Robertson

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 0:25-CV-61280-LEIBOWITZ/AUGUSTIN-BIRCH

COLE ROBERTSON,

Plaintiff,

v.

PAYOPIC LLC, et al.,

Defendants.

________________________________________/

REPORT AND RECOMMENDATION ON PLAINTIFF’S

RENEWED MOTION FOR DEFAULT FINAL JUDGMENT

This cause comes before the Court on Plaintiff Cole Robertson’s Renewed Motion for

Default Final Judgment. DE 44. The Honorable David S. Leibowitz, United States District

Judge, referred the Renewed Motion to the undersigned United States Magistrate Judge for a

report and recommendation. DE 45. Defendants Payopic LLC, Quincy McKnight, and Niles

Morton have not responded to the Renewed Motion, and the deadline for them to do so has

passed. The Court has carefully considered the Renewed Motion and the record and is fully

advised in the premises. The Court RECOMMENDS that the Renewed Motion [DE 44] be

GRANTED.

Plaintiff filed a First Amended Complaint pleading claims of violation of the Fair Labor

Standards Act (“FLSA”), violation of the Florida Minimum Wage Act (“FMWA”), and breach

of contract. DE 27. Judge Leibowitz ordered Defendants to respond to the First Amended

Complaint by December 1, 2025. DE 40 at 2. When Defendants failed to do so, the Clerk of

Court entered default against them. DE 43. Plaintiff’s Renewed Motion followed.

I. Liability on Default

A court may enter a default judgment against a party who has failed to plead or otherwise

defend an action. Fed. R. Civ. P. 55(a). “A defendant, by his default, admits the plaintiff’s

well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from

contesting on appeal the facts thus established.” Eagle Hosp. Physicians, LLC v. SRG

Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009) (quotation marks omitted). The

defaulting defendant does not admit facts that are not well-pleaded or admit conclusions of law.

Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245 (11th Cir. 2015). A court considering

entering a default judgment must ensure that the pleading states a claim upon which relief can be

granted. Id. (explaining that entry of default judgment is warranted only if the pleading contains

well-pled allegations of fact that would be sufficient to survive a motion to dismiss for failure to

state a claim).

A complaint states a claim upon which relief can be granted when it contains “enough

facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007); see Surtain, 789 F.3d at 1245–48 (applying the plausibility pleading standard to

evaluate whether a plaintiff’s complaint stated claims on which she was entitled to entry of a

default judgment). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The pleading must contain more than

labels, conclusions, a formulaic recitation of the elements of a cause of action, and naked

assertions devoid of further factual enhancement. Id. The Court therefore evaluates the First

Amended Complaint to determine whether Plaintiff has plausibly stated his claims.

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A. FLSA Liability

Under the FLSA, “[e]very employer shall pay to each of his employees who in any

workweek is engaged in commerce or in the production of goods for commerce, or is employed

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

minimum wage of $7.25 per hour. 29 U.S.C. § 206(a). An employer who fails to pay the federal

minimum wage “shall be liable to the employee or employees affected in the amount of their

unpaid minimum wages . . . and in an additional equal amount as liquidated damages.”

Id. § 216(b).

An employer “includes any person acting directly or indirectly in the interest of an

employer in relation to an employee,” and an employee is “any individual employed by an

employer.” Id. § 203(d), (e)(1). “‘Commerce’ means trade, commerce, transportation,

transmission, or communication among the several States or between any State and any place

outside thereof.” Id. § 203(b). “‘Enterprise’ means the related activities performed (either

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

purpose . . . .” Id. § 203(r)(1). An enterprise is engaged in commerce or in the production of

goods for commerce when it (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. § 203(s)(1)(A).

Plaintiff pled that he worked for Defendant Payopic LLC as an account executive. DE 27

¶¶ 8–9, 12. Defendants Quincy McKnight and Niles Morton are Defendant Payopic LLC’s

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officers and exercised operational control over Plaintiff’s employment, such that they were also

Plaintiff’s employers for the purpose of applying the FLSA. Id. ¶¶ 6–9, 22; 29 U.S.C. § 203(d)

(defining “employer” to include “any person acting directly or indirectly in the interest of an

employer in relation to an employee”). Plaintiff was engaged in commerce as part of his

employment in that he regularly used instrumentalities of interstate commerce to perform his job.

DE 27 ¶ 11. For example, he had telephone, email, and video communications with prospective

clients in multiple states and participated in telemarketing directed toward out-of-state business.

Id. Further, Defendants are an enterprise engaged in commerce in that they provide

payment-processing and financial-technology services nationwide and handle transactions across

state lines. Id. ¶ 10. Defendants’ annual gross volume of sales exceeds $500,000. Id.

Defendants did not pay Plaintiff any salary from December 15, 2024, through the end of his

employment in May 2025. Id. ¶¶ 14–15, 18–19, 21.

Through these allegations, Plaintiff plausibly pled a claim against Defendants for

violation of the FLSA. Defendants admitted the allegations through their default. Defendants

are liable for violating the FLSA, and Plaintiff should receive default final judgment on his

FLSA claim.

B. FMWA Liability

Under Florida law, “[e]mployers shall pay Employees Wages no less than the Minimum

Wage for all hours worked in Florida.” Fla. Const. art. 10, § 24(c); see also Fla. Stat. § 448.110

(provisions of the FMWA implementing Section 24 of Article 10 of the Florida Constitution).

Between September 30, 2024, and September 29, 2025, the Florida minimum wage was $13 per

hour. See Fla. Const. art. 10, § 24(c) (increasing the Florida minimum wage by $1 per hour each

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September 30th until the minimum wage reaches $15 per hour). An employee who is not paid

the Florida minimum wage and who gives the employer written pre-suit notice may bring a civil

action and, if prevailing, “shall recover the full amount of any unpaid back wages unlawfully

withheld plus the same amount as liquidated damages.” Fla. Stat. § 448.110(6)(a), (c)(1). To

prevail on an FMWA claim, a plaintiff must establish the same elements needed to prevail on an

FLSA claim. Chavez v. Grill Enters., LLC, No. 20-22603-Civ, 2022 WL 1642757, at *9 (S.D.

Fla. Jan. 31, 2022).

Plaintiff pled that he provided Defendants pre-suit notice as the FMWA requires.

DE 27 ¶ 25. Having plausibly pled the elements of an FLSA claim, Plaintiff has plausibly pled

the remaining elements of an FMWA claim. Defendants admitted Plaintiff’s allegations through

their default. Defendants are liable for violating the FMWA, and Plaintiff should receive default

final judgment on his FMWA claim.

C. Breach-of-Contract Liability

The elements of a breach-of-contract claim under Florida law are a valid contract, a

material breach, and damages. Beck v. Lazard Freres & Co., 175 F.3d 913, 914 (11th Cir. 1999).

Plaintiff pled that he and Defendant Payopic LLC “entered into a written employment agreement

which promised Plaintiff a salary of $75,000 annually, commissions, and health insurance

reimbursement.” DE 27 ¶ 29. “Plaintiff fully performed his duties under the agreement by

working full-time through May 2025.” Id. ¶ 30. But Defendant Payopic LLC “breached the

agreement by failing to pay salary, commissions, or health benefits after December 14, 2024.”

Id. ¶ 31. Plaintiff suffered damages due to the breach. Id. ¶ 32.

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Through these allegations, Plaintiff plausibly pled a claim against Defendant Payopic

LLC for breach of contract. Defendant Payopic LLC admitted the allegations through its default.

Defendant Payopic LLC is liable for breach of contract, and Plaintiff should receive default final

judgment on his breach-of-contract claim.

II. Damages on Default

Turning to the amount of the default judgment, “allegations relating to the amount of

damages are not admitted by virtue of default,” and “the Court determines the amount and

character of damages to be awarded.” Atl. Corp. of Wilmington, Inc. v. TBG Tech Co.,

No. 21-24317-CIV, 2022 WL 18495887, at *5 (S.D. Fla. Feb. 18, 2022) (quotation marks

omitted). A court may conduct an evidentiary hearing before entering default judgment if a

hearing is needed to determine the amount of damages. Fed. R. Civ. P. 55(b)(2)(B). But an

evidentiary hearing is not a per se requirement of entry of default judgment. S.E.C. v. Smyth,

420 F.3d 1225, 1232 n.13 (11th Cir. 2005). No hearing is needed “where all essential evidence

is already of record.” Id. That evidence may take the form of affidavits. Carlisle v. Nat’l Com.

Servs., Inc., 722 F. App’x 864, 870 (11th Cir. 2018); see also Brown v. Everest Moving &

Storage, Inc., No. 12-62530-CIV, 2013 WL 12126001, at *2 (S.D. Fla. Aug. 20, 2013)

(“Affidavits based on personal knowledge can be sufficient evidence to establish damages.”).

A. FLSA and FMWA Damages

Plaintiff avers in a sworn declaration that Defendants did not pay him any salary from

December 15, 2024, through April 30, 2025. DE 44-1 at 2. During this period of time, he

worked approximately 40 hours per week for approximately 19 weeks. Id. The Florida

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minimum wage at that time was $13 per hour. See Fla. Const. art. 10, § 24(c). Plaintiff’s

minimum wage damages are $9,880 ($13 per hour x 40 hours per week x 19 weeks = $9,880).

Under both the FLSA and the FMWA, a plaintiff may receive liquidated damages in the

amount of his unpaid minimum wages. 29 U.S.C. § 216(b); Fla. Stat. § 448.110(6)(c). A

defendant may demonstrate that the court should not award liquidated damages by showing that

the defendant acted in good faith and with reasonable grounds for believing that it was not

violating the law. 29 U.S.C. § 260; Fla. Stat. § 448.110(6)(c). But as Defendants have defaulted,

they have not demonstrated that the Court should not award Plaintiff liquidated damages in the

amount of his minimum wage damages. Plaintiff’s liquidated damages are $9,880. Plaintiff

should receive judgment in the amount of $19,760 against Defendants jointly and severally for

damages under the FLSA and FMWA.

B. Breach-of-Contract Damages

Plaintiff avers in his sworn declaration that his employment agreement with Defendant

Payopic LLC provided for an annual salary of $75,000. DE 44-1 at 2. He was paid

semi-monthly, meaning that he should have been paid $3,125 per pay period ($75,000 ÷ 24 pay

periods = $3,125). Id. He did not receive his salary for nearly 9.5 pay periods, such that his

unpaid salary damages are $29,625.1 Id.

An FLSA claim and a breach-of-contract claim may be pled as alternative legal theories

to recover wages. Avery v. City of Talladega, Ala., 24 F.3d 1337, 1348 (11th Cir. 1994). But a

plaintiff “may not recover twice for the same violation.” Id. “[C]ourts have held that the

plaintiff is not entitled to an award of both unpaid wages and unpaid minimum wage

1 Plaintiff’s unpaid salary damages for a full 9.5 pay periods would total $29,687.50 ($3,125 per pay period x

9.5 pay periods = $29,687.50). However, Plaintiff claims only $29,625 in unpaid salary damages. DE 44-1 at 2.

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compensation, but rather is entitled to the greater of the two amounts.” McMahon-Renz v.

Promark Data & Media Grp., No. 10-81547-CIV, 2011 WL 13319092, at *1 (S.D. Fla. Aug. 31,

2011), report & recommendation adopted, 2011 WL 13319093 (S.D. Fla. Sept. 22, 2011);

see also Suarez v. Marbridge Restoration, LLC, No. 24-22780-CIV, 2025 WL 1433626, at *6

(S.D. Fla. Mar. 6, 2025) (“While Plaintiff is entitled to recover for breach of contract, he cannot

recover double damages, as his FLSA claim arises from the same injury.”). As Plaintiff is

recovering $9,880 in unpaid salary through his damages for his FLSA and FMWA claims, his

unpaid salary damages for his breach-of-contract claim should be reduced to $19,745 to avoid

double recovery ($29,625 - $9,880 = $19,745).

Plaintiff also avers in his sworn declaration that his employment agreement with

Defendant Payopic LLC provided for the reimbursement of his health insurance premiums.

DE 44-1 at 2. Defendant Payopic LLC did not reimburse him for health insurance premiums in

the amount of $714.66. Id. Plaintiff’s breach-of-contract damages total $20,459.66. Plaintiff

should receive judgment in the amount of $20,459.66 against Defendant Payopic LLC for breach

of contract.

III. Recommendation

The Court recommends that Plaintiff’s Renewed Motion for Default Final Judgment

[DE 44] be GRANTED. The Court recommends that default final judgment be entered against

Defendants and in favor of Plaintiff. The Court recommends that Plaintiff receive judgment in

the amount of $19,760 against Defendants jointly and severally for damages under the FLSA and

FMWA and that Plaintiff receive judgment in the amount of $20,459.66 against Defendant

Payopic LLC for breach of contract.

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Within fourteen days after being served with a copy of this Report and Recommendation,

any party may serve and file written objections to any of the above findings and

recommendations. 28 U.S.C. § 636(b)(1); S.D. Fla. Mag. R. 4(b). The parties are hereby

notified that a failure to timely object waives the right to challenge on appeal the District Court’s

order based on unobjected-to factual and legal conclusions contained in this Report and

Recommendation. 11th Cir. R. 3-1.

DONE AND SUBMITTED in Chambers at Fort Lauderdale, Florida, this 6th day of

January, 2026.

EP \_

UNITED STATES MAGISTRATE JUDGE