Opinion
CASE NO. 8:18-cv-2442-T-02CPT
03-11-2019
DRIANA MARTINEZ, Plaintiff, v. ASKINS & MILLER ORTHOPAEDICS, ROLAND VANCE ASKINS III, DARYL MILLER, and CHRIS KLINGENSMITH, Defendants.
ORDER
This cause comes before the Court on Plaintiff's Motion for Entry of Default Final Judgment against Defendants, Askins & Miller Orthopaedics, and Daryl Miller with affidavits (Dkt. 27). After reviewing the pleadings, affidavits, and the entire file, the Court concludes a default final judgment should be entered as to liability, damages, and attorney's fees and costs.
BACKGROUND
Plaintiff brought this action to recover unpaid wages and for retaliation under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (FLSA) against all four Defendants: Askins & Miller Orthopaedics (AMO), Roland Vance Askins III (Askins), Daryl Miller (Miller), and Chris Klingensmith (Klingensmith). Dkt. 1. A third count seeks damages from AMO for breach of a contract to pay Plaintiff for work performed at the rate of $16.00 per hour and cites section 448.08 of the Florida Statutes. Id. A clerk's default was entered pursuant to Rule 55(a) of the Federal Rules of Civil Procedure against Defendants AMO and Miller. Dkt. 26. Plaintiff now seeks a final default judgment against AMO and Miller pursuant to Rule 55(b).
LEGAL STANDARD
To determine whether the moving party is entitled to a default final judgment under Rule 55, the Court must review the sufficiency of the complaint and its underlying substantive merits. Chudasma v. Mazda Motor Corp., 123 F.3d 1353, 1370, n.41 (11th Cir. 1997). For purposes of liability, a defaulting defendant admits only the plaintiff's well-pleaded allegations of fact. Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987); Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). If there is a "sufficient basis in the pleadings," a default judgment should be entered. Annon Consulting, Inc. v. BioNitrogen Holdings Corp., 650 F. App'x 729, 733 (11th Cir. 2016) (quoting Nishimatsu).
"The defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law. In short . . . a default is not treated as an absolute confession of the defendant of his liability and of the plaintiff's right to recover." Nishimatsu, 515 F.2d at 1206. In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the former Fifth Circuit rendered prior to the close of business on September 30, 1981.
Once the Court has established liability, then it must conduct an inquiry to ascertain the amount and character of damages to be awarded. Whole Space Indus. Ltd. v. Gulfcoast Int'l Prods., Inc., 2009 WL 2151309, at *3 (M.D. Fla. July 13, 2009) (citing Wallace v. Kiwi Group, Inc., 247 F.R.D. 679, 681 (M.D. Fla. 2008)). "[A] judgment by default may not be entered without a hearing [on damages] unless the amount claimed is a liquidated sum or one capable of mathematical calculation." United Artist Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979) (citations omitted); see also Fed. R. Civ. P. 55(b)(1) ("If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation [judgment may be entered on an affidavit]."). A hearing may not be necessary if essential evidence is before the Court. SEC v. Smyth, 420 F.3d 1225, 1231 (11th Cir. 2005).
LIABILITY
To prevail on a claim for wages, the plaintiff must show that (1) she was employed by the defendant; (2) she was employed by an enterprise engaged in commerce, and (3) the defendant failed to pay her the minimum wage as required by the FLSA. Moser v. Action Towing Inc of Tampa, No. 8:16-cv-420-T-35JSS, 2017 WL 10276702, at *1 (M.D. Fla. Feb. 6, 2017) (citation omitted). Plaintiff worked as a clinical nurse for AMO beginning in November 2015. Dkt. 1 ¶18; Dkt. 27-2 ¶ 3. AMO regularly services out-of-state patients. Dkt. 27-2 ¶ 4. AMO meets the definition of an enterprise engaged in commerce with yearly sales of $500,000 or more. Dkt. 1 ¶¶ 11-12. See 29 U.S.C. §203(s)(1). Miller is also covered by the FLSA. See Mitchell v. C.W. Vollmer & Co., 349 U.S. 427, 429 (1955) (providing that test of whether employee is engaged in commerce is determined by practical considerations). Notably, Miller decided which employees would be paid and which employees would not be paid during any given pay period. Id. ¶¶ 8-10, 24. Thus, Plaintiff has established she was employed by a covered enterprise.
Miller set policy, pay, employee schedules, and exempt or non-exempt status under the Fair Labor Standards Act (FLSA), as well as hired and fired employees of AMO. Dkt. ¶ 8. Whether an exemption applies is not at issue, however, because the burden rests with the employer seeking an exemption and the employers have defaulted. See Moser, 2017 WL 10276702, at *2 (citation omitted). --------
With respect to pay, Plaintiff worked at AMO for about 19 months, from November 2015 through May 29, 2017, when she resigned. Dkt. 1 ¶ 28; Dkt. 27-2 ¶ 27. She worked at an agreed hourly rate of $16.00 per hour for forty hours per week. Dkt. 1 ¶28; Dkt. 27-1 ¶ 7. She was not paid for three weeks' work totaling $1,920.00 (120 hours at $16.00 per hour), which resulted from Defendants' willful withholding of wages. Dkt. 1 ¶¶ 25, 29-32; Dkt. 27-2 ¶ 37. Specifically, AMO issued checks that bounced. Dkt. 1 ¶ 23.
Plaintiff's breach of contract claim alleges AMO materially breached the contract by failing to make timely wage payments and by selectively paying some employees and not others. Dkt. 1 ¶¶ 54-55, 62. Plaintiff notified AMO and Miller in May, June, and August of 2017 of AMO's continued failure to pay under the contract. Id. ¶¶ 55-57. Miller admitted that AMO engaged in breaches of the contract "by providing verbal and repeated excuses" for the delay in payment. Dkt. 1 ¶ 60.
Based on the pleadings, affidavits, and exhibits, the Court finds a sufficient basis to enter a default judgment as to liability.
DAMAGES
Plaintiff seeks $1,920.00 for unpaid wages, $1,920.00 in liquidated damages under the FLSA, $105.00 in bounced check fees ($35.00 insufficient funds three times), $2,000.00 for money borrowed to cover her bills while awaiting payment, $3,441.00 in legal fees, and $661.99 in costs. Dkt. 27-2 ¶¶ 37-41 and at 9-32; Dkt. 27-3. The Court finds the damages are a sum certain which are ascertainable by mathematical calculation. The Court further finds that 17.5 hours of attorney and paralegal work with an attorney hourly rate of $300 is reasonable.
It is therefore ORDERED AND ADJUDGED:
1) Plaintiff's Motion for Entry of Default Final Judgment against Defendants, Askins & Miller Orthopaedics, and Daryl Miller (Dkt. 27) is granted.
2) The Clerk is directed to enter a final default judgment against Defendants Askins & Miller Orthopaedics and Daryl Miller and in favor of Plaintiff in the amount of $10,047.99, which includes attorney's fees and costs.
DONE AND ORDERED at Tampa, Florida, on March 11, 2019.
s/William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE COPIES FURNISHED TO :
Counsel of Record