Francois v. Gulf Cost Transportation, Inc.

Filing 83

ORDER denying 72 Motion for summary judgment. The Court declines to exercise supplemental jurisdiction over Plaintiffs' FDUTPA claim, and the Court dismisses that claim without prejudice. The parties must file all pretrial motions, including all motions in limine, by June 19, 2017. The parties' joint pretrial statement must be filed by July 6, 2017. Signed by Judge Susan C Bucklew on 5/22/2017. (JD)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ESTIME FRANCOIS and
RENETTE ORDEUS,
Plaintiffs,
v.

Case No. 8:16-cv-1061-T-24 TBM

GULF COAST TRANSPORTATION,
INC.,
Defendant.
______________________________/
ORDER
This cause comes before the Court on Defendant’s Motion For Summary Judgment.
(Doc. No. 72). Plaintiffs oppose the motion. (Doc. No. 78). With the Court’s permission, both
Plaintiffs and Defendant filed reply briefs. (Doc. No. 81, 82). Because genuine issues of
material fact exist, this Court denies Defendant’s motion for summary judgment on Plaintiffs’
Fair Labor Standards Act claim. The Court declines to exercise supplemental jurisdiction over
Plaintiff’s claim under Florida’s Deceptive and Unfair Trade Practices Act.
I. Standard of Review
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The Court must draw all inferences from the evidence in the light most favorable to the
non-movant and resolve all reasonable doubts in that party's favor. See Porter v. Ray, 461 F.3d
1315, 1320 (11th Cir. 2006)(citation omitted). The moving party bears the initial burden of
showing the Court, by reference to materials on file, that there are no genuine issues of material
fact that should be decided at trial. See id. (citation omitted). When a moving party has

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discharged its burden, the non-moving party must then go beyond the pleadings, and by its own
affidavits, or by depositions, answers to interrogatories, and admissions on file, designate
specific facts showing there is a genuine issue for trial. See id. (citation omitted).
II. Background
Plaintiffs Estime Francois and Renette Ordeus allege that they were formerly employed
by Defendant Gulf Coast Transportation, Inc. as taxicab drivers and that Defendant misclassified
them as independent contractors.1 In the summer of 2015, Plaintiffs entered into agreements
with Defendant, titled “Agreement for Independent Vehicle-For-Hire Operators” (the
“Agreement”), which purport to outline their relationship with Defendant. (Doc. No. 78-2; Doc.
No. 78-3).
Defendant holds itself out as a taxicab company. Defendant owns taxicabs and
certificates enabling its taxicabs to be used as taxicabs within Hillsborough County. Taxicab
drivers, including Plaintiffs, entered into twelve-month Agreements with Defendant to lease one
of its taxicabs for a certain period of time for a certain amount of money. Specifically, they
could lease a taxicab for a 12-hour period for $86, a 24-hour period for $98, or a weekly period
for $560. (Doc. No. 78-4, ¶ 5; Doc. No. 78-5, ¶ 5). In return, the drivers would drive the
taxicabs for that period of time and would earn all of the money they generated while driving.
Defendant outfitted the taxicabs with a radio communication system so that the drivers
could receive transportation requests that Defendant dispatched. Defendant also outfitted the
taxicabs with a fare meter and a laptop that could accept credit card payments.

1

In their complaint, they state that Francois worked for Defendant until January 14, 2016
and that Ordeus worked for Defendant until February 2016. (Doc. No. 6, ¶ 36, 37).
2

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While the Agreement explicitly states that the taxicab drivers are independent contractors
(Doc. No. 78-2, ¶ 8; Doc. No. 78-3, ¶ 8), Plaintiffs allege that they were, in fact, employees
because Defendant controlled the manner in which they performed their work and made them
economically dependent on Defendant.
As a result, Plaintiffs filed an amended complaint asserting three claims. (Doc. No. 6).
First, Plaintiffs contend that due to Defendant’s willful misclassification of them as independent
contractors, Defendant did not pay them any wages at all, in violation of the minimum wage
requirements of the Fair Labor Standards Act (“FLSA”).
Second, Plaintiffs contend that the misclassification of them as independent contractors
resulted in substantial cost savings to Defendant (due to its not having to pay employment taxes)
and gave Defendant an unfair competitive advantage as a taxicab company. Therefore, Plaintiffs
contend that Defendant violated Florida’s Deceptive and Unfair Trade Practices Act
(“FDUTPA”).
Third, Plaintiff Francois, individually, asserted a conversion claim under Florida common
law due to Defendant’s failure to return taxicab bond money that he had paid. However, the
Court granted Defendant’s motion to dismiss this claim. (Doc. No. 40).
III. Motion for Summary Judgment
Currently pending before this Court is Defendant’s motion for summary judgment on
Plaintiffs’ FLSA and FDUTPA claims. Accordingly, the Court will address Defendant’s motion
as to each claim.
A. FLSA Minimum Wage Claim
Defendant argues that it is entitled to summary judgment on Plaintiffs’ FLSA claim,

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because Plaintiffs were independent contractors, not employees. When determining whether a
person is an employee or an independent contractor under the FLSA, the Eleventh Circuit in
Scantland v. Jeffrey Knight, Inc. has provided the following guidance:
[C]ourts look to the “economic reality” of the relationship between
the alleged employee and alleged employer and whether that
relationship demonstrates dependence. This inquiry is not governed
by the “label” put on the relationship by the parties or the contract
controlling that relationship, but rather focuses on whether “the work
done, in its essence, follows the usual path of an employee.” . . .
[M]any courts have used [the following six factors] as guides in
applying the economic reality test:
(1) the nature and degree of the alleged employer’s control as
to the manner in which the work is to be performed;
(2) the alleged employee’s opportunity for profit or loss
depending upon his managerial skill;
(3) the alleged employee’s investment in equipment or
materials required for his task, or his employment of workers;
(4) whether the service rendered requires a special skill;
(5) the degree of permanency and duration of the working
relationship; [and]
(6) the extent to which the service rendered is an integral part
of the alleged employer’s business.
Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1311-12 (11th Cir. 2013)(internal citations
omitted). Furthermore, the Scantland court noted:
No one factor is controlling, nor is the list exhaustive. . . . The weight
of each factor depends on the light that it sheds on the putative
employee’s dependence on the alleged employer, which in turn
depends on the facts of the case.
Id. at 1312 n.2 (quotation marks and citations omitted). The Scantland court made clear that “the
overarching focus of the inquiry is economic dependence.” Id. at 1312.
The parties dispute the facts underlying two very important factors in this case—the
nature and degree of Defendant’s control over the manner of Plaintiffs’ work and Plaintiffs’
opportunity for profit and loss. According to Plaintiffs, Defendant exerted significant control
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over them and there was no opportunity to make a profit based on the following: (1) Defendant
suspended or reprimanded drivers who refused to take fares from the dispatch system; (2)
Defendant conducted periodic performance reviews and evaluations; (3) Defendant negotiated
flat fees for airport passengers and required that Plaintiffs charge those fees; if Plaintiffs refused
to drive these customers, Defendant could unilaterally terminate their Agreement; (4) Defendant
reserved the right to fine or reprimand drivers for failing to comply with its policies and
procedures; (5) Defendant reserved the right to refuse to renew an Agreement and could
unilaterally terminate their Agreement; (6) Plaintiffs were unable to contact customers on their
own to grow a client list and grow their business; instead, they could only drive customers
obtained through the dispatch system or those who hailed them on the street; and (7) Defendant
implemented a policy whereas Plaintiffs could not refuse transportation to unruly or troublesome
passengers that Plaintiffs had already picked up.2 (Doc. No. 78-4; Doc. No. 78-5).
Defendant, on the other hand, offers the following evidence regarding control and
Plaintiffs’ opportunity for profit and loss: (1) drivers have complete discretion regarding whether
to accept any dispatched call; (2) drivers are not penalized for failing to accept a dispatched call;
(3) some drivers choose not to use Defendant’s dispatch system at all; (4) drivers can solicit

2

The Court has not considered Plaintiffs’ numerous allegations of control by Defendant,
which in fact consist of control asserted over drivers through the Hillsborough County Public
Transportation Commission Rules (“PTC Rules”). To the extent that Defendant is merely
requiring compliance with the PTC Rules, such will not be considered control by Defendant.
See NLRB v. Associated Diamond Cabs, Inc., 702 F.2d 912, 922 (11th Cir. 1983)(stating that
“regulation imposed by governmental authorities does not evidence control by the employer,”
and therefore, “employer imposed regulations that incorporate governmental regulations do not
evidence an employee-employer relationship”). However, if Plaintiffs show pervasive control by
Defendant that exceeds to a significant degree the scope of the PTC Rules, then such can be
evidence of an employment relationship Id. (citations omitted).
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business on their own; (5) Defendant does not require any driver to wait for, pick up, or take
passengers to or from the airport; (6) drivers establish their own hours of when to work; (7)
drivers are not subject to supervision, fines, or discipline from Defendant; (8) drivers could
distribute business cards to passengers to grow their own business; and (9) a significant amount
of fares generated through driving can come from a driver’s own efforts as opposed to relying on
Defendant’s dispatch system. (Doc. No. 72-3; Doc. No. 72-4; Doc. No. 72-5; Doc. No. 72-6).
Given these disputed facts regarding the factors of control and the opportunity for profit
and loss, the Court cannot determine employee status at this time and the case must proceed to a
jury trial.3 Accordingly, the Court denies Defendant’s motion for summary judgment on
Plaintiffs’ FLSA claim.
B. FDUTPA Claim
Next, Defendant moves for summary judgment on the FDUTPA claim. In this claim,
Plaintiffs allege that Defendant’s misclassification of them as independent contractors resulted in
substantial cost savings to Defendant (due to its not having to pay employment taxes) and gave
Defendant an unfair competitive advantage as a taxicab company.
Defendant moves for summary judgment, making various arguments, including the
argument that Plaintiffs have not suffered any actual damages. In support of this argument,
Defendant cites to a report and recommendation in which a magistrate judge analyzed whether a
FDUTPA claim (based on the alleged misclassification of an employee as an independent
contractor) should be dismissed because the plaintiff had not suffered any actual damages. See

3

Given the disputed nature of the control and opportunity for profit and loss factors, the
Court need not address the additional four factors at this time.
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Bishop v. VIP Transportation Group, LLC, 2016 WL 4435700, at *2 (M.D. Fla. Aug. 2, 2016).
The magistrate judge made two recommendations on this issue. First, she recommended that the
district court decline to exercise supplemental jurisdiction over the FDUTPA claim. See id. at
*4. Alternatively, she recommended that the district court dismiss the FDUTPA claim based on
the misclassification, because the self-employment taxes that the plaintiff was required to pay
were not recoverable damages. See id. at *5. Upon review, the district court adopted the
recommendation that it decline to exercise supplemental jurisdiction over the FDUTPA claim.
See Bishop v. VIP Transportation Group, LLC, 2016 WL 4382694, at *1 (M.D. Fla. Aug. 17,
2016).
Upon review of the Bishop case, this Court is persuaded that it should decline to exercise
supplemental jurisdiction over Plaintiffs’ FDUTPA claim. This Court may decline to exercise
supplemental jurisdiction over a claim if any of the following circumstances are present:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has
original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.
28 U.S.C. § 1367(c). If this Court determines that one of the enumerated reasons for declining
supplemental jurisdiction is present, the Court should additionally consider equitable factors,
such as judicial economy, convenience, and fairness to the parties in deciding whether to employ
its discretion to decline supplemental jurisdiction. See Vasquez v. Joseph Cory Holdings, LLC,
2017 WL 819919, at *2 (M.D. Fla. Mar. 2, 2017).
In both Bishop and Vasquez, this Court considered whether it should decline to exercise

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supplemental jurisdiction over the plaintiffs’ FDUTPA claims when the plaintiffs were also
asserting FLSA claims. In both cases, this Court determine that it should not exercise
supplemental jurisdiction over the FDUTPA claims, because those claims would substantially
predominate over the FLSA claims. See id.; Bishop, 2016 WL 4435700, at *3–4. The Court
also found that equitable considerations did not counsel in favor of the exercise of jurisdiction.
See Vasquez, 2017 WL 819919, at *4; Bishop, 2016 WL 4435700, at *4. This Court finds those
cases to be persuasive.
As noted in both Bishop and Vasquez, the FLSA and FDUTPA claims will require
different elements of proof. See Vasquez, 2017 WL 819919, at *3; Bishop, 2016 WL 4435700,
at *3. Furthermore, whether an employment misclassification does in fact give rise to a
FDUTPA claim under state law is a matter that should first be addressed by Florida courts. The
only case brought to this Court’s attention that has allowed such a claim to go forward is Seijo v.
Casa Salsa, Inc., 2013 WL 6184969 (S.D. Fla. Nov. 25, 2013). However, in Seijo, the court
refused to address the argument (raised in the defendant’s reply brief) that the plaintiff did not
suffer any actual damages from the FDUTPA violation. See id. at *7. As such, whether a
plaintiff’s payment of self-employment taxes that should have been paid by his or her employer
is a cognizable form of actual damages under FDUTPA is an issue that should be addressed by
Florida’s state courts.4 For these reasons, the Court declines to exercise supplemental
jurisdiction over Plaintiffs’ FDUTPA claim, and the Court will dismiss it without prejudice.

4

Given that the IRS provides a means for recouping the portion of employment taxes that
Plaintiffs allegedly incorrectly paid as a result of their alleged misclassification, see Tran v.
Tran, 2017 WL 894370, at *2 (M.D. Fla. Mar. 7, 2017), it is not clear to this Court that Plaintiffs
suffered any actual damages that are cognizable under the FDUTPA due to Defendant’s alleged
misclassification.
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IV. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
(1)

Defendant’s Motion For Summary Judgment (Doc. No. 72) is DENIED.

(2)

The Court declines to exercise supplemental jurisdiction over Plaintiffs’
FDUTPA claim, and the Court dismisses that claim without prejudice.

(3)

The parties must file all pretrial motions, including all motions in limine, by June
19, 2017. Each party may file one motion in limine containing all of their
arguments in a single document not to exceed 25 pages. Responses thereto must
be filed by July 3, 2017 and may not exceed 20 pages.

(4)

The parties’ joint pretrial statement must be filed by July 6, 2017.

DONE AND ORDERED at Tampa, Florida, this 22nd day of May, 2017.

Copies to:
Counsel of Record

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