Opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:24-cv-22063-KMM

YANICK ST. CHARLES, et al.,

Plaintiffs,

Vv.

INTERNATIONAL SECURITY GUARD SERVICES, INC., et al.,

Defendants.

/

OMNIBUS ORDER

THIS CAUSE came before the Court upon Plaintiffs Yanick St. Charles,

Alecsandre Gabriel, Bradeley Isidore, Jean Atis, Jocelyne Jennings, Ronald Francis, Pablo

Westbrooks, and Nevada Washington’s (collectively, “Moving Plaintiffs”) Amended

Motion for Default Final Judgment Against Defendant International Security Guard

Services, Inc. (ECF No. 72) (“DJ Mot.” or “DJ Motion”). Defendant International Security

Guard Services, Inc. (“ISG”) filed its Response and Motion to Set Aside Clerk’s Default

and Memorandum in Opposition to Plaintiffs’ Amended Motion for Entry of Default

Judgment. (ECF No. 78) (“Motion to Set Aside Default”). Moving Plaintiffs filed their

Reply in support of the DJ Motion. (ECF No. 80) (“DJ Reply”). The Court referred the

DJ Motion to Magistrate Judge Marty Fulgueira Elfenbein “to take all necessary and proper

action as required by law and/or to issue a Report and Recommendation.” (ECF No. 74).

Magistrate Judge Elfenbein issued her Report and Recommendation, recommending that

Moving Plaintiffs’ DJ Motion be granted in part and denied in part, and that ISG’s Motion

to Set Aside Default be denied. (ECF No. 83) (“R&R”). ISG filed its Objections to the

R&R. (ECF No. 87) (“Obj.”). This motion is now ripe for review.

Also before the Court is Defendants Fenel Luxama and Wilmene Dorvil’s

(together, “Individual Defendants” and with ISG, “Defendants”) Motion to Dismiss

Amended Complaint. (ECF No. 79) (“MTD” or “Motion to Dismiss”). Plaintiffs1 filed a

Response in opposition (“MTD Resp.” or “MTD Response”) (ECF No. 81), and Individual

Defendants filed a Reply in support (“MTD Reply”) (ECF No. 82). This motion is also

ripe for review.

As set forth below, the DJ Motion is GRANTED IN PART and DENIED IN PART,

the Motion to Dismiss is DENIED, and Magistrate Judge Elfenbein’s R&R is ADOPTED.

I. BACKGROUND2

This case concerns allegations that Defendants underpaid regular and overtime

wages to Plaintiffs, a group of security guards for the Miami-Dade County Public Schools.

See generally Am. Compl. ISG started providing security services for Miami-Dade County

Public Schools on April 1, 2024. Id. ¶ 8. Defendants hired Plaintiffs, who were each

already employed as security guards for Miami-Dade County Public Schools under

different contractors. Id. ¶ 7.

Plaintiffs allege that Defendants did not provide them with any breaks during the

work day. Id. ¶ 12. Plaintiffs allege that they regularly worked over forty hours per week

while employed by Defendants, and allege that Defendants never paid them any overtime

1 The MTD Response does not indicate whether it is filed by all Plaintiffs or just Moving Plaintiffs.

See generally MTD Resp. Accordingly, the Court assumes that every plaintiff named in the

amended complaint is signed onto the MTD Response. This includes all Moving Plaintiffs, as

well as Bernice M. Louijeun and Everton Gray.

2 The brief factual background is taken from the Amended Complaint (“Amended Complaint” or

“Am. Compl.”) (ECF No. 48) and the facts are accepted as true, for the purpose of the Motion to

Dismiss, and as admitted, for the purpose of the DJ Motion. MSP Recovery Claims, Series LLC v.

Metro. Gen. Ins. Co., 40 F.4th 1295, 1302 (11th Cir. 2022); see also Eagle Hosp. Physicians, LLC

v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009) (citation omitted).

compensation for their work. Id. ¶¶ 16–17. Plaintiffs also allege they were underpaid in

regular wages, and that their agreed-upon rate was $14 per hour. See id. ¶¶ 14, 41–50. In

the Amended Complaint, Plaintiffs detail at length the extent to which they allege to be

underpaid in regular wages and overtime hours, while accounting for partial payment and

liquidated damages. Id. ¶¶ 41–50.

The instant case’s procedural history is winding, and detailed at length in the R&R.

R&R at 2–4. The Court nevertheless provides a brief summary here, as is most relevant to

resolving the instant motions. Plaintiffs filed their Amended Complaint on November 1,

2024. See generally Am. Compl. Therein, they allege the following: federal minimum

wage violations under 29 U.S.C. § 206(a) (“Count I”); federal overtime wage violations

under 29 U.S.C. § 216(b) (“Count II”); and breach of contract (“Count III”). Id. ¶¶ 19–40,

51–56.

Following an unsuccessful motion for default judgment, Plaintiffs moved for leave

to effect alternative service through Florida’s Secretary of State. (ECF Nos. 49–50, 55).

The Court allowed Plaintiffs to effect service in this manner, and relied on Plaintiffs’

assertion that their “process server made six attempts to serve the Defendants” but failed,

as Defendants were “likely avoiding service of process.” (ECF No. 56). Defendants

received the Summonses and Amended Complaint on February 10 and 11, 2025. (ECF

Nos. 63–64).

On March 6, 2025, Plaintiffs moved for entry of clerk’s default as to ISG, and the

Clerk of Court entered default the next day. (ECF Nos. 67–68). On March 11, 2025, this

Court directed Plaintiffs to file a motion for default judgment within 20 days. (ECF No.

69). ISG’s attorney filed a notice of appearance the next day, although he did not file

anything else on ISG’s behalf until April 3, 2025. (ECF Nos. 71, 73). Moving Plaintiffs

filed their DJ Motion against ISG on April 3, 2025. See generally DJ Mot. ISG filed its

Motion to Set Aside Default, which also serves to respond to Moving Plaintiffs’ DJ Motion,

on April 16, 2025. See generally Motion to Set Aside Default.

Meanwhile, Individual Defendants’ counsel, who is the same as ISG’s counsel,

appeared on March 12, 2025, for them as well. (ECF No. 71). Individual Defendants filed

their Motion to Dismiss on April 23, 2025. See generally MTD. Therein, they argue the

Amended Complaint should be dismissed because Plaintiffs did not sufficiently allege that

Defendants are covered by the Fair Labor Standards Act (“FLSA”), and that Count III

should be dismissed as the Court should decline to exercise supplemental jurisdiction over

the state law claim once the federal claims have been dismissed. See generally id.

Now before the Court is the Motion to Dismiss, as well as Magistrate Judge

Elfenbein’s R&R, which addresses only the DJ Motion. See generally R&R.

II. LEGAL STANDARD

A. Report and Recommendation

The Court may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

72(b)(3). The Court “must determine de novo any part of the magistrate judge’s disposition

that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). A de novo review is therefore

required if a party files “a proper, specific objection” to a factual finding contained in the

report. Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). “It is critical that

the objection be sufficiently specific and not a general objection to the report” to warrant

de novo review. Id.

Yet when a party has failed to object or has not properly objected to the magistrate

judge’s findings, “the court need only satisfy itself that there is no clear error on the face

of the record in order to accept the recommendation.” See Keaton v. United States, No.

14-21230-CIV, 2015 WL 12780912, at *1 (S.D. Fla. May 4, 2015); see also Lopez v.

Berryhill, No. 17-CV-24263, 2019 WL 2254704, at *2 (S.D. Fla. Feb. 26, 2019) (stating

that a district judge “evaluate[s] portions of the R & R not objected to under a clearly

erroneous standard of review” (citing Davis v. Apfel, 93 F. Supp. 2d 1313, 1317 (M.D. Fla.

2000))).

B. Motion to Dismiss

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The

purpose of Rule 8(a)(2) “is to give the defendant fair notice of what the claim is and the grounds

upon which it rests.” Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008)

(internal citation and quotation marks omitted).

Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint for

failing to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation

and internal quotation marks omitted). This requirement “give[s] the defendant fair notice of what

the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (internal citation and alterations omitted). The court takes the plaintiff’s factual allegations

as true and construes them in the light most favorable to the plaintiff. Pielage v. McConnell, 516

F.3d 1282, 1284 (11th Cir. 2008).

A complaint must contain enough facts to plausibly allege the required elements. Watts v.

Fla. Int’l Univ., 495 F.3d 1289, 1295–96 (11th Cir. 2007). A pleading that offers “a formulaic

recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 555). “[C]onclusory allegations, unwarranted deductions of facts or legal

conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v.

Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

III. DISCUSSION

The Court will first review Magistrate Judge Elfenbein’s R&R and ISG’s

Objections thereto, before next analyzing the Motion to Dismiss.

A. The Court adopts Magistrate Judge Elfenbein’s R&R

In her R&R, Magistrate Judge Elfenbein first recommends denying ISG’s Motion

to Set Aside Default. R&R at 9–12. As for the DJ Motion, Magistrate Judge Elfenbein

recommends granting default judgment on Count I for each of Moving Plaintiffs. Id. at

13–17. She recommends granting default judgment on Count II for all Moving Plaintiffs,

other than Westbrooks, Isidore, and Atis. Id. at 18–19. Magistrate Judge Elfenbein also

recommends ordering Moving Plaintiffs to file supplemental affidavits that will help the

Court determine damages. Id. at 19–22. She next recommends that the Court find Moving

Plaintiffs are entitled to liquidated damages, but that it needs more on the record to compute

these damages. Id. at 22–25. She additionally recommends finding Plaintiffs are entitled

to attorney’s fees and costs. Id. at 25–28. Magistrate Judge Elfenbein also recommends

finding Moving Plaintiffs are entitled to default judgment as to Count III. Id. at 29. Finally,

she recommends this Court order Moving Plaintiffs to include a statement electing

recovery under either Count I or Count III. Id. at 29–31. ISG filed its Objections to the

R&R, wherein ISG objects to Magistrate Judge Elfenbein’s finding that ISG did not

establish good cause to set aside the Clerk’s entry of default. See generally Obj. Further,

ISG argues that Moving Plaintiffs have received partial payments that are considerably

higher than what is claimed in the Amended Complaint. Id. at 5–6. The Court will analyze

each of Magistrate Judge Elfenbein’s findings in turn, assessing ISG’s objections where

relevant.

i. Motion to Set Aside Default

Magistrate Judge Elfenbein recommends rejecting ISG’s Motion to Set Aside

Default. R&R at 9–12. Federal Rule of Civil Procedure 55(c) states that an entry of default

may be set aside for “good cause.” Fed. R. Civ. P. 55(c). In evaluating good cause, courts

consider whether the defendant was culpable or willful in defaulting; whether setting aside

that default would prejudice the plaintiffs; and whether the defaulting party presents a

meritorious defense that it may argue, should the case proceed on the merits. Compania

Interamericana Export-Import, S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948,

951 (11th Cir. 1996) (indicating these factors are not “talismanic” (internal quotations and

citations omitted)).

Magistrate Judge Elfenbein finds that ISG failed to address why the Court should

actually set aside the default, sufficient reason in and of itself to find ISG forfeited the

issue. R&R at 9–10 (“Other than the title of the Motion to Set Aside, [ISG] fails to make

any reference to setting aside the Clerk’s default, let alone any arguments or case law

supporting such a decision or how [ISG] satisfies the good cause requirement of Rule

55(c).”). Magistrate Judge Elfenbein does not end her analysis there, however, going on

to find that no good cause exists to set aside the default, as the record shows ISG failed to

act promptly and failed to identify any plausible defense to Plaintiffs’ claims. Id. at 10.

She notes that ISG had actual notice of the Amended Complaint as early as February 28,

2025, but still failed to respond, appear, or seek an extension from the Court before the

Clerk entered default. Id. Even when ISG’s attorney finally appeared on March 12, 2025,

Magistrate Judge Elfenbein finds that he too delayed, only filing the Motion to Set Aside

Default on April 16, 2025, two months after ISG was served with the Amended Complaint

and more than five weeks after entry of default. Id. at 10–11. She finds that ISG failed to

explain this delay. Id. at 11.

She further finds that ISG did not identify any meritorious defenses to the Amended

Complaint, even while acknowledging this standard is significantly lower in the context of

setting aside a default than in the context of vacating a default judgment. Id. at 11–12.

Instead, Magistrate Judge Elfenbein finds that ISG attacks the sufficiency of the Amended

Complaint while failing to “provide any contrary allegations suggesting that coverage

under the FLSA cannot apply to it.” Id. Therefore, and despite the policy preference for

determining cases on the merits, Magistrate Judge Elfenbein recommends that the Motion

to Set Aside Default be denied. Id.

This Court finds Magistrate Judge Elfenbein’s analysis to be exceptionally

compelling. Even reviewing de novo, given ISG’s Objections, the Court adopts Magistrate

Judge Elfenbein’s recommendation and finds that denial of ISG’s Motion to Set Aside

Default is warranted, as ISG both failed to include a single meritorious defense it would

raise and failed to make a case that there is good cause to set aside the default, especially

given ISG’s neglect in responding to the Amended Complaint until two months after it had

been served.

ISG’s Objections serve as a renewed motion to set aside default. See generally Obj.

ISG argues that this Court should set aside the default because the default was not culpable

or willful, because ISG has meritorious defenses, because Plaintiffs will not be prejudiced

if the Court sets aside the default, and because public policy favors setting aside the default.

Id. at 10–14. In arguing that the default was not willful, ISG argues that it resulted from

“Plaintiffs moving swiftly for a clerk’s default even when advised by the pro se Defendant

that they would be responding to the lawsuit,” after ISG found a lawyer. Id. at 12. ISG

further argues that the delay in moving to set aside the default after it retained an attorney

“was just one month” and this time “was needed to organize the corporate documents and

analyze them after retrieving them and organizing and scanning them.” Id.

Despite ISG’s best efforts to justify its delays, the Court finds that ISG is culpable

for its default. Although it is true that ISG told Plaintiffs it needed more time, such requests

are not self-executing, particularly when they lack any detail. More importantly, ISG’s

culpable conduct is arguably at its most inexcusable after it retained an attorney. ISG

delayed for an additional month before moving to set aside default. See (ECF Nos. 71, 78).

While ISG argues it needed this time to prepare a response, it was incumbent on ISG to at

least move for an extension of time, or otherwise indicate it planned to become a player in

this litigation, before more than a full month passed. Instead, it did not act until responding

to Moving Plaintiffs’ DJ Motion. See Motion to Set Aside Default. This delay was not the

result of ISG preparing a particularly compelling motion; the Motion to Set Aside Default

that ISG filed on April 16, 2025, was not compelling and did not build a case for setting

aside default. Rather, this delay (more than a month after an attorney appeared, and more

than two months after ISG was served) shows ISG had little, if any, regard for the Court’s

deadlines. Therefore, the Court finds that ISG’s default evidences “reckless disregard for

the judicial proceedings, [so] the [C]ourt need make no other findings in denying relief.”

Compania Interamericana, 88 F.3d at 951–52; see also id. at 951 (explaining that courts

may consider “whether the defaulting party acted promptly to correct the default”). As

such, ISG’s renewed motion to set aside default is denied, and ISG’s objections are

overruled.

ii. Default judgment as to Counts I and II

Magistrate Judge Elfenbein next evaluates Counts I and II of the Amended

Complaint. As she notes, the proper standard when evaluating a complaint for default

judgment is to confirm that the well-pleaded facts state plausible claims for relief. R&R at

12; see also Hornady v. Outokumpu Stainless USA, LLC, 118 F.4th 1367, 1383 (11th Cir.

2024) (noting that defaulted defendants have “forfeit[ed] the ability to contest the truth of

facts asserted”). Moving Plaintiffs seek relief under the FLSA for Counts I and II. See

Am. Compl. ¶¶ 19–40. Magistrate Judge Elfenbein notes that FLSA claims, whether they

be for minimum wage or overtime pay, require a plaintiff to demonstrate that “(1)

defendant employed them; (2) plaintiff’s work and/or defendant’s enterprise engaged in

interstate commerce covered by the FLSA; and (3) plaintiff worked hours for which

defendant did not pay the required minimum wages and/or overtime wages to them.” R&R

at 13 (citations omitted).

Magistrate Judge Elfenbein finds that Plaintiffs have alleged an employment

relationship between themselves and ISG, as they alleged they worked for ISG as security

guards beginning April 1, 2024. Id. at 14. She finds they sufficiently detailed the existence

of this relationship to meet element one of an FLSA claim. Id. Magistrate Judge Elfenbein

also finds that Plaintiffs have sufficiently alleged both individual and enterprise coverage

under the FLSA. Id. Plaintiffs have established the FLSA covers them because “their work

for Defendants involved receiving trucks that carried and delivered food originating in

other states.” Id. at 15. Magistrate Judge Elfenbein finds that allegations of such work,

which Plaintiffs allege was at least “closely related to the movement of commerce,” are

sufficient to allege the interstate commerce requirement of individual and enterprise

coverage under the FLSA. Id. (quoting Am. Compl ¶ 22). Further, she notes that Plaintiffs

alleged Defendants employed at least two employees that “handled goods or materials

moving in commerce and that annual gross sales exceeded $500,000 in 2023 and are

expected to exceed $500,000 in 2024.” Id. This, she finds, is sufficient to plausibly allege

enterprise coverage under the FLSA. Id. Magistrate Judge Elfenbein finds that Plaintiffs

have sufficiently alleged FLSA coverage. Id.

As for Count I, Magistrate Judge Elfenbein finds that the FLSA does not authorize

recovery of unpaid regular wages at the employee’s regular rate, as employees are entitled

only to the statutory federal minimum wage ($7.25) for regular hours worked. Id. at 16

(citations omitted). She notes Plaintiffs alleged they regularly worked more than forty

hours per week without being paid either the statutory minimum wage or the required time-

and-a-half rate for the hours above forty. Id. Further, she finds Plaintiffs alleged specific

regular and overtime hours worked and asserted that ISG failed to pay at least some portion

of those wages, “instead making only partial, lump-sum payments that did not fully

compensate their work.” Id. at 16–17. Therefore, Magistrate Judge Elfenbein finds that

the Amended Complaint states a plausible claim that ISG failed to pay at least the federal

minimum wage of $7.25 per hour, as required by the FLSA. Id. at 17. As such, she

recommends entering default judgment as to Count I for each of Moving Plaintiffs. Id.

As for Count II, Magistrate Judge Elfenbein notes all Moving Plaintiffs except three

(Westbrooks, Isidore, and Atis) claim to have worked unpaid overtime hours. Id. at 18.

Because Westbrooks, Isidore, and Atis did not allege that they worked overtime hours

when including their individual claims in the Amended Complaint, Magistrate Judge

Elfenbein recommends denying default judgment as to each of them for Count II. Id. The

remaining Moving Plaintiffs, however, did allege that they worked unpaid overtime hours,

and that ISG owes them time-and-a-half their regular rate of $14 per hour for those hours.

Id. Therefore, Magistrate Judge Elfenbein recommends entering default judgment as to

Count II for the remaining Moving Plaintiffs. Id. at 18–19.

Although ISG objects to Magistrate Judge Elfenbein’s recommendations, its

objections are in substance all to her aforementioned recommendation that this Court deny

the Motion to Set Aside Default. See generally Obj. Accordingly, this Court reviews

Magistrate Judge Elfenbein’s findings as to Counts I and II for clear error. Keaton, 2015

WL 12780912, at *1. This Court finds no clear error in Magistrate Judge Elfenbein’s

findings and therefore adopts her recommendation to enter default judgment as to Count I

for all Moving Plaintiffs, and as to Count II for each of Moving Plaintiffs other than

Bradeley Isidore, Jean Atis, and Pablo Westbrooks.3

iii. Default judgment as to Count III

Magistrate Judge Elfenbein also recommends that default judgment be entered as

to Count III. Under Florida law, a breach of contract plaintiff must plead the existence of

a contract, a material breach of that contract, and damages. See Vega v. T-Mobile USA,

Inc., 564 F.3d 1256, 1272 (11th Cir. 2009). Here, Magistrate Judge Elfenbein notes that

Plaintiffs alleged there was an agreement between them and Defendants where Plaintiffs

were to be paid $14 an hour by Defendants to perform work for the Defendants. R&R at

3 The Court also agrees with Magistrate Judge Elfenbein’s recommendation not to deny the DJ

Motion for failure to confer or for being filed a few days late. R&R at 17 n.6.

28–29. Further, Plaintiffs alleged that Defendants then did not pay those agreed-upon

wages, nor did they pay the overtime rates at time and one-half. Id. at 29. Magistrate Judge

Elfenbein finds that these allegations show that a contract for employment at $14 per hour

existed, that ISG materially breached that contract by failing to pay Plaintiffs, and that

Plaintiffs were damaged by this breach in that they were not compensated. Id.

Accordingly, Magistrate Judge Elfenbein recommends that this Court enter default

judgment as to Count III for Moving Plaintiffs. Id.

ISG did not object to any of Magistrate Judge Elfenbein’s findings as to default

judgment for Count III. See generally Obj. Therefore, the Court reviews her findings only

for clear error. Keaton, 2015 WL 12780912, at *1. The Court finds no clear error in

Magistrate Judge Elfenbein’s findings and therefore adopts her recommendation to enter

default judgment as to Count III for each of Moving Plaintiffs.

iv. Damages under Counts I–III

Magistrate Judge Elfenbein recommends the Court order Moving Plaintiffs provide

supplemental affidavits before it can enter a specific sum of damages that they will be

awarded. R&R at 32–33. As a preliminary matter, Magistrate Judge Elfenbein finds that

the operative wage for calculating damages as to each of Moving Plaintiffs is $14 per hour,

despite the DJ Motion listing a different rate for St. Charles and the Amended Complaint

listing a different rate for Francis and Gabriel. See R&R at 17 n.5, 18 n.7.

She notes that under Counts I and II, Moving Plaintiffs have provided enough

information to decide liability, but not to determine the amount of damages under the

FLSA. Id. at 20. Magistrate Judge Elfenbein states the tables Plaintiffs have provided thus

far have two major problems that must be remedied: first, they calculate damages using

each Plaintiff’s agreed-to hourly rate, when the FLSA’s regular wage provisions allow for

recovery at the minimum wage of $7.25 per hour; and second, they do not allege when

exactly Defendants made partial payments, which is problematic because timing of

payments is critical under the FLSA. Id. at 20–21 (citations omitted). Therefore, to

calculate damages under the FLSA, Magistrate Judge Elfenbein recommends this Court

order Moving Plaintiffs to file supplemental affidavits (the “Supplemental Affidavits”)

with the missing information. Id. at 22.

As for damages under Count III, Magistrate Judge Elfenbein notes first that

Plaintiffs have pursued two alternative theories when it comes to recovery for their non-

overtime hours: Count I and Count III. Id. at 29. Although plaintiffs are allowed to pursue

alternative theories of liability under federal procedure, Magistrate Judge Elfenbein finds

that an election must finally be made at the remedies stage. Id. at 29–30. Here, Count I

and Count III both address that Moving Plaintiffs were unpaid in regular wages, but

Moving Plaintiffs “may obtain one full recovery of their regular wages.” Id. at 31.

Magistrate Judge Elfenbein notes the difference: under Count I, Moving Plaintiffs may

recover for regular wages up to the statutory minimum, plus an equal amount of liquidated

damages, whereas under Count III, they may recover at the contractual $14 per hour rate.

Id. Therefore, she recommends this Court order Moving Plaintiffs to include an election

of remedies in the Supplemental Affidavits. Id.

As for liquidated damages, Magistrate Judge Elfenbein finds that Moving Plaintiffs

are entitled to liquidated damages under the FLSA that are equal to each of their damages

under Counts I and II. Id. She finds that through its default, ISG has admitted to its

violations of the FLSA being willful. Id. Because of this admission, she finds that

liquidated damages are required, and so Moving Plaintiffs are entitled to liquidated

damages “on whatever sum is ultimately determined to be unpaid FLSA wages.” Id.

(internal quotations and citations omitted). Such liquidated damages apply only to “true

FLSA shortfalls,” not to any unpaid regular times wages that are above the federal

minimum wage or to any breach of contract damages. Id. Therefore, Magistrate Judge

Elfenbein notes that liquidated damages cannot be computed given the current record, and

that the Court may determine liquidated damages upon the submission of the Supplemental

Affidavits. Id. at 24–25.

Finally, Magistrate Judge Elfenbein recommends awarding Moving Plaintiffs

$9,954.00 in attorney’s fees and costs, if they elect to proceed with damages under the

FLSA. Id. at 33. Magistrate Judge Elfenbein reaches this number by assessing Plaintiffs’

counsel’s hourly rate of $400 to be reasonable given his extensive experience, the amount

of plaintiffs, and the several rounds of pleading the litigation entailed. Id. at 27. Further,

she finds that Plaintiffs’ counsel’s accounting of 22.0 hours is reasonable, and finds that

there is “no indication of excessive duplication or unnecessary work.” Id. at 28. Magistrate

Judge Elfenbein also finds that there is no basis in this case to adjust the lodestar in any

direction. Id. Therefore, she recommends finding that Plaintiffs are entitled $8,800 in

attorney’s fees, plus $1,154 in costs that Plaintiffs’ counsel forwarded (and that are

adequately documented and recoverable). Id. Because these fees and costs are recoverable

under the FLSA, should Moving Plaintiffs elect remedies under Count III, the amount of

fees and costs could change to reflect only the work Plaintiffs’ counsel did as to Count II.

See id. at 33.

The Court finds no clear error4 in Magistrate Judge Elfenbein’s findings as to

damages, and therefore adopts her recommendation to order Plaintiffs to provide

Supplemental Affidavits, as detailed further in the Conclusion infra, which will aid in

calculating damages and awarding attorney’s fees and costs.

In sum, the Court adopts Magistrate Judge Elfenbein’s R&R and denies both of

ISG’s motions to set aside the clerk’s default, including the one within its Objections to the

R&R.

B. The Court Denies Individual Defendants’ Motion to Dismiss

Next before the Court is Individual Defendants’ Motion to Dismiss. Therein,

Individual Defendants seek to dismiss Plaintiff’s Amended Complaint, arguing that

Plaintiffs failed to sufficiently allege FLSA coverage, necessitating the dismissal of Counts

I and II for failure to state a claim. MTD at 2–4. Further, Individual Defendants argue that

the Court should dismiss Count III, as it is a state law claim brought under the Court’s

pendent jurisdiction, so it should be dismissed once the Court dismisses the associated

federal claims. Id. at 5. Plaintiffs argue that the MTD should be denied because Individual

Defendants rely on precedent in the summary judgment and judgment as a matter of law

contexts to attempt to justify dismissal. MTD Resp. at 4–5. Further, Plaintiffs argue that

4 The Court reviews Magistrate Judge Elfenbein’s findings for clear error, because ISG did not

properly object to them. Keaton, 2015 WL 12780912, at *1. Although ISG’s objections include

different calculations of damages than did the DJ Motion or the Amended Complaint, the Court

finds these objections are not to the manner in which Magistrate Judge Elfenbein recommends

damages be calculated. In any case, the Court encourages ISG to wait for Moving Plaintiffs’

forthcoming Supplemental Affidavits, which will include more complete and up-to-date

calculations of damages, including any subsequent payments ISG has made to Moving Plaintiffs.

Further, the Court reminds ISG that the FLSA considers not just how much employees are paid,

but also whether they are paid on time. Martin v. United States, 117 Fed. Cl. 611, 617–18 (2014).

their allegations of FLSA coverage are detailed and not conclusory formulaic recitations,

so the Amended Complaint should survive dismissal. Id. at 5.5

The Court finds that Plaintiffs have sufficiently plead FLSA coverage, and that the

Motion to Dismiss should thus be denied. Plaintiffs are covered by the FLSA where they

sufficiently plead either individual or enterprise coverage. Josendis v. Wall to Wall

Residence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011) (citation omitted). An

employee is subject to individual coverage where an employee is engaged in commerce,

meaning the employee is “directly participating in the actual movement of persons or things

in interstate commerce,” including by “regularly using the instrumentalities of interstate

commerce in his work.” Id. at 1315–16 (citations omitted). As for enterprise coverage,

this occurs where an employee is “employed in an enterprise engaged in commerce or in

the production of goods for commerce.” 29 U.S.C. § 207(a)(1). An enterprise is generally

covered where its employees engage in interstate commerce/handle goods that moved in

interstate commerce, and where the enterprise’s annual gross sales or business is at least

$500,000. Josendis, 662 F.3d at 1299 (citing 29 U.S.C. § 203(s)(1)(A)(i)–(ii)).

Individual Defendants argue Plaintiffs have not adequately plead either form of

FLSA coverage, as the Amended Complaint makes only “conclusory allegations.” MTD

at 3. Specifically, Individual Defendants argue that the Amended Complaint is missing

5 Plaintiffs also argue that the Motion to Dismiss should be denied because of insufficient conferral

on the part of Individual Defendants. Resp. at 2–3. However, the Local Rules requiring conferral

have a specific carve out for motions to dismiss. S.D. Fla. L.R. 7.1(a)(3) (“Prior to filing any

motion in a civil case, except a motion . . . to dismiss for failure to state a claim upon which relief

can be granted . . . counsel for the movant shall confer[.]”). Therefore, this argument is

unambiguously unavailing. The Court implores Plaintiffs’ counsel to exercise greater caution

before making representations to the Court, and directs all Parties to read the local rules more

carefully.

allegations regarding the goods or materials that Plaintiffs handled that had moved through

interstate commerce; what it meant to receive truckloads of food; and how the Plaintiff

security guards prepared taxes, train and teach in their capacity as security guards. Id. at

4.

The Court finds that Plaintiffs did sufficiently plead FLSA coverage. In fact, the

Amended Complaint has many non-conclusory allegations speaking to FLSA coverage.

For example, Plaintiffs allege that their work involved receiving trucks that unloaded food,

originating in other states, for the Miami Dade County Public Schools. Am. Compl. ¶ 22.

This work, Plaintiffs allege, was at least “closely related to the movement of commerce.”

Id. The Court finds these allegations are sufficient to plead individual coverage under the

FLSA, as they at least make it plausible that Plaintiffs were “directly participating in the

actual movement of [the food] in interstate commerce,” or at least “regularly using the

instrumentalities of interstate commerce in [their] work.” See Josendis, 662 F.3d at 1315–

16; see also Dimingo v. Midnight Xpress, Inc., 325 F. Supp. 3d 1299, 1310 (S.D. Fla. 2018)

(holding at summary judgment that security guard was covered by FLSA where his job

involved guarding trucks that were instrumentalities of interstate commerce). The Court

acknowledges that further fact development may reveal that Plaintiffs’ individual work is

of a local nature, involving local trucks and local schools, that does not qualify them for

FLSA individual coverage. However, at the motion to dismiss stage, the Court finds

Plaintiffs have plausibly plead individual FLSA coverage.

Further, the Court finds that Plaintiffs have sufficiently alleged enterprise coverage.

As mentioned, Plaintiffs allege Defendants had them engaging in work that is “closely

related to the movement of commerce.” Am. Compl. ¶ 22. They allege that Defendants

regularly had their employees “handl[ing] goods or materials that travelled through

interstate commerce, or us[ing] instrumentalities of interstate commerce.” Id. ¶ 23. Taken

together, these allegations satisfy the prong of enterprise coverage relating to the

enterprise’s employees engaging in interstate commerce/handling goods that moved in

interstate commerce. Josendis, 662 F.3d at 1299 (citing 29 U.S.C. § 203(s)(1)(A)(i)).

Further, Plaintiffs allege upon information and belief that ISG’s gross sales or business

exceeded $500,000 in 2023 and were expected to do the same in 2024. Am. Compl. ¶¶

24–25; see also Belik v. Carlson Travel Group, Inc., 864 F. Supp. 2d 1302, 1311 (S.D. Fla.

2011) (“Pleading on information in belief is still permissible where, as here, the facts are

‘peculiarly within the possession and control of the defendant.’” (quoting Arista Records,

LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010))). The Court finds these allegations meet

the second prong of enterprise coverage under Josendis. 662 F.3d at 1299. Therefore, the

Court finds Plaintiffs have plausibly alleged both forms of FLSA coverage in their

Amended Complaint. Accordingly, the Motion to Dismiss is denied as to Counts I and II.

As the Motion to Dismiss’s only argument pertaining to Count III is that it is a state law

claim that should be dismissed when the Court dismisses Counts I and II, the Court also

denies the Motion to Dismiss as to Count III. See MTD at 5.

IV. CONCLUSION

Accordingly, UPON CONSIDERATION of the Motion to Dismiss, the DJ Motion,

the R&R, the pertinent portions of the record, and being otherwise advised in the premises,

it is hereby ORDERED AND ADJUDGED that:

1. Magistrate Judge Elfenbein’s R&R (ECF No. 83) is ADOPTED;

2. ISG’s Motions to Set Aside Default at (ECF Nos. 78, 87) are DENIED;

3. The Moving Plaintiffs’ Default Judgment Motion (ECF No. 72) is

GRANTED IN PART and DENIED IN PART;

4. The Individual Defendants’ Motion to Dismiss (ECF No. 79) is DENIED;

5. Plaintiffs and Individual Defendants are DIRECTED to file a joint status

report within twenty days of entry of this Order, indicating whether they

plan to proceed with the remainder of this case in light of this Order;

6. Default judgment is ENTERED for all of the Moving Plaintiffs as to

Count I, and against ISG;

7. Default judgment is ENTERED as to Count II in favor of St. Charles,

Francis, Gabriel, Washington, and Jennings, and against ISG;

8. Default judgment is DENIED as to Count II for Westbrooks, Isidore, and

Atis;

9. Default judgment is ENTERED as to Count III for all of the Moving

Plaintiffs and against ISG;

10. Bernice M. Louijeun and Everton Gray are ORDERED TO SHOW

CAUSE within ten days of entry of this Order as to why their cases should

not be dismissed for failure to prosecute; and

11. The Court takes UNDER ADVISEMENT the request for any specific

amount of damages. To aid the determination of damages, the Moving

Plaintiffs shall file a motion with the Court that includes the information

detailed below, within ten days of entry of this Order. Such motion shall

be REFERRED to Magistrate Judge Marty Fulgueira Elfenbein to take all

necessary and proper action as required by law and/or to issue a Report

and Recommendation, pursuant to 28 U.S.C. § 636 and the Magistrate

Rules of the Local Rules of the Southern District of Florida.

a. Moving Plaintiffs shall file a notice of election of remedies

between Count I and Count III;

b. Moving Plaintiffs shall file Supplemental Affidavits detailing: (1)

the pay periods in which they earned their regular and overtime

wages; (2) the dates, amounts, and pay periods to which

Defendants’ partial payments were applied; and (3) any

designation by Defendants as to whether those payments were

intended to cover regular time, overtime, or both;

c. Moving Plaintiffs shall file a short memorandum explaining the

legal basis for their proposed allocation of Defendants’ partial

payment as: (1) either on time with regularly scheduled payment or

unreasonably delayed; and (2) being applied first to the contract

claim for regular wages or the FLSA claim for overtime wages.

This memorandum should include how that allocation avoids

double recovery while honoring the FLSA’s requirement that

“unpaid” wages be calculated as the difference between what the

statute requires and what the employer actually paid; and

d. Moving Plaintiffs shall include an assessment of attorney’s fees

and costs in their forthcoming motion. Should they elect FLSA

remedies, they shall include the $9,954.00 figure approved in this

Order. Should they elect remedies under Count III, their counsel

shall provide an updated accounting of his hours, reflecting only

his work on Count I.

DONE AND ORDERED in Chambers at Miami, Florida, this 24th _ day of February,

2026.

K MICHAEL MOORE

UNITED STATES DISTRICT JUDGE

c: All counsel of record

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