The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-62094-Civ-Scola
JANAY CRUZ-FERNANDEZ,
Plaintiff,
v.
KAN ZAMAN BMY INC.
d/b/a KAN ZAMAN HOOKAH
CAFE, a Florida corporation,
HAITHAM HUSSEIN ZBIB, individually,
and ALI ZBEEB,
Defendants.
___________________________/
REPORT AND RECOMMENDATION ON PLAINTIFF JANAY
CRUZ-FERNANDEZ’S MOTION FOR DEFAULT FINAL JUDGMENT
This matter is before the Court upon the Honorable Robert N. Scola’s Order
Referring Motion to Magistrate Judge, referring Plaintiff Janay Crus-Fernandez’s
(“Plaintiff”) Amended Motion for Default Judgment (the “Motion”) [ECF No. 20]
against Defendant, Kan Zaman BMY Inc. (“Defendant”) to the Undersigned for a
report and recommendation. See ECF No. 21. Having reviewed Plaintiff’s Motion, the
record, and relevant legal authorities, for the reasons provided herein, it is
RECOMMENDED that Plaintiff’s Motion for Default Judgment be GRANTED.
FACTUAL BACKGROUND
Plaintiff was first hired by Defendant to work as a server from January 2023
through October 2023, at which time she was paid $10.00 per hour plus tips. Compl.
¶ 19. During that time, Plaintiff worked overtime for approximately 36 weeks but
was not compensated time and one half. Id. Plaintiff also alleges that on September
30, 2023, minimum wage increased from $11.00 to $12.00, but Defendant continued
paying $10.00 per hour for October 2023. Id. ¶ 22. Defendant rehired Plaintiff in June
2024 at which time she was paid $12.00 per hour plus tips. Id ¶ 23. However, Plaintiff
was not paid her full payment of tips for the weeks of August 26, 2024 and September
16, 2024. Id. ¶ 26. Subsequently, on October 6, 2024, Plaintiff was terminated in
retaliation for demanding compensation for unpaid overtime and unpaid tips. Id. ¶
48.
PROCEDURAL BACKGROUND
Plaintiff filed the complaint in this action on November 5, 2024, alleging
Defendant’s violation of the Fair Labor Standards Act (the “FLSA”) and the Florida
Minimum Wage Act (the “FMWA”) [ECF No. 1] (“Complaint”).1 An executed return
of service was properly docketed which reflects that Defendant’s registered agent was
served with the Complaint in this matter on December 10, 2024 at 5:40pm. See
ECF No. 7.2 Defendant’s registered agent, Elaine Johnson James, filed a declaration
attesting that “[a]fter being served with the Complaint of Janay Cruz-Fernandez
against Kan Zaman BMY, Inc., [she] forwarded it to Haitham Zbib via email on
December 16, 2024 and asked him to acknowledge receipt of the email.” James Decl.,
1 The Complaint asserts claims against three (3) defendants; however, Defendants
Haitham Hussein Zbib and Ali Zbeeb were voluntarily dismissed by Plaintiff. See ECF No.
19.
2 Under the Federal Rules of Civil Procedure, service of process on a corporation may
be effectuated by delivering a copy of the summons and complaint to an agent authorized by
law to receive service. Fed. R. Civ. P. 4(h)(1)(B). Florida authorizes service on a corporation
via a designated registered agent. Fla. Stat. § 48.091(2).
¶ 5 (“Declaration”), ECF No. 22. However, “Mr. Zbib never acknowledged receipt of
[the] email.” Id. ¶ 7.
Plaintiff filed a Motion for Clerk’s Entry of Default as to Kan Zaman BMY Inc.
on January 6, 2025. See ECF No. 10. On January 7, 2025, the clerk entered a clerk’s
default against Defendant. See ECF No. 11. Plaintiff filed her first Motion for Default
Judgment Against Defendant on January 21, 2025, see ECF No. 12,3 which was
denied without prejudice. Plaintiff’s Renewed Motion for Entry of Final Default
Judgment as to Defendant, see ECF No. 14, was also denied due to the possibility of
inconsistent judgments seeing that two individual defendants remained unserved.
See ECF No. 16.4 After voluntarily dismissing the two individual defendants that
remained unserved, Plaintiff filed the instant Motion.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 55, “[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.” Fed. R. Civ. P. 55(a). “After the clerk enters a default, the Court is
authorized to enter a final default judgment if the party seeking it applies for one.”
Univ. of Miami v. Caneup, LLC, No. 23-cv-23829, 2024 WL 4500790, at *3 (S.D. Fla.
October 16, 2024) (citing Fed. R. Civ. P. 55(b)(2)); see also Fed. R. Civ. P. 55(b)(2) (“In
3 Plaintiff’s Motion for Default Judgment Against Defendant was denied without
prejudice for lacking the substance required for the requested relief. See ECF No. 13.
4 Plaintiff filed a motion for reconsideration of the Court’s denial of her second request
for default judgment. ECF No. 17. The Motion for Reconsideration was denied on February
2, 2025. See ECF No. 18.
all other cases, the party must apply to the court for a default judgment.”). However,
“entry of default judgment is only warranted when there is a sufficient basis in the
pleadings for the judgment entered, with the standard for ‘a sufficient basis’ for the
judgment being akin to that necessary to survive a motion to dismiss for failure to
state a claim.” Singleton v. Dean, 611 F. App’x 671, 671 (11th Cir. 2015). “Thus, before
entering a default judgment for damages, the complaint must state sufficient facts to
support a substantive cause of action and include a sufficient basis for the particular
relief sought.” Tyco Fire & Sec., LLC v. Alcocer, 218 F. App’x 860, 863 (11th Cir. 2007).
“A ‘defendant, by his default, admits the plaintiff’s well-pleaded allegations of fact’ as
set forth in the operative complaint.” Univ. of Miami, 2024 WL 4500790 at *3
(quoting TracFone Wireless, Inc. v. Hernandez, 196 F. Supp. 3d 1289, 1298 (S.D. Fla.
2016)).
Once liability has been established, the court must assess damages. The court
may examine affidavits submitted and, at its own discretion, conduct a hearing to
determine the amount of damages, establish the truth of any allegation by evidence,
or investigate any other matter. See PNC BANK, N.A. v. Kool Stuff Designs, LLC, et
al., No. 24-cv-61283, 2024 WL 4652130, at *3 (S.D. Fla. October 31, 2024) (quoting
Fed. R. Civ. P. 55(b)(2)).
LIABILITY
A. Violation of FLSA Overtime Provisions (Count I)
The FLSA requires employers to pay overtime to certain employees “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). To establish a claim for unpaid overtime under the
FLSA, a plaintiff must allege: (1) the plaintiff was employed by the defendant during
the time period involved; (2) the plaintiff was engaged in commerce or production of
goods for commerce or employed by an enterprise engaged in commerce or in the
production of goods for commerce; and (3) the defendant failed to pay the plaintiff
overtime compensation. See Kwasnik v. Charlee Family Care Servs. of Cent. Florida,
Inc., No. 6:08–cv–926–Orl–31KRS, 2009 WL 1607809, at *3 (M.D. Fla. June 9, 2009).
For element 2, “[a]lleging 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., No. 12-62530-CIV-
ROSENBAUM, 2013 WL 12126001, at *2 (S.D. Fla. Aug. 20, 2013).
Plaintiff satisfies the elements required to plead violation of FLSA overtime
provisions. Plaintiff alleges, at all times material, Defendant was Plaintiff’s employer
for purposes of the FLSA. Compl. ¶ 8. Defendant was the employer or former
employer of Plaintiff. Id. ¶ 10. Defendant was and continues to be an enterprise
engaged in commerce within the meaning of the FLSA. Id. ¶ 11. Defendant regularly
owned and operated a business engaged in commerce. Id. ¶ 12. Defendant’s annual
gross revenue was in excess of $500,000. Id. ¶ 13. Defendant purchases goods that
have been transported from across state lines of other states. Id. ¶ 14. Plaintiff was
“actually or so closely related to the movement of commerce while she worked for
Defendant[] that the Fair Labor Standards Act applies to Plaintiff’s work for
Defendant[].” Id. ¶ 15. Plaintiff was engaged in commerce. Id. ¶ 17. For
“approximately 36 weeks,” Plaintiff “averaged 45 hours per week,” and “she only
received straight time for those hours worked in excess of 40 rather than time and
one-half as required by law.” Id. ¶ 19. These allegations are sufficient to establish
Defendant’s liability for violating FLSA’s overtime provisions.
B. Violation of FLSA Tip Theft Provision (Count II)
To state a claim for unpaid tips under the FLSA, Plaintiff must demonstrate:
“(1) Defendant employed [her], (2) either [she] was engaged in interstate commerce
or Defendants were an enterprise engaged in interstate commerce, and (3)
Defendants did not pay [her] . . . tips.” Cortez v. Hellenic Republic, Inc., No. 0:24-CV-
60999, 2025 WL 297362, at *2 (S.D. Fla. Jan. 8, 2025). Plaintiff has already
established the first two elements of her claim. See supra § A. Therefore, the Court
solely analyzes whether Plaintiff alleges facts to show Defendant did not pay her tips.
Plaintiff alleges that she “was also shorted on her tips for the week of August 26 in
the amount of $100.00” and $264.00 for the week of September 16. Compl. ¶ 26.
Accordingly, the Court is satisfied with the allegations set forth to establish
Defendant’s liability for unpaid tips.
C. Violation of FMWA (Count III)
To prevail on a claim under the FMWA, Plaintiff must satisfy “the same
elements” required under the FLSA: (1) “[P]laintiff was employed by an employer
covered by the FLSA during the time period involved”; (2) “[P]laintiff was engaged in
commerce or production of goods for commerce or employed by an enterprise engaged
in commerce or in the production of goods for commerce”; and (3) “[Plaintiff’s]
employer failed to pay the plaintiff the minimum wage compensation required by
law.” Nilaj v. MGO, LLC, No. 8:23-cv-2671-WFJ-NHA, 2024 WL 3426884, at *4 (M.D.
Fla. July 15, 2024). Because the Court finds that Plaintiff satisfied the elements
required under the FLSA and Plaintiff sufficiently alleged that Defendant failed to
pay minimum wage compensation, see Compl. ¶¶ 22, 46, the Court finds Defendant
liable to Plaintiff for violation of the FMWA.
D. Violation of § 215(a)(3)
The FLSA deems it unlawful to “discharge or in any other manner discriminate
against any employee because such employee has filed any complaint or instituted or
caused to be instituted any proceeding under or related to this chapter, or has
testified or is about to testify in any such proceeding. . . .” 29 U.S.C. § 215(a)(3). “In
the Eleventh Circuit, an oral complaint about an alleged violation of the FLSA is
enough to trigger anti-retaliation coverage.” Lopez v. La Hacienda Mexican Grill, Inc.,
No. 8:13-cv-350-T-33MAP, 2013 WL 2949137, at *4 (M.D. Fla. June 14, 2013) (citing
EEOC v. White & Sons Enters., 881 F.2d 1006, 1011 (11th Cir.1989)).
In her Complaint, Plaintiff alleges that “shortly after Plaintiff exercised her
federally protected rights by demanding that Defendants provide her with unpaid
overtime and her tips,” Defendant “retaliated against her by terminating her
employment on October 6, 2024.” Compl. ¶ 48. Since Defendant has admitted these
allegations by its default, the Court finds that Plaintiff engaged in protected activity
and Defendant impermissibly retaliated against Plaintiff for that activity, in violation
of 29 U.S.C. § 215(a)(3).
DAMAGES
Under the FLSA, employers who violate the provisions of section 206 or section
207 are “liable to [their] employee or employees affected in the amount of their unpaid
minimum wages, or their unpaid overtime compensation, as the case may be, and in
an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). Furthermore,
“[a]ny employer who violates the provisions of section 215(a)(3) . . . shall be liable for
such legal or equitable relief as may be appropriate to effectuate the purposes
of section 215(a)(3) . . ., including . . . the payment of wages lost and an additional
equal amount as liquidated damages.” Id.
Federal Rule of Civil Procedure 55(b)(2) does not require a district court to
conduct an evidentiary hearing before determining the amount of damages. See
Giovanno v. Fabec, 804 F.3d 1361, 1366 (11th Cir. 2015). Indeed, the very language
of Rule 55(b)(2) states, “[t]he court may conduct hearings . . . when, to enter or
effectuate judgment, it needs to determine the amount of damages.” Fed. R. Civ. P.
55(b)(2)(B) (emphasis added). “The district court may forego a hearing where all
essential evidence is already in the record.” Giovanno, 804 F.3d at 1366 (quotation
marks omitted). Here, the necessary evidence is already in the record as exhibits to
Plaintiff’s Renewed Motion for Entry of Final Default Judgment. “Plaintiff did not
attach exhibits to the Motion, so the undersigned will refer to the exhibits attached
to the [renewed] version of this Motion” filed on February 3, 2025 [ECF No. 14-1]
(“Declaration”). United States v. Lang, No. 3:15-CV-994-J-32JBT, 2016 WL 11581066,
n.6 (M.D. Fla. June 29, 2016), report and recommendation adopted, No. 3:15-CV-994-
J-32JBT, 2016 WL 11581144 (M.D. Fla. Dec. 12, 2016) (analyzing exhibits of a
previously-filed motion for default judgment where Plaintiff did not attach exhibits
to the later-filed version of the motion).
Unpaid Overtime. The Declaration states that Plaintiff was paid $10.00 per
hour plus tips from January 2023 to October 2023 although minimum wage was
$11.00. Decl. ¶ 2. Plaintiff worked an average of 45 hours for approximately 36 weeks
where she only received “straight time” for those hours she worked in excess of 40
hours “rather than time and one-half.” Id. Plaintiff states that “[f]rom January 2023
through the end of September 2023, [she] was denied overtime pay of approximately
$880.00 calculated as follows: (5 hours overtime x 32 weeks x $11/hr x .5).” Id. For
October 2023, Plaintiff stated that she was denied approximately $120.00 in overtime
pay “calculated as follows: (5 hours of overtime x 4 weeks x 12/hr x .5).” Id. Moreover,
Plaintiff avers that she was rehired in June 2024 at the rate of $12.00 and continued
working to October 6, 2024. Id. ¶ 4. Plaintiff worked an average of 48 hours per week
for 16 weeks and states she “is owed the following overtime for this period: 16 weeks
x 8 hours x 12 x .5),” totaling $768.00. Based on the above calculation, Plaintiff is
entitled to $1768.00 in unpaid overtime compensation and an equal sum in liquidated
damages. See 29 U.S.C. § 216(b) (“Any employer who violates the provisions of section
206 or section 207 of this title shall be liable to the employee . . . in the amount of
their . . . unpaid overtime compensation . . . and in an additional equal amount as
liquidated damages.”).
Unpaid Minimum Wages. Plaintiff avers that she was “underpaid by
$1,280.00 calculated as follows: ($1.00 x 40 hours/week x 32 weeks).” Decl. ¶ 3.
Moreover, Plaintiff states that during the month of October 2023, she was paid $10.00
per hour although minimum wage increased to $12.00. Id. As a result, Plaintiff claims
she is owed an additional $320.00 calculated as follows: 40 hours x $2.00 x 4 weeks.
Id. Seeing that Plaintiff was only paid $10.00 per hour despite minimum wage
increasing over the course of her employment, the Court finds that Plaintiff is owed
$1,600.00 in unpaid minimum wages.
Unpaid Tips. Concerning Plaintiff’s unpaid tips, Plaintiff is owed a total of
$364.00 from the week of August 26 and the week of September 16. Id., ¶ 7.
Retaliation. Plaintiff contends that she is owe $6,395.00 in lost net wages due
to Defendant’s retaliatory termination. Id., ¶ 9. Plaintiff asserts that at the time of
her termination, she earned $865.00 weekly. Specifically, Plaintiff calculates her lost
gross wages since her termination as $12,110.00 ($865.00 x 14 weeks), and her
interim earnings since termination as $5,715.00. Id. The Court is satisfied with
Plaintiff’s calculation of her lost net wages. Therefore, Plaintiff is owed $6,395.00 for
Defendant’s retaliatory termination of her employment.
Liquidated Damages. As noted above, the FLSA provides for “an additional
equal amount as liquidated damages” to those aggrieved by their employer’s violation
of the FLSA. 29 U.S.C. § 216(b). Therefore, Plaintiff is entitled to liquidated damages
in the amount of $10,127.00 ($1768.00 in unpaid overtime + $1,600.00 in unpaid
minimum wages + $364.00 in unpaid tips + $6,395.00 for retaliatory termination).
E. Conclusion
For the foregoing reasons, the Court recommends that Plaintiff Janay Cruz-
Fernandez’s Amended Motion for Default Judgment be GRANTED and that default
final judgment be entered against Kan Zaman BMY, Inc. and in favor of Plaintiff
Janay Cruz-Fernandez. The Court recommends that Plaintiff be awarded damages
totaling $20,254, consisting of $1768.00 in unpaid overtime, $1,600.00 in unpaid
minimum wages, $364.00 in unpaid tips, $6,395.00 for retaliatory termination, and
$10,127 in liquidated damages, together with statutory interest. The Court further
recommends that jurisdiction be reserved to award attorney’s fees and costs.
“Within 14 days after being served with a copy of [this Report and
Recommendation], a party may serve and file specific written objections to the
proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). “A party may
respond to another party’s objections within 14 days after being served with a copy.”
Id. A party’s failure to serve and file specific objections to the proposed findings and
recommendations alters the scope of review by the District Judge and the United
States Court of Appeals for the Eleventh Circuit, including waiver of the right to
challenge anything to which no specific objection was made. See Fed. R. Civ. P.
72(b)(3); 28 U.S.C. § 636(b)(1)(B); 11th Cir. R. 3-1; S.D. Fla. Mag. R. 4(a).
SIGNED this 22nd day of July, 2025.
UNITED STATES MAGISTRATE JUDGE
ce: United States District Judge Robert N. Scola
All Counsel of Record
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