Sevares v. Am. Pipeline Constr.

Docket Number22-cv-21233-MOORE/DAMIAN
Decision Date02 May 2023
PartiesBRYAN SEVARES, Plaintiff, v. AMERICAN PIPELINE CONSTRUCTION, LLC, et al., Defendants.
CourtU.S. District Court — Southern District of Florida



THIS CAUSE is before the Court on Plaintiff, Bryan Sevares's (Plaintiff), Motion for Entry of Final Judgment against Defendant, American Pipeline Construction, LLC (Defendant or “APC”), filed November 11, 2022 [ECF No. 27] (the “Motion”). This matter was referred to the undersigned for a Report and Recommendation. [ECF No. 29]. See 28 U.S.C. § 636(b).[1]

The undersigned has considered Plaintiff's Motion, the supporting documents, and the pertinent portions of the record and is otherwise fully advised in the premises. Defendant did not file a response to the Motion, and the time to do so has passed. For the reasons set forth below, the undersigned recommends that Plaintiff's Motion for Entry of Final Judgment [ECF No. 27] be granted in part and denied in part.

A. The Allegations

On April 20, 2022, Plaintiff filed a Complaint against Defendants, APC and Andres Luna (collectively, Defendants), asserting claims for unpaid minimum wages, pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”), and for breach of contract and unjust enrichment against Defendant APC. [ECF No. 1]. Plaintiff filed an Amended Complaint on August 15, 2022. [ECF No. 11 (“Am. Compl.”)]. The Amended Complaint is the operative pleading in this action.

As alleged in Count I of the Amended Complaint, Defendant APC, which operates a construction business, is a Florida for-profit limited liability company and an enterprise engaged in interstate commerce with an annual gross revenue exceeding $500,000.00 per year. Am. Compl. at ¶¶ 7, 26-31. Plaintiff alleges that he was employed by Defendants as a construction worker for thirteen (13) days from about January 19, 2022 to February 6, 2022. Id. at ¶¶ 3, 6, 25. According to Plaintiff, Defendants agreed to pay him at a rate of $20.00 per hour, but Defendants failed and refused to pay him even a minimum wage of $7.25 per hour for each hour that he worked during the relevant period. Id. at ¶ 5, 38.

In his Statement of Claim, Plaintiff claims he is owed $2,080.00 in unpaid wages for the 104 hours he worked during the thirteen-day period, and he seeks an equal amount in liquidated damages pursuant to Section 260 of the FLSA. [ECF No. 6]. Plaintiff also claims he is entitled to an additional $754.00 as liquidated damages for unpaid minimum wages. Id. at 2. Therefore, Plaintiff seeks a total of $4,914.00 in damages, in addition to attorneys' fees and costs under the FLSA. Id.

In addition to his FLSA claim for unpaid minimum wages, Plaintiff alleges state law claims against Defendant APC for breach of contract and unjust enrichment . See Am. Compl. at ¶¶ 42-49. Specifically, in Count II of the Amended Complaint, Plaintiff alleges Defendant APC “agreed that in exchange for Plaintiff expending time and effort on its behalf,” Defendant APC “would compensate him at a rate of $20.00 for each hour” that Plaintiff worked. Id. at ¶ 42. Plaintiff alleges he “performed under the parties' contract/agreement by working” for Defendant APC but that Defendant “failed and refused to perform its obligation to timely pay Plaintiff at the rate of $20.00 for each hour [of] work performed for Defendant from January 19, 2022, to February 6, 2022.” Id. at ¶¶ 43-44.

Similarly, in Count III of the Amended Complaint, Plaintiff alleges he “provided labor and services” for Defendant APC, for which Plaintiff “expected to be paid a reasonable value,” and that Defendant “received and accepted the benefits of the labor and services supplied by Plaintiff.” Id. at ¶ 46-48. According to Plaintiff, Defendant APC “was unjustly enriched in that it failed and refused to make payment to Plaintiff for the benefits conferred upon it from January 19, 2022, to February 6, 2022.” Id. at ¶ 49.

B. Service Of Process On Defendant APC

In the Amended Complaint, Plaintiff alleges he attempted to serve Defendant APC with the Summons and Complaint nine (9) different times over the course of two months at the address of its registered agent and at its principal address but that all attempts were unsuccessful. See Am. Compl. at ¶ 16. Plaintiff alleges his counsel contacted Defendants' payroll manager who advised that APC no longer had a physical address and that its employees were working from home. Id. at ¶ 17. According to Plaintiff's allegations, the payroll manager provided telephone numbers for APC's owner and registered agent, Defendant Luna, and APC's managing member, Marcio Viera, but would not accept service on behalf of APC. Id. at ¶¶ 18-19. Plaintiff alleges his attorney called Defendant Luna and APC's managing member at the telephone numbers provided but received no answer from either one. Id. at ¶ 20.

Based on these unsuccessful service attempts, Plaintiff alleges he attempted service on APC's designated registered agent, Defendant Luna, in compliance with Section 48.062(1), Florida Statutes, as well as APC's sole managing partner, Defendant Luna, its sole managing member, Vieria, and one of its employees, the payroll manager, in compliance with Section 48.062(2), Florida Statutes, all to no avail. Id. at ¶¶ 21-22. According to Plaintiff, Defendant APC failed to comply with the requirements of Section 605.0114, Florida Statutes, by not filing a statement indicating a change of its registered agent or its registered office. Id. at ¶ 23. Plaintiff also alleges Defendant APC is concealing its whereabouts, and, therefore, substitute service is proper pursuant to Sections 48.062 and 48.181, Florida Statutes. Id. at ¶ 24.

On October 13, 2022, Plaintiff filed a Notice of Filing Proof of Service indicating that on September 23, 2022, substitute service of the summons and initial pleadings was accepted by the Secretary of State, pursuant to Sections 48.062 and 605.0117, Florida Statutes, on behalf of Defendant APC. [ECF No. 22].

C. Procedural Posture

Plaintiff requested entry of default against Defendant APC [ECF No. 25], which the Clerk of Court subsequently entered on October 18, 2022, for failure to respond or otherwise appear. [ECF No. 26]. On November 11, 2022, Plaintiff filed the Motion for Entry of Final Judgment now before the Court solely against Defendant APC.[2] [ECF No. 27].

As of the date of this Report, Defendant APC has not responded to the Amended Complaint, the Motion, nor any other filings in this case. Nor has an attorney made an appearance on its behalf.

In the Motion, like the Statement of Claim, Plaintiff alleges he is entitled to $2,080.00 in unpaid wages, plus an equal amount in liquidated damages, and an additional $754.00 in liquidated damages for unpaid minimum wages. Mot. at ¶ 8. Accordingly, Plaintiff seeks a default final judgment against Defendant APC[3] for $4,914.00 in damages, and he also seeks entitlement to reasonable attorney's fees and costs as the prevailing party pursuant to the FLSA. Id. at ¶ 9.


Rule 55 of the Federal Rules of Civil Procedure governs default judgments. The entry of a default judgment is appropriate [w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend . . . and that fact is made to appear by affidavit or otherwise.” Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1316 (11th Cir. 2002) (quoting Fed.R.Civ.P. 55(a)). [E]ntry of default judgment is only warranted when there is a sufficient basis in the pleadings for the judgment entered, with the standard for ‘a sufficient basis' for the judgment being akin to that necessary to survive a motion to dismiss for failure to state a claim.” Singleton v. Dean, 611 Fed.Appx. 671, 671 (11th Cir. 2015) (quoting Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245 (11th Cir. 2015)).

A defendant, by his default, admits the plaintiff's well-pleaded allegations of fact,” as set forth in the operative complaint. Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009) (quoting Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). Thus, before entering a default judgment, a court must ensure that the well-pleaded allegations in the complaint (which are taken as true due to the default) state a substantive cause of action and provide a sufficient basis for the particular relief sought. See Tyco Fire & Sec., LLC v. Alcocer, 218 Fed.Appx. 860, 863 (11th Cir. 2007).

Once a plaintiff has established a sufficient basis for liability, the Court must assess the damages and fees award sought by examining the affidavits and evidence submitted. “Following the entry of a default judgment, damages may be awarded ‘without a hearing [if the] amount claimed is a liquidated sum or one capable of mathematical calculation,' so long as all essential evidence is a matter of record.” Evans v. Com. Recovery Sys., Inc., No. 13-61031-CIV, 2013 WL 12138555, at *1 (S.D. Fla. Aug. 26, 2013) (Scola, J.) (quoting S.E.C. v. Smyth, 420 F.3d 1225, 1231, 1232 n.13 (11th Cir. 2005)). “After ascertaining the appropriate amount of damages, the Court must enter final judgment in that amount.” Fagan v. Central Bank of Cyprus, No. 19-80239-CIV, 2021 WL 2845034, at *3 (S.D. Fla. June 28, 2021) (Reinhart, J.) (quoting Nishimatsu, 515 F.2d at 1206), report and recommendation adopted, 2021 WL 2915109 (S.D. Fla. July 12, 2021) (Rosenberg, J.).


With the foregoing in mind, the undersigned turns to the allegations in the Amended Complaint and the requested relief. The...

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