Wallace v. Kiwi Group, Inc.

247 F.R.D. 679, 2008 U.S. Dist. LEXIS 305, 2008 WL 58945
CourtDistrict Court, M.D. Florida
DecidedJanuary 3, 2008
DocketNo. 6:05-cv-674-Orl-28KRS
StatusPublished
Cited by41 cases

This text of 247 F.R.D. 679 (Wallace v. Kiwi Group, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wallace v. Kiwi Group, Inc., 247 F.R.D. 679, 2008 U.S. Dist. LEXIS 305, 2008 WL 58945 (M.D. Fla. 2008).

Opinion

[680]*680ORDER

JOHN ANTOON II, District Judge.

This case is before the Court on Plaintiffs’ Motion for Entry of Default Final Judgment (Doc. No. 60) filed August 17, 2007. The United States Magistrate Judge has submitted a report recommending that the motion be granted in part and denied in part.

After an independent de novo review of the record in this matter, and consideration of the Response to the Report and Recommendation filed by Defendants (Doc. 65), the Court agrees entirely with the findings of fact and conclusions of law in the Report and Recommendation. Therefore, it is ORDERED as follows:

1. That the Report and Recommendation filed November 19, 2007 (Doc. No. 68) is ADOPTED and CONFIRMED and made a part of this Order.

2. The Motion for Entry of Default Final Judgment (Doc. No. 60) is GRANTED in part and DENIED in part.

3. Default judgment is entered against Defendants The Kiwi Group, Inc., Heather Esque and William Esque on Judy Wallace’s and Robert Wallace’s FLSA minimum wage and overtime compensation claims. Defendants shall pay, jointly and severally, damages, attorney’s fees and costs as follows: to Judy Wallace in the amount of $8,544.00 (including liquidated damages); to Robert Wallace in the amount of $22,944.00 (including liquidated damages); $3,345.00 in attorney’s fees; and $445.00 in costs.

4. The Clerk of the Court is directed to issue a judgment consistent with this Order and thereafter to close this file.

DONE and ORDERED.

Report And Recommendation

KARLA R. SPAULDING, United States Magistrate Judge.

TO the united states district court

This cause came on for consideration without oral argument on the following motion filed herein:

MOTION: MOTION FOR ENTRY OF DEFAULT FINAL JUDGMENT (Doc. No. 60)

FILED: August 17, 2007

I. PROCEDURAL HISTORY.

On May 5, 2005, Plaintiffs Robert D. Wallace and Judy Wallace (the Wallaces) filed a complaint against the Kiwi Group, Inc. (The Kiwi Group), Heather Esque, and William Esque (the Esques) alleging violations of the overtime and minimum wage provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. Doc. No. 1. The Wal-laces allege that the defendants failed to pay them minimum wages and overtime compensation while they were employed by The Kiwi Group and the Esques. The Wallaces seek liquidated damages, attorneys’ fees, and costs.

The complaint was served on each of the defendants. Doc. Nos. 7 through 9. The defendants filed an answer, through their attorney, on June 3, 2005. Doc. No. 10. Thereafter, The Kiwi Group and the Esques’ counsel moved to withdraw as counsel of record, indicating that irreconcilable differences had arisen and that the defendants had ceased communicating with him. Doc. No. 45. A hearing was held on the defendants’ counsel’s motion on June 14, 2007, at which the Esques and a representative of The Kiwi Group were personally required to appear. Doc. No. 52. When the defendants did not attend the hearing as required, a Report and Recommendation was issued recommending that the Clerk of Court strike the defendants’ answer and enter a default against each of them. Doc. No. 56. The Report and Recommendation was adopted and confirmed, and the Clerk of Court entered defaults against The Kiwi Group and the Es-ques on July 18, 2007. Doc. Nos. 57, 58.

After defaults were entered against the defendants, on August 8, 2007, Heather Es-que wrote a letter to the Court requesting that the present action be dismissed. Doe. No. 59. In a Report and Recommendation, it was recommended that Heather Esque’s motion to dismiss be denied without prejudice, as she had failed to move to set aside the default previously entered against her. Doc. No. 61. The Report and Recommendation was adopted and confirmed on October 23, 2007. Doc. No. 62. None of the defendants have since moved to set aside the default.

[681]*681On August 17, 2007, the Wallaces filed the present motion for default judgment against each of the defendants. Doe. No. 60. In support of their motion, they filed the following documents:

• Affidavits of service for each of the defendants, doe. no. 60-2 at 2-4;
• Affidavit of Judy Wallace, doc. no. 60-2 at 6-8 (Judy Wallace Aff.);
• Affidavit of Robert D. Wallace, doc. no. 60-2 at 9-11 (Robert Wallace Aff.);
• Affidavit for reasonable attorneys’ fees, by Kelly Amritt, doc. no. 60-2 at 13-14 (Amritt Aff.);
• A time sheet for work performed by the plaintiffs’ attorneys, doc. no. 60-2 at 16-18 (Time Sheet) and
• A copy of the check written to the Clerk of Court for the filing fee and invoices of the fees incurred in serving the defendants, doc. no. 60-2 at 20-23.

II. STANDARD OF REVIEW.

A court may enter a default judgment only if the factual allegations of the complaint, which are assumed to be true, provide a sufficient legal basis for entry of a default judgment. Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir.1975) (“The defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law.”). Therefore, in considering a motion for default judgment, a court must examine the sufficiency of the allegations in the complaint to determine whether the plaintiff is entitled to a default judgment. Fid. & Deposit Co. v. Williams, 699 F.Supp. 897, 899 (N.D.Ga.1988).

“Although a defaulted defendant admits well-pleaded allegations of liability, allegations relating to the amount of damages are not admitted by virtue of default. Rather, the. Court determines the amount and character of damages to be awarded.” Miller v. Paradise of Port Richey, Inc., 75 F.Supp.2d 1342, 1346 (M.D.Fla.1999). If a default judgment is warranted, the Court may hold a hearing for purposes of assessing damages. Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir.1997) (citing Federal Rule of Civil Procedure 55(b)(2)). However, a hearing is not necessary if sufficient evidence is submitted to support the request for damages. Id.

The plaintiff has the burden of proving the amount of damages to be awarded. When the employer has violated its duty to keep adequate records, the employee satisfies this burden by producing “sufficient evidence to prove that he ‘performed work for which he was improperly compensated’ and ‘sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.’” McLaughlin v. Stineco, Inc., 697 F.Supp. 436, 450 (M.D.Fla.1988) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946)).

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