Miranda v. Van Max, Inc.

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

DAVID MIRANDA, Plaintiff, v. Case No: 6:24-cv-01412-CEM-LHP VAN MAX, INC, Defendant

ORDER Before the Court is Plaintiff’s Motion for Final Default Judgment Against Van Max, Inc. d/b/a Cantina Dos Amigos. Doc. No. 15. Upon review, and for the reasons discussed below, Plaintiff’s motion (Doc. No. 15) will be DENIED without prejudice.

On July 31, 2024, Plaintiff David Miranda filed a complaint against Defendant Van Max, Inc., d/b/a Cantina Dos Amigos. Doc. No. 1. Plaintiff alleges a claim for violations of the minimum wage requirements of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”) (Count I), and an action to collect on worthless checks pursuant to Fla. Stat. § 68.065(3) (Count II). Id. According to the complaint, Plaintiff was employed at Defendant’s Mexican restaurant in Indialantic, Florida, as a “salaried Manager/Team Leader” for four months. Id. ¶¶ 7, 16–19, 36. Plaintiff alleges that during his employment, he worked approximately eighty- four (84) hours per week, but he was compensated $1,200.00 per week regardless of the number of hours worked. Id. ¶¶ 20–21, 27. And for four (4) weeks of his employment, Defendant did not compensate Plaintiff at all because Defendant issued worthless checks. Id. ¶¶ 22–26, 37–40.

Plaintiff filed a return of service demonstrating that Defendant was served with a copy of the summons and complaint on August 9, 2024. Doc. No. 11.

Defendant has not appeared in this matter, however. Fed. R. Civ. P. 12(a)(1)(A)(i).

On Plaintiff’s motion, Clerk’s default was entered against Defendant. Doc. Nos. 12–14. Now, Plaintiff seeks default judgment. Doc. No. 15.

Although Clerk’s default has been entered, “a defendant’s default does not in itself warrant the court in entering a default judgment.” Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).1 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 such entry. See id. (“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

The Supreme Court has explained that a complaint need not contain detailed factual allegations, “but it demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation. A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). This analysis applies equally in the context of motions for default judgment. De Lotta v. Dezenzo’s Italian Rest., Inc., No. 6:08-cv-2033-Orl-22KRS, 2009 WL 4349806, at *5 (M.D. Fla. Nov. 24, 2009) (citations omitted).

Here, while Plaintiff is correct that by virtue of its default, Defendant has admitted the well pleaded allegations of the complaint, Plaintiff does not sufficiently brief the issue of Defendant’s liability on either claim (Counts I or II) for the Court. Doc. No. 15.2 “It is Plaintiff’s burden to address the elements of the

This is particularly problematic for Plaintiff with regard to the FLSA claim (Count I) because, even if the Court looks beyond the motion to the complaint, it does not appear that the complaint sufficiently alleges coverage under the FLSA.

The complaint includes only the following allegations that are relevant to coverage under the FLSA: 11. Defendant is a covered entity under the FLSA through enterprise coverage, as Defendant was engaged in interstate commerce during all pertinent times in which Plaintiff was employed. More specifically, Defendant was engaged in interstate commerce by virtue of the fact that its business activities involved those to which the FLSA applies.

Defendant’s business, and Plaintiffs’ work for Defendant, affected interstate commerce because the materials and goods that Plaintiff used on a constant and/or continuous basis moved through interstate commerce prior to or subsequent to Plaintiff’s use of the same.

12. During his employment with Defendant, Plaintiff handled and worked with various goods and/or materials that have moved through interstate commerce, including, but not limited to: pulled pork, chicken, beef, ground beef, lettuce, tomatoes, cheese, steak, shrimp, onion, cilantro, tomatillo, chips, salsa, wings, garlic, butter, snow crab, king crab, lobster, scallops, mussels, triple sec, limes, tequila, beer, wine, soda, lemonade, spinach, jalapeno, flour tortillas, corn tortillas, scallions, black olives, sour cream, avocado, beans, rice, bell peppers, chorizo, sauce, noodles, ice cream, cookies, churros, potatoes, other food items, telephones, cash registers, pens, notepads, computers, order forms, and other restaurant and bar-related items.

13. Defendant also regularly employed two (2) or more employees for the relevant time period, who handled the same or similar goods as those goods and materials handled by Plaintiff, or used the instrumentalities of interstate commerce, or the mails, thus making Defendant’s business an enterprise covered by the FLSA.

14. Defendant grossed or did business in excess of $500,000.00 per year in the years 2021, 2022, 2023 and is expected to gross in excess of $500,000.00 in 2024.

15. During his employment, Plaintiff was regularly and recurrently involved in interstate commerce, or in work directly related to instrumentalities of interstate commerce, or in the maintenance of instrumentalities of interstate commerce, and is therefore covered under the FLSA through individual coverage.

Doc. No. 1 ¶¶ 11–15.

In order to be eligible for relief, an employee must demonstrate that he or she is covered by the FLSA. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011). An employee may establish coverage under the FLSA by demonstrating: (1) that he or she was engaged in commerce or in the production of goods for commerce (i.e., individual coverage); or (2) that the employer was engaged in commerce or in the production of goods for commerce (i.e., enterprise coverage). 29 U.S.C. § 207(a)(1); Josendis, 662 F.3d at 1298–99.

For an employee to demonstrate that he or she was “engaged in commerce” for purposes of individual coverage, he or she must: be directly participating in the actual movement of persons or things in interstate commerce by (i) working for an instrumentality of interstate commerce, e.g., transportation or communication industry employees, or (ii) by regularly using the instrumentalities of interstate commerce in his work, e.g., regular and recurrent use of interstate telephone, telegraph, mails, or travel.

Thorne v. All Restoration Servs., Inc., 448 F.3d 1264, 1266 (11th Cir. 2006) (citing 29 C.F.R. §§ 776.23(d)(2), 776.24).

To demonstrate enterprise coverage, the employee must show that: (1) the employer has two or more employees regularly and recurrently engaged in commerce, or has two or more employees regularly and recurrently ‘handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and (2) the employer’s annual gross volume of sales is $500,000 or more.

De Lotta, 2009 WL 4349806, at *2 (citations omitted); see 29 U.S.C. § 203(s)(1).

“District courts cannot presume for enterprise coverage either that the employer was involved in interstate commerce or that the employer grosses over $500,000 annually.” Id. (citing Sandoval v. Fla. Paradise Lawn Maint., Inc., 303 F. App’x 802, (11th Cir. 2008) (“[I]t is clear from the language of the statute that, for enterprise coverage under the FLSA to apply, the enterprise must be engaged in commerce under the statute and must gross over $500,000 annually.”)).

Here, though, it is not even clear whether Plaintiff is asserting that either individual coverage, enterprise coverage, or both exist in his request for default judgment. Doc. No. 15. And as to individual coverage, Plaintiff’s allegations that he worked at a restaurant are alone not enough. See, e.g., De Lotta, 2009 WL 4349806, at *6 (“DeLotta’s employment at a restaurant in Osceola County, Florida is insufficient, standing alone, to establish that he is engaged in commerce or in the production of goods for commerce.” (citation omitted)); Petasne v. La Cucina & Bakery, LLC, No. 6:07-cv-1280-Orl-31DAB, 2008 WL 2157036, at *3 (M.D. Fla. May 20, 2008) (“There is no showing that a server working in a local restaurant (not alleged to be part of a national chain or franchise) meets any of these criteria.”); see also Martinez v. Palace, 414 F. App’x 243, 246 (11th Cir. 2011) (“[I]t is difficult to see how Martinez, a cook in a public restaurant, could qualify for this particular type of FLSA [individual] coverage.”).4 To the extent that Plaintiff references his handling of “various goods and/or materials that have moved through interstate commerce, including, but not limited to: pulled pork, chicken, beef, ground beef, lettuce, tomatoes, cheese, steak, shrimp, onion, cilantro, tomatillo, chips, salsa, wings, garlic, butter, snow crab, king crab, lobster, scallops, mussels, triple sec, limes, tequila, beer, wine, soda, lemonade, spinach, jalapeno, flour tortillas, corn tortillas, scallions, black olives, sour cream, avocado, beans, rice, bell peppers, chorizo, sauce, noodles, ice cream, cookies, churros, potatoes, other food items, telephones, cash registers, pens, notepads, computers, order forms, and other restaurant and bar-related items,” this too is by

Insofar as Plaintiff alleges FLSA enterprise coverage, the allegations of the complaint are wholly conclusory and insufficient to support default judgment.

Merely alleging that “Defendant is a covered entity under the FLSA through enterprise coverage, as Defendant was engaged in interstate commerce,” or that Defendant’s “business activities involved those to which the FLSA applies” is not enough. See, e.g., Cloer v. Green Mountain Specialties Corp., 6:18-cv-999-Orl-40KRS, 2019 WL 568358, at *1 (M.D. Fla. Jan. 2, 2019) (allegation that the defendant “was an enterprise engaged in commerce or in the production of goods for commerce within the meaning of the FLSA” insufficient to support default judgment); De Lotta, 2009 WL 4349806, at *2–3 (conclusory allegations of FLSA coverage were insufficient to support default judgment); see also Martin v. Barrister's Collection Servs., Inc., No. 3:09-cv-00277-J-25TEM, 2009 WL 10670325, at *2 (M.D. Fla. Sept. 23, 2009) (conclusory allegation that “Defendant was an enterprise covered by the FLSA” insufficient to survive motion to dismiss).

As discussed above, Plaintiff also does not address his claim under Fla. Stat. § 68.065, except in passing reference. Doc. No. 15, at 3–5 & n.1. The undersigned also notes that “if the complaint does not state a claim on which relief can be granted under the FLSA, the Court would likely decline to retain supplemental jurisdiction over the state law . . . claim.” See Cloer, 2019 WL 568358, at *2 (citing 28 U.S.C. § 1367(c)(3)). Thus, to the extent that Plaintiff renews his motion for default judgment, as set forth below, Plaintiff specifically identify the elements of his claim under Fla. Stat. § 68.065 and demonstrate that the well pleaded allegations of the complaint satisfy each of those elements.

For these reasons, Plaintiff’s motion for default judgment (Doc. No. 15) is DENIED without prejudice. It is ORDERED that within fourteen (14) days of the date of this Order, Plaintiff shall file a renewed motion for default judgment. The renewed motion must be supported by a memorandum of legal authority setting forth the elements of each cause of action asserted and demonstrating how the well pleaded allegations of the complaint establish each of the elements of the claims for which Plaintiff seeks default judgment. In making this showing, Plaintiff must provide pinpoint citations to the portions of the complaint (by paragraph number) that establish each of those elements. If the well pleaded allegations of the complaint establish liability on each claim, then Plaintiff must set forth the legal basis for his entitlement to damages and present evidence sufficient to establish the damages to be awarded.5 Alternatively, within fourteen (14) days of the date of this Order, Plaintiff may file an amended complaint, should he deem it necessary to do so, which must be served on Defendant in compliance with the Federal Rules of Civil Procedure.

DONE and ORDERED in Orlando, Florida on March 24, 2025.

ayn □□□□ LESLIE AN PRICE UNITED STATES MAGISTRATE JUDGE Copies furnished to: Counsel of Record Unrepresented Parties -12-