Undersigned

will use my discretion and still address Defendants’ liability under these two counts.

days after receipt of the notice to pay the total amount of unpaid wages or otherwise resolve

the claim to the satisfaction of the person aggrieved.” Id. If Defendants either failed to pay

or resolve the claims to Plaintiff’s satisfaction, then Plaintiff is entitled to bring suit under

the FMWA. Id.

Here, Plaintiff’s Amended Complaint states that he provided Defendants with

written notice on January 31, 2023. [ECF No. 21, ¶¶ 71, 81]. Plaintiff waited more than the

mandatory fifteen (15) days when he filed his initial Complaint on March, 24, 2023.9 [ECF

No. 1]. As previously stated, he sufficiently alleged Defendants’ failure to pay him minimum

and overtime wages under the FLSA. His FMWA allegations share the same factual basis as

his FLSA allegations. Therefore, the Amended Complaint sufficiently alleges Defendants’

FMWA liability because: (1) Plaintiff successfully alleged Defendants’ failure to properly

pay him; (2) he provided Defendants with sufficient written notice as required by the

FMWA; and (3) Defendants failed to participate in this litigation and provide any evidence

to rebut Plaintiff’s allegations. Lobo, 2024 WL 4290724, at *3 (S.D. Fla. Mar. 14, 2024).

C. Damages

“Once a plaintiff has established a sufficient basis for liability, the Court 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), report and

9 Plaintiff filed his initial Complaint fifty-two (52) days after he provided Defendants

with written notice.

recommendation adopted, No. 21-23623-CIV, 2022 WL 17602650 (S.D. Fla. Dec. 13, 2022). Even

in the default judgment context, the Court “has an obligation to assure that there is a

legitimate basis for any damage award it enters.” Anheuser Busch, Inc. v. Philpot, 317 F.3d

1264, 1266 (11th Cir. 2003). “Although a defaulted defendant admits well-pleaded

allegations of liability, 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)

(citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure, § 2688 at 58–59 (3d ed. 1998)).

Here, Plaintiff seeks statutory and liquidated damages. Pursuant to the FLSA,

Defendants are liable to Plaintiff for “unpaid minimum wages, or [his] overtime

compensation, as the case may be, and in an additional equal amount as liquidated

damages.” 29 U.S.C. § 216(b). “[L]iquidated damages are mandatory absent a showing of

good faith.” Joiner v. City of Macon, 814 F.2d 1537, 1539 (11th Cir. 1987) (citing EEOC v. First

Citizens Bank of Billings, 758 F.2d 397, 403 (9th Cir.), cert. denied, 474 U.S. 902, 106 S. Ct. 228,

88 L. Ed. 2d 228 (1985)). Due to Defendants’ default and consequent failure to make a

showing of good faith, this Court must award Plaintiff liquidated damages. Id. However, as

discussed below, Plaintiff is not entitled to the relief requested because of his failure to

provide adequate support for the Court to make a ruling.

In his declaration, Plaintiff states that Defendants failed to appropriately compensate

him for work he performed as their employee. He contends that Defendants paid him

$700.0010 on a weekly basis from August 22 through September 30, 2022; and that

Defendants lowered his weekly pay to $600.00 from October 1 through November 20, 2022.

[ECF No. 30-1, ¶ 6]. He concludes that Defendants owe him approximately $5,132.00 in

unpaid minimum and overtime wages. Id. at ¶ 10. However, the way he reaches that

conclusion is unsupported. For example, he states that Defendants owe him about $2,145.00

in unpaid minimum wages for work performed between November 21 and December 9,

2022. But he fails to include how many hours he worked and how he knows he worked that

many hours. This same issue plagues his other calculations.11

Without knowing how he reached his calculations, how many hours he worked, and

whether that number is accurate (i.e., supported by evidence), the Undersigned is unable to

calculate how much Defendants appropriately owe him.

10 In his Amended Complaint, Plaintiff alleges that he “was to receive a salary of $700.00

per week regardless of the hours worked.” [ECF No. 21, ¶ 24]. But he does not include why

he had that understanding (i.e., because of a written agreement, language in an email,

paystubs, etc.).

11 Another example is his claim that Defendants owe him about $805.00 in unpaid

minimum wages for work completed between October 1 through November 20, 2022. [ECF

No. 31, ¶ 8]. However, he does not explain how he reached that amount, how many hours

he worked, and whether the $600.00 he was paid was taken into account.

D. Judge Scola’s Default Procedure Order

After he reopened the case, Judge Scola entered a Second Order on Default Judgment

Procedure. [ECF No. 28]. That Order required Plaintiff to either state “that there are no

allegations of joint and several liability, and set forth the basis why there is no possibility of

inconsistent liability[;]” or “file a Notice of Joint Liability.” [ECF No. 28, pp. 1–2 (emphasis in

original)]. Plaintiff did neither. The Order states that “Plaintiff’s failure to file for a Motion

for Default Judgment or Notice of Joint Liability within the specified time will result in a

dismissal without prejudice as to these Defendants.” Id. at 2 (emphasis in original). While

he did timely file his motion for default judgment, it did not include the information Judge

Scola required of him.

IV. Conclusion

For the reasons discussed above, the Undersigned respectfully recommends that

Judge Scola deny without prejudice Plaintiff’s Motion for Default Judgment and allow

Plaintiff an opportunity to amend his motion and rectify the deficiencies mentioned above.12

12 Plaintiff’s current motion includes a request for the Court to retain jurisdiction to

determine the appropriate attorney’s fees and costs. The Undersigned anticipates that

Plaintiff will file a future request seeking the same relief. However, this future request

should not include any time dedicated to correcting counsel’s mistakes. See Brown v. Lawn

Enf't Agency, Inc., 369 F. Supp. 3d 1224, 1227 (N.D. Fla. 2019) (reducing requested fee award

for time spend preparing an amended complaint due to the deficiencies in the initial

complaint) (citing Mobley v. Apfel, 104 F. Supp. 2d 1357, 1360 (M.D. Fla. 2000) (“[T]ime

devoted to correcting one's own errors should not be reimbursable.”)).

V. Objections

The parties will have fourteen (14) days from the date of being served with a copy of

this Report and Recommendations within which to file written objections, if any, with the

District Judge. Each party may file a response to the other party’s objection within fourteen

(14) days of the objection. Failure to file objections timely shall bar the parties from a de novo

determination by the District Judge of an issue covered in the Report and shall bar the

parties from attacking on appeal unobjected-to factual and legal conclusions contained in

this Report except upon grounds of plain error if necessary in the interest of justice. See 28

§ 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794

(11th Cir. 1989); 11th Cir. R. 3-1 (2016).

RESPECTFULLY RECOMMENDED, in Chambers, in Miami, Florida, on October 8,

2024.

4 pi

J@nathan Goodman

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

The Honorable Robert N. Scola, Jr.

All Counsel of Record

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