The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSUE FRANCISCO REYES
MONTERROSO, CONCEPCION
MALAQUIAZ REYES
MONTERROSO, JENNIFER
GUADALUPE MARTINEZ
FERRER,
Plaintiffs,
Case No. 2:24-CV-420-SPC-KCD
v.
HERNAN CARRANZA, d/b/a Texas
Pro Drywall,
Defendant,
/
REPORT & RECOMMENDATION
Plaintiffs Josue Francisco Reyes Monterroso, Concepcion Malaquiaz
Reyes Monterroso, and Jennifer Guadalupe Martinez Ferrer move for a final
default judgment against their former employer, Defendant Hernan
Carranza d/b/a Texas Pro Drywall. (Doc. 30.)1 According to the complaint,
Defendant violated the Fair Labor Standards Act (FLSA) by failing to pay
overtime. (Doc. 1.) For relief, Plaintiffs seek unpaid wages and liquidated
damages. (Doc. 30 at 4.) They also demand the attorneys’ fees spent pursuing
this matter. (Id. at 5.) Having reviewed the motion and complaint, default
judgment should be entered in the amounts discussed below.
1 Plaintiffs’ motion is not paginated. The Court thus refers to the page numbers generated
by its electronic filing system.
I. Background
The Court takes these facts from the operative complaint (Doc. 1),
which are deemed admitted by Defendant’s default. Defendant is a sole
proprietorship that conducts business in Ft. Myers, Florida. Plaintiffs were
employed as drywall installers for several months in 2023. The Monterrosos
were paid $23.00 an hour, while Ferrer received $22.50. (See Doc. 1.)
According to the complaint, Defendant “regularly scheduled and
directed Plaintiff[s] to work in excess of forty (40) hours per week.” (Id. ¶ 16.)
Yet Defendant refused “to pay Plaintiff[s] overtime wages . . . [in] willful
violation of the FLSA.” (Id. ¶ 18.) Plaintiffs now sue to recover these unpaid
wages.
II. Legal Standards
A district court may enter a default judgment against a party who was
properly served but did not appear or respond. Fed. R. Civ. P. 55(b)(2).2 To do
so, the court must be convinced there is “a sufficient basis in the pleadings for
the judgment entered.” Surtain v. Hamlin Terrace Found., 789 F.3d 1239,
1245 (11th Cir. 2015). In other words, “a default judgment cannot stand on a
complaint that fails to state a claim.” Chudasama v. Mazda Motor Corp., 123
F.3d 1353, 1370 n.41 (11th Cir. 1997). A complaint meets this bar when it
2 Unless otherwise indicated, all internal quotation marks, citations, case history, and
alterations have been omitted in this and later citations.
contains “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
A default is not “an absolute confession by the defendant of . . . the
plaintiff’s right to recover.” Nishimatsu Const. Co. v. Houston Nat. Bank, 515
F.2d 1200, 1206 (5th Cir. 1975). Thus, even when there is a default, “the
[p]laintiff bears the burden of demonstrating that it is entitled to the relief it
seeks.” Branch Banking & Tr. Co. v. Recon Test Equip., Inc., No.
619CV624ORL78LRH, 2019 WL 13064728, at *2 (M.D. Fla. Nov. 26, 2019).
“[A] plaintiff seeking default judgment must show the Court what [her]
damages are, how they are calculated, and where they come from.” PNCEF,
LLC v. Hendricks Bldg. Supply LLC, 740 F. Supp. 2d 1287, 1294 (S.D. Ala.
2010). Put simply, when considering a motion for default judgment, the court
considers whether there is jurisdiction and the pleadings provide a sufficient
basis to award the relief sought. Bank of Am., N.A. v. M/V Triple Threat, No.
3:13-CV-592-J-39JBT, 2014 WL 12872703, at *2 (M.D. Fla. Apr. 16, 2014).
III. Discussion
A. Subject Matter Jurisdiction
Plaintiffs allege that Defendant violated the FLSA by failing to pay
overtime compensation. (Doc. 1.)3 The Court has original jurisdiction over
3 The complaint also alleges claims for breach of contract. Plaintiffs do not seek a judgment
on those claims, and thus they are considered abandoned. See, e.g., Rismay v. Alterations by
these claims because they present a federal question. 28 U.S.C. § 1331. Thus,
there is subject matter jurisdiction.
B. Personal Jurisdiction
“The Due Process Clause . . . protects an individual’s liberty interest in
not being subject to the binding judgments of a forum with which he has
established no meaningful contacts, ties, or relations.” Thomas v. Brown, 504
F. App’x 845, 847 (11th Cir. 2013). Thus, before entering default judgment,
the district court must assure itself that service was proper, Florida’s
longarm statute reaches the defendant, and maintenance of the suit would
not offend due process. Golembiewski v. Waters Pointe Apartments, LLC, No.
8:23-CV-00081-KKM-AEP, 2023 WL 4931218, at *3 (M.D. Fla. June 27,
2023).
Amenability to jurisdiction is established here since Defendant was
conducting business in Florida. See Fla. Stat. § 48.193(1)(a)(1). Defendant’s
failure to pay wages to employees working in Florida also means personal
jurisdiction does not offend the Constitution. See, e.g., Argos Glob. Partner
Servs., LLC v. Ciuchini, 446 F. Supp. 3d 1073, 1088 (S.D. Fla. 2020).
Finally, service was proper. “While a plaintiff bears the ultimate
burden of proving valid service of process, a return of service that is regular
Lucy & Crisp & Clean Dry Cleaning & More, LLC, No. 6:20-cv-1357-GAP-EJK, 2022 WL
396320, at *1 n.1 (M.D. Fla. Jan. 21, 2022).
on its face is presumed to be valid absent clear and convincing evidence
presented to the contrary.” Robles-Martinez v. Diaz, Reus & Targ, LLP, 88
So. 3d 177, 179 (Fla. Dist. Ct. App. 2011). “Regular on its face” means the
return of service attests to all the information required by the service statute.
Id. at 180. Plaintiffs served Defendant through the Secretary of State because
its owner refused service, would not provide a current address, and refused to
accept service. Defendant does not otherwise have a registered agent in
Florida, and Plaintiffs exhausted efforts to locate and serve Defendant. (See
Docs. 25, 26, 30.) This is allowed under Florida law. See Fla. Stat. §§ 48.161,
48.181.
C. Liability
With jurisdiction out of the way, the next question is whether “the well
pleaded allegations in the complaint actually state a substantive cause of
action and that a substantive, sufficient basis exists in the pleadings for the
particular relief sought.” Golembiewski, 2023 WL 4931218, at *2. A sufficient
basis is “akin to that necessary to survive a motion to dismiss for failure to
state a claim.” Id. Thus, the reviewing court must evaluate whether the
complaint contains “sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Id.
To prevail on their overtime wage claims, Plaintiffs must establish two
initial elements: 1) Defendant employed them; and (2) they were employed by
an enterprise engaged in commerce. Cain v. One Stop PC Help, Inc., No. 8:15-
CV-1071-T-27TBM, 2017 WL 10241541, at *3 (M.D. Fla. Jan. 17, 2017);
Martinez v. Askins & Miller Orthopedics, No. 8:18-CV-2442-T-02CPT, 2019
WL 1117036, at *2 (M.D. Fla. Mar. 11, 2019).
Plaintiffs allege that Defendant was their “employer” for purposes of
FLSA liability. (Doc. 1 ¶ 8.) To determine whether a defendant is an employer
under the FLSA, a court looks to whether it “(1) had the power to hire and
fire the employee[ ], (2) supervised and controlled [the employee’s] work
schedule[ ] or condition[ ] of employment, (3) determined the rate and method
of payment, and (4) maintained employment records.” Rodriguez v. Jones
Boat Yard, Inc., 435 F. App’x 885, 888 (11th Cir. 2011). Based on the well-
pled allegations, the Court agrees that Defendant employed Plaintiffs from
January 2023 through March 2023. (Doc. 1 ¶¶ 10, 23, 42.) Thus, Plaintiffs
satisfied the first element.
As to enterprise coverage, Plaintiffs must show that the enterprise: “(i)
has employees engaged in commerce or in the production of goods for
commerce, or that has employees handling, selling, or otherwise working on
goods or materials that have been moved in or produced for commerce by any
person; and (ii) is an enterprise whose annual gross volume of sales made or
business done is not less than $500,000.” 29 U.S.C. § 203(s)(1)(A)(i)-(ii).
Plaintiffs allege as much in the amended complaint. (Doc. 1 ¶ 7.) Thus, based
on Plaintiffs’ well-pled allegations, the Court finds that Defendant is an
employer engaged in interstate commerce.
After establishing employment and enterprise coverage, to prevail on a
claim for overtime wages, a plaintiff must show: (1) she worked more than a
40-hour workweek; and (2) the defendant did not pay her overtime wages for
the work over 40 hours. Cain, 2017 WL 10241541, at *3. Plaintiffs claim they
were employed from January 30, 2023, until March 8, 2023. (Doc. 30 at 14.)
And during these weeks, they worked at least 70 hours without overtime pay.
(Id. at 14-16.) With these well-pled allegations, the Court finds Plaintiffs
have established all the elements for their FLSA overtime claims.
D. Damages
An employer who violates the overtime provisions of the FLSA is liable
for the unpaid overtime and an equal amount in liquidated damages. 29
U.S.C. § 216(b). The claimant bears the burden of proving the damages
sought and may establish the amount by affidavit. Miranda v. Palms Hotels
& Villas, LLC, No. 6:06CV-1902-ORL-28KRS, 2007 WL 3232242, at *4 (M.D.
Fla. Oct. 31, 2007) (finding an employee’s affidavit carries her burden of
proving the amount and extent of her work and a basis for calculating
damages when the employers’ records are inaccurate or non-existent).
In support of their claims, Plaintiffs submitted affidavits that contain
sufficient information to establish the extent of work performed and an
adequate basis for calculating damages. (Doc. 30 at 20-34.) Based on this
evidence, Plaintiff Josue Francisco Reyes Monterroso is owed $1,725 (id. at
24) and an equal amount in liquidated damages; Plaintiff Concepcion
Malaquiaz Reyes Monterroso is owed $1,725 (id. at 29) and an equal amount
in liquidated damages; and Plaintiff Jennifer Guadalupe Martinez Ferrer is
owed $1,687.50 (id. at 34)4 and an equal amount in liquidated damages. In
total, then, Plaintiffs are due $10,275.
E. Attorney’s Fees and Costs
The FLSA states that claimants are entitled to reasonable attorney’s
fees and costs as a prevailing party. See 29 U.S.C. § 216(b). Plaintiffs seek
these remedies, and the Court finds they are prevailing parties entitled to
such relief.
An attorney fee award is calculated by multiplying the number of hours
reasonably spent by the reasonable hourly rate to arrive at the lodestar
figure. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The party seeking an
award of fees must submit adequate documentation of hours and rates in
support, or the award may be reduced. Id.
4 There is a discrepancy between the hours worked in Ferrer’s affidavit and the complaint.
(Compare Doc. 30 at 30, and Doc. 1 ¶ 42.) The Court recommends accepting what is claimed
in the affidavit, as that is the evidence offered. The recommended damages figure is based
on Ferrer’s affidavit.
Plaintiffs are represented by Attorney Daniel I. Schlade, who claims a
lodestar of $3,160. Attorney Schlade offers an affidavit supporting the fee
request (Doc. 30 at 36-39), stating that his attached billing records accurately
reflect the time spent on the case (7.9 hours) and that the number of hours
were reasonable and necessary. The Court agrees they are reasonable.
The request for costs lists the costs of the process server and filing fee,
which are taxable under Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920.
Therefore, $927 should be awarded for costs.
IV. Conclusion
For the above reasons, the Court finds Plaintiffs have established
violations of the FLSA’s overtime wage provisions. Based on Plaintiffs’
affidavits, they have also established entitlement to the damages sought.
Accordingly, it is RECOMMENDED:
1. Plaintiffs’ Motion for Default Judgment (Doc. 30) be GRANTED
as to Counts I, III, and V, and the Clerk be directed to enter a default
judgment against Defendant for $10,275, calculated as follows:
a. $3,450 to Plaintiff Josue Francisco Reyes Monterroso;
b. $3,450 to Plaintiff Concepcion Malaquiaz Reyes Monterroso; and
c. $3,375 to Plaintiff Jennifer Guadalupe Martinez Ferrer;
2. The Court should also arrive at a lodestar amount of $3,160 in
attorney’s fees and a cost award of $927 and include these amounts in the
judgment;
3. The Court deem Plaintiffs’ breach of contract claims in Counts II,
IV, and VI abandoned.
ENTERED in Fort Myers, Florida on December 16, 2024.
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© le C. Dudek
United States Magistrate Judge
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the
Report and Recommendation’s factual findings and legal conclusions. 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. To
expedite resolution, parties may file a joint notice waiving the 14-day
objection period.
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