Garcia Ramirez et al v. Nicholas
Filing
67
ORDER denying 34 Plaintiffs' Motion for Partial Summary Judgment. Please see Order for details. Signed by Judge James I. Cohn on 10/11/2013. (sry)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-60820-CIV-COHN/SELTZER
JOHNNY VALENTINO GARCIA RAMIREZ,
JIMMY WILDO GARCIA RAMIREZ,
and all others similarly situated,
Plaintiffs,
v.
STEVE NICHOLAS, d/b/a G. Julianos,
Defendant.
____________________________________/
ORDER DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Plaintiffs’ Motion for Partial Summary
Judgment [DE 34] (“Motion”). The Court has carefully reviewed the Motion and all
related filings and is otherwise fully advised in the premises.
I.
Background
Plaintiffs Johnny Valentino Garcia Ramirez (“Johnny”) and Jimmy Wildo Garcia
Ramirez (“Jimmy”) originally filed this action against Defendant Steve Nicholas on
April 8, 2013. See DE 1 (Pls.’ Compl.). In their current First Amended Complaint,
Plaintiffs allege that they were employed at Defendant’s restaurant—Johnny as a
dishwasher and cleaner, and Jimmy as a chef—from December 21, 2010, to March 15,
2013. See DE 26 at 2, ¶¶ 8-9. Plaintiffs claim that throughout this period, Defendant
did not pay them overtime wages as required by the Fair Labor Standards Act (“FLSA”).
See id. at 3-4, ¶¶ 14-15; 29 U.S.C. § 207(a)(1). In addition, Johnny contends that
Defendant failed to pay him minimum wages in accordance with the FLSA and the
Florida Minimum Wage Act (“FMWA”). See DE 26 at 5, ¶ 18; id. at 8, ¶¶ 26-27;
29 U.S.C. § 206(a)(1); Fla. Stat. § 448.110.1
Plaintiffs further allege that they meet the requirements for both “individual
coverage” and “enterprise coverage” under the FLSA’s wage provisions:
10. Defendant’s business activities involve those to which the Fair Labor
Standards Act applies. Both the Defendant’s business and the Plaintiff’s
work for the Defendant affected interstate commerce for the relevant time
period. Plaintiff’s work for the Defendant affected interstate commerce for
the relevant time period because the materials and goods that Plaintiff
used on a constant and/or continual basis and/or that were supplied to
him by the Defendant to use on the job moved through interstate
commerce prior to and/or subsequent to Plaintiff’s use of the same. The
Plaintiff’s work for the Defendant was actually in and/or so closely related
to the movement of commerce while he worked for the Defendant that the
Fair Labor Standards Act applies to Plaintiff’s work for the Defendant.
11. Additionally, Defendant regularly employed two or more employees
for the relevant time period who handled goods or materials that travelled
through interstate commerce, or used instrumentalities of interstate
commerce, thus making Defendant’s business an enterprise covered
under the Fair Labor Standards Act.
12. Upon information and belief, the Defendant had gross sales or
business done in excess of $500,000 annually for the years 2009, 2010,
2011, and 2012.
13. Upon information and belief, the Defendant’s gross sales or business
is expected to exceed $500,000 for the year 2013.
DE 26 at 3; see 29 U.S.C. §§ 206(a), 207(a)(1); Josendis v. Wall to Wall Residence
Repairs, Inc., 662 F.3d 1292, 1298-99 (11th Cir. 2011).
In his Answer, Defendant denies Plaintiffs’ allegations concerning their
employment, failure to receive wages owed, and FLSA coverage. See DE 30 at 2-3.
1
Although Plaintiffs’ Complaint also purports to bring claims on behalf of other
similarly situated employees, see DE 26 at 1-2, Plaintiffs have not moved to certify an
FLSA collective action. See 29 U.S.C. § 216(b); Morgan v. Family Dollar Stores, Inc.,
551 F.3d 1233, 1258-62 (11th Cir. 2008). Therefore, only Plaintiffs’ individual claims
are at issue here.
2
Defendant also pleads several defenses, including that Plaintiffs are not covered by the
FLSA:
23. Plaintiffs’ claims are barred because Defendant’s business activities
do not affect interstate commerce.
24. Plaintiffs’ claims are barred because Defendant’s gross sales for
2010 did not exceed $500,000 annually.
25. Plaintiffs’ claims are barred because Defendant’s gross sales for
2011 did not exceed $500,000 annually.
26. Plaintiffs’ claims are barred because Defendant’s gross sales for
2012 did not exceed $500,000 annually.
27. Plaintiffs’ claims are barred because Defendant’s gross sales for
2013 are not expected to exceed $500,000 annually.
28. Plaintiffs’ claims are barred because Defendant’s employees are not
involved in interstate commerce.
Id. at 2-4.
On August 23, 2013, Plaintiffs filed their present Motion. See DE 34. Plaintiffs
argue that they are entitled to summary judgment on the issue of enterprise coverage,
or at least on the interstate-commerce element of such coverage. See 29 U.S.C.
§ 203(s)(1)(A). The parties have fully briefed the Motion and have submitted various
evidence in support of their arguments.
II.
Discussion
A.
Summary Judgment Standards
A district court “shall grant summary judgment 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 moving party “always bears the initial
responsibility of informing the district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate the absence of a genuine
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issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To satisfy
this burden, the movant must point out to the court that “there is an absence of
evidence to support the nonmoving party’s case.” Id. at 325.
After the movant has met its burden under Rule 56(a), the burden of production
shifts, and the non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). As Rule 56 explains, “[i]f a party fails to
properly support an assertion of fact or fails to properly address another party’s
assertion of fact . . . the court may . . . grant summary judgment if the motion and
supporting materials—including the facts considered undisputed—show that the movant
is entitled to it.” Fed. R. Civ. P. 56(e)(3). Therefore, the non-moving party “may not rest
upon the mere allegations or denials in its pleadings” but instead must present “specific
facts showing that there is a genuine issue for trial.” Walker v. Darby, 911 F.2d 1573,
1576-77 (11th Cir. 1990).
Essentially, so long as the non-moving party has had an ample opportunity to
conduct discovery, it must come forward with affirmative evidence to support its claim.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). “A mere ‘scintilla’ of
evidence supporting the opposing party’s position will not suffice; there must be enough
of a showing that the jury could reasonably find for that party.” Walker, 911 F.2d at
1577. If the evidence advanced by the non-moving party “is merely colorable, or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at
249-50 (citations omitted).
The Court’s function at the summary-judgment stage is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a
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genuine issue for trial.” Id. at 249. In making this determination, the Court must discern
which issues are material: “Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
Moreover, in deciding a summary-judgment motion, the Court must view the facts in the
light most favorable to the non-moving party and draw all reasonable inferences in that
party’s favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006).
B.
Analysis of Plaintiffs’ Motion
The FLSA’s minimum- and overtime-wage provisions apply to “employees who in
any workweek” are (1) “engaged in commerce or in the production of goods for
commerce,” or (2) “employed in an enterprise engaged in commerce or in the
production of goods for commerce.” 29 U.S.C. §§ 206(a), 207(a)(1). These alternative
requirements for FLSA coverage are known respectively as “individual coverage” and
“enterprise coverage.” Josendis, 662 F.3d at 1298-99. To pursue a claim for unpaid
wages, “an employee must first demonstrate” that he is “subject to either type, or both
types, of FLSA coverage.” Id.2
Here, while Plaintiffs’ Complaint pleads both individual and enterprise coverage,
their Motion is limited to enterprise coverage. The Court’s analysis will therefore focus
on whether Plaintiffs are “employed in an enterprise engaged in commerce or in the
production of goods for commerce.” 29 U.S.C. §§ 206(a), 207(a)(1). The FLSA defines
2
The FMWA provides that “[o]nly those individuals entitled to receive the federal
minimum wage under the federal Fair Labor Standards Act and its implementing
regulations shall be eligible to receive the state minimum wage pursuant to s. 24, Art. X
of the State Constitution and this section.” Fla. Stat. § 448.110(3). Thus, the Court’s
discussion of Plaintiffs’ FLSA coverage applies equally to Johnny’s FMWA claim.
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the phrase “enterprise engaged in commerce or in the production of goods for
commerce” as an enterprise that (1) has at least two employees “engaged in commerce
or in the production of goods for commerce, or . . . handling, selling, or otherwise
working on goods or materials that have been moved in or produced for commerce by
any person”; and (2) has “annual gross volume of sales made or business done [of] not
less than $500,000.” 29 U.S.C. § 203(s)(1)(A); see Josendis, 662 F.3d at 1317.
“Enterprise” means “the activities performed by a person or persons who are
(1) engaged in ‘related activities,’ (2) under ‘unified operation or common control,’
and (3) have a ‘common business purpose.’” Josendis, 662 F.3d at 1299 (quoting
29 U.S.C. § 203(r)(1)). “Commerce” is defined as “trade, commerce, transportation,
transmission, or communication among the several States or between any State and
any place outside thereof.” 29 U.S.C. § 203(b).
The only evidence submitted by either side regarding the first element of
enterprise coverage—the connection with interstate commerce—is Defendant’s
responses to certain requests for admission:
20. Admit or deny that materials handled by Plaintiffs during their
employment with Defendants, travelled in interstate commerce prior to
Plaintiffs handling those materials.
Admit.
21. Admit or deny that Defendants had two or more employees
that handled materials during the year 2010 that had travelled in interstate
commerce.
Deny.
22. Admit or deny that Defendants had two or more employees
that handled materials during the year 2011 that had travelled in interstate
commerce.
Admit.
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23. Admit or deny that Defendants had two or more employees
that handled materials during the year 2012 that had travelled in interstate
commerce.
Admit.
DE 35-1 at 4.
Plaintiffs argue that these responses “satisf[y] the interstate commerce prong
required for enterprise coverage.” DE 34 at 1; see id. at 3. Defendant does not contest
that his admissions regarding the years 2011 and 2012 establish the interstatecommerce requirement for those two years. See DE 40 at 2, ¶ 1 (Def.’s Statement of
Material Facts). Yet disputed issues of fact remain about whether this requirement is
also met for 2010 and 2013—the other two years in which Plaintiffs claim to have
worked for Defendant. As reflected above, Defendant denied Plaintiffs’ request for
admission concerning 2010, and Plaintiffs did not ask about 2013. Also, while
Defendant admitted that Plaintiffs handled interstate-commerce materials during their
employment, Defendant disputes the alleged dates of that employment. See DE 30 at
2, ¶¶ 8-9 (denying Plaintiffs’ employment allegations); DE 35-1 at 2, ¶¶ 3-4 (denying
requests for admission about Plaintiffs’ claimed dates of employment). The Court thus
declines to grant summary judgment to Plaintiffs on the interstate-commerce element of
enterprise coverage.3 Nevertheless, since there is no genuine dispute that Plaintiffs
satisfy the interstate-commerce requirement for both 2011 and 2012, the Court will treat
those facts as established in the case. See Fed. R. Civ. P. 56(g).
3
Plaintiffs cite language from an Eleventh Circuit decision suggesting that a
restaurant would meet the interstate-commerce requirement if it “use[d] interstate
cooking equipment as an article to perform its commercial activity of serving food.”
Polycarpe v. E&S Landscaping Serv., Inc., 616 F.3d 1217, 1225 (11th Cir. 2010)
(per curiam). This argument fails, however, because the summary-judgment record
contains no evidence about the source of Defendant’s cooking equipment or whether
two or more employees used that equipment. See 29 U.S.C. § 203(s)(1)(A)(i).
7
Plaintiffs further contend that record establishes the second element of
enterprise coverage—that Defendant had annual gross sales or business done of at
least $500,000. See 29 U.S.C. § 203(s)(1)(A)(ii). Defendant disputes this point,
claiming that his business “did not make even close to $500,000.” DE 39 at 4 n.1.
Having thoroughly reviewed the record, the Court finds that a genuine dispute of
material fact exists on this issue as well.
Plaintiffs have submitted affidavits stating that Defendant regularly disclosed to
them “how much money the restaurant made in a day.” DE 35-2 at 1, ¶ 5 (Aff. of Jimmy
Wildo Garcia Ramirez); DE 35-3 at 1, ¶ 5 (Aff. of Johnny Valentino Garcia Ramirez).
According to Plaintiffs’ calculations, “[t]he weekends alone would bring in around
$790,000 a year,” not counting a doubling of business during “the busy season.”
DE 35-2 at 1, ¶¶ 9-11; DE 35-3 at 1, ¶¶ 9-11. But in his own affidavit, Defendant rejects
Plaintiffs’ estimates and claims that the restaurant’s gross earnings for 2011 and 2012,
respectively, were around $65,000 and $85,000. See DE 41 at 3, ¶¶ 18-19 (Aff. of
Steve Nicholas). This vast difference between the parties’ testimony creates a factual
dispute about whether Defendant meets the $500,000 revenue requirement for
enterprise coverage.4 The Court may not make the credibility determinations needed to
4
Although the parties have submitted other evidence concerning Defendant’s
revenue, much of that evidence is vague, irrelevant, or otherwise inadmissible, at least
in its current form. Defendant has filed two years of checking-account statements for
his business, but he does not explain how the listed transactions reflect his gross sales.
See DE 58-59. The same problem exists with the menu and restaurant photos offered
by Defendant. See DE 56-57. And while Defendant has filed substantially identical
affidavits from seven persons “associated with” his restaurant, none of those affiants
disclose how they have personal knowledge of Defendant’s sales. See DE 42-48.
Further, Plaintiffs have submitted deposition excerpts from Defendant and his
accountant, in an effort to show that Defendant’s tax returns (not in the record) were
fabricated and that his financial oversight was poor. See DE 35-4; DE 61-1. Assuming
that this testimony has some probative value, it does not conclusively resolve the
factual dispute raised by the parties’ affidavits.
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resolve this conflict; only the jury may do so. See Anderson, 477 U.S. at 255
(“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge, whether he is ruling on
a motion for summary judgment or for a directed verdict.”). For this reason too,
Defendant is not entitled to summary judgment on the question of enterprise coverage.
III.
Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.
Plaintiffs’ Motion for Partial Summary Judgment [DE 34] is DENIED.
2.
Calendar call remains set for October 24, 2013, at 9:00 a.m., and trial is
scheduled for the two-week period commencing October 28, 2013, at 9:00 a.m.
3.
By no later than the time of calendar call, Plaintiffs’ counsel shall update the
Court on the status of the potentially conflicting trial noted in Plaintiffs’ recent
Status Report [DE 66]. See Alonso v. Tepa Mar Y Tierra Inc., Case No. 3:11-cv01783-O (N.D. Tex. filed July 25, 2011). The docket in that case reflects that it is
being handled by Plaintiffs’ counsel’s Dallas office. And as the Court observed
in its prior Order Regarding Notices of Conflicts [DE 38], “because Plaintiffs are
represented by multiple attorneys, some of those lawyers may be able to cover”
any conflicting trial.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 11th day of October, 2013.
Copies to:
Counsel of record via CM/ECF
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