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.
• 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,
“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.,
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.,
III. ALLEGATIONS OF THE COMPLAINT.
The Wallaces were employed by The Kiwi Group, Heather Esque, and William Esque at the defendants’ business located in Volusia County, Florida. Doc. No. 1 ¶¶ 1-3. Robert Wallace performed computer work and related activities, and Judy Wallace performed clerical work and related activities. Id. at ¶¶2, 3. The Kiwi Group is an employer as defined by the FLSA, and the Wallaces were engaged in commerce as defined by the FLSA. Id. ¶ 9.
The Esques are owners and/or operators of The Kiwi Group. They were substantially in control of the terms and conditions of the Wallaces’ work. As such, they are employers as defined in the FLSA. Id. at ¶¶ 5, 6.
In Count I, the Wallaces allege that they worked overtime hours and were “entitled to be paid time and one-half their regular rate
In Count II, the Wallaces allege that, while working for the defendants, they “were not paid the minimum wage for each hour worked during their employment with Defendants.” Id. ¶ 20. This violation was willful. Id. ¶ 21.
IY. ANALYSIS.
A. Liability.
1. FLSA Minimum Wage and Overtime Claim.
To establish a claim for payment of minimum wages and overtime compensation under the FLSA, the Wallaces must establish the following:
First, that they were employed by The Kiwi Group during the time period involved;
Second, that they were 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
Third, that the defendants failed to pay the minimum wage and overtime compensation required by law.
Eleventh Circuit Pattern Jury Instructions— Civil 1.7.1 (2005).
By failing to answer the complaint, The Kiwi Group admits that it employed the Wal-laces during the time period involved in this case. It admits that the Wallaces were engaged in commerce. It admits that it failed to pay the Wallaces minimum wages and overtime compensation as required by the FLSA. This is sufficient to establish that The Kiwi Group is hable to pay the Wallaces the minimum wages and overtime compensation that they are owed for their work.
2. Joint and Several Liability.
Under the FLSA, an employer includes “any person acting directly or indirectly in the interest of an employer in relation to an employee____” 29 U.S.C. § 203(d). “‘The overwhelming weight of authority is that a corporate officer with operational control of a corporation’s covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid [overtime] wages.’ ” Patel v. Wargo,
By failing to answer the complaint, the Esques admit that they were owners and/or operators of The Kiwi Group, and were substantially in control of the terms and conditions of the Wallaces’ work. Accordingly, the Esques are jointly and severally liable with The Kiwi Group for minimum wages and overtime compensation due under the FLSA but unpaid.
B. Damages.
The Wallaces rely on their affidavits to establish the compensation due under the FLSA. It is well established that “where the employer’s records are inaccurate or inadequate and the employee cannot offer convincing substitutes ... an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Etienne v. Inter-County Sec. Corp.,
1. Minimum Wages under the FLSA
a. Judy Wallace.
Under the FLSA, Judy Wallace is entitled to be compensated for the difference between the wages she received and $5.15 per hour for work she performed. 29 U.S.C. § 206(a)(1). Judy Wallace avers that during
Judy Wallace avers that she “was supposed to be paid $500 per week.” Id. ¶4. Accordingly, because she worked 12 weeks, she avers that she is owed $6,000.00 in unpaid wages. Id. This argument, however, is relevant only to a breach of contract claim. The amount that she should have been paid is inconsequential to her minimum wage claim under the FLSA, as the FLSA only requires that an employee receive compensation at the minimum statutory rate. As Judy Wallace has not brought a breach of contract claim, this argument is misplaced.
b. Robert Wallace.
Robert Wallace avers that during his final 12 weeks of employment he was “not paid any compensation.” Robert Wallace Aff. ¶ 4. He avers that during that time, he “typically worked 60 hours per week.” Id. ¶ 5. Any hours worked in excess of 40 hours a week will be addressed in the next section of this Report and Recommendation. Thus, for the final 12 weeks of his employment, he worked 480 hours.
Similar to Judy Wallace, Robert Wallace avers that he is owed $6,000.00 in unpaid wages because he was supposed to be paid $500.00 per week. However, as he has not brought a breach of contract claim, he is only entitled to the minimum statutory rate.
2. FLSA Overtime Claim.
a. Judy Wallace.
Under the FLSA, Judy Wallace is entitled to be paid one and one-half times her regular rate of pay for all hours worked in excess of forty during a work week. See 29 U.S.C. § 207(a)(1). Under the FLSA, Judy Wallace’s overtime rate is based on her regular rate of pay (regardless of whether she can only recover the minimum wage for her non-overtime work). Mumbower v. Callicott,
In her Affidavit, Judy Wallace avers that she was to be compensated at a rate of $500.00 per week. Judy Wallace Aff. ¶4. Because Judy Wallace avers that she worked 50 hours a week, her hourly rate would have been $10.00.
Judy Wallace avers that she “worked a total of 120 overtime hours (10 hours per week multiplied by 12 weeks of employment), for which Defendants] failed to [pay her] time and one half.” Id. ¶ 6. Based on the evidence presented, Judy Wallace is entitled to $1,800.00
In his Affidavit, Robert Wallace avers that he was to be compensated at a rate of $500.00 per week based on a 40 hour work week. Robert Wallace Aff. ¶ 4. Accordingly, Robert Wallace’s regular hourly rate would have been $12.50.
Robert Wallace avers that he “worked a total of 480 overtime hours (20 hours per week multiplied by 24 weeks of employment), for which Defendants failed to [pay him] time and one half compensation.” Id. ¶ 6. Based on the evidence presented, Robert Wallace is entitled to $9,000.00
3. Liquidated Damages.
By failing to answer the complaint, The Kiwi Group and the Esques admit that they acted willfully in failing to pay the Wallaces the statutorily required minimum wage and overtime compensation. When, as here, the defendants have not presented a defense that their failure to pay minimum wages or overtime compensation was in good faith, the court must also require the employers to pay liquidated damages in an additional amount equal to “the amount of ... [the employee’s] unpaid ... compensation.” 29 U.S.C. §§ 216(b), 260; Weisel v. Singapore Joint Venture, Inc.,
C. Attorneys’ Fees and Costs.
The FLSA mandates that in any action brought by an employee to enforce § 206 or § 207 of the Act, the Court “shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b).
Here, the Wallaces seek $6,690.00 in fees for the services provided by their attorneys in connection with this case, plus $445.00 in costs. Amritt Aff. ¶¶ 4, 5.
In Hensley v. Eckerhart,
In determining the lodestar, a reasonable hourly rate is based on the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience and reputation. Gaines v. Dougherty County Bd. of Educ.,
The “ ‘fee applicant bears the burden of ... documenting the appropriate hours and hourly rates.’ ” ACLU v. Barnes,
1. Reasonable Hourly Rate.
In her affidavit, Attorney Amrit does not provide any biographical information, such as the number of years she has been in practice, that would allow the Court to assess whether the hourly rate requested is reasonable. Rather, she avers that she “customarily bill[s][her] clients at a rate of $300.00 or more per hour for [her] services.” Amritt Aff. ¶ 4.
In other FLSA cases, this Court has previously noted that Amritt has been a member of the Florida Bar since 2003, and has determined that a reasonable rate for her services, considering the Orlando legal market, is $150.00 per hour. See, e.g., Hill v. Che-quered Flag Auto Sales., Inc., No. 6:05-cv-1597-Orl-18KRS,
Accordingly, considering the Orlando legal market and awards in similar cases, an hourly rate of $150.00 for work performed by Amritt is appropriate in the absence of objection.
On January 31, 2007, attorney for the plaintiffs, Richard Celler, withdrew from the case. Doc. No. 41. In the Time Sheet, the Wallaces do not indicate what work was performed by Celler, and they have not requested any fees for his work. It is therefore assumed that all of the work listed on the Time Sheet was performed by Amritt, and her hourly rate applies.
2. Reasonable Number of Hours.
In the absence of objection, I recommend that the Court find that all of the hours worked are reasonable.
3. Lodestar.
Based on these recommendations, the lodestar attorney’s fee in this case is as follows:
Attorney Hourly Rate Hours Total
Kelly Amritt $150.00 22.3 $3,345.00
4. Costs.
The Wallaces seeks costs in the amount of $445.00 for reimbursement for the filing fee ($250.00) and for the costs of serving process in this case ($195.00). Doc. No. 60-2 at 20-23. The FLSA provides for a mandatory award of “costs of the action” to a prevailing plaintiff. 29 U.S.C. § 216(b). The United States Court of Appeals for the Eleventh Circuit has held that in FLSA cases, courts may award as costs those expenses permitted by 28 U.S.C. § 1920. Glenn v. Gen. Motors Corp.,
The docket sheet in this case reflects that the Wallaces paid the filing fee. Also, the Wallaces submitted evidence supporting the costs for service of process. Doc. No. 60-2 at 20-23. Therefore, I recommend that the plaintiffs be awarded $445.00 in costs.
V. RECOMMENDATION.
For the foregoing reasons, I recommend that PlaintifPs Motion for Entry of Default Judgment, doc. no. 60, be GRANTED in part and DENIED in part. I recommend that the Court enter a default judgment against The Kiwi Group, Inc., Heather Es-que, and William Esque on Judy and Robert Wallace’s FLSA minimum wage and overtime compensation claims and order the defendants, jointly and severally, to pay Judy Wallace damages in the amount of $8,544.00 (including liquidated damages) and Robert Wallace in the amount of $22,944.00 (including liquidated damages), $3,345.00 in attorney’s fees, and $445.00 in costs. Finally, I recommend that the Court direct the Clerk
Failure to file written objections to the proposed findings and recommendations contained in this report within ten (10) days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal.
Dated Nov. 19, 2007.
Notes
. This figure is computed by multiplying the number of weeks worked (12) by the number of non-overtime hours worked per week (40).
. This figure is computed as follows: minimum wage ($5.15) multiplied by hours worked (480) totals $2,472.00.
. This figure is computed by multiplying the number of weeks worked (12) by the number of non-overtime hours worked per week (40).
. This figure is computed as follows: minimum wage ($5.15) multiplied by hours worked (480) totals $2,472.00.
. This figure is computed by dividing the number of hours worked (50) by weekly salary ($500.00) to arrive at the regular hourly rate of pay. 29 C.F.R. § 779.419(b); Kohlheim v. Glynn County, Ga.,
. This figure is computed by multiplying the number of hours of overtime worked (120) by the overtime rate ($15.00).
. This figure is computed by dividing the number of hours worked (40) by weekly salary ($500.00) to arrive at the regular hourly rate of pay. 29 C.F.R. § 779.419(b).
. This figure is computed by multiplying the number of hours of overtime worked (480) by the overtime rate ($18.75).