Wage and Hour Defense | Overtime and Minimum Wage | Unpaid Wage

 

The Wage and Hour (Overtime and Minimum Wage/Unpaid Wages) Practice Group is involved in litigation primarily relating to overtime and/or minimum/unpaid wage claims brought under the Fair Labor Standards Act or arising under Florida law (Florida's statute requiring minimum wages to be paid and Florida's unpaid wage statute). Litigation in this area includes disputes as to whether the employee is even entitled to any overtime, minimum wages, or unpaid wages, whether the employee worked for the entity that is being sued, whether the employee is exempt from overtime (e.g., a manager, professional, administrative assistant, driver or mechanic for a motor carrier, etc.), whether the employee was properly paid his overtime, whether the employee engaged in misconduct that is a setoff to any overtime owed or that could give rise to a counterclaim, whether the plaintiff is illegally residing in the country, whether the Fair Labor Standards Act applies to the business that is being sued (it does not apply to local businesses that are not enterprises engaged in interstate commerce), whether the plaintiff engaged in illegal activity (e.g., failure to pay taxes on earnings) which may impact on the employee's right to recover overtime, and many other defenses. These matters are routinely litigated by our firm in the state and federal courts as well as in administrative proceedings brought by the Department of Labor.

It has been estimated that 30% of all wage and hour cases are filed in the Southern District of Florida, because there are many plaintiffs' attorneys in that district who advertise heavily. A significant number of the cases brought are completely frivolous, and we have been able to successfully have many of the cases that we have defended thrown out of court. For those few that have gone to trial, the vast majority of the verdicts have been in favor of the defendants, primarily on the grounds that the plaintiff did not even work there or worked for a different corporate entity, the Fair Labor Standards Act did not apply to the business that was being sued (e.g., the employer was found not to be an enterprise engaged in interstate commerce), no overtime was owed/plaintiff was not entitled to overtime, or overtime was paid. At times, we have sought to recover costs and attorney fees directly from the lawyer who brought the frivolous claim, and we have been successful in this regard (or at least partially so) on numerous occasions.

When determining which attorney to use in this area, you should ask the attorney you are contemplating using the following questions:

List of Representative Clients: Tecta America, Inc., Bennett Auto Supply, Inc., Weiss & Woolrich Southern Enterprises, Inc., The Town of Davie, Florida, Nanak's Landscaping, Inc., Paradise Awnings Corporation, and E.W. Ventures, Inc.

List of Representative Cases: Our firm enjoys the pleasure of having many legal victories either by dispositive motion (e.g., motion to dismiss, motion for summary judgment, motion for involuntary dismissal) or via jury verdict or having the plaintiff simply dismiss his or her case without receiving any compensation or anything of value in return. A sampling of those cases is set forth below.

Published Cases by Westlaw in Which the Court Threw the Case Out of Court Via Dispositive Motion

Josendis v. Wall to Wall Residence Repairs, Inc., et al., 662 F.3d 1292 (11th Cir. 2011)

This was a Fair Labor Standards Act case. The firm represented the defendants. The trial court granted summary judgment in favor of the defendants on the ground that the plaintiff could not prove that the corporate defendant was an enterprise engaged in interstate commerce for purposes of the FLSA or that the plaintiff could prove that he could establish individual coverage. The trial court further held that 29 C.F.R. § 776.23, which states that any construction worker working at a hospital is entitled to bring a FLSA claim, was arbitrary and capricious. The corporate defendant had less than $500,000 in gross annual sales volume, and thus was not subject to the Act. The plaintiff unsuccessfully argued that the corporate defendant had certain expenses that suggested that the gross sales volume exceeded $500,000.

Further, the firm argued that the trial court should grant summary judgment on the ground that the plaintiff was an illegal alien. The court did not address that issue.

On appeal, the defendants argued that the trial court's order should be affirmed on the grounds provided for by the trial court, and, if not, that affirmance was required because the plaintiff was an illegal alien. The Eleventh Circuit held oral argument on January 18, 2010, and in late May, 2010, requested that the Solicitor General of the United States (Elena Kagan) give the Obama Administration's position concerning whether an illegal alien could recover under the FLSA. The federal government thereafter submitted a brief on the issue. The Eleventh Circuit ultimately did not determine that issue, but on November 17, 2011, issued this opinion, which is a watershed opinion concerning the legal standards that a plaintiff must show to prove both enterprise coverage and individual coverage under the Fair Labor Standards Act, and the opinion upheld the finding that 29 C.F.R. § 776.23 is arbitrary and capricious.

Dent v. Giaimo, 665 F. Supp. 2d 1295 (S.D. Fla. 2009)

The firm represented a physician in a case alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant runs a successful medical practice in Palm Beach County. The Plaintiff sued for back wages, liquidated damages, and attorney fees under the FLSA.

The firm persuaded the Court to grant summary judgment in our client's favor after showing that the physician was not subject to the FLSA because his practice did not have two or more employees engaged in interstate commerce, and thus was not an enterprise engaged in interstate commerce as defined by 29 U.S.C. § 203(s)(1). See Dent v. Giaimo, 606 F. Supp. 2d 1357 (S.D. Fla. 2009). The Court rejected the Plaintiff's theory that having out-of-state residents as clientele or calling out of state insurance companies made it subject to the FLSA and entered summary judgment for the Defendant. After the grant of summary judgment in our client's favor, the firm was able to secure approximately $14,000 in attorney fees ($7,170.00 pursuant to the Court Order and additional fees for litigating the attorney fees issue that are mentioned in the opinion) for the client, based on the court's finding that the Plaintiff's attorney had filed the case without ensuring FLSA standards could be met.

Murray v. Playmaker Services, LLC, 325 Fed. Appx. 873 (11th Cir. 2009)

The firm represented the Defendant (a manufacturer's representative for playground equipment) in an action alleging four counts of Fair Labor Standards Act violations and two counts under Florida unpaid wage statutes. The Defendant defended the case on the ground that the Plaintiff was an independent contractor who (by virtue of that status) had no cause of action under the FLSA or under Florida's unpaid wage statutes. Florida Statutes § 448.08. The Defendant's motion for summary judgment was granted. Murray v. Playmaker Servs., LLC 512 F. Supp. 2d 1273 (S.D. Fla. 2007). Following the courts' decision, the Defendant moved for attorney fees on the ground that the case was frivolous or, in the alternative, the continued litigation of the case past the discovery stage was litigated after Plaintiff's counsel knew or should have known the case was frivolous. The motion for attorney fees was granted in part by the United States District Court for the Southern District of Florida in the amount of $23,375.00. Murray v. Playmaker Servs., LLC , 548 F. Supp. 2d 1378 (S.D. Fla. 2008). The Plaintiff appealed, but the Eleventh Circuit Court of Appeals upheld the sanctions against the plaintiff's attorney for vexatious multiplication of the proceedings.

Ortiz v. D & W Foods, Inc., 657 F. Supp. 2d 1328 (S.D. Fla. 2009)

The firm represented Defendant D & W Foods, Inc. (a family-owned restaurant in Fort Lauderdale, Florida) in an action under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. Plaintiff was a waiter at a restaurant owned by the Defendants. The case was dismissed because the Plaintiff could not establish individual coverage under the FLSA and the Defendant was not subject to enterprise coverage under FLSA, because its gross, annual revenues did not exceed $500,000. In addition to successfully getting the case dismissed, the Defendant was awarded partial attorney fees and costs after the court found that the Plaintiff's suit was frivolous and that the Plaintiff's attorney did not perform the requisite pre-suit investigation to determine if the suit had merit.

Tesma v. Maddox-Joines, Inc., 254 F.R.D. 699 (S.D. Fla. 2008)

The firm represented the defendant in a suit alleging wage and overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendants filed a motion to dismiss the case as frivolous and requested that the court convert the motion into one for summary judgment because the defendant had not employed the plaintiff during the statute of limitations provided for in the FLSA. The Plaintiff eventually conceded to the court that he had filed suit for a claim that was outside the statute of limitations and Plaintiff therefore moved for voluntary dismissal. The court granted the Plaintiff's motion for voluntary dismissal with the stipulation that the Plaintiff' attorney pay the Defendants the reasonable costs and attorney fees incurred while defending the claim.

Williams v. Signature Pools & Spas, Inc., 615 F. Supp. 2d 1374 (S.D. Fla. 2009)

The firm represented the Defendant a local company that installs and services swimming pools. The Plaintiff was an employee who brought suit under the Fair Labor Standards Act for alleged failure to pay overtime and retaliatory termination under 29 U.S.C. § 215(a)(3) of the FLSA. The Defendants moved to dismiss the case or in the alternative for summary judgment. The court granted the motion after finding that there was no enterprise coverage over the Plaintiff's claim, nor was the employee covered individually under FLSA. The court held that Defendant's business was not subject to FLSA just because they used supplies that had previously traveled in interstate commerce or that Plaintiff installed products that had previously traveled in interstate commerce.

Brillas v. Bennett Auto Supply, Inc., 675 F. Supp. 2d 1164 (S.D. Fla. 2009)

The firm obtained a summary judgment ruling in favor of their client Bennett Auto Supply, Inc. in a case alleging violations pursuant to the overtime provisions under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. Defendant, Bennett Auto Supply, Inc., sells auto parts and supplies on a wholesale and retail basis throughout the State of Florida. The Plaintiff held three positions with Bennett Auto: store manager, assistant store manager, and assistant store manager II. Suit was brought against the company after Plaintiff was discharged. The case had significant ramifications to the defendant because the company utilizes and has utilized the three different positions at many of its stores.

Bennett Auto successfully moved for summary judgment arguing that not only were all three positions exempt from FLSA coverage under the executive exemption but also under the administrative exemption. Concerning the executive exemption, Bennett Auto was able to show that the Plaintiff's primary duty consisted of management duties, he customarily directed the work of at least two other workers, and had input on the hiring and firing of employees. Concerning the administrative exemption, Bennett Auto was able to show that the Plaintiff had an office, non-manual labor, position and regularly exercised discretion and decision-making on matters of significance. The entry of summary judgment was not appealed.

Monelus v. Tocodrian, Inc., 598 F. Supp. 2d 1312 (S.D. Fla. 2008)

The firm represented Tocodrian, Inc. which operated a local restaurant. The Plaintiff brought suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., seeking unpaid overtime compensation, liquidated damages, costs, and attorney fees. The Defendant moved for summary judgment, which the court granted after finding that the Defendant was not engaged in interstate commerce and thus was not subject to the FLSA. The court also held that regardless of the fact that the Defendant was not an enterprise engaged in interstate commerce, the Plaintiff did not work in excess of 40 hours, and thus was not entitled to any overtime.

Navarro v. Broney Automotive Repairs, Inc., 314 Fed. Appx. 179 (11th Cir. 2008)

The firm represented the Defendant, which is a local automotive repair business. The plaintiff was an employee who brought suit under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., alleging unpaid overtime compensation. The Defendant moved for summary judgment because (1) Defendant was not subject to the FLSA (it was not an enterprise with gross revenue that exceeded $500,000 annually) and (2) the Plaintiff could not establish individual coverage, namely, that he himself was engaged in interstate commerce as an employee of the Defendant. The motion was granted. Navarro v. Broney Automotive Repairs, Inc., 533 F. Supp. 2d 1223 (S.D. Fla. 2008). The plaintiff appealed the summary judgment ruling only as to the issue of individual coverage, claiming that he was engaged in interstate commerce because the automotive parts he used to repair the vehicles flowed in interstate commerce until the parts reached the customer. The court rejected this argument and found that the parts' interstate activity ended when the parts reached the retailer's shop from which the Defendant purchased the parts. The Plaintiff's purchase of those parts and taking those parts and placing them in or on customers' cars was purely an intrastate activity that did not constitute the engagement of interestate commercem and thus the Plaintiff could not establish individual coverage under the FLSA. The Plaintiff filed a writ of certiorari with the Supreme Court of the United States which was summarily denied after the firm's Brief in Opposition was filed. See Navarro v. Broney Automotive Repairs, Inc., 129 S. Ct. 507 (2008).

Guzman v. Irmadan, Inc., 322 Fed. Appx. 644 (11th Cir. 2009)

The firm represented a small, family-owned carpentry business in a suit alleging unpaid overtime wages against the company and owner pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Plaintiff was a cabinet installer and assembler for the company. The Plaintiff claimed he was an employee directly involved in interstate commerce due to the fact that he was sometimes sent to local hardware and retail stores to pick up items (used to make the and assemble the cabinets) that had previously traveled in interstate commerce. The court granted the Defendant's motion for summary judgment finding that purchasing goods in Florida that had previously traveled in interstate commerce did not qualify as participating in interstate commerce. Guzman v. Irmadan, Inc., 551 F. Supp. 2d 1368 (S.D. Fla. 2008). The court had previously limited discovery to the issue of coverage under the FLSA and limited the Plaintiff to approximately 34 days of discovery which greatly reduced the attorneys fees and costs in the case that were expended. See Guzman v. Irmadan, Inc., 2008 WL 926375 (S.D. Fla. 2008). The Eleventh Circuit Court of Appeal affirmed the grant of summary judgment.

Gomez v. Vicky Bakery VIII, Inc., 2011 WL 1346887 (S.D. Fla. 2011)

The firm represented the Defendant which operates a local bakery. The Plaintiff was a cake decorator who worked at the company. The Plaintiff filed a claim alleging overtime violations under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., seeking back wages, liquidated damages, interest, attorney fees and costs. The court granted the Defendant's motion for summary judgment finding that Plaintiff would not be able to meet the burden of proof that Defendant was subject to the FLSA under either the enterprise or individual coverage analyses, which the Plaintiff eventually conceded. The gross sales volume of the Defendant did not exceed $500,000 annually.

Rodriguez v. Marble Care Int'l, Inc., 2011 WL 918634 (S.D. Fla. 2011)

The firm represented the Defendant who is a local floor finisher. The Plaintiffs were laborers who worked at the company. The Plaintiffs filed a claim alleging overtime violations under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., seeking back wages, liquidated damages, interest, attorney fees and costs. The court granted the Defendant's motion for summary judgment finding that Plaintiffs would not be able to meet the burden of proof that Defendant was subject to the FLSA under either the enterprise or individual coverage analyses. The Defendant's gross sales volume did not exceed $500,000 annually. The Defendants filed a motion for attorney fees and costs against Plaintiffs' counsel, as they believed that the case was completely frivolous. The Magistrate Judge has recommended legal fees and costs totaling $7,480.00 be awarded to Defendant's counsel and such recommendation is subject to the review of the District Judge assigned to the case.

Rivera v. Fantastic Finishes Auto Body, Inc., 651 F.Supp.2d 1356 (S.D. Fla. 2009)

The firm represented the Defendant (a local autobody repair shop) in a suit for overtime violations brought pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant moved for summary judgment on the grounds that the Plaintiff did not meet the requirement for individual coverage under the FLSA and the Defendant did not meet the requirements for enterprise coverage. Plaintiff had argued the Defendant was subject to the FLSA based on the fact that parts used in the shop originated from out of state. The court found that the Defendant was not engaged in interstate commerce because all of the parts used within his body shop were purchased from local retailers or wholesalers and his shop only performs services within the state of Florida, and the business did not have gross revenue that exceeded $500,000 annually. Summary judgment was entered for the defendant. The Defendant moved for attorney fees and costs to be assessed against Plaintiff and his counsel, and the fee issue was resolved by the parties before it was ruled on by the Court.

Rozenblum v. Ocean Beach Properties, Inc., 436 F. Supp. 2d 1351 (S.D. Fla. 2006)

The firm represented the Defendants who own and operate a local hotel in Miami Beach. The Plaintiff was a night manager for the hotel and brought suit alleging overtime violations under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The court granted the Defendant's motion for summary judgment after finding that the Plaintiff was subject to the FLSA overtime exemption for managers because during the relevant time period he had the ability to hire and fire other employees, customarily and regularly directed the work of two or more employees, and was the sole manager present. Therefore, he was a manager not entitled to overtime.

Zarate v. Jamie Underground, 629 F. Supp. 2d 1328 (S.D. Fla. 2009)

The firm represented the Defendant, a local business that provides ditch digging and cable burying services. The Plaintiff was a laborer who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The court found that it was undisputed that the goods and materials used in the Defendant's business were purchased and used locally, and that the Defendant did not provide any services out of state. The court rejected the Plaintiff's argument that the cables buried by defendant would eventually be connected to an interstate network and thus should qualify as engaging in interstate commerce. The court was not persuaded that Defendant's purely local activity could be deemed interstate commerce based on what the customer planned to use it for in the future. Defendant's motion for summary judgment was granted.

Rodriguez v. Marble Care Int'l, Inc., 863 F. Supp.2d 1168 (S.D. Fla. 2012)

After the court granted summary judgment for the defendants in this Fair Labor Standards Act case on the ground that the FLSA did not apply to the corporate defendant because it did not have the requisite gross annual sales volume ($500,000), see Rodriguez v. Marble Care Int'l, Inc., 2011 WL 918634 (S.D. Fla. 2011), and it was clear that no pre-suit investigation was conducted by plaintiffs' counsel, the firm filed a motion for attorney fees and sanctions against plaintiff's counsel, and the motion was granted in part, awarding the small business defendant $8,340.00 in attorney fees for the filing of a frivolous lawsuit. The court entered a separate order taxing costs in the favor of the defense client in the amount of $1,251.61. Rodriguez v. Marble Care Int'l, Inc., 862 F. Supp. 2d 1316 (S.D. Fla. 2012).

Arilus v. Joseph A. DiEmmanuele, 522 Fed. Appx. 881 (11th Cir. 2013)

On September 19, 2012, in this Fair Labor Standards Act case in which the firm was representing the defendant-employer, the firm successuly argued to the trial court that it should grant summary judgment in favor of the defendant on the ground that the FLSA did not apply to it, because the defendant-employer did not have the requisite $500,000 in gross annual sales volume required by the Act. Arilus v. Joseph A. DiEmmanuele, 895 F. Supp. 2d 1257 (S.D Fla. 2012). The Eleventh Circuit Court of Appeals affirmed the grant of summary judgment in this opinion.

Gomez v. Virtual Imaging Servs., Inc., 2012 WL 1933337 (S.D. Fla. 2012)

This was a Fair Labor Standards Act case. The trial court granted summary judgment in favor of the defendant (the firm's client) on the ground that the plaintiff could not prove that the defendant-employer had any knowledge that overtime hours were being worked by the plaintiff.

Joseph v. Nichell's Caribbean Cuisine, Inc., 2012 WL 5306360 (S.D. Fla. 2012)

This case was brought by the plaintiff pursuant to the Fair Labor Standards Act, under the theory that the defendant-employer owed the plaintiff unpaid overtime and also terminated the plaintiff in retaliation for exercising her rights under the FLSA. The defendant was a small Jamaican restaurant represented by the firm. On October 26, 2012, the firm convinced the trial court to grant summary judgment against the plaintiff and in favor of the firm's defense client. The court had earlier dismissed the overtime claim, see Joseph v. Nichell's Caribbean Cuisine, Inc., 862 F. Supp. 2d 1309 (S.D. Fla. 2012), and in this order granted summary judgment as to the retaliation claim, which was the plaintiff's only claim remaining.

Orellana v. Tecta America South Florida, Inc., 2011 WL 6030108 (S.D. Fla. 2011)

In this Fair Labor Standards Act case, the firm represented the defendant-employer from the plaintiff's claims that he was entitled to overtime and that he worked it without being properly paid for it. Concerning some of the plaintiff's co-workers, a jury had previously found that the workers were properly paid their overtime after a 2-week jury trial. Barrera v. Tecta America South Florida, Inc., f/k/a Weiss & Woolrich Southern Enterprises, Inc., Case No. 09-21841-CIV-DLG (S.D. Fla.). After 208 docket entries, the plaintiff, who was an illegal alien, was apparently deported as he could not appear for trial. Accordingly, the defendants moved for involuntary dismissal, and that motion was granted.

Ceant v. Aventura Limousine & Transp. Serv., Inc., 874 F. Supp. 2d 1373 (S.D. Fla. 2012)

On June 27, 2012, in this Fair Labor Standards Act case, firm successfully represented its client, as it convinced the court to grant in part the defendant-employer's (represented by the firm) motion to dismiss the case. The client is one of the world's most reknowned limousine companies. The court previously struck the statement of claim that the plaintiff had filed as being completely deficient in regard to calculating the plaintiff's alleged damages. Ceant v. Tinkler, 2012 WL 1933557 (S.D. Fla., Feb. 24, 2012).

Garrido v. CSA Group Professional Servs., Inc., 2012 WL 4489479 (S.D. Fla. 2012)

This was a Fair Labor Standards Act case which the court dismissed because the plaintiff's attorney was forced to admit after engaging in discovery that the case was frivolous.

Lainez v. Francis Engineering, Inc., 2009 WL 3423035 (S.D. Fla. 2009)

The firm represented the Defendant, a local business that provides the installation of fire sprinklers and related products in commercial buildings. The Plaintiff was a laborer who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The court found that it was undisputed that the goods and materials used in the Defendant's business were purchased and used locally, and that the Defendant did not provide any services out of state. The court rejected the Plaintiff's argument that the related materials were made out of state, when there was no proof of that that was so. The court was not persuaded that Defendant's purely local activity could be deemed interstate commerce. Defendant's motion for summary judgment was granted as to enterprise coverage. In Lainez v. Francis Engineering, Inc., 2009 WL 3334124 (S.D. Fla. 2009), the court had previously granted summary judgment in the Defendant's favor as to individual coverage under the FLSA.

Martinez v. Mtel-One, Inc., 2009 WL 2014609 (M.D. Fla. 2009)

The firm represented the Defendant, a local business that provides the installation of telecommunications wiring in commercial buildings. The Plaintiff was a laborer who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant filed a motion to dismiss the case on the ground that venue was not proper in the Middle District of Florida. The court dismissed the action on the ground of improper venue, holding that the case should be filed in the Southern District of Florida (the case was originally filed in the Middle District of Florida). The Plaintiff's attorney withdrew from representation, and although the Plaintiff vowed to find an attorney in the Southern District of Florida and re-file the suit there, the Plaintiff never did, and now the statute of limitations has run on the claim.

Ali v. Prestige Window & Door Installation, L.L.C., 2009 WL 927947 (S.D. Fla. 2009)

The firm represented the Defendant, a local business that installed windows and doors in both residential and commercial buildings. The Plaintiff was a laborer who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant filed a motion to dismiss on the ground that the Fair Labor Standards Act does not apply to it, because its gross annual sales volume never exceeded $500,000. The court found that it was undisputed that the FLSA did not apply to the Defendant, and therefore granted the motion to dismiss.

Casseus v. First Eagle, L.L.C., 2008 WL 1782363 (S.D. Fla. 2008)

The firm represented the Defendant, a local restaurant. The Plaintiff was a worker in the restaurant who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant filed a motion for summary judgment on the ground that the Fair Labor Standards Act does not apply to it, because its gross annual sales volume never exceeded $500,000. The court found that it was undisputed that the FLSA did not apply to the Defendant, and therefore granted the motion for summary judgment.

Delisle v. LGY Corp., 2008 WL 1821518 (S.D. Fla. 2008)

The firm represented the Defendant, a local restaurant. The Plaintiff was a worker in the restaurant (a cook) who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant filed a motion for summary judgment on the ground that the Fair Labor Standards Act does not apply to it, because its gross annual sales volume never exceeded $500,000. The court found that it was undisputed that the FLSA did not apply to the Defendant, and therefore granted the motion for summary judgment. The court had previously limited discovery to the issue of coverage under the FLSA and limited the Plaintiff to approximately 34 days of discovery which greatly reduced the attorneys fees and costs in the case that were expended. See Delisle v. LGY Corp., 535 F. Supp. 2d 1266 (S.D. Fla. 2008).

Herard v. ATN Restaurant, Inc., 2007 WL 4145879 (S.D. Fla. 2007)

The firm represented the Defendant, a local restaurant. The Plaintiff was a worker in the restaurant who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant filed a motion for involuntary dismissal on the grounds that the Plaintiff and his attorney had engaged in gross misconduct during the discovery period and sought attorneys fees and costs as sanctions. The court granted the motion for involuntary dismissal, and partially granted the motion for sanctions awarding part of the fees and the costs that were sought. For the orders concerning the issuance of attorneys fees and costs against the plaintiff and his attorney, see Herard v. ATN Restaurant, Inc., 2007 WL 4302703 (S.D. Fla. 2007) and Herard v. ATN Restaurant, Inc., 2008 WL 123596 (S.D. Fla. 2008).

Josendis v. Wall to Wall Residence Repair, Inc., 606 F. Supp. 2d 1376 (S.D. Fla. 2009)

The firm represented the Defendant, a local business that engaged in residential and commercial remodeling. The Plaintiff was a laborer who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant filed a motion for summary judgment on the ground that the Fair Labor Standards Act does not apply to it, because its gross annual sales volume never exceeded $500,000 and because it did not employ two or more persons engaged in interstate commerce. The court found that it was undisputed that the FLSA did not apply to the Defendant, and therefore granted the motion for summary judgment.

Joseph v. Nanak's Landscaping, Inc., 2007 WL 1238591 (S.D. Fla. 2007)

The firm represented the Defendant, a local landscaping company. The Plaintiff was a laborer for the company who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant filed a motion to compel arbitration and stay proceedings, in order for the case to be removed from court and jury system, and brought before a private arbitrator, who would act as judge and jury.

Francisque v. Nanak's Landscaping, Inc., 2005 WL 5419062 (S.D. Fla. 2005)

The firm represented the Defendant, a local landscaping company. The Plaintiff was a laborer for the company who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant filed a motion to compel arbitration and stay proceedings, in order for the case to be removed from court and jury system, and brought before a private arbitrator, who would act as judge and jury.

Decisions Not Published by Westlaw Which Involve the Firm Ending the Case Dispositively

Domingo v. AMTEC, L.L.C., et al., Case No. 12-21690-KMW (S.D. Fla. 2012)

The firm represented the individual Defendant Linda Johnson, who was alleged to have had day-to-day operational control over the corporate Defendant, in an action alleging overtime violations under the Fair Labor Standards Act. The firm defended the case on the ground that Linda Johnson was not individually and personally liable for any overtime owed. [D.E. 98]. After discovery, the Plaintiffs agreed to dismiss the case receiving no money or other compensation for their claims and the court accepted the resolution of the case in that manner, because Defendant Johnson did not have day-to-day operational control over the corporate Defendant. [D.E. 110].

Guevara v. Weiss & Woolrich Contractors Co., Inc., Case No. 10-21177-JEM (S.D. Fla. 2010)

The firm represented the Defendants (Weiss & Woolrich Contractors Co., Inc. and A.R.B.S., Inc., which were wrongly-named defendants, as the proper defendant was Weiss & Woolrich Southern Enterprises, Inc., which is a roofing company) in an action alleging overtime violations under the Fair Labor Standards Act. [D.E. 5]. The Defendants defended the case on the ground that the Plaintiff was not employed by the two companies that were sued and concerning the proper defendant's liability, no overtime was worked that was not properly paid. [D.E. 6, 18]. After discovery, the Defendants filed a motion for summary judgment on their defenses requesting that the court throw the case out of court. [D.E. 90, 91]. The Defendants had previously filed a motion for sanctions with the court requesting the reimbursement of all attorney fees in the case, alleging the case was patently frivolous. [D.E. 52]. The Plaintiff agreed to dismiss the case receiving no money or other compensation for his claims and the court accepted the resolution of the case in that manner. [D.E. 96, 111].

Arkezic v. A to Z Real Estate Management, Inc., Case No. 12-60792-RJS (S.D. Fla. 2012)

The firm was recently able to obtain a joint stipulation of dismissal with prejudice for its client, A to Z Real Estate Management, in a lawsuit filed in the United States District Court for the Southern District of Florida. The Plaintiff in the case filed a Complaint on April 30, 2012, setting forth one (1) substantive count pursuant to the Fair Labor Standards Act ("FLSA") for alleged unpaid overtime wages. The Plaintiff sought back wages, liquidated damages, interest, attorney fees, and litigation expenses. However, the Plaintiff ultimately agreed to dismiss his lawsuit with prejudice upon the exchange of discovery and after defense counsel took his deposition receiving no compensation for such dismissal. Specifically, the Plaintiff conceded that A to Z Real Estate Management, Inc was not a covered employer under the FLSA and that he was a manager exempt from recovering damages under the FLSA. Thus, the Plaintiff failed to receive any money for his claims.

Dorvilus v. Best Deli of Tamarac, Case No. 08-60268-JAL (S.D. Fla. 2008)

The firm represented the Defendant Best Deli of Tamarac in a claim alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. Plaintiff was employed as a worker at a local restaurant/deli. [D.E. 12]. The firm filed a motion to dismiss on behalf of the Defendants, because the corporate Defendant did not have gross annual revenue that exceeded $500,000, and thus was not subject to the FLSA. [D.E. 15]. The Plaintiff, after discovery, could not establish that the Defendant's gross annual revenue exceeded $500,000, and the case was dismissed for failure to prosecute. [D.E. 55].

Cavalcanti v. J.M.J.J., Inc., Case No. 05-80533-JCP (S.D. Fla. 2005)

The firm represented the Defendant J.M.J.J., Inc., which is a valet service for automobiles, in a claim alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. Plaintiff was employed as a driver by the Defendant. [D.E. 1]. The firm filed a motion to dismiss on behalf of the Defendant, because the FLSA did not apply to the Defendant. [D.E. 5]. The Plaintiff, after discovery, could not establish that the FLSA applied to the Defendant, and agreed to dismiss the case receiving no money. [D.E. 20, 21].

Adelson v. Brooks Boatworks, Inc., Case No. 07-14218-DLG (S.D. Fla. 2007)

The firm represented the Defendant Brooks Boatworks, Inc. in a claim alleging overtime violations and retaliation pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. Plaintiff was employed as a worker at a local boat painting and maintenance business in Riviera Beach, Florida. [D.E. 1]. The firm filed an answer and affirmative defenses on behalf of the Defendants, because the corporate Defendant did not have gross annual revenue that exceeded $500,000, and thus was not subject to the FLSA. [D.E. 7]. The plaintiff, after discovery, could not establish that the Defendant's gross annual revenue exceeded $500,000, and agreed to dismiss the case receiving no money. [D.E. 29, 34].

Trinos v. Quality Staffing Services, Corp., Case No. 08-80322-DTKH (S.D. Fla. 2008)

The firm represented the Defendant Quality Staffing Services, Corp. in a claim alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The twelve (12) plaintiffs were employed as workers (waiters and busboys) at local country clubs. [D.E. 1]. The firm filed a motion to dismiss on behalf of the Defendants, because the corporate Defendant was not subject to the FLSA. [D.E. 10]. The Defendants also filed a motion for involuntary dismissal, because the Plaintiffs filed another lawsuit alleging allegations diametrically opposite to the allegations in this case, namely, that the Defendants lured Plaintiffs here from the Philippines with promises of work, but were not assigning them any work (and thus by implication they could not be working overtime). [D.E. 43]. The Defendants attempted to engage in discovery and depose the Plaintiffs about their contradictory claims, but the Plaintiffs refused to appear for their depositions, which caused the court to order their depositions. [D.E. 70]. The Plaintiffs did not intend to appear for their depositions and shortly thereafter dismissed the case receiving no money. [D.E. 71, 75].

Troxell v. CSC Enterprises, Inc., d/b/a Scully' Tavern, Case No. 05-21312-PCH (S.D. Fla. 2005)

The firm represented the Defendant CSC Enterprises, Inc. in a claim alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Plaintiff was employed as a worker at local tavern. [D.E. 1]. The firm filed an answer and affirmative defenses on behalf of the Defendant raising numerous defenses. [D.E. 15]. The Defendant admitted that it owed the Plaintiff $5.31 in overtime, but the Plaintiff insisted that he was owed approximately $500.00, and the Defendant decided to moot the case and stop the expenditure of attorney fees it would simply provide the Plaintiff a check for the approximately $500.00, and then move to dismiss the case and strike attorney fees. [D.E. 24]. The court was intrigued by the dispute as to whether $5.31 was owed or $500.00 and it held an evidentiary hearing to determine the extent of liability. At the hearing, the court was convinced that only $5.31 was owed, and it was incensed with the filing of the lawsuit and the exorbitant claim for attorney fees made by the Plaintiff's attorneys that it ordered the Plaintiff to return the check of the approximately $500.00, as a sanction, and dismissed the case [D.E. 33]. Thus, neither the Plaintiff nor his attorneys received anything for the case.

Thomas v. Nanak's Landscaping, Inc., Case No. 07-61386-JEM (S.D. Fla. 2007)

The firm represented the Defendant Nanak's Landscaping, Inc. in a claim alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Plaintiff was employed as a worker in the landscaping industry. [D.E. 1]. The firm filed an answer and affirmative defenses on behalf of the Defendant raising numerous defenses, and brought a counterclaim against the Plaintiff for theft. [D.E. 5]. The Plaintiff claimed that he was only owed $420.44 in overtime damages, and therefore the Defendant decided to simply provide the Plaintiff with a check for that amount, and then to file motion seeking to have the case adjudicated as being moot. [D.E. 13]. Meanwhile, the Defendant filed a motion for summary judgment on the ground that the FLSA does not apply to it. in light of another district judge ruling just that against this same Defendant. Bien-Aime v. Nanak's Landscaping, Inc., 572 F. Supp. 2d 1312 (S.D. Fla. 2008). [D.E. 27]. The Plaintiff had enough, and moved for voluntary dismissal, seeking to have his own case dismissed. [D.E. 28]. The court dismissed the case. [D.E. 29]. The Plaintiff then moved for approximately $20,000 in attorney fees and costs [D.E. 34], which the court denied because the Plaintiff failed to comply with the Local Rules governing attorney fee motions. [D.E. 36]. The Defendant moved for a ruling that the case was moot, and the court had no jurisdiction to hear any dispute between the parties, and that there was no jurisdiction because the FLSA does not apply to this Defendant in light of another district judge's ruling that the FLSA does not apply to Nanak's Landscaping, Inc. in a related case. Bien-Aime v. Nanak's Landscaping, Inc., 572 F. Supp. 2d 1312 (S.D. Fla. 2008). [D.E. 37]. The Plaintiff renewed his motion for attorneys fees [D.E. 38], which was denied on the ground that the case had already been dismissed. [D.E. 45]. Thus, no attorney fees or costs were obtained by the Plaintiff or his counsel.

Gutierrez v. White Science L.L.C., Case No. 11-20553-JLK (S.D. Fla. 2011)

The firm represented the Defendant White Science, L.L.C., which is a business that operates jewelry kiosks in shopping malls, in a case alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. Plaintiff was employed as a sales representative by the defendant. [D.E. 1]. The firm filed an answer and affirmative defenses which raised the defense that the FLSA does not apply to the defendant. [D.E. 7]. Shortly thereafter, the Plaintiff, without engaging in any discovery, filed a motion requesting that the court allow here to dismiss her case, which the court allowed. [D.E. 12, 13].

Pielech v. Independent Education Corp., d/b/a Key College, Case No. 04-10700(05) - Richard Eade (Broward County, Florida)

The firm represented the Defendant, which is a college. Plaintiff filed a one-count Complaint against the Dean of the college (Mr. Dooley) on June 30, 2004 alleging that Plaintiff was terminated from his employment and was still owed $975.00 for his last week of work, plus 12 hours of unpaid wages. (Complaint ¶ 23). Plaintiff titled this one count, "Claim for Unpaid Wages Against the Employer", and sought recovery under Florida Statutes § 448.08. Mr. Dooley moved to dismiss the Complaint on July 13, 2004 for failing to state a cause of action in that a claim for unpaid wages should be brought under the Fair Labor Standards Act (the FLSA preempts the state wage claim) and § 448.08 does not allow for the recovery of unpaid wages (it pertains to the recovery of attorney fees to the prevailing party in an action for unpaid wages).

The firm on behalf of the Dean set the hearing on the Motion to Dismiss for August 11, 2004. Plaintiff then, unilaterally and without conferral with undersigned counsel, filed a three-count First Amended Complaint against the college raising an entirely new claim, and simultaneously noticed four depositions. That filing rendered moot the legal sufficiency of the original complaint, because it was superceded via the filing of an amended complaint. Vanderberg v. Rios, 798 So. 2d 806 (Fla. 4th DCA 2001). The three-count First Amended Complaint contained allegations of breach of contract, quantum meruit, and a violation of the Florida Whistleblower Act. The Whistleblower Act claim alleged that IEC: 1) falsified student grades; 2) falsified student attendance records; 3) falsified course schedules; 4) falsified faculty lists; 5) engaged in fraud in connection with student loans; and 6) sexually harassed students. (See First Amended Complaint ¶ 15). The court dismissed the first, second, and third complaints, because the plaintiff could not state a cause of action. The dismissal of the Third Amended Complaint was with prejudice. No appeal was filed.

Published Cases by Westlaw in Its "F.Supp." Reporter Which A Jury Found in Favor of the Firm's Clients

Beltran-Moya v. Hi-Tech Autobody, Inc., 727 F. Supp. 2d 1382 (S.D. Fla. 2010)

The firm represented the Defendant in a claim alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. Plaintiff was employed as a secretary/receptionist at a local autobody shop. The court partially granted summary judgment in favor of defendant, but did not throw the whole case out. After a three-day jury trial, which occurred in mid-May, 2010, the jury found in favor of the Defendant, indicating on the verdict form that while Plaintiff had worked overtime she had been compensated for her overtime hours at the applicable time and one-half rate, and that the Defendant provided the Plaintiff a flexible work schedule that accommodated her doctor's appointments during pregnancy and allowed her to leave work to care for her child. The court held that this was a defense verdict, and entered final judgment in favor of the Defendants.

Olson v. Star Lift Inc., 709 F. Supp. 2d 1351 (S.D. Fla. 2010)

The firm successfully represented the Defendant in a case alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Plaintiff alleged that he was covered by the FLSA due to the contract work he performed servicing forklifts for Caterpillar, Inc. The Court found that performing maintenance on a forklift that was neither moving in interstate commerce nor moving goods while it was being repaired did not qualify as being "engaged in interstate commerce" and was instead an isolated local activity. Additionally, the Court held that the Plaintiff did not carry his burden to prove that he worked any overtime hours for which he was improperly compensated. This case was a three-day bench trial before The Honorable Jose E. Martinez of the Southern District of Florida, which took place in mid-April, 2010.

Barrera v. Tecta America South Florida, Inc., 900 F. Supp. 2d 1328 (S.D. Fla. 2012)

On October 19, 2012, the court taxed costs against the 14 plaintiffs and in favor of the firm's employer client for a little more than $32,000.00. This was a Fair Labor Standards Act case that went to trial for approximately 2 weeks, and resulted in a jury verdict in favor of the firm's clients on May 10, 2011. The defendant is believed to be the world's largest roofing company. In another cited decision, the trial court denied the plaintiffs's motion for new trial, alternatively, motion for judgment as a matter of law. Barrera v. Tecta America South Florida, Inc., 2012 WL 1933319 (S.D. Fla. 2012). The plaintiffs did not appeal.

Palma v. Safe Hurricane Shutters, Inc., 895 F. Supp. 2d 1268 (S.D. Fla. 2012)

On September 29, 2012, the court taxed costs against the plaintiffs and in favor of the firm's employer client for just shy of $10,000.00. The firm had received a favorable jury verdict after a several-day trial conducted by Chris Kleppin of the firm. The case was brought by numerous plaintiffs under the Fair Labor Standards Act.

Obando v. M & E Investments, Inc., 2012 WL 1933552 (S.D. Fla. 2012)

The court taxed costs against the plaintiff for just under $9,000.00, after the firm prevailed against the plaintiff after a jury trial, in which the jury found that the Fair Labor Standards Act did not apply to the plaintiff and that the plaintiff did not work any overtime in any event for the defendant, which owns and operates a hotel on Miami Beach, Florida.

Rakip v. Paradise Awnings Corp., 514 Fed. Appx. 917 (11th Cir. 2013)

On March 27, 2013, the Eleventh Circuit Court of Appeals decided an appeal and a cross-appeal in favor of the firm's defense client. This case was a Fair Labor Standards Act case, and the firm brought a counterclaim against Plaintiff Rakip under Florida's civil theft statute, Florida Statutes § 772.11, which the court converted into a breach of contract claim during the trial. Shortly before trial, the court granted summary judgment in favor of the defendants as to Plaintiff Rakip's overtime claim on the ground that he released it. The jury rendered a verdict in favor of the defendants on the FLSA claim, finding that Plaintiff Jeronimo was an exempt manager not entitled to overtime and that in any event no overtime was worked. The jury also rendered a verdict on the counterclaim in favor of the defendants for $1,360.00 against Plaintiff Rakip. After trial, the court denied the plaintiffs' post-trial motions, except it took away the jury's award of $1,360.00 against plaintiff away and granted judgment as a matter of law in favor of the plaintiff. See Rakip v. Paradise Awnings Corp., 2011 WL 6029981 (S.D. Fla., Nov. 30, 2011). The plaintiffs appealed the grant of summary judgment in favor of defendants as to Plaintiff Rakip's overtime claims and the defendants cross-appealed the court's granting judgment as a matter of law in favor of Plaintiff Rakip as to the counterclaim. The Eleventh Circuit affirmed the grant of summary judgment in favor of the defendants as to Plaintiff Rakip's overtime claim, but reversed the trial court's grant of judgment as a matter of law as to the breach of contract claim and reinstated the jury verdict of $1,360.00 on the counterclaim.

Decisions Not Published by Westlaw in the "F.Supp" Reporter Involving Favorable Jury Verdicts

Palma, et al., v. Safe Hurricane Shutters, Inc., et al., Case No. 07-22913-CIV-SIMONTON

In this case, on November 4, 2011, after a 7-day jury trial in federal court, the firm received a jury verdict in its defense clients' favor as to all four (4) plaintiffs' Fair Labor Standards Act claims (for alleged $200,000 in overtime that was not paid and thousands of dollars in alleged minimum wages that were not paid). The jury found that there were no overtime or minimum wage violations and that the corporate Defendant was not an enterprise engaged in interstate commerce as defined by 29 U.S.C. § 203(s)(1) of the FLSA, and thus even if the Plaintiffs had proven wage and hour violations the Defendants would have prevailed. Previously, three Plaintiffs were involuntarily dismissed from the lawsuit under Federal Rule of Civil Procedure 41(b) for failure to prosecute. The Defendants prevailed and received a final judgment in their favor against the Plaintiffs.

Obando v. M & E Investment Properties, Inc., Case No. 11-20318-CIV-MOORE (S.D. Fla.)

In this case, on November 2, 2011, the firm received a verdict in its defense client's favor after a 3-day jury trial in federal court in a case alleging failure to pay overtime under the Fair Labor Standards Act. The two main issues that were tried were (1) whether the Plaintiff could prove that she was individually engaged in interstate commerce while she worked for the Defendant (i.e., that she regularly and recurrently participated in the actual movement of persons or things across state lines); and (2) whether Plaintiff worked overtime in any workweek. The court ruled at the summary judgment stage that the corporate Defendant was as a matter of law not an enterprise engaged in interstate commerce for purposes of 29 U.S.C. § 203(s)(1) of the FLSA. The jury found in favor of the Defendant as to both issues that were tried, and consequently a final judgment was issued in favor of the Defendant and against the Plaintiff.

Barrera, et al., v. Weiss & Woolrich Southern Enterprises, Inc., Case No. 09-21841-CIV-GRAHAM

In this case, on May 10, 2011, after a 10-day jury trial in federal court, the firm received a jury verdict in its defense clients' favor as to all fourteen (14) plaintiffs' Fair Labor Standards Act claims (for alleged overtime that was not paid and alleged missing hours/unpaid wages). The jury found that there were no overtime or minimum wage violations and that the firm's clients did not employ the Plaintiffs pre-August 27, 2007.

Rakip v. Paradise Awnings Corp., Case No. 10-20004-CIV-COOKE (S.D. Fla.)

In this case, on December 3, 2010, after a 10-day jury trial in federal court, the firm received a jury verdict in its defense clients' favor in an FLSA case and also successfully prosecuted a counterclaim against one of the plaintiffs for $1,360.00. The court granted summary judgment as to Plaintiff Rakip's wage and hour claims, after an evidentiary hearing was held just before the first day of trial. As to Plaintiff Jeronimo's wage and hour claims, the jury found that he was a manager not entitled to any overtime and that in any event he did not work any overtime for which he was not properly paid.

Lira v. Matthew's Marine Air Conditioner, Inc., Case No. 09-61178-CIV-ZLOCH (S.D. Fla.)

In this case, on October 27, 2010, after a 3-day jury trial in federal court, the firm received a jury verdict in its defense clients' favor in a FLSA (alleged overtime violations) case. The jury found that the FLSA did not apply to the small local business, a repairer and installer of air conditioning systems on yachts.

Martinez-Pinillos v. Air Flow Filters, Inc., Case No. 09-22453-CIV-MARTINEZ (S.D. Fla.)

In this case, on September 9, 2010, the firm received a jury verdict in its defense clients' favor following a 4-day federal court jury trial. It was a case brought under the Fair Labor Standards Act for failure to pay overtime and for breach of contract. The jury found that the Plaintiff never even worked for the Defendants, and that there was no contract entered into between the parties.

Exime v. E.W. Ventures, Inc., Case No. 08-60099-CIV-SEITZ (S.D. Fla.)

In this case, on February 20, 2009, the firm received a verdict in its defense clients' favor after a 3-day jury trial in federal court in a case alleging failure to pay overtime under the Fair Labor Standards Act. The jury found that the FLSA did not apply to the local dry cleaners.

Chiever v. R.J. Schor, Inc., Case No. 08-60461-CIV-ZLOCH (S.D. Fla.)

In this case, on July 2, 2008, the firm received a jury defense verdict in his client's favor in a Fair Labor Standards Act case. The jury deliberated for less than five minutes. The jury found that the FLSA did not apply to the local sign installation company.

Martinez v. Antillas Air Freight, Inc., Case No. 99-03331-CIV-HIGHSMITH (S.D. Fla.)

In this wage and hour case brought under the Fair Labor Standards Act, on March 2, 1999, the firm received a verdict in its defense client's favor after a bench trial before The Honorable Shelby Highsmith, as the court found that the plaintiff was not entitled to overtime and was not able to prove that she worked overtime hours without being properly paid. The trial lasted three (3) days.