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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 1:24-cv-22063-KMM

YANICK ST. CHARLES, et al.,

Plaintiffs,

INTERNATIONAL SECURITY GUARD SERVICES, INC., et al.,

Defendants.
/
OMNIBUS ORDER
THIS CAUSE came before the Court upon Plaintiffs Yanick St. Charles,
Alecsandre Gabriel, Bradeley Isidore, Jean Atis, Jocelyne Jennings, Ronald Francis, Pablo
Westbrooks, and Nevada Washington’s (collectively, “Moving Plaintiffs”) Amended
Motion for Default Final Judgment Against Defendant International Security Guard
Services, Inc. (ECF No. 72) (“DJ Mot.” or “DJ Motion”). Defendant International Security
Guard Services, Inc. (“ISG”) filed its Response and Motion to Set Aside Clerk’s Default
and Memorandum in Opposition to Plaintiffs’ Amended Motion for Entry of Default
Judgment. (ECF No. 78) ( “Motion to Set Aside Default ”). Moving Plaintiffs filed their
Reply in support of the DJ Motion. (ECF No. 80) (“DJ Reply”). The Court referred the
DJ Motion to Magistrate Judge Marty Fulgueira Elfenbein “to take all necessary and proper
action as required by law and/or to issue a Report and Recommendation.” (ECF No. 74).
Magistrate Judge Elfenbein issued her Report and Recommendation, recommending that
Moving Plaintiffs’ DJ Motion be granted in part and denied in part, and that ISG’s Motion
to Set Aside Default be denied. (ECF No. 83) (“R&R”). ISG filed its Objections to the
R&R. (ECF No. 87) (“Obj.”). This motion is now ripe for review.
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Also before the Court is Defendants Fenel Luxama and Wilmene Dorvil’s
(together, “Individual Defendants” and with ISG, “Defendants” ) Motion to Dismiss
Amended Complaint. (ECF No. 79) (“MTD” or “Motion to Dismiss”). Plaintiffs1 filed a
Response in opposition (“MTD Resp.” or “MTD Response”) (ECF No. 81), and Individual
Defendants filed a Reply in support (“MTD Reply”) (ECF No. 82). This motion is also
ripe for review.
As set forth below, the DJ Motion is GRANTED IN PART and DENIED IN PART,
the Motion to Dismiss is DENIED, and Magistrate Judge Elfenbein’s R&R is ADOPTED.
I. BACKGROUND2
This case concerns allegations that Defendants underpaid regular and overtime
wages to Plaintiffs, a group of security guards for the Miami-Dade County Public Schools.
See generally Am. Compl. ISG started providing security services for Miami-Dade County
Public Schools on April 1, 2024. Id. ¶ 8. Defendants hired Plaintiffs, who were each
already employed as security guards for Miami -Dade County Public Schools under
different contractors. Id. ¶ 7.
Plaintiffs allege that Defendants did not provide them with any breaks during the
work day. Id. ¶ 12. Plaintiffs allege that they regularly worked over forty hours per week
while employed by Defendants, and allege that Defendants never paid them any overtime

1 The MTD Response does not indicate whether it is filed by all Plaintiffs or just Moving Plaintiffs.
See generally MTD Resp. Accordingly, the Court assumes that every plaintiff named in the
amended complaint is signed onto the MTD Response. This includes all Moving Plaintiffs, as
well as Bernice M. Louijeun and Everton Gray.
2 The brief factual background is taken from the Amended Complaint (“Amended Complaint” or
“Am. Compl.”) (ECF No. 48) and the facts are accepted as true, for the purpose of the Motion to
Dismiss, and as admitted, for the purpose of the DJ Motion. MSP Recovery Claims, Series LLC v.
Metro. Gen. Ins. Co., 40 F.4th 1295, 1302 (11th Cir. 2022); see also Eagle Hosp. Physicians, LLC
v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009) (citation omitted).
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compensation for their work. Id. ¶¶ 16–17. Plaintiffs also allege they were underpaid in
regular wages, and that their agreed-upon rate was $14 per hour. See id. ¶¶ 14, 41–50. In
the Amended Complaint, Plaintiffs detail at length the extent to which they allege to be
underpaid in regular wages and overtime hours, while accounting for partial payment and
liquidated damages. Id. ¶¶ 41–50.
The instant case’s procedural history is winding, and detailed at length in the R&R.
R&R at 2–4. The Court nevertheless provides a brief summary here, as is most relevant to
resolving the instant motions. Plaintiffs filed their Amended Complaint on Nove mber 1,
2024. See generally Am. Compl. Therein, they allege the following: federal minimum
wage violations under 29 U.S.C. § 206(a) (“Count I”); federal overtime wage violations
under 29 U.S.C. § 216(b) (“Count II”); and breach of contract (“Count III”). Id. ¶¶ 19–40,
51–56.
Following an unsuccessful motion for default judgment, Plaintiffs moved for leave
to effect alternative service through Florida’s Secretary of State. (ECF Nos. 49 –50, 55).
The Court allowed Plaintiffs to effect service in this manner, and relied on Plain tiffs’
assertion that their “process server made six attempts to serve the Defendants” but failed,
as Defendants were “likely avoiding service of process.” (ECF No. 56) . Defendants
received the Summonses and Amended Complaint on February 10 and 11, 2025. (ECF
Nos. 63–64).
On March 6, 2025, Plaintiffs moved for entry of clerk’s default as to ISG, and the
Clerk of Court entered default the next day. (ECF Nos. 67–68). On March 11, 2025, this
Court directed Plaintiffs to file a motion for default judgment within 20 days. (ECF No.
69). ISG’s attorney filed a notice of appearance the next day, although he did not file
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anything else on ISG’s behalf until April 3, 2025. (ECF Nos. 71, 73). Moving Plaintiffs
filed their DJ Motion against ISG on April 3, 2025. See generally DJ Mot. ISG filed its
Motion to Set Aside Default, which also serves to respond to Moving Plaintiffs’ DJ Motion,
on April 16, 2025. See generally Motion to Set Aside Default.
Meanwhile, Individual Defendants’ couns el, who is the same as ISG’s counsel,
appeared on March 12, 2025, for them as well. (ECF No. 71). Individual Defendants filed
their Motion to Dismiss on April 23, 2025. See generally MTD. Therein, they argue the
Amended Complaint should be dismissed because Plaintiffs did not sufficiently allege that
Defendants are covered by the Fair Labor Standards Act (“FLSA”), and that Count III
should be dismissed as the Court should decline to exercise supplemental jurisdiction over
the state law claim once the federal claims have been dismissed. See generally id.
Now before the Court is the Motion to Dismiss, as well as Magistrate Judge
Elfenbein’s R&R, which addresses only the DJ Motion. See generally R&R.
II. LEGAL STANDARD
A. Report and Recommendation
The Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b)(3). The Court “must determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). A de novo review is therefore
required if a party files “a proper, specific objection” to a factual finding contained in the
report. Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). “It is critical that
the objection be sufficiently specific and not a general objection to the report” to warrant
de novo review. Id.
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Yet when a party has failed to object or has not properly objected to the magistrate
judge’s findings, “the court need only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation.” See Keaton v. United States , No.
14-21230-CIV, 2015 WL 12780912, at *1 (S.D. Fla. May 4, 2015); see also Lopez v.
Berryhill, No. 17-CV-24263, 2019 WL 2254704, at *2 (S.D. Fla. Feb. 26, 2019) (stating
that a district judge “evaluate[s] portions of the R & R not objected to under a clearly
erroneous standard of review” (citing Davis v. Apfel, 93 F. Supp. 2d 1313, 1317 (M.D. Fla.
2000))).
B. Motion to Dismiss
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
purpose of Rule 8(a)(2) “is to give the defendant fair notice of what the claim is and the grounds
upon which it rests.” Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008)
(internal citation and quotation marks omitted).
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint for
failing to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citation
and internal quotation marks omitted). This requirement “give[s] the defendant fair notice of what
the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal citation and alterations omitted). The court takes the plaintiff’s factual allegations
as true and construes them in the light most favorable to the plaintiff. Pielage v. McConnell , 516
F.3d 1282, 1284 (11th Cir. 2008).
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A complaint must contain enough facts to plausibly allege the required elements. Watts v.
Fla. Int’l Univ., 495 F.3d 1289, 1295–96 (11th Cir. 2007). A pleading that offers “a formulaic
recitation of the elements of a cause of action will not do.” Iqbal , 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555). “[C]onclusory allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v.
Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).
III. DISCUSSION
The Court will first review Magistrate Judge Elfenbein’s R&R and ISG’s
Objections thereto, before next analyzing the Motion to Dismiss.
A. The Court adopts Magistrate Judge Elfenbein’s R&R
In her R&R, Magistrate Judge Elfenbein first recommends denying ISG’s Motion
to Set Aside Default. R&R at 9–12. As for the DJ Motion, Magistrate Judge Elfenbein
recommends granting default judgment on Count I for each of Moving Plaintiffs. Id. at
13–17. She recommends granting default judgment on Count II for all Moving Plaintiffs,
other than Westbrooks, Isidore, and Atis. Id. at 18–19. Magistrate Judge Elfenbein also
recommends ordering Moving Plaintiffs to file supplemental affidavits that will help the
Court determine damages. Id. at 19–22. She next recommends that the Court find Moving
Plaintiffs are entitled to liquidated damages, but that it needs more on the record to compute
these damages. Id. at 22–25. She additionally recommends finding Plaintiffs are entitled
to attorney’s fees and costs. Id. at 25–28. Magistrate Judge Elfenbein also recommends
finding Moving Plaintiffs are entitled to default judgment as to Count III. Id. at 29. Finally,
she recommends this Court order Moving Plaintiffs to include a statement electing
recovery under either Count I or Count III. Id. at 29–31. ISG filed its Objections to the
R&R, wherein ISG objects to Magistrate Judge Elfenbein’s finding that ISG did not
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establish good cause to set aside the Clerk’s entry of default. See generally Obj. Further,
ISG argues that Moving Plaintiffs have received partial payments that are considerably
higher than what is claimed in the Amended Complaint. Id. at 5–6. The Court will analyze
each of Magistrate Judge Elfenbein’s findings in turn, assessing ISG’s objections where
relevant.
i. Motion to Set Aside Default
Magistrate Judge Elfenbein recommends rejecting ISG’s Motion to Set Aside
Default. R&R at 9–12. Federal Rule of Civil Procedure 55(c) states that an entry of default
may be set aside for “good cause.” Fed. R. Civ. P. 55(c). In evaluating good cause, courts
consider whether the defendant was culpable or willful in defaulting; whether setting aside
that default would prejudice the plaintiffs; and whether the defaulting party presents a
meritorious defense that it may argue, should the case proceed on the merits. Compania
Interamericana Export-Import, S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948,
951 (11th Cir. 1996) (indicating these factors are not “talismanic” (internal quotations and
citations omitted)).
Magistrate Judge Elfenbein finds that ISG failed to address why the Court should
actually set aside the default, sufficient reason in and of itself to find ISG forfeited the
issue. R&R at 9–10 (“Other than the title of the Motion to Set Aside, [ISG] fails to make
any reference to setting aside the Clerk’s default, let alone any arguments or case law
supporting such a decision or how [ISG] satisfies the good cause requirement of Rule
55(c).”). Magistrate Judge Elfenbein does not end her analysis there, however, going on
to find that no good cause exists to set aside the default, as the record shows ISG failed to
act promptly and failed to identify any plausible defense to Plaintiffs’ claims. Id. at 10.
She notes that ISG had actual notice of the Amended Complaint as early as February 28,
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2025, but still failed to respond, appear, or seek an extension from the Court before the
Clerk entered default. Id. Even when ISG’s attorney finally appeared on March 12, 2025,
Magistrate Judge Elfenbein finds that he too delayed, only filing the Motion to Set Aside
Default on April 16, 2025, two months after ISG was served with the Amended Complaint
and more than five weeks after entry of default. Id. at 10–11. She finds that ISG failed to
explain this delay. Id. at 11.
She further finds that ISG did not identify any meritorious defenses to the Amended
Complaint, even while acknowledging this standard is significantly lower in the context of
setting aside a default than in the context of vacating a default judgment. Id. at 11–12.
Instead, Magistrate Judge Elfenbein finds that ISG attacks the sufficiency of the Amended
Complaint while failing to “provide any contrary allegations suggesting that coverage
under the FLSA cannot apply to it.” Id. Therefore, and despite the policy preference for
determining cases on the merits, Magistrate Judge Elfenbein recommends that the Motion
to Set Aside Default be denied. Id.
This Court finds Magistrate Judge Elfenbein’s analysis to be exceptionally
compelling. Even reviewing de novo, given ISG’s Objections, the Court adopts Magistrate
Judge Elfenbein’s recommendation and finds that denial of ISG’s Motion to Set Aside
Default is warranted, as ISG both failed to include a single meritorious defense it would
raise and failed to make a case that there is good cause to set aside the default, especially
given ISG’s neglect in responding to the Amended Complaint until two months after it had
been served.
ISG’s Objections serve as a renewed motion to set aside default. See generally Obj.
ISG argues that this Court should set aside the default because the default was not culpable
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or willful, because ISG has meritorious defenses, because Plaintiffs will not be prejudiced
if the Court sets aside the default, and because public policy favors setting aside the default.
Id. at 10–14. In arguing that the default was not willful, ISG argues that it resulted from
“Plaintiffs moving swiftly for a clerk’s default even when advised by the pro se Defendant
that they would be responding to the lawsuit,” after ISG found a lawyer. Id. at 12. ISG
further argues that the delay in moving to set aside the default after it retained an attorney
“was just one month” and this time “was needed to organize the corporate documents and
analyze them after retrieving them and organizing and scanning them.” Id.
Despite ISG’s best efforts to justify its delays, the Court finds that ISG is culpable
for its default. Although it is true that ISG told Plaintiffs it needed more time, such requests
are not self -executing, particularly when they lack any detail. More i mportantly, ISG’s
culpable conduct is arguably at its most inexcusable after it retained an attorney. ISG
delayed for an additional month before moving to set aside default. See (ECF Nos. 71, 78).
While ISG argues it needed this time to prepare a response, it was incumbent on ISG to at
least move for an extension of time, or otherwise indicate it planned to become a player in
this litigation, before more than a full month passed. Instead, it did not act until responding
to Moving Plaintiffs’ DJ Motion. See Motion to Set Aside Default. This delay was not the
result of ISG preparing a particularly compelling motion; the Motion to Set Aside Default
that ISG filed on April 16, 2025, was not compelling and did not build a case for settin g
aside default. Rather, this delay (more than a month after an attorney appeared, and more
than two months after ISG was served) shows ISG had little, if any, regard for the Court’s
deadlines. Therefore, the Court finds that ISG’s default evidences “reckless disregard for
the judicial proceedings, [so] the [C]ourt need make no other findings in denying relief.”
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Compania Interamericana, 88 F.3d at 951–52; see also id. at 951 (explaining that courts
may consider “whether the defaulting party acted promptly to correct the default” ). As
such, ISG ’s renewed motion to set aside default is denied, and ISG ’s objections are
overruled.
ii. Default judgment as to Counts I and II
Magistrate Judge Elfenbein next evaluates Counts I and II of the Amended
Complaint. As she notes, the proper standard when evaluating a complaint for default
judgment is to confirm that the well-pleaded facts state plausible claims for relief. R&R at
12; see also Hornady v. Outokumpu Stainless USA, LLC, 118 F.4th 1367, 1383 (11th Cir.
2024) (noting that defaulted defendants have “forfeit[ed] the ability to contest the truth of
facts asserted”). Moving Plaintiffs seek relief under the FLSA for Counts I and II. See
Am. Compl. ¶¶ 19–40. Magistrate Judge Elfenbein notes that FLSA claims, whether they
be for minimum wage or overtime pay, require a plaintiff to demonstrate that “(1)
defendant employed them; (2) plaintiff’s work and/or defendant’s enterprise engaged in
interstate commerce covered by the FLSA; and (3) plaintiff worked hours for which
defendant did not pay the required minimum wages and/or overtime wages to them.” R&R
at 13 (citations omitted).
Magistrate Judge Elfenbein finds that Plaintiffs have alleged an employment
relationship between themselves and ISG, as they alleged they worked for ISG as security
guards beginning April 1, 2024. Id. at 14. She finds they sufficiently detailed the existence
of this relationship to meet element one of an FLSA claim. Id. Magistrate Judge Elfenbein
also finds that Plaintiffs have sufficiently alleged both in dividual and enterprise coverage
under the FLSA. Id. Plaintiffs have established the FLSA covers them because “their work
for Defendants involved receiving trucks that carried and delivered food originating in
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other states.” Id. at 15. Magistrate Judge Elfenbein finds that allegations of such work,
which Plaintiffs allege was at least “closely related to the movement of commerce,” are
sufficient to allege the interstate commerce requirement of individual and ent erprise
coverage under the FLSA. Id. (quoting Am. Compl ¶ 22). Further, she notes that Plaintiffs
alleged Defendants employe d at least two employees that “handled goods or materials
moving in commerce and that annual gross sale s exceeded $500,000 in 2023 and are
expected to exceed $500,000 in 2024.” Id. This, she finds, is sufficient to plausibly allege
enterprise coverage under the FLSA. Id. Magistrate Judge Elfenbein finds that Plaintiffs
have sufficiently alleged FLSA coverage. Id.
As for Count I, Magistrate Judge Elfenbein finds that the FLSA does not authorize
recovery of unpaid regular wages at the employee’s regular rate, as employees are entitled
only to the statutory federal minimum wage ($7.25) for regular hours worked. Id. at 16
(citations omitted). She notes Plaintiffs alleged they regularly worked more than forty
hours per week without being paid either the statutory minimum wage or the required time-
and-a-half rate for the hours above forty. Id. Further, she finds Plain tiffs alleged specific
regular and overtime hours worked and asserted that ISG failed to pay at least some portion
of those wages , “instead making only partia l, lump -sum payments that did not fully
compensate their work.” Id. at 16–17. Therefore, Magistrate Jud ge Elfenbein finds that
the Amended Complaint states a plausible claim that ISG failed to pay at least the federal
minimum wage of $7.25 per hour, as required by the FLSA . Id. at 17. As such, she
recommends entering default judgment as to Count I for each of Moving Plaintiffs. Id.
As for Count II, Magistrate Judge Elfenbein notes all Moving Plaintiffs except three
(Westbrooks, Isidore, and A tis) claim to have worked unpaid overtime hours. Id. at 18.
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Because Westbrooks, Isidore, and Atis did not alle ge that they worked overtime hours
when including their individual claims in the Amended Complaint, Magistrate Judge
Elfenbein recommends denying default judgment as to each of them for Count II. Id. The
remaining Moving Plaintiffs, however, did allege that they worked unpaid overtime hours,
and that ISG owes them time-and-a-half their regular rate of $14 per hour for those hours.
Id. Therefore, Magistrate Judge Elfenbein recommends entering default judgment as to
Count II for the remaining Moving Plaintiffs. Id. at 18–19.
Although ISG objects to Magistrate Judge Elfen bein’s rec ommendations, its
objections are in substance all to her aforementioned recommendation that this Court deny
the Motion to Set Aside Default. See generally Obj. Accordingly, this Court reviews
Magistrate Judge Elfenbein’s findings as to Counts I and II for clear error. Keaton, 2015
WL 12780912, at *1. This Court finds no clear error in Magistrate Judge Elfenbein ’s
findings and therefore adopts her recommendation to enter default judgment as to Count I
for all Moving Plaintiffs, a nd as to C ount II for each of Moving Plaintiffs other than
Bradeley Isidore, Jean Atis, and Pablo Westbrooks.3
iii. Default judgment as to Count III
Magistrate Judge Elfenbein also recommends that default judgme nt be entered as
to Count III. Under Florida law, a breach of contract plaintiff mus t plead the existence of
a contract, a material breach of that contract, and damages. See V ega v. T -Mobile USA,
Inc., 564 F.3d 1256, 1272 (11th Cir. 2009). Here, Magistrate Judge Elfenbein notes that
Plaintiffs alleged there was an agreement b etween them and Defendants where Plaintiffs
were to be paid $14 an hour by Defendants to perform work for the Defendants. R&R at

3 The Court also agrees with Magistrate Judge El fenbein’s recommendation not to deny the DJ
Motion for failure to confer or for being filed a few days late. R&R at 17 n.6.
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28–29. Further, Plaintiffs alleged that Defendants then did not pay those agreed- upon
wages, nor did they pay the overtime rates at time and one-half. Id. at 29. Magistrate Judge
Elfenbein finds that these allegations show that a contract for employment at $14 per hour
existed, that ISG materially breached that contract by failing to pay Plaintiffs, and that
Plaintiffs were damaged by this breach in that they were not compensat ed. Id.
Accordingly, Magistrate Judge Elfenbein recommends that this Court enter default
judgment as to Count III for Moving Plaintiffs. Id.
ISG did not object to any of Magistrate Judge Elfenbein ’s findings as to default
judgment for Count III. See generally Obj. Therefore, the Court reviews her findings only
for clear error. Keaton, 2015 WL 12780912, at *1. The Court finds no clear error in
Magistrate Judge Elfenbein’s findings and therefore adopts her rec ommendation to enter
default judgment as to Count III for each of Moving Plaintiffs.
iv. Damages under Counts I–III
Magistrate Judge Elfenbein recommends the Court order Moving Plaintiffs provide
supplemental affidavits before it can enter a specific sum of damages that th ey will be
awarded. R&R at 32–33. As a preliminary matter, Magistrate Judge Elfenbein finds that
the operative wage for calculating damages as to each of Moving Plaintiffs is $14 per hour,
despite the DJ Motion listing a different rate for St. Charles and the Amended Complaint
listing a different rate for Francis and Gabriel. See R&R at 17 n.5, 18 n.7.
She notes that under Counts I and II, Moving Plaintiffs have provided enough
information to decide liability, but not to determine the amount of damages under the
FLSA. Id. at 20. Magistrate Judge Elfenbein states the tables Plaintiffs have provided thus
far have two major problems that must be remedied: first, they calculate damages using
each Plaintiff’s agreed-to hourly rate, when the FLSA’s regular wage provisions allow for
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recovery at the minimum wage of $7 .25 per hour; and second, they do not allege when
exactly Defendants made partial payments, whi ch is problematic because timing of
payments is critical under the FLSA . Id. at 20–21 (citations omitted). Therefore, to
calculate damages under the FLSA, Magistrate Judge Elfenbein recommends this Court
order Moving Plaintiffs to file supplemental affidavits (the “Supplemental Affidavits ”)
with the missing information. Id. at 22.
As for damages under Count III, Magistrate Judge Elfenbein notes first that
Plaintiffs have pursued two alternative theories when it comes to recovery for their non -
overtime hours: Count I and Count III. Id. at 29. Although plaintiffs are allowed to pursue
alternative theories of liability under federal procedure, Magistrate Judge Elfenbein finds
that an election must finally be made at the remedies stage. Id. at 29–30. Here, Count I
and Count III both address th at Moving Plaintiffs were unpaid in regular wages, but
Moving Plaintiffs “may o btain one full recovery of their regular wages .” Id. at 31.
Magistrate Judge Elfenbein notes the difference : under Count I, Moving Plaintiffs may
recover for regular wages up to the statutory minimum, plus an equal amount of liquidated
damages, whereas under Count III, they may recover at the contractual $14 per hour rate.
Id. Therefore, she recommends this Court order Moving Plaintiffs to include an election
of remedies in the Supplemental Affidavits. Id.
As for liquidated damages, Magistrate Judge Elfenbein finds that Moving Plaintiffs
are entitled to liquidated damages under the FLSA that are equal to each of their damages
under Counts I and II. Id. She finds that through its default, ISG has admitted to its
violations of the FL SA being willful . Id. Because of this admi ssion, she finds that
liquidated damages are required, and so Moving Plaintiffs are entitled to liqu idated
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damages “on whatever sum is ultimately determined to be unpaid FLSA wages. ” Id.
(internal quotations and citations omitted). Such liquid ated damages apply only to “true
FLSA shortfalls, ” not to any unpaid regular times wages that are above the federal
minimum wage or to any breach of contract damages . Id. Therefore, Magistrate Judge
Elfenbein notes that liquidated damages cannot be computed given the current record, and
that the Court may determine liquidated damages upon the submission of the Supplemental
Affidavits. Id. at 24–25.
Finally, Magistrate Judge Elfenbein recommends awarding Moving Plaintiffs
$9,954.00 in attorney’s fees and costs, if they elect to proceed with da mages under the
FLSA. Id. at 33. Magistrate Judge Elfenbein reaches this number by assessing Plaintiffs’
counsel’s hourly rate of $400 to be reasonable given his extensive experience, the amount
of plaintiffs, and the several rounds of pleading the litigation entailed . Id. at 27. Further,
she finds that Plaintiffs’ counsel’s accounting of 22.0 hours is reasonable, and finds that
there is “no indication of excessive duplication or unnecessary work.” Id. at 28. Magistrate
Judge Elfenbein also finds that there is no basis in this case to adjust the lodestar in any
direction. Id. Therefore, she recommend s finding that Plaintiffs are entitled $8,800 in
attorney’s fees, plus $1,154 in costs that Plaintiffs ’ counsel forwarded (and that are
adequately documented and recoverable). Id. Because these fees and costs are recoverable
under the FLSA, should Moving Plaintiffs elect remedies under Count III, the amount of
fees and costs could change to reflect only the work Plaintiffs’ counsel did as to Count II.
See id. at 33.
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The Court finds no clear error 4 in M agistrate Judge Elfenbein ’s findings as to
damages, and therefore adopts her recommendation to order Plaintiffs to provide
Supplemental Affidavits, as detailed fur ther in the Conclusion i nfra, which will aid in
calculating damages and awarding attorney’s fees and costs.
In sum, the Court adopts Magistrate Judge Elfenbein’s R&R and denies both of
ISG’s motions to set aside the clerk’s default, including the one within its Objections to the
R&R.
B. The Court Denies Individual Defendants’ Motion to Dismiss
Next before the Court is Individ ual Defendants ’ Motion to Dismiss . Therein,
Individual Defendants seek to dismiss Plaintiff’ s Amended Complaint, arguing that
Plaintiffs failed to sufficiently allege FLSA coverage, necessitating the dismissal of Counts
I and II for failure to state a claim. MTD at 2–4. Further, Individual Defendants argue that
the Court should dismiss Count III, as it is a state law claim brought under the Court ’s
pendent jurisdiction, so it should be dismissed once the Court dismisses the associat ed
federal claims. Id. at 5. Plaintiffs argue that the MTD should be denied because Individual
Defendants rely on precedent in the summary judgment and judgment as a matter of law
contexts to attempt to justify dismissal. MTD Resp. at 4–5. Further, Plaintiffs argue that

4 The Court reviews Magistrate Judge Elfenbein’ s findings for c lear error, because ISG did not
properly object to them. Keaton, 2015 WL 12780912, at *1. Although ISG’s objections include
different calculations of damages than did the DJ Motion or the Amended Complaint, the Court
finds these objections are not to the manner in which Magistrate Judge Elfenbein recommends
damages be calculated. I n any case, the Co urt encourages ISG to wait for Moving Plaintiffs’
forthcoming Supplemental Affidavits, which will include more complete and up- to-date
calculations of damages, including any subsequent payments ISG has made to Moving Plaintiffs.
Further, the Court reminds ISG that the FLSA considers not just how muc h employees are paid,
but also whether they are paid on time. Martin v. United States, 117 Fed. Cl. 611, 617–18 (2014).
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their allegations of FLSA coverage are detailed and not conclusory formulaic reci tations,
so the Amended Complaint should survive dismissal. Id. at 5.5
The Court finds that Plaintiffs have sufficiently plead FLSA coverage, and that the
Motion to Dismiss should thus be denied. Plaintiffs are covered by the FLSA where they
sufficiently plead either individual or enterprise coverage. Josendis v. Wall to Wall
Residence Repairs, Inc., 66 2 F. 3d 1292, 1298 (11th Cir. 2011) (citation omitted). An
employee is subject to individual coverage where an employee is engaged in commerce,
meaning the employee is “directly participating in the actual movement of persons or things
in interstate commerce,” including by “regularly using the instrumentalities of interstate
commerce in his wor k.” Id. at 1315–16 (citations omitted). As for enterprise co verage,
this occurs where an employee is “employed in an enterprise engaged in commerce or in
the production of goods for commerce.” 29 U.S.C. § 207(a)(1). An enterprise is generally
covered where its employees engage in interstate commerce/handle goods that moved in
interstate commerce, and where the enterprise’s annual gross sales or business is at least
$500,000. Josendis, 662 F.3d at 1299 (citing 29 U.S.C. § 203(s)(1)(A)(i)–(ii)).
Individual Defendants argue Plaintiffs have not adequately ple ad either form of
FLSA coverage, as the Amended Complaint makes only “conclusory allegations.” MTD
at 3. Specifically, Individual Defendants argue that the Amended Complaint is missing

5 Plaintiffs also argue that the Motion to Dismiss should be denied because of insufficient conferral
on the part of Individual Defendants. Resp. at 2–3. However, the Local Rules requiring conferral
have a specific carve out for motions to dismiss. S.D. Fla. L.R. 7.1(a)(3) (“ Prior to filing any
motion in a civil case, except a motion . . . to dismiss for failure to state a claim upon which relief
can be granted . . . counsel for the movant shall confer [.]”). Therefore, this argument is
unambiguously unavailing. The Court implores Plaintiffs’ counsel to exercise greater caution
before making representations to the Court , and directs all Parties to read the local rules more
carefully.
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allegations regarding the goods or materials that Plaintiffs handled that had moved through
interstate commerce; what it meant to receive truckloads of food; and how t he Plaintiff
security guards prepared taxes, train and teach in their capacity as security guards. Id. at
4.
The Court finds that Plaintiffs did sufficiently plead FLSA coverage. In fact, the
Amended Complaint has many non-conclusory allegations speaking to FLSA coverage.
For example, Plaintiffs allege that their work involved receiving trucks that unloaded food,
originating in other states, for the Miami Dade County Public Schools. Am. Compl. ¶ 22.
This work, Plaintiffs allege, was at least “closely related to the mo vement of commerce.”
Id. The Court finds these allegations are sufficient to plead individual coverage under the
FLSA, as they at least make it plausible that Plaintiffs were “directly participating in the
actual movement of [the food] in interstate commerce,” or at least “regularly using the
instrumentalities of interstate commerce in [their] work.” See Josendis, 662 F.3d at 1315–
16; see also Dimingo v. Midnight Xpress, Inc., 325 F. Supp. 3d 1299, 1310 (S.D. Fla. 2018)
(holding at summary judgment that security guard was covered by FLSA where his job
involved guarding trucks that were instrumentalities of interstate commerce). The Court
acknowledges that further fact development may reveal that Plaintiffs ’ individual work is
of a local nature , involving local trucks and local schools, that does not quali fy them for
FLSA individual coverage. However, at the motion to dismiss stage, the Court finds
Plaintiffs have plausibly plead individual FLSA coverage.
Further, the Court finds that Plaintiffs have sufficiently alleged enterprise coverage.
As mentioned, Plaintiffs allege Defendants had them engaging in work tha t is “closely
related to the movement of commerce .” Am. Compl. ¶ 22. They allege that Defendants
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regularly had their employees “handl[ing] goods or materials that travelled through
interstate commerce, or us[ing] instrumentalities of interstate commerce.” Id. ¶ 23. Taken
together, these allegations s atisfy the prong of e nterprise coverage relating to the
enterprise’s employees engaging in interstate commerce/ha ndling goods that moved in
interstate commerce . Josendis , 662 F.3d at 1299 (citing 2 9 U. S.C. § 203(s)(1)(A)(i) ).
Further, Plaintiffs allege upon information and belief that ISG ’s gross sales or business
exceeded $500,000 in 2023 and were expected to do the same in 2024. Am. Compl. ¶¶
24–25; see also Belik v. Carlson Travel Group, Inc., 864 F. Supp. 2d 1302, 1311 (S.D. Fla.
2011) (“Pleading on information in belief is still permissible where, as here, the facts are
‘peculiarly within the possession and control of the defendant.’” (quoting Arista Records,
LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010))). The Court finds these allegations meet
the second prong of enterprise coverage under Josendis. 662 F.3d at 1299. Therefore, the
Court finds Plaintiffs have plausibly alleged both forms of FL SA coverage in their
Amended Complaint. Accordingly, the Motion to Dismiss is denied as to Counts I and II.
As the Motion to Dismiss ’s only argument pertaining to Count III is that it is a state law
claim that should be dis missed when the Court dismisses Counts I and II, the C ourt also
denies the Motion to Dismiss as to Count III. See MTD at 5.
IV. CONCLUSION
Accordingly, UPON CONSIDERATION of the Motion to Dismiss, the DJ Motion,
the R&R, the pertinent portions of the record, and being otherwise advised in the premises,
it is hereby ORDERED AND ADJUDGED that:
1. Magistrate Judge Elfenbein’s R&R (ECF No. 83) is ADOPTED;
2. ISG’s Motions to Set Aside Default at (ECF Nos. 78, 87) are DENIED;
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3. The Moving Plaintiffs’ Default Judgment Motion (ECF No. 72) is
GRANTED IN PART and DENIED IN PART;
4. The Individual Defendants’ Motion to Dismiss (ECF No. 79) is DENIED;
5. Plaintiffs and Individual Defendants are DIRECTED to file a joint status
report within twenty days of entry of this Order, indicating whether they
plan to proceed with the remainder of this case in light of this Order;
6. Default judgment is ENTERED for all of the Moving Plaintiffs as to
Count I, and against ISG;
7. Default judgment is ENTERED as to Count II in favor of St. Charles,
Francis, Gabriel, Washington, and Jennings, and against ISG;
8. Default judgment is DENIED as to Count II for Westbrooks, Isidore, and
Atis;
9. Default judgment is ENTERED as to Count III for all of the Moving
Plaintiffs and against ISG;
10. Bernice M. Louijeun and Everton Gray are ORDERED TO SHOW
CAUSE within ten days of entry of this Order as to why their cases should
not be dismissed for failure to prosecute; and
11. The Court takes UNDER ADVISEMENT the request for any specific
amount of damages. To aid the determination of damages, the Moving
Plaintiffs shall file a motion with the Court that includes the information
detailed below, within ten days of entry of this Order. Such motion shall
be REFERRED to Magistrate Judge Marty Fulgueira Elfenbein to take all
necessary and proper action as required by law and/or to issue a Report
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and Recommendation, pursuant to 28 U.S.C. § 636 and the Magistrate
Rules of the Local Rules of the Southern District of Florida.
a. Moving Plaintiffs shall file a notice of election of remedies
between Count I and Count III;
b. Moving Plaintiffs shall file Supplemental Affidavits detailing: (1)
the pay periods in which they earned their regular and overtime
wages; (2) the dates, amounts, and pay periods to which
Defendants’ partial payments were applied; and (3) any
designation by Defendants as to whether those payments were
intended to cover regular time, overtime, or both;
c. Moving Plaintiffs shall file a short memorandum explaining the
legal basis for their proposed allocation of Defendants’ partial
payment as: (1) either on time with regularly scheduled payment or
unreasonably delayed; and (2) being applied first to the contract
claim for regular wages or the FLSA claim for overtime wages.
This memorandum should include how that allocation avoids
double recovery while honoring the FLSA’s requirement that
“unpaid” wages be calculated as the difference between what the
statute requires and what the employer actually paid; and
d. Moving Plaintiffs shall include an assessment of attorney’s fees
and costs in their forthcoming motion. Should they elect FLSA
remedies, they shall include the $9,954.00 figure approved in this
Order. Should they elect remedies under Count III, their counsel
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shall provide an updated accounting of his hours, reflecting only
his work on Count II.
DONE AND ORDERED in Chambers at Miami, Florida, this ______ day of February,
2026.

K. MICHAEL MOORE
UNITED STATES DISTRICT JUDGE

c: All counsel of record
24th
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