Santana v. The Duke, LLC et al

Filing 32

ORDER denying 13 Defendants The Duke, LLC and Fabio Bonifacio's Motion to Dismiss. Plaintiff shall update the Court as to any monies received in the future that might affect his indigent status. Failure to do so could result in sanctions. Signed by Judge Sheri Polster Chappell on 7/12/2016. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EDWARD SANTANA,
Plaintiff,
v.

Case No: 2:16-cv-190-FtM-99MRM

THE DUKE, LLC and FABIO
BONIFACIO,
Defendants.
/
ORDER1
This matter comes before the Court on Defendants The Duke, LLC and Fabio
Bonifacio's Motion to Dismiss (Doc. #13) filed on April 14, 2016. Plaintiff Edward Santana
filed a Response in Opposition (Doc. #14) on April 15, 2016. The matter is ripe for review.
Background
This is an employment action. In early February 2016, Defendants hired Plaintiff
as a server for their restaurant. (Doc. #25 at 5). Plaintiff began working immediately.
Less than two weeks into the job, Plaintiff “verbally complained to Defendants about . . .
minimum wage violations in regards to unpaid wages and uniform/maintenance cost
reimbursement.” (Doc. #25 at 6). Sometime later, another employee alerted Plaintiff that
she overheard employees telling Defendant Bonifacio “that Plaintiff had previously sued
other restaurants under the FLSA in regards to unpaid wages and retaliation.” (Doc. #25

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at 6). The next day, Plaintiff decided to present Defendant Bonifacio with a “typed letter
. . . demanding payment of unpaid wages . . . and reimburse[ment] . . . for all of his
mandatory uniform and maintenance costs.” (Doc. #25 at 6). When Plaintiff arrived for
his next shift, Defendant Bonifacio alerted him that he had been fired. The parties then
got into an altercation, which resulted in Plaintiff being arrested. (Doc. #25 at 8-9).
Plaintiff alleges that these acts all resulted from his refusal to engage in “Defendants’
unlawful employment practices.” (Doc. #25 at 10). Therefore, Plaintiff asserts seven
counts in this action – Violation of the Fair Labor Standards Act (Count 1); Retaliation in
Violation of 29 U.S.C. § 215(a)(3) (Count 2); Violation of Florida’s Labor Laws (Count 3);
Retaliation in Violation of Florida’s Labor Laws (Count 4); Defamation (Count 5); False
Imprisonment (Count 6); and False Arrest (Count 7). (Doc. #25 at 10-27).
Discussion
Defendants argue that this action should be dismissed because Plaintiff lied on his
affidavit for indigency and failed to disclose settlements that he received from other
litigation. In support, Defendants highlight that Plaintiff is a well-known serial litigant, who
makes his living off of suing restaurants and bars for various “violations.” According to
Defendants, although Plaintiff claims that he is indigent, and therefore qualified to proceed
in this and other actions without paying any fees, Plaintiff failed to update his financial
status and disclose at least one settlement after he filed this action.

Therefore,

Defendants believe this action should be dismissed, or, at a minimum, Plaintiff should be
required to file an updated financial affidavit. The Court disagrees.
Pursuant to 28 U.S.C. § 1915(a)(1), the Court may allow the commencement and
prosecution of any civil suit or action, without prepayment of fees, by a person who

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submits an affidavit asserting that they are unable to pay such fees. In this action, Plaintiff
filed a motion to proceed in forma pauperis, along with an accompanying financial
affidavit. (Doc. #2). The Honorable Mac R. McCoy granted Plaintiff’s motion, finding
Plaintiff was indigent and therefore qualifies to proceed in forma pauperis. (Doc. #4). The
only thing that has changed since that time, according to Defendants, is an increase of
$1450. Defendants determined this increase by comparing the financial affidavit Plaintiff
provided in this action with another financial affidavit Plaintiff provided in a second
employment action. Plaintiff insists that he did not fail to disclose any monies in his
affidavit, but rather received a settlement from a third action the day after he filed his
financial affidavit in this action. On these facts, the Court finds that Plaintiff was not
attempting to misrepresent his finances or mislead the Court. Therefore, Defendants’
Motion to Dismiss is denied.
Accordingly, it is now
ORDERED:
1. Defendants The Duke, LLC and Fabio Bonifacio's Motion to Dismiss (Doc. #13)
is DENIED.
2. Plaintiff shall update the Court as to any monies received in the future that
might affect his indigent status. Failure to do so could result in sanctions.
DONE and ORDERED in Fort Myers, Florida, this 11th day of July, 2016.

Copies: All Parties of Record

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