Soto v. Tacos Davie, Co. et al

Filing 21

ORDER DENYING MOTION TO DISMISS: Defendants' Motion to Dismiss, ECF No. #15 , is DENIED. Defendants' Motion to Stay, ECF No. #18 , is DENIED as moot. Response/answer due 8/8/2022; Jill T. Torossi Palumbi response/answer due 8/8/2022; Tacos Davie, Co. response/answer due 8/8/2022. Signed by Judge Beth Bloom on 7/30/2022. See attached document for full details. (scn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 22-cv-61076-BLOOM/Otazo-Reyes
NUBIA RINCON SOTO,
Plaintiff,
v.
TACOS DAVIE, CO., et al.,
Defendants.
_________________________/
ORDER DENYING MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendants Tacos Davie, Co., Juan Cedeno, and
Jill Palumbi’s (“Defendants”) Motion to Dismiss Because of Lack of Subject Matter Jurisdiction,
ECF No. [15] (the “Motion”). Plaintiff Nubia Rincon Soto (“Plaintiff”) filed a Response, ECF No.
[16], to which Defendants filed a Reply [ECF No. 19]. The Court has carefully reviewed the
Motion, the record, the applicable law, and is otherwise fully advised. For the following reasons,
Defendants’ Motion is denied.
I.

Background
On April 11, 2022, Plaintiff filed a Complaint in the Seventeenth Circuit, Broward County,

against Defendants for allegedly failing to pay wages under the Fair Labor Standards Act, 29
U.S.C. § 201 et seq. (“FLSA”), and the Florida Minimum Wage Act. ECF No. [1-2] at 8-9. On
June 7, 2022, Defendants removed the case to federal court. ECF No. [1].
According to Plaintiff’s Complaint, the Defendants paid her below Florida’s minimal
wage, unlawfully deducted her tips, and denied her overtime pay. ECF No. [1-2] at 12. She brings
six claims against under the FLSA and three under the FMWA. Id. at 13-15. She requests judgment

Case No. 22-cv-61076-BLOOM/Otazo-Reyes
in her favor, actual damages, liquidated damages, attorneys’ fees and costs, and all recoverable
interest. Id.
In an email dated July 5, 2022, Plaintiff’s counsel sent Defendants’ counsel a request for
settlement that included estimated values of Plaintiff’s claims. ECF No. [15-2]. Defendants
attached a redacted version of that email as an exhibit to their Motion. Id. The same day that
Defendants apparently received Plaintiff’s email, July 5, 2022, Defendants sent Plaintiff a check
for $1,427.00, along with a letter stating that they do not admit liability. ECF No. [15-3]. Plaintiff’s
counsel has neither negotiated nor returned the check. ECF No. [19] at 4.
After mailing the check, Defendants immediately filed the instant Motion. ECF No. [15].
They contend that this case should be dismissed as moot because Defendants’ tender of $1,427.00
constitutes “full relief” for Plaintiff. ECF No. [15] at 1-2. Defendants assert that no settlement has
been reached, and they deny liability, but they nonetheless consent to the Court “reserving
jurisdiction to award reasonable fees and costs. if any.” Id. at 4.
II.

Legal Standard
If at any point a district court determines that it lacks subject-matter jurisdiction, “the court

must dismiss the complaint in its entirety.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); see
also Fed. R. Civ. Pro. 12(h)(3). Attacks on subject-matter jurisdiction come in two varieties: Facial
attacks challenge the face of the pleadings, while factual attacks challenge jurisdiction as a matter
of fact, regardless of the allegations in the pleadings. Lawrence v. Dunbar, 919 F.2d 1525, 152829 (11th Cir. 1990). “In resolving a factual attack, the district court may consider extrinsic
evidence[.]” Morrison v. Amway Corp., 323 F.3d 920, 924 n. 5 (11th Cir.2003).
District courts may only exercise jurisdiction over “cases” or “controversies.” U.S. Const.
art III. Accordingly, “a federal court has no authority to give opinions upon moot questions[.]”

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Zinni v. ER Solutions, Inc., 692 F.3d 1162, 1166 (11th Cir. 2012) (quotation marks omitted). “An
issue is moot when it no longer presents a live controversy with respect to which the court can give
meaningful relief.” Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th
Cir. 2009) (quotation marks omitted).
III.

Discussion
Defendants argue that this case is moot because they offered Plaintiff full relief by sending

a check for $1,427.00 and consenting to a reasonable award of attorney’s fees. ECF No. [19] at 3.
Plaintiff opposes dismissal, arguing that “[a] mere tender of payment does not moot an FLSA
claim.” ECF No. [16] at 4.
First, as a factual matter, the document attached to Defendants’ Motion does not support
Defendants’ contention that they tendered the full amount of money Plaintiff demanded. See ECF
No. [15] at 1-2. That document is heavily redacted. However, even the unredacted portions
indicate that Plaintiff requested more than $1,427.00. Id. Indeed, in their Reply, Defendants reveal
that Plaintiff in fact demanded an amount far greater than $1,427.00. ECF No. [19] at 2. Defendants
argue that the amount tendered exceeds the amount of Plaintiff’s claims under the FLSA and
FMWA. ECF No. [19] at 1. They assert that the additional money demanded by Plaintiff was for
attorney’s fees, which, according to Defendants, the Court can award after dismissing Plaintiff’s
claims as moot. ECF No. [15] at 1.
Defendants’ contention is untenable. It argues that Plaintiff’s claims are moot and, thus, no
Article III case or controversy remains, yet urges the Court to retain jurisdiction to award Plaintiff
attorney’s fees. “The FLSA plainly requires that the plaintiff receive a judgment in his favor to be
entitled to attorney’s fees and costs.” Dionne v. Floormasters Enterprises, Inc., 667 F.3d 1199,
1205 (11th Cir. 2012) (Dionne II). “Thus, in the absence of a judgment on the merits, to be a

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prevailing party [entitled to attorney’s fees], the FLSA plaintiff needs a stipulated or consent
judgment or its functional equivalent from the district court evincing the court’s determination that
the settlement is a fair and reasonable res[o]lution of a bona fide dispute over FLSA provisions.”
Wolff v. Royal Am. Mgmt., Inc., 545 F. App’x 791, 793 (11th Cir. 2013) (quotation marks omitted).
Accordingly, Defendants’ tender of damages, which does not include an “offer of
judgment,” does not constitute full relief under the FLSA. Johnson v. Miami Dade Cnty., No. 16cv-21658, 2017 WL 1536054, at *2 (S.D. Fla. Mar. 30, 2017); accord Tapia v. Fla. Cleanex, Inc.,
No. 09-cv-21569, 2012 WL 7965871, at *5 (S.D. Fla. Dec. 7, 2012) (“Defendants’ offer, which
does not include an offer of judgment, does not constitute full relief of Tapia's FLSA claim.”); see
also Zelaya v. Cargo Logistics Grp. United States LLC, No. 16-cv-23669, 2017 WL 283259, at *3
(S.D. Fla. Jan. 23, 2017) (“Defendants cannot simply tender full payment in order to moot the case
and avoid paying attorneys’ fees and costs.” (quotation marks omitted)).
The cases cited by Defendants fail to support their position. Defendants are correct that the
Eleventh Circuit approved a district court’s dismissal following a full tender of payment in an
FLSA case. See Dionne v. Floormasters Enterprises, Inc., 647 F.3d 1109, 1111 (11th Cir. 2011)
(Dionne I), vacated and superseded, Dionne II, 667 F.3d 1199. Crucially, however, unlike the
plaintiff in that case, Plaintiff here does not consent to Defendants’ motion to dismiss. See
generally ECF No. [16]; see also Dionne II, 667 F.3d at 1206 n.5 (clarifying that the decision in
Dionne was limited to the narrow circumstance of “an employee who conceded that his claim
should be dismissed” (emphasis added)). The additional cases cited by Defendants are similarly
distinguishable in that the plaintiffs in those cases accepted the defendants’ tender. See Rakip v.
Paradise Awning Corp., 514 F. App’x 917, 919 (11th Cir. 2013) (parties signed a settlement
agreement); Bilbao v. Brothers Produce Inc., No. 13-cv-20535, 2013 WL 1914406, at * 2 (S.D.

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Case No. 22-cv-61076-BLOOM/Otazo-Reyes
Fla. 2013) (“The Response admits that [the plaintiff]’s claims . . . are moot because payment was
tendered[.]”); Gathagan v. Rag Shop/Hollywood, Inc., No. 04-cv-80520, 2005 WL 6504414, at
*1 (S.D. Fla. Feb. 10, 2005) (“Plaintiff accepted the tender[.]”). Here, by contrast, Plaintiff has
rejected Defendants’ tender and vigorously argues against dismissal of her claims.
For the foregoing reasons, this case is not moot. Plaintiff rejected Defendant’s tender,
which was not a full offer resolving Plaintiff’s claims, so a “live controversy” remains. Friends of
Everglades, 570 F.3d at 1216 (quotation marks omitted).
Lastly, the Court reminds counsel of both parties that “it is a fundamental tenet of this
Court that attorneys in this District be governed at all times by a spirit of cooperation,
professionalism, and civility.” ECF No. [14] at 6. In briefing on this Motion, both parties have
fallen short of that standard. See ECF. Nos. [16] at 2, [16-1] (attaching an irrelevant order to
impugn opposing counsel’s character); ECF No. [19] at 10 (baselessly accusing opposing counsel
of trying to run up legal fees). Further ad hominen attacks directed at opposing counsel will result
in sanctions. Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1308 (11th Cir. 2002).
IV.

Conclusion
Accordingly, it is ORDERED AND ADJUGED as follows:
1) Defendants’ Motion to Dismiss, ECF No. [15], is DENIED.
2) Defendants’ Motion to Stay, ECF No. [18], is DENIED as moot.
3) Defendants shall file Answers to the Complaint by August 8, 2022.

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Case No. 22-cv-61076-BLOOM/Otazo-Reyes
DONE AND ORDERED in Chambers at Miami, Florida, on July 30, 2022.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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