Hurtado v. Raly Development, Inc. et al
Filing
105
ORDER denying 56 Motion for Summary Judgment; denying 58 Motion for Summary Judgment; Statement of Claim due by 8/30/2012. Please see Order for details. Signed by Judge Cecilia M. Altonaga on 8/27/2012. (ps1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-24476-CIV-ALTONAGA/Simonton
ROBERTO LOPEZ HURTADO, et al.,
Plaintiffs,
vs.
RALY DEVELOPMENT, INC., et al.,
Defendants.
__________________________________/
ORDER
THIS CAUSE came before the Court on Defendants’ Motion for Summary Judgment . .
. (“Defendants’ Motion”) [ECF No. 56] filed by Raly Development, Inc. (“Raly”), General
Recycling LLC (“General Recycling”), Bravo Companies Inc. (“Bravo”), Vidal Suriel (“Vidal”),
Emmanuel Suriel (“Emmanuel”),
1
Israel Viera (“Viera”), and Danilo Cruz (“Cruz”)
(collectively, “Defendants”), on May 24, 2012; and Plaintiffs’ Motion for Summary Judgment
[ECF No. 58] filed by Roberto Lopez Hurtado (“Hurtado”), Jesus Blanco (“Blanco”), and Eddy
Gomez (“Gomez”) (collectively, “Plaintiffs”), on May 24, 2012.
These cross-motions for
summary judgment address several of the same issues concerning Plaintiffs’ claims under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. section 201, et seq.
I. BACKGROUND2
Bravo, a company that buys and resells tires, and has two or more employees who
Emmanuel’s name has been spelled in multiple ways in Defendants’ briefings. (See, e.g., Defs.’ Mot. 1
(“Enmanuel”); id. 9, 18, 19 (“Emmanuel”); Defs.’ Statement of Undisputed Material Facts (“SMF”) ¶ 3
(“Emmanuel”) [ECF No. 57]). Emmanuel’s deposition and the caption of this case use “Emanuel.”
([ECF No. 57-7], at 1). In this Order, the Court employs the spelling most often used in Defendants’
Motion, “Emmanuel.”
1
2
Many of the disputed facts are addressed in the Analysis rather than in the Background section.
Case No. 11-24476-CIV-ALTONAGA/Simonton
regularly handle these tires, had annual gross revenues or gross sales exceeding $500,000 in
2010 and 2011. (See Pls.’ Statement of Undisputed Material Facts (“SMF”) ¶¶ 58, 60, 62 [ECF
No. 59]; Defs.’ Resp. in Opposition to Pls.’ SMF (“Defs.’ Resp. SMF”) ¶¶ 58, 60, 62 [ECF No.
73]; Vidal Depo. 9:13–21 [ECF No. 59-2]; Bravo Depo. (Emmanuel as Bravo’s Rule 30(b)(6)
representative) 4:24–5:4 [ECF No. 71-1]). 3 Since Bravo’s incorporation in 1997, Vidal has
wholly owned Bravo and served as its president. (See Pls.’ SMF ¶ 33; Defs.’ Resp. SMF ¶ 33;
Vidal Depo. 5:12–6:10). Vidal determines the rate of pay of Bravo’s employees. (See Pls.’ SMF
¶ 40; Vidal Depo. 14:10–14). In 2010, Vidal’s son, Emmanuel, became Bravo’s Director of
Operations; on February 9, 2012, he became Bravo’s registered agent. (See Defs.’ SMF ¶ 3
[ECF No. 57]; Pls.’ SMF ¶ 3; Emmanuel Depo. 6:1–3 [ECF No. 57-7]). Vidal was one of two
corporate officers and directors of Bravo from 2010 to 2011.4 (See Defs.’ SMF ¶ 3).
In addition to its tire business, Bravo also owns a corporation named Cima Biam, 5 which
in turn owned a plot of land (“Property”). (See Vidal Depo. 6:24–7:3). On an unspecified day,
Bravo received a letter from DERM, “the regulatory section of Miami-Dade [County] that looks
The Court notes that in responding to Plaintiffs’ Statement of Undisputed Material Facts, Defendants do
not expressly admit or deny any of Plaintiffs’ statements, but rather provide the Court with a list of facts
through which the Court must sift. (See generally Defs.’ Resp. SMF). To the extent any listed fact does
not expressly oppose Plaintiffs’ corresponding fact, Plaintiffs’ fact will be deemed undisputed.
Additionally, the parties include several facts within each numbered paragraph of their respective
statements of facts. (See generally Defs.’ SMF [ECF No. 57]; Plf.’s Resp. SMF [ECF No. 75]). To the
extent that any party fails to direct the Court to the record evidence in support of its asserted facts (or its
reasons for disputing an opposing party’s asserted facts) contained in each sentence, the Court does not
consider those assertions in deciding these motions. See FED. R. CIV. P. 56(e)(4).
3
The second corporate officer and director, Ronald Denman, is not a party to this litigation. (See Defs.’
SMF ¶ 3).
4
Defendants cite to three pages of deposition testimony to support their assertion that “Bravo and Cima
Biam have no relationship . . . with the exception that they are both owned by Vidal Suriel.” (Defs.’ SMF
8 n.18 (citing Vidal Depo. 7–9)). The testimony cited to does not support Defendants’ assertion that
“Bravo and Cima Biam have no relationship.” Rather, the testimony indicates that Bravo owns Cima
Biam. (See Vidal Depo. 7:1–3 (“Q. What was the name of the other corporation that your company
[Bravo] owns? A. Cima Biam.”)).
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after the well-being of the county” (Emmanuel Depo. 9:3–5), requiring Bravo to “clean up” the
Property. (Id. 8:20–24; see Vidal Depo. 19:12–14; Pls.’ SMF ¶ 12). As Bravo “generates the
money” and owned a “couple of trucks,” Bravo contracted with Raly (owned by Viera), and later
General Recycling (owned by Cruz), to clean up the Property. (Vidal Depo. 19:14–20; see Pls.’
SMF ¶¶ 12, 15, 34; Defs.’ Resp. SMF ¶¶ 12, 15, 34). Bravo did not use Raly or General
Recycling for any purpose other than to clean up the Property. (See Defs.’ SMF ¶ 13).
Viera is the sole owner of Raly, which operated from August 2010 through August 2011.
(See Defs.’ SMF ¶ 1; Pls.’ Resp. SMF ¶ 1 [ECF No. 75]; Pls.’ SMF ¶ 55; Defs.’ Resp. SMF ¶
55). Other than the contract it entered into with Bravo for work performed from August 2010
through August 2011, Raly did not enter into any other contract for work as of March 16, 2012.
(See Pls.’ SMF ¶ 9; Viera Depo. 10:22–11:2 [ECF No. 59-4]). Raly’s gross sales from August 1,
2010 to June 30, 2011 amounted to $453,381. (See Defs.’ SMF ¶ 11). This sum is based on
deposits made into Raly’s bank account. (See Pls.’ SMF ¶ 11). It is disputed whether Raly’s
gross sales for July 2011 amounted to no more than $10,000 (see Defs.’ SMF ¶ 11 (stating that
Raly’s gross sales for July and August 2011 amount to less than $10,000), or over $44,000 (see
Pls.’ SMF ¶ 11).
Cruz has been the sole owner of General Recycling since the date of its incorporation,
August 29, 2011. (See Pls.’ SMF ¶¶ 47, 50; Defs.’ Resp. SMF ¶ 50). Prior to incorporating
General Recycling, Cruz worked for Raly from approximately October 2010 through August
2011. (See Defs.’ SMF ¶ 2; Defs.’ Resp. SMF ¶ 44). General Recycling’s gross annual sales for
2011 were under $500,000. (See Defs.’ SMF ¶ 13). As of March 16, 2012, General Recycling
has not performed work other than for Bravo. (See Pls.’ SMF ¶ 52; Defs.’ SMF ¶ 52).
During the relevant time period, Bravo first contracted with Raly to be “in charge” of the
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Property’s clean-up. (Viera Depo. 6:3–6; see Pls.’ SMF ¶ 15; Defs.’ Resp. SMF ¶ 15). Some of
the heavy equipment used by Raly to clean up the Property included a loader, two bulldozers, a
Bobcat, two bucket loaders,6 and a sieve to clean the dirt. (See Pls.’ SMF ¶ 56; Defs.’ Resp.
SMF ¶ 56; Viera Depo. 17:12–19; 18:15–19:25). This equipment was owned by Bravo and was
present on the Property when Raly first arrived at the site. (See Pls.’ ¶ 3; Defs.’ Resp. SMF ¶ 3;
Viera Depo. 16:18–21). At least one piece of equipment was purchased by Bravo in North
Carolina, and other equipment was purchased in Virginia, Pennsylvania, and Miami. (See Pls.’
SMF ¶¶ 59, 61; Defs.’ Resp. SMF ¶ 59; Emmanuel Depo. 20:16–23; Vidal Depo. 12:17–22).
Raly did not pay Bravo any fee to use this equipment. (See Pls.’ SMF ¶ 3; Viera Depo. 17:2–
11). Whenever equipment broke down, Viera informed Vidal at Bravo who “would take care of
it.” (Viera Depo. 18:2–3; see id. 17:24–18:14; Pls.’ SMF ¶¶ 4, 17, 35).
Raly and General Recycling prepared Plaintiffs’ (and their co-workers’) payroll and the
payment of their wages. (See Defs.’ SMF ¶ 15). Viera informed the workers how much they
would get paid. (See Viera Depo. 22:8–11; Pls.’ SMF ¶ 43). Raly paid workers by check and
cash. (See Pls.’ SMF ¶¶ 29, 57; Defs.’ Resp. SMF ¶ 57; Hurtado Depo. 52:8–13 [ECF Nos. 60-4
through 60-6]; Viera Depo. 29:12–17, 54:7–19).
Although Raly did not own any of its own equipment, it purchased some supplies for
workers such as gloves, masks, vests, and hard hats. (See Defs.’ Resp. SMF ¶¶ 2–3; Pls.’ SMF ¶
2; Viera Depo. 21:13–15). This expense was listed along with all of Raly’s other expenses, such
as worker compensation and fuel, and submitted to Bravo on a weekly basis. (See Pls.’ SMF ¶
10; Viera Depo. 21:2–15). A check for those expenses was then sent and deposited in a bank
account held in Raly’s name. (See Viera Depo. 20:18–25).
These devices are described as “mechanical hand[s] that grab[] the dirt.” (Viera Depo. 19:13–15; see
also id. 18:15–19:15).
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Raly ceased cleaning the Property in approximately September 2011. (See Hurtado
Depo. 56:19–23). Vidal had informed Viera that Raly’s services were no longer needed. (See
Pls.’ SMF ¶ 36; Viera Depo. 43:12–15). Bravo then contracted with General Recycling to clean
up the Property. (See Defs.’ SMF ¶ 14). As General Recycling hired some, but not all, of the
people who cleaned the Property under Raly, some of Raly’s workers continued to work on the
Property under General Recycling. (See Pls.’ SMF ¶ 53; Defs.’ SMF ¶ 53). General Recycling
does not own any equipment. (See Cruz Depo. 15:9–10 [ECF No. 59-3]). The equipment used
by General Recycling to clean up the Property belonged to Bravo. (See Pls.’ SMF ¶ 51). Bravo
deducted an hourly usage fee for the equipment from its compensation of General Recycling.
(See Defs.’ Resp. SMF ¶ 51; Cruz Depo. 42:17–43:2).
An environmental engineer, hired and paid for by Bravo, supervised the progress of the
clean-up of the Property. (See Pls.’ SMF ¶¶ 16, 23; Cruz Depo. 31:11–16); Pls.’ Resp. SMF ¶
22; Vidal Depo. 24:7–10, :23–25). The purpose of the engineer’s presence at the Property was
“more of a laboratory-type purpose, picking up some materials that is [sic] there and testing it
[sic] to make sure that it’s [sic] all clean.” (Vidal Depo. 29:24–30:2). Another part of the
environmental engineer’s job was to ensure that excess material, such as metals, was properly
disposed of, but he did not supervise any workers. (See Pls.’ SMF ¶ 24; Defs.’ Resp. SMF ¶ 21;
Vidal Depo. 25:6–13, 30:3–7). The engineer met with Vidal monthly to report on the clean-up’s
progress. (See Pls.’ Resp. SMF ¶ 22; Vidal Depo. 24:11–15).
Vidal and Emmanuel were “in charge” of making sure the Property’s clean-up ran
“smoothly.” (Emmanuel Depo. 26: 3–6; see Pls.’ SMF ¶ 28). Emmanuel went to the Property
two to three times per week, for no more than fifteen minutes each time, to check on the progress
of the work and inquire whether the rain would allow work to proceed, speaking with Viera and
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Cruz.7 (See Defs.’ Resp. SMF ¶¶ 26–28; Pls.’ SMF ¶¶ 26, 27). Vidal visited the Property daily
and “supervise[d] . . . the work” done on it. (Vidal Depo. 11:3–14; see Cruz Depo. 32:3–6;
Hurtado Depo. 97:22–23).
When Vidal visited the Property, he drove around the site,
“look[ing],” but did not get out of his vehicle. (Cruz Depo. 32:3–7; see Vidal Depo. 11:15–18;
Defs.’ Resp. SMF ¶ 20; Pls.’ SMF ¶ 37). His visits were “from a quality control and safety
standpoint . . . to observe generally that the project was evolving.” (Vidal Depo. 27:25–28:5).
He spoke with Viera and Cruz,8 asking about the progress of the clean-up and the effect the rain
had on it. (See Hurtado Depo. 11:20–12:6; Pls.’ SMF ¶ 18; Vidal Depo. 15:5–9).
In response, Viera and Cruz offered Vidal explanations why certain objectives were not
met. (See Vidal Depo. 15:25–16:8). The parties dispute whether Vidal gave instructions to
Viera and Cruz during his visits. (See Pls.’ SMF ¶ 20; Defs.’ Resp. SMF ¶ 20).
Viera hired Hurtado, Gomez, and Blanco to clean up the Property. (See Pls.’ SMF ¶¶ 41,
42; Defs.’ Resp. SMF ¶¶ 41, 42). Before incorporating General Recycling, Cruz worked for
Raly as a supervisor. (See Pls.’ SMF ¶ 46). Viera was Hurtado and Cruz’s boss when they
worked for Raly.9 (See Pls.’ SMF ¶ 45; Cruz Depo. 27:19–24). Hurtado and Cruz’s job was to
decontaminate the land and dispose of excess material or metals found on the Property. (See
Vidal Depo. 30:11–21; Pls.’ SMF ¶ 25; Defs.’ Resp. SMF ¶ 25). Hurtado worked for Raly from
approximately September or October 2010 until August 2011. (See Defs.’ Resp. SMF ¶ 49;
Hurtado Depo. 53:14–17). Hurtado did not work during the last two weeks of December 2010
7
More specifically, Emmanuel spoke with Viera when Raly was contracted, and later spoke with Cruz
when General Recycling was contracted.
8
Again, Vidal spoke with Viera when Raly was contracted, and later spoke with Cruz when General
Recycling was contracted.
The parties dispute whether Cruz served as a supervisor only when Viera was not present (see Defs.’
Resp. SMF ¶ 46; Cruz Depo. 14:21–23), or whether Cruz “was always the one who supervised the
workers and the equipment.” (Hurtado Depo. 57:14–16).
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(see Defs.’ SMF ¶ 17; Defs.’ Resp. SMF ¶ 15), as well as for one week during September 2011
(see id.). During the duration of Raly’s contract, each day Viera was at the Property, Hurtado
was also there. (See Pls.’ SMF ¶ 5).
In September 2011 when Bravo switched to General Recycling to clean up the Property,
Hurtado continued to work on the Property for General Recycling until approximately October
or November 2011. (See Pls.’ SMF ¶ 49; Defs.’ SMF ¶ 4; Viera Depo. 11:19–22). While
Hurtado worked under Raly and General Recycling, he was supervised “frequently.” (Hurtado
Depo. 127:13–15). While Hurtado worked for Raly, Viera and Cruz were the only individuals
who controlled his work. (See id. 131:4–11; Defs.’ SMF ¶ 15). If he ever did anything they
“didn’t like . . . they would correct” him. (Hurtado Depo. 127:23–25; see Pls.’ SMF ¶ 7).
Although Hurtado relied on the work and money he received from Raly and General Recycling
for his “daily bread,” he was able to control the hours that he worked during the period he
worked for Raly and General Recycling. (Hurtado Depo. 128:17; see id. 129:7–9; Defs.’ SMF ¶
16).
From Hurtado’s perspective, he “always worked with the same personnel,” and had
“always seen the same bosses.” (Hurtado Depo. 85:17–18; see Pls.’ SMF ¶ 14). Hurtado spoke
personally to Vidal on two occasions. (See Hurtado Depo. 132:24–133:1). The first was toward
the beginning of 2011, and the second was in approximately September 2011, after Raly’s
departure. (See Hurtado Depo. 132:17–23, 133:3–5). Hurtado’s second conversation with Vidal
concerned raising his salary by $1 after it was lowered. (See Pls.’ SMF ¶ 19; Hurtado Depo.
132:8–10).
At no time during his work for either Raly or General Recycling did Hurtado perform
work with any of his own equipment or tools. (See Pls.’ SMF ¶ 1; Viera Depo. 11:12–14).
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The parties dispute when Gomez began working for Raly — either from the end of 2010
or sometime in January 2011. (See Defs.’ SMF ¶ 5, Pls.’ SMF ¶ 5). In April 2011, Gomez was
fired by Raly for breaking a hose, and therefore did not work about three or four days that month.
(See Gomez Depo. 80:13–81:1, 81:24–82:2). After Gomez was informed by Viera and Cruz that
he was fired, Gomez spoke with Vidal and got his job back. (See id. 78:24–79:3; 80:13–18;
82:13–19; Pls.’ SMF ¶ 31; Defs.’ Resp. SMF ¶ 31). During one week in June 2011, Gomez
worked only two or three days during a particular week. (See Defs.’ SMF ¶ 18). Gomez stopped
working for Raly in June 2011. (See Defs.’ SMF ¶ 5; Pls.’ SMF ¶ 5). Gomez did not work for
General Recycling. (See Defs.’ SMF ¶ 5; Pls.’ SMF ¶ 5).
Blanco worked for Raly from August 2010 to March 2011. (See Defs.’ SMF ¶ 6).
Blanco did not work for General Recycling. (See id.).
It is disputed whether Hurtado worked for Bravo from June 2010 prior to working for
Raly and General Recycling. (Compare Pls.’ SMF ¶ 30, and Hurtado Depo. 50:18–51:10 [ECF
No. 60-4], with Defs.’ SMF ¶ 4, and Vidal Depo. 7:19–23). Hurtado further maintains that
Bravo compensated him in cash for this work. (See Pls.’ SMF ¶ 29; Hurtado Depo. 50:11–14).
Plaintiffs were “paid with 1099 forms” by both Raly and General Recycling. (Defs.’
SMF ¶ 16). They each attached a “Schedule C” to their federal income tax returns, deducting
business expenses. (See id.). Plaintiffs did not object to receiving 1099 forms. (See id.).
This suit was filed on December 13, 2011 (see Compl. [ECF No. 13]), amended on
December 14, 2011 (see First Am. Compl. [ECF No. 5]), and again on March 28, 2012 (see
Second Am. Compl. [ECF No. 34]).
Hurtado claims he is owed overtime wages for cleaning up the Property from June 2010
through approximately November 2011. (See Pl.’s Am. Statement of Claim 1 [ECF No. 17]).
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Specifically, he asserts that he (1) first worked for Bravo from June 2010 through approximately
August 2010 when Raly was contracted to clean up the Property (see Pls.’ SMF ¶ 30);10 (2)
worked for both Bravo and Raly, as joint employers, during Raly’s tenure (see Am. Compl. ¶
12); and (3) worked for both Bravo and General Recycling, as joint employers, during General
Recycling’s tenure (see id. ¶ 13).
Gomez claims he is owed overtime wages when he worked for Bravo and Raly, as joint
employers, from approximately the end of 2010 or sometime in January 2011 through June 2011.
(See Defs.’ SMF ¶ 5, Pls.’ SMF ¶ 5; Am. Compl. ¶ 12). Blanco claims he is owed overtime
wages when he worked for Bravo and Raly, as joint employers, from August 2010 through
March 2011. (See Defs.’ SMF ¶ 6; Am. Compl. ¶ 12).11 All Plaintiffs contend that General
Recycling is Raly’s successor and is liable for Raly’s violations. (See Am. Compl. ¶ 6).
II. LEGAL STANDARD
Summary judgment shall be rendered if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a), (c).
“[T]he court must view all evidence and make all reasonable inferences in favor of the party
opposing summary judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000)
(en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). “An issue of fact
is material if it is a legal element of the claim under the applicable substantive law which might
affect the outcome of the case.” Burgos v. Chertoff, 274 F. App’x 839, 841 (11th Cir. 2008)
(quoting Allen v. Tyson Foods Inc., 121 F.3d 642, 646 (11th Cir. 1997) (internal quotation marks
This claim is not the subject of any of the disputed legal issues raised in the parties’ motions for
summary judgment.
10
11
After joining the case on March 28, 2012 (see Am. Compl.), neither Gomez nor Blanco filed a
Statement of Claim.
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omitted)). “A factual dispute is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Channa Imps., Inc. v. Hybur, Ltd., No. 07-21516CIV, 2008 WL 2914977, at *2 (S.D. Fla. Jul. 25, 2008) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
The movant’s initial burden on a motion for summary judgment “consists of a
responsibility to inform the court of the basis for its motion and to identify those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) (internal quotation marks and
alterations in original omitted) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
“[T]he plain language of Rule 56 [] mandates the entry of summary judgment [] . . . against a
party who fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Jones v. UPS
Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (quoting Celotex, 477 U.S. at 322).
III. ANALYSIS
A. Frivolity
Defendants first argue that summary judgment should be granted in their favor because
the suit is frivolous. (See Defs.’ Mot. 2–3; 16). In support of their position, Defendants identify
portions of Plaintiffs’ deposition testimony that represent (1) Plaintiffs were always properly
compensated for all hours worked; (2) Gomez did not work overtime for any of the Defendants;
(3) Blanco always reviewed his pay and found it to be accurate; (4) Blanco knows he is not
entitled to receive any money in the lawsuit; and (5) Blanco worked for Raly only on a part-time
basis, and was retired at the time he worked; and (6) Plaintiffs were treated fairly in all of their
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dealings with Defendants. (See id.). According to Defendants, “[t]hese . . . admissions by the
Plaintiffs render this lawsuit frivolous.” (Id. 3).
As an initial matter, Defendants fail to identify what standard the Court should apply to
determine frivolity, which they must do to prevail on their summary judgment motion. See
Fitzpatrick, 2 F.3d at 1115 (noting that it is the movant’s burden to “inform the court of the basis
for its motion” (internal quotation marks and alterations in original omitted)).
Instead,
Defendants cite generally to cases concerning motions for sanctions or fees due to the pursuit of
frivolous cases. (See Defs.’ Mot. 3 (cases cited therein)).
Regardless, “in cases where the plaintiffs do introduce evidence sufficient to support their
claims, findings of frivolity typically do not stand.” Dulaney v. Miami-Dade Cnty., No. 0923259-CIV, 2011 WL 6754074, at *2 (S.D. Fla. Dec. 22, 2011) (citing Sullivan v. Sch. Bd. of
Pinellas Cnty., 773 F.2d 1182, 1189 (11th Cir. 1985)). Here, deposition testimony also shows
with respect to the issues raised by Defendants that: (1) while they may have been properly paid
their stated hourly compensation for hours worked, Plaintiffs maintain they were not paid
overtime wages as required by the FLSA (see e.g., Hurtado Depo. 179:14–17); (2) Gomez asserts
he worked overtime for Defendants (see Gomez Depo. 71:15–23); (3) whether Blanco’s pay was
accurate does not preclude a finding that the amount of pay does not comply with the FLSA; (4)
Blanco maintains he is owed overtime pay (see Blanco Depo. 118:14, 122:18–24); and (5)
Blanco worked more than forty hours in a single week (see id.). Additionally, whether Plaintiffs
were treated “fairly” by Defendants does not address whether Plaintiffs are entitled to overtime
wages under the FLSA.
For the foregoing reasons, summary judgment in favor of Defendants based on this
ground is denied.
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B. Subject Matter Jurisdiction
The FLSA provides:
Except as otherwise provided in this section, no employer shall employ any of his
employees who in any workweek [(i)] is engaged in commerce or in the
production of goods for commerce, or [(ii)] is employed in an enterprise engaged
in commerce or in the production of goods for commerce, for a workweek longer
than forty hours unless such employee receives compensation for his employment
in excess of the hours above specified at a rate not less than one and one-half
times the regular rate at which he is employed.
29 U.S.C. § 207(a)(1). Accordingly, the FLSA applies when there is individual coverage, i.e.,
when the employee “is engaged in commerce or in the production of goods for commerce,” or
when there is enterprise coverage, i.e., when the employee “is employed in an enterprise engaged
in commerce or in the production of goods for commerce.” Id. The parties agree that Plaintiffs
do not allege individual coverage (see Defs.’ Mot. 5; Pls.’ Resp. 2), but rather assert only
enterprise coverage.12
As is relevant here, an
“Enterprise engaged in commerce or in the production of goods for commerce”
means an enterprise that —
(A) (i) has employees engaged in commerce or in the production of goods
for commerce, or that has employees handling, selling, or otherwise working on
goods or materials that have been moved in or produced for commerce by any
person; and
(ii) is an enterprise whose annual gross volume of sales made or business
done is not less than $ 500,000 (exclusive of excise taxes at the retail level that
are separately stated)[.]
29 U.S.C. § 203(s)(1). “Whether enterprise coverage exists is a question that implicates both the
Court’s jurisdiction and the merits of the case.” Gonzalez v. Old Lisbon Rest. & Bar L.L.C., 820
F. Supp. 2d 1365, 1367 (S.D. Fla. 2011) (citations omitted).
Defendants request summary judgment on the issue of individual coverage. (See Defs.’ Mot. 4–7).
Given Plaintiffs’ acknowledgement that they have not alleged individual coverage and do not seek to
proceed under individual coverage (see Pls.’ Resp. 2; Pls.’ Resp. SMF ¶ 10), there is no disputed issue of
law for the Court to decide and therefore Defendants’ request is denied as moot.
12
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For enterprise coverage to apply, Plaintiffs must be employees of an enterprise that
satisfies both the “commerce” requirement and the “$500,000 gross sales” requirement. The
parties do not dispute that the “commerce” element is satisfied, as Plaintiffs handled machinery
that moved across state lines, nor do they dispute that Bravo meets FLSA’s $500,000 statutory
minimum for enterprise coverage to apply. However, they do dispute whether the $500,000
minimum gross sales amount is met by Raly and General Recycling. The parties further dispute
whether Defendants were employers of Plaintiffs.
i. Whether Raly Meets the FLSA’s $500,000 Threshold for Enterprise Coverage
The record shows that there is a disputed issue of fact whether Raly satisfies the $500,000
requirement. Raly’s corporate income tax return for the period August 1, 2010 through June 30,
2011 shows gross sales amount to $453,381. The sum is based on deposits made into Raly’s
bank account. Defendants assert that Raly’s sales from July through August 2011 amount to no
more than $10,000, and therefore, even when considering this added amount, Raly’s sales figures
from August 1, 2010 through July 31, 2011 do not meet the FLSA’s $500,000 requirement. (See
Defs.’ SMF ¶ 11).
Plaintiffs point out however, that in July 2011, checks dated that same month, amounting
to $44,485.09, were deposited into Raly’s account. (See Pls.’ Resp. 6 [ECF No. 74]). Using the
same accounting method employed by Defendants when filing their corporate income tax return,
namely, examining account deposits, Plaintiffs calculate that Defendants’ gross annual sales for
the period August 2010 to July 2011 amount as $497,866.09. (See id.). This is shy of the
$500,000 minimum by $2,133.91.13
13
Plaintiffs assert that a check dated August 5, 2011 in the amount of $14,569 should also be partially
attributed to Raly’s July 2011 sales, as the check was payment for work performed between July 29 and
August 4, 2011. (See Pls.’ Resp. 6). However, Plaintiffs’ argument rests on the fact that work was
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Nonetheless, Plaintiffs additionally argue that Raly’s sales are not wholly reflected by
deposits made into Raly’s account because Raly also received income in cash.
(See id.).
Plaintiffs appear to suggest that because Raly also partly paid its workers in cash, Raly’s cash
receipts were not deposited into its bank account, and therefore the accounting method used to
calculate Raly’s gross annual sales is inaccurate. (See id. 6–7). Such cash receipts include
monies received for metals collected on the Property. (See Pls.’ Resp. SMF ¶ 11). The amount
of monies received in cash by Raly is disputed, but the record reflects that multiple trips were
made to sell collected metals, as often as seven trips per day at one point in time, where
payments for those metals were “[a]lmost always [in] cash,” in amounts of “800, 900, even up to
1200” dollars. (Blanco Depo. 155:20–25; 157:1–2). Any collected monies, whether by check or
cash, were given to Viera. (See id. 159:20–24). Such cash payments from August 2010 to July
2011 conceivably amount to more than $2,133.91 given that at least seven trips were made while
Blanco worked for Raly, each trip garnering at least $800, mostly in cash.
Defendants assert that all payments for scrap metal were deposited into Raly’s bank
account and were already included as part of Raly’s gross sales figures. (See Defs.’ Reply 3–4
[ECF No. 85]). Thus, whether Raly deposited all scrap metal payments into its bank account is a
disputed issue of material fact relevant to whether Raly meets the $500,000 threshold for FLSA
enterprise coverage. Accordingly, summary judgment in favor of Defendants on the issue of
whether enterprise coverage applies to Raly is denied.
ii. Whether Bravo Formed a Joint Enterprise with Either Raly or General
Recycling
The FLSA defines “enterprise” to mean, in relevant part:
the related activities performed (either through unified operation or common
performed from July 29 through July 31, which Plaintiffs have not shown. Thus, the Court does not
consider any portion of the August 5 check for the purposes of this discussion.
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control) by any person or persons for a common business purpose, and includes
all such activities whether performed in one or more establishments or by one or
more corporate or other organizational units including departments of an
establishment operated through leasing arrangements, but shall not include the
related activities performed for such enterprise by an independent contractor.
29 U.S.C. § 203(r)(1). This definition specifically “allows for [FLSA] coverage under a joint
enterprise theory.” Cornell v. CF Ctr., LLC, 410 F. App’x 265, 267 (11th Cir. 2011) (citing
Donovan v. Easton Land & Dev., Inc., 723 F.2d 1549, 1551 (11th Cir. 1984)). In other words,
the “enterprise” for the purposes of FLSA coverage can be comprised of more than one entity.
The parties ask the Court to rule, as a matter of law, on whether Bravo formed a joint
enterprise with either Raly or General Recycling. (See Defs.’ Mot. 12; Pls.’ Mot. 9). To make
these determinations, the Court must “‘look beyond formalistic corporate separation to the actual
pragmatic operation and control, whether unified or, instead, separate as to each unit.’” Cornell,
410 F. App’x at 267 (quoting Donovan v. Grim Hotel Co., 747 F.2d 966, 970 (5th Cir. 1984)).
The relevant inquiry for the Court, then, is a “flexible” one, Gonzalez, 820 F. Supp. 2d at 1368
(citing id.), but the Court must find the evidence demonstrates that the two businesses at issue (1)
performed related activities, (2) through a unified operation or common control, and (3) for a
common business purpose.14 See 29 C.F.R. § 779.202; Easton Land & Dev., Inc., 723 F.2d at
1551 (citing Dunlop v. Ashy, 555 F.2d 1228, 1231 (5th Cir. 1977)).
a. Related Activities
“Activities are related when they are ‘the same or similar’ or when they are ‘auxiliary and
service activities.’” Easton Land & Dev., Inc., 723 F.2d at 1551 (quoting S. REP. NO. 87-145, at
31, reprinted in 1961 U.S.C.C.A.N. 1620, 1660; and citing Brennan v. Veterans Cleaning Serv.,
Further, “the [FLSA] definition excludes from the ‘enterprise’ activities only performed ‘for’ the
enterprise rather than as a part of it by an independent contractor even if they are related to the activities
of the enterprise.” Gonzalez, 820 F. Supp. 2d at 1370 n.2 (quoting 29 C.F.R. § 779.202 (internal
quotation marks omitted)).
14
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Inc., 482 F.2d 1362, 1366 (5th Cir. 1973)); see also Jimenez v. S. Parking, Inc., No. 07-23156CIV, 2008 WL 4279618, at *9 (S.D. Fla. Sept. 16, 2008) (citing Easton Land & Dev., Inc., 723
F.2d at 1551).
“Auxiliary and service activities” are activities involving “‘operational
interdependence in fact.’” Easton Land & Dev., Inc., 723 F.2d at 1551 (quoting Brennan, 482
F.2d at 1367; and citing Wirtz v. Savannah Bank & Trust Co. of Savannah, 362 F.2d 857, 860–61
(5th Cir. 1966)) (footnote omitted). Thus, the focus of the Court’s inquiry is on the “operational
interdependence” of Raly and Bravo, or General Recycling and Bravo, and not only on the
primary activities of the individual businesses. See Brennan, 482 F.2d at 1367.
Although Plaintiffs do not specifically address the related activities of the companies
within the section of their Motion concerning joint enterprise status, the Court observes that
Plaintiffs do discuss the companies’ operational interdependence throughout their briefs. They
point out that Raly did not have any capital of its own, and could not pay the workers until it was
paid by Bravo; neither Raly nor General Recycling rendered services other than cleaning the
Property; Bravo owned the Property which was the site of the rendered services; Bravo owned
all of the heavy equipment necessary to clean the Property and undertook all repairs of the
equipment, whereas Raly and General Recycling did not own any equipment; Bravo permitted
Raly to use the equipment without a fee, although it charged General Recycling for its use;
Bravo reimbursed Raly for the workers’ protective gear and gasoline for the heavy equipment;
and Bravo hired an environmental engineer to assess the progress of the Property’s
decontamination, as opposed to Raly or General Recycling carrying that burden.
The foregoing evidence shows that Raly had “no work other than that provided by
[Bravo], and could not have acted independently, since [it] had no assets.” Jackson v. Art of Life,
Inc., 836 F. Supp. 2d 226, 237 (E.D. Pa. 2011). Thus, although Defendants point out that
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Plaintiffs testified they have no knowledge or information concerning whether Bravo and Raly
engaged in related activities (see Defs.’ Mot. 10), the Court need not ignore the evidence
presented by the parties, which shows that the businesses were operationally interdependent in
fact.
It is a closer question with regard to General Recycling, as the record does not show that
General Recycling lacked its own assets, or that Bravo compensated General Recycling or
reimbursed it in a similar manner as it did Raly. Indeed, General Recycling was charged a fee to
use Bravo’s equipment. Nonetheless, the Court observes that in addition to the fact that General
Recycling did not render services other than to clean Bravo’s Property, both General Recycling
and Bravo reported the same principal and mailing addresses to the Florida Department of State.
(Compare [ECF No. 57-11] (State Department record for General Recycling) (listing principal
and mailing addresses as “3250 NW 107 AVE.[,] MIAMI FL 33172”), with [ECF No. 57-12]
(State Department record for Bravo) (listing principal and mailing addresses as “3250 NW
107TH AVENUE[,] MIAMI FL 33172”)). The parties, however, do not address the import of
this observation. Thus, on this record, there remain questions of fact relevant to the Court’s
inquiry concerning the interdependence of General Recycling and Bravo.
b. Unified Operation or Common Control
“In order to constitute an ‘enterprise’ within the Fair Labor Standards Act, the related
activities of the businesses must be conducted ‘through unified operation or common control.’”
Easton Land & Dev., Inc., 723 F.2d at 1552 (quoting 29 U.S.C. § 203(r)). “Plaintiff[s] ha[ve] to
establish only one of these two alternative requirements.” Donovan v. Star Bakery, Inc., 626 F.
Supp. 1208, 1214 (D.P.R. 1986) (citing Dunlop, 555 F.2d 1228). Here, Plaintiffs do not specify
which requirement is satisfied (see Pls.’ Mot. 9), but point out that Hurtado testified he worked
17
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with the “same personnel at all three corporations and all three companies had the same bosses.”
(Id. (citing Hurtado Depo. 85, 87)). Additionally, Raly and General Recycling both relied on the
use of Bravo’s heavy equipment and Bravo’s maintenance of that equipment to clean the
Property. Plaintiffs also point out that Bravo influenced the hiring, termination, and wage
decisions of Raly and General Recycling. For example, when Gomez was fired by Raly, Gomez
met with Vidal to get his job back; when Hurtado’s wage was decreased while working for
General Recycling, he met with Vidal to rectify it. (See Pls.’ Mot. 8).
Defendants, in contrast, assert that only Raly had the ability to make hiring and wage
decisions. (See Defs.’ Resp. 9 [ECF No. 72]). Indeed, the record evidence shows that Plaintiffs
were paid by Raly or General Recycling; not by Bravo. Further, Defendants maintain that the
“bosses” at all three companies were not the same — Viera was the sole owner of Raly; Cruz
was the sole owner of General Recycling; and Vidal was the sole owner of Bravo.
There are clearly issues of material fact concerning whether Raly and General Recycling
were under unified operation and common control with Bravo.
c. Common Business Purpose
Plaintiffs assert that the common business purpose of Raly and Bravo, or General
Recycling and Bravo, was to “clean the plot of land.” (Pls.’ Mot. 9). Defendants assert that the
entities maintained different business purposes: Raly and General Recycling were in the business
of cleaning, and Bravo was in the business of buying and reselling tires. (See Defs.’ Mot. 10;
Defs.’ SMF ¶ 12). The parties thus agree that Raly and General Recycling were in the business
of “cleaning,” but disagree as to Bravo’s business purpose.
The record shows that while Bravo’s primary or initial business purpose is the purchase
and sale of tires, at issue in this matter is the portion of Bravo’s business concerned with the
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Property. Bravo owns the Property15 and the heavy machinery necessary to clean it, and hired
Bravo and Raly to have the Property cleaned. Clearly, Bravo has at least two business purposes,
one of which concerns cleaning the Property. Defendants do not identify anything in the record
indicating that the purpose of cleaning up the Property relates to the purchase and resale of tires,
or any other purpose. Based on the present record, the Court finds that Bravo, Raly, and General
Recycling all had the common business purpose of cleaning the Property.
Accordingly, the Court finds that only two of the three elements are met to establish a
joint enterprise between Raly and Bravo, and only one of the three elements is satisfied to
establish a joint enterprise between General Recycling and Bravo. For these reasons, the parties’
motions for summary judgment on this issue are denied.
iii. Whether Plaintiffs are Employees
The FLSA’s overtime provisions apply only to employees. The parties ask the Court to
determine, as a matter of law, whether Plaintiffs were employees, and if so, who employed them.
Defendants assert that Plaintiffs were independent contractors and therefore were not employed
by Bravo, Raly, or General Recycling. Plaintiffs contend that Bravo and Raly jointly employed
them, i.e., Plaintiffs were employees of both Bravo and Raly at the same time.16 See GonzalezSanchez v. Int’l Paper Co., 346 F.3d 1017, 1020–21 (11th Cir. 2003).
The FLSA defines an “employee” as “any individual employed by an employer.” 29
U.S.C. § 203(e)(1). In turn, the FLSA defines “to employ” as “to suffer or permit to work,” 29
U.S.C. § 203(g), and an “employer” as “any person acting . . . in the interest of an employer in
15
Bravo wholly owns Cima Biam, which owns the Property.
16
It is not entirely clear whether Plaintiffs argue in their Motion that Bravo and General Recycling were
joint employers of Hurtado. (Compare Pls.’ Mot. 1 (requesting summary judgment on the joint employer
status of only Bravo and Raly), with id. 8 (asserting that “it is undisputed that both Raly . . . and General
Recycling . . . were controlled by Bravo . . . .”)).
19
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relation to an employee,” 29 U.S.C. § 203(d). “In order to determine whether an alleged
employer ‘suffer[s] or permit[s]’ an individual to work, [the Court] ask[s] ‘if, as a matter of
economic reality, the individual is dependent on the entity.’” Layton v. DHL Express (USA), Inc.,
No. 11-12532, 2012 WL 2687961, at *3 (11th Cir. July 9, 2012) (quoting Antenor v. D & S
Farms, 88 F.3d 925, 929 (11th Cir. 1996)); see also Freund v. Hi-Tech Satellite, Inc., 185 F.
App’x 782, 782–83 (11th Cir. 2006) (quoting Rutherford Food Corp. v. McComb, 331 U.S. 722,
728 (1947)).
Factors courts consider in approaching this inquiry include, but are not limited to:
(1) the nature and degree of the alleged employer’s control as to the manner in
which the work is to be performed;[17]
(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;
(6) the extent to which the service rendered is an integral part of the alleged
employer’s business.
Id. at 783 (citing Sec’y of Labor, U.S. Dep’t of Labor v. Lauritzen, 835 F.2d 1529, 1535 (7th Cir.
1987)); see Layton, 2012 WL 2687961, at *6 (noting that “the factors are used because they are
indicators of economic dependence”); see also Velez v. Sanchez, No. 11-90-cv, 2012 WL
3089376, at *13 (2d Cir. July 31, 2012) (“[T]he ‘ultimate concern’ in distinguishing independent
contractors and employees is whether the workers ‘depend upon someone else’s business for the
opportunity to render service or are in business for themselves[.]’” (quoting Brock v. Superior
“Different cases articulate different tests for ascertaining whether an entity is an ‘employer’ under the
FLSA.” Spears v. Choctaw Cnty. Comm’n, No. 07-0275-CG-M, 2009 WL 2365188, at *5 (S.D. Ala. July
30, 2009). For example, in Villarreal v. Woodham, 113 F.3d 202 (11th Cir. 1997), the court inquired into
“whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and
controlled employee work schedules or conditions of employment, (3) determined the rate and method of
payment, and (4) maintained employment records.” Id. at 205. In its analysis, the Court accounts for
these considerations within its discussion of the first Freund factor.
17
20
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Care, Inc., 840 F.2d 1054, 1059 (2d Cir. 1988))).
The Court first notes that Plaintiffs fail to address why Bravo and Raly were each
employers of Plaintiffs, or that General Recycling and Bravo each employed Hurtado. Instead,
Plaintiffs vaguely refer to Defendants collectively when examining the first, fifth, and sixth
Freund economic dependence factors, which specifically concern the alleged employer. (See
Pls.’ Resp. 13 (“Defendants controlled the nature and degree of work of Plaintiffs.” (emphasis
added)); id. 14 (“Plaintiffs worked for Defendants for extended periods of time . . . .
Furthermore, the degree of permanency of Plaintiffs’ employment is evident from that [sic] fact
that even Defendant admitted that even Plaintiffs like Hurtado would show up for work every
day . . . .” (emphasis added)); id. 14–15 (discussing only Bravo’s business purpose before
concluding that “the work performed by Plaintiffs, cleaning up the land, was an integral [sic] of
what they were hired to do for Defendants.” (emphasis added)); see also Pls.’ Mot. 4–8; id. 8
(“The facts nevertheless establish that Plaintiffs were economically dependent on their work with
Defendants . . . .” (emphasis added)).
Such discussion is insufficient for the Court to determine as a matter of law which
entities, if any, employed Plaintiffs.18 Plaintiffs have identified no law, nor is the Court aware of
any, permitting the Court to find that Plaintiffs were employees without identifying who
employed them. Nor do Plaintiffs explain why Defendants can be treated as a single entity for
the purposes of the Court’s employer analysis. Therefore, Plaintiffs’ Motion for Summary
Judgment on the issue of whether Plaintiffs were employees and not independent contractors is
denied.
Although Plaintiffs note that “[t]here is no dispute that Raly . . . and General Recycling . . . [sic] only
job has been for Bravo . . . and the only work these companies ever performed was the clean up work
performed for Bravo” (Pls.’ Mot. 6; Pls.’ Resp. Mot. 15), they fail to explain why these facts are relevant
to the inquiry regarding the identity of Plaintiffs’ employers, if any.
18
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Although Plaintiffs argue that Raly was controlled by Bravo (see Pls.’ Mot. 8), Plaintiffs’
failure to establish that Bravo, Raly, or General Recycling was their employer is also dispositive
of their Motion for Summary Judgment on the issue of Bravo and Raly’s joint employment
status. Indeed, to be considered a “joint employer,” an entity must first be an employer. (See 29
C.F.R. § 791.2(a) (noting that “[a] single individual may stand in the relation of an employee to
two or more employers at the same time under the [FLSA] since there is nothing in the act which
prevents an individual employed by one employer from also entering into an employment
relationship with a different employer,” before addressing how to determine “whether the
employment by the employers is to be considered joint employment or separate and distinct
employment for purposes of the act”). Thus, Plaintiffs’ Motion for Summary Judgment on
whether Bravo and Raly were joint employers is also denied.
Defendants also do not engage in any entity-specific discussion concerning Plaintiffs’
employment status. (See Defs.’ Mot. 12–15). Nonetheless, the Court observes that several of the
Freund economic dependence factors the Court considers focus on the putative employee, and
not on the alleged employers. The Court first examines these factors in turn.
As to the second factor, Defendants point out that Plaintiffs each filed a Schedule C to
their federal income tax returns, deducting business expenses, which, according to Defendants,
“suggests that [Plaintiffs] had an opportunity for profit or loss.” (Defs.’ Mot. 14). These tax
return forms, however, do not demonstrate whether Plaintiffs’ potential profit or loss was based
on managerial skills.
Moreover, the record shows Plaintiffs were paid according to their
productivity and number of hours worked (see Viera Depo. 21:20–22:7), not their managerial
skills. See Torres-Lopez v. May, 111 F.3d 633, 644 (9th Cir. 1997) (finding that plaintiffs had no
opportunity for profit or loss depending on their managerial skill because the amount of money
22
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they earned depended solely upon the number of cucumbers they themselves picked). This
factor weighs in favor of an employer-employee relationship.
Similarly, as to the third factor, Defendants again rely on Plaintiffs’ Schedule C forms to
show that Plaintiffs invested in equipment and materials required for the job. Defendants do not,
however, identify in what equipment or tools Plaintiffs invested, nor whether Plaintiffs used
those tools or equipment to clean the Property. For example, Hurtado did not use any of his own
tools and equipment to clean up the Property. Yet, even assuming Gomez and Blanco used such
tools or equipment on the job, Defendants have not shown whether their investment was more
than minimal when compared to Bravo’s investment in the heavy machinery necessary to sift out
contaminants and metals from the Property. See, e.g., Castillo v. Givens, 704 F.2d 181, 192 (5th
Cir. 1983) (observing that “[the worker’s] investment in hoes was ‘minimal in comparison with
the total investment in land, heavy machinery and supplies necessary for growing’ cotton”
(quoting Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 755 (9th Cir. 1979))). Here,
the heavy equipment was necessary to clean the Property, and Plaintiffs did not pay a fee to use
the machinery, did not purchase fuel to run the equipment, nor were Plaintiffs required to
reimburse anyone for their safety equipment. In sum, much of the equipment used by Plaintiffs
to perform their jobs was provided to them. Additionally, the evidence does not show that
Plaintiffs employed other workers.
This factor weighs in favor of an employer-employee
relationship.
Regarding the fourth factor, the parties dispute whether the job performed by Plaintiffs
requires a special skill, specifically, driving and handling the heavy machinery. Plaintiffs admit
that some skills are necessary to operate the equipment, but argue that such skills could be
23
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learned readily as they were easily taught to other workers.19 (See Pls.’ Resp. 14). Certainly,
“[s]kills are not the monopoly of independent contractors.” Lauritzen, 835 F.2d at 1537 (citation
omitted). However, as the present record elucidates little the nature or degree of the skill
necessary to drive and handle the heavy machinery, this factor rests at equipoise.
Thus, factors two through four do not weigh in favor of independent contractor status.
The remaining factors require an inquiry into each putative employer, in which Defendants have
failed to engage. Certainly, as to the first factor, Defendants do not discuss the nature and degree
of control Bravo, Raly, or General Recycling had over Plaintiffs, but rather assert that Plaintiffs
had control over various areas of their work. Defendants do not explain why Plaintiffs’ control
over certain aspects of their work amounts to “minimal” control by Bravo, Raly, or General
Recycling, when no aspect of Bravo’s Raly’s, or General Recycling’s control is discussed.
(Defs.’ Mot. 13–14).
As to the fifth factor, which concerns the degree of permanency and duration of the
working relationship between Plaintiffs and each putative employer, Defendants again do not
address each relationship. Instead, they note that Plaintiffs conceded they “had the . . . freedom
to work for other companies” while working on the Property.
(Id. 14).
However, such
“freedom” alone does not tip this factor in favor of independent contractor status, as “[a]n
employee may, of course, work for different employers at different times and still be an
employee of each.” Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 1329 (5th Cir.
1985). Without further explanation, the Court does not find this factor to tip in favor of
independent contractor status.20
Plaintiffs fail to cite to the record to support this proposition despite asserting that Plaintiffs’ testimony
supports it. (See Pls.’ Resp. 14; Pls.’ Mot. 5).
20
Defendants urge the Court to consider such “freedom” dispositive of the issue of Plaintiffs’
independent contractor status. (See Defs.’ Mot. 13). However, for the foregoing reasons, see supra 24–
19
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Defendants do not address the sixth factor. (See Defs.’ Mot. 12–15).
Outside these six factors, Defendants also urge the Court to consider Plaintiffs’ federal
income tax returns wherein they deducted business expenses and listed their earnings from their
work on the Property as business income, and not wages. According to Defendants, this shows
that Plaintiffs agreed to be independent contractors of Raly and General Recycling.
But
“[w]hether or not the parties intended to create an employment relationship is irrelevant” to the
Court’s analysis. Santelices, 147 F. Supp. 2d at 1319 (citing Donovan v. New Floridian Hotel,
676 F.2d 468, 471 (11th Cir. 1982)). Moreover, it is not clear on the present record whether the
business expense deductions related to Plaintiffs’ work on the Property. (See e.g., Pls.’ SMF ¶ 1;
Viera Depo. 11:12–14 (Hurtado did not use any of his own tools or equipment to clean the
Property)). In any event, even if Plaintiffs’ deductions related to work done on the Property, this
factor alone is not dispositive, and must be considered with the circumstances as a whole. See
supra 23; see also Lindlsey v. Bellsouth Telecommc’ns., Inc., No. 07-6569, 2009 WL 537159, at
*3 (E.D. La. 2009); Carrell v. Sunland Constr., Inc., 998 F.2d 330, 333–34 (5th Cir. 1993). The
Court does not find this factor to weigh in favor of independent contractor status.
The Court, having considered the relevant economic dependence factors, denies
Defendants’ Motion for Summary Judgment on the issue of Plaintiffs’ independent contractor
status. Additionally, as Defendants have not demonstrated that Bravo is not an employer of
Plaintiffs, Defendants’ Motion for Summary Judgment on the issue of joint employment is also
denied. Indeed, Defendants correctly point out that “courts have . . . limit[ed] ‘FLSA liability to
cases in which defendants, based on the totality of the circumstances, function as employers of
25, it is not evident why this factor tips in favor of independent contractor status. Further, “no one factor
is controlling.” Scantland v. Jeffry Knight, Inc., No. 8:09-CV-1985-T-17TBM, 2012 WL 1080361, at *6
(M.D. Fla. Mar. 29, 2012) (quoting Santelices v. Cable Wiring, 147 F. Supp. 2d 1313, 1319 (S.D. Fla.
2001)) (internal brackets omitted)).
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the plaintiffs rather than mere business partners of plaintiff[s’] direct employer” (Defs.’ Mot. 11
(quoting Zheng v. Liberty Apparel Co., 355 F.3d 61, 76 (2d Cir. 2003)), in addition to other
relevant factors. (See Defs.’ Mot. 12). And yet, Defendants do not meet this standard as they
discuss only the extent of Bravo’s supervision over Plaintiffs, which is but one factor relevant to
Bravo’s employer status. (See Defs.’ Mot. 11). For these reasons, summary judgment on this
issue is denied.
C. Liability of the Individual Defendants
Defendants assert that the individual defendants in this matter — Vidal, Emmanuel,
Viera, and Cruz — are not liable for any of Plaintiffs’ claims because
First, due to the fact that the Court is without subject matter jurisdiction in this
case, and also because the individual Defendants’ liability is only derivative to
that of a respective Corporate-Defendant’s liability, the individual Defendants are
entitled to summary judgment. Alternatively, the individual Defendants are also
entitled to summary judgment concerning the following respective CorporateDefendants: Defendant Emmanuel Suriel with respect to all CorporateDefendants; Defendant Vidal Suriel with respect to Defendant Raly and
Defendant General Recycling; Defendant Israel Viera with respect to Defendant
General Recycling and Defendant Bravo; and Defendant Cruz with respect to
Defendant Raly and Defendant Bravo.
(Defs.’ Mot. 9 (citations omitted)).
Defendants’ first argument is rejected as the Court has already found that enterprise
coverage rests on disputed issues of fact, and therefore, Bravo, Raly, and General Recycling
remain subject to suit. As such, it cannot be concluded that the individual defendants lack
derivative liability simply because the corporations are not liable — as the court found in Zarate
v. Jamie Underground, Inc., 629 F. Supp. 2d 1328, 1336 (S.D. Fla. 2009) (citation omitted) —
because here, the liability of Bravo, Raly, and General Recycling is not yet determined.
26
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Defendants’ alternative argument presents no reasoning why summary judgment is appropriate.21
Therefore, on this issue, summary judgment is denied.
D. Successor Liability of General Recycling
Plaintiffs assert that General Recycling is a successor of Raly, and therefore is liable for
Raly’s FLSA’s violations, if any. (See Pls.’ Mot. 9–11). Plaintiffs cite to Steinbach v. Hubbard,
51 F.3d 843, 844 (9th Cir. 1995), for the proposition that successor liability exists under the
FLSA. (See id. 9–10). Notably, the Steinbach court acknowledged that the question of whether
successor liability exists under the FLSA was, at that time, one of first impression.
See
Steinbach, 51 F.3d at 844. Plaintiffs provide no law from this district or the Eleventh Circuit
which finds that successor liability exists under the FLSA. Nor do Plaintiffs explain why the
Court should adopt the legal standards laid out in Steinbach, which applied the successor liability
principles from National Labor Relations Act (“NLRA”) claims to FLSA claims. See id.; see
also, Battino v. Cornelia Fifth Ave., LLC, No. 09 Civ. 4113 (JPO) (MHD), 2012 WL 1871070, at
*6–10 (S.D.N.Y. May 24, 2012) (examining which of various tests for successor liability used by
courts in FLSA cases is appropriate).
Steinbach sets forth two elements necessary to demonstrate successor liability in FLSA
cases: “1) the subsequent employer was a bona fide successor and 2) the subsequent employer
had notice of the potential liability. Steinbach, 51 F.3d at 846 (citation omitted). Equity
principles are also considered. See id.
Even if the Court were to apply Steinbach’s test here, Plaintiffs have failed to
21
In their discussion on this issue, Defendants cite to paragraphs 21 through 24 of their statement of
facts. (See Defs.’ Mot. 9 (citing Defs.’ SMF ¶¶ 21–24). It is not for the Court to piece together an
argument based on citations to facts. Further, it is inappropriate to raise legal argument in a statement of
material fact. See, e.g., Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000) (“[A] movant’s 56.1(a)
statement should contain only factual allegations. It is inappropriate to allege legal conclusions in a
56.1(a) statement . . . .”) (emphasis in original); Blackhawk Molding Co., Inc. v. Portola Packaging, Inc.,
422 F. Supp. 2d 948, 959 n.7 (N.D. Ill. 2006) (citing id.).
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demonstrate that their argument meets its standards. Foremost, Plaintiffs identify nothing in the
record regarding whether General Recycling had notice of Raly’s potential liability.
Significantly, this suit was not filed until December 13, 2011 (see Compl. [ECF No. 1]), after
both Raly’s and General Recycling’s service to Bravo had ended.
Second, although Plaintiffs point out that (1) General Recycling’s owner, Cruz, had been
a supervisor when he worked for Raly, and (2) General Recycling hired some of Raly’s crew,
they fail to explain why these events demonstrate General Recycling was Raly’s bona fide
successor. See Steinbach, 51 F.3d at 846 (“Whether an employer qualifies as a bona fide
successor will hinge principally on the degree of business continuity between the successor and
predecessor.”). Indeed, Plaintiffs point out that General Recycling replaced Raly because Bravo
fired Raly, which tends to show a lack of “business continuity.” Additionally, although Plaintiffs
do note General Recycling performed the same job for Bravo as had Raly, and also used Bravo’s
equipment, this demonstrates the similarities of General Recycling’s relationship with Bravo,
and Raly’s relationship with Bravo. It does not illuminate General Recycling’s relationship with
Raly.
Third, Plaintiffs offer no discussion of equitable considerations. Rather, they cite to law
for the proposition that “‘it would be grossly unfair . . . to impose successor liability on an
innocent purchaser when the predecessor is fully capable of providing relief’” (Pls.’ Mot. 10
(quoting Musikiwamba v. ESSI, Inc., 760 F.2d 740, 750 (7th Cir. 1985))), without addressing
whether Raly is “fully capable of providing relief,” nor whether General Recycling was an
“innocent” participant that should not be held liable for Raly’s violations.
For these reasons, Plaintiffs have not demonstrated summary judgment is warranted on
this issue.
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E. Specific Weeks Where Plaintiffs Did Not Work Overtime
Defendants ask the Court to grant summary judgment in favor of Defendants as to
specific weeks wherein Plaintiffs admitted they did not work overtime. (See Defs.’ Mot. 15
(failing to identify the relevant weeks in their Motion, but citing to Defs.’ SMF ¶¶ 17–19, which
indicate the specified weeks for each Plaintiff)). As to the periods identified by Defendants for
Hurtado and Gomez, Plaintiffs point out that they are not seeking overtime for those periods.
(See Pls.’ Resp. 15). Thus, summary judgment on this issue with respect to Hurtado and Gomez
is denied as moot.
Defendants also contend Blanco did not work overtime in particular weeks during August
through October 2010, and January through March 2011. (See Defs.’ Mot. 15 (citing Defs.’
SMF ¶¶ 17–19); Defs.’ SMF ¶ 19 (identifying individual weeks where Blanco purportedly did
not work overtime)).
Defendants determined these non-overtime periods by examining
paychecks for particular workweeks; if the check was for an amount equal to or less than $520, it
was concluded that no overtime was worked during that week. (See Blanco Depo. 140:13–
141:7). Defendants’ conclusions, however, hinge on the assumption that Blanco earned only $13
per hour and that Blanco was only compensated by check. However, it remains a disputed issue
of fact whether Blanco was paid only $13 per hour or “a little bit more” (id. 140:21–23), and
whether the amount of Blanco’s paychecks reflects his total compensation, given that he asserts
he was also paid in cash. (See id. 145:4–5). For these reasons, summary judgment on this issue
with respect to Blanco is denied.22
22
As noted, Defendants do not identify in their Motion the specific weeks they assert each Plaintiff did
not work for which they seek summary judgment. Rather, Defendants merely reference paragraphs 17
through 19 of their Statement of Facts. (See Defs.’ Mot. 15). The last sentence of Paragraph 19 of
Defendants’ Statement of Facts asserts that “Blanco . . . concedes that he is not claiming overtime for the
approximately one to two weeks that he did not work around Christmas of 2010.” (Defs.’ SMF ¶ 19).
Plaintiffs did not respond to this specific assertion, nor did Defendants note Plaintiffs’ failure in their
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F. Evidence of Damages
Defendants argue that Plaintiffs’ “failure to explain how their damages were calculated,
and failure to articulate what they would be willing to settle for” during deposition demonstrates
a lack of competent evidence on damages, warranting summary judgment on all claims. (See
Defs.’ Mot. 16). This argument, as presented, is illogical. Certainly, one’s inability to articulate
mathematical calculations does not mean there is a dearth of evidence to support damages.
Summary judgment on this ground is denied.
G. Holiday Pay
Defendants observe that Hurtado testified that he is also suing for double-time “holiday
pay.” (Defs.’ Mot. 19). Defendants ask the Court to rule that Hurtado is not entitled to holiday
pay because he failed to plead it and because the FLSA does not provide for recovery of “holiday
pay.” (See id.). Plaintiffs acknowledge they are not claiming holiday pay for Hurtado. (See
Pls.’ Resp. 16). Thus, as there is no disputed issue for the Court, summary judgment with
respect to any “holiday pay” for Hurtado is denied as moot.
H. Whether Gomez and Blanco Disavowed Their Claims Against Each Defendant Other
Than Raly
Defendants point out that the deposition testimony of Gomez and Blanco indicates they
only intend to sue Raly, and therefore have abandoned their claims with respect to all other
Defendants. (See Defs.’ Mot. 18). Plaintiffs counter that during their depositions, Gomez and
Blanco “were asked a series of leading questions as to the individual Defendants” (Pls.’ Resp.
16), and point out that Gomez and Blanco acknowledged they were aware of all of the named
Defendants in the lawsuit before opting in. (See Pls.’ Resp. 16).
Reply. (See generally Pls.’ Resp.; Defs.’ Reply). Given the peculiar manner in which Defendants raised
this issue in their Motion (namely, by reference to another filed document) and that it does not appear the
parties discussed the merits of Defendants’ request, the Court, out of an abundance of caution, denies
summary judgment on this issue.
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Case No. 11-24476-CIV-ALTONAGA/Simonton
The Court notes that much of the deposition testimony identified by Defendants indicates
that Gomez or Blanco lacked prior intent (at some unspecified point in time), not current intent,
to sue Defendants other than Raly. (See, e.g., Gomez Depo. 107:25–108:5 (“Q. And you said
with respect to every defendant . . . , except for Raly, that you never had any intention of suing
any other defendant other than Raly . . . ? A. Correct . . . .”) (emphasis added)). At most, then,
it appears there is a question of fact regarding who each Plaintiff seeks to hold liable for on his
claims. Summary judgment on this issue is denied.23
I. Willfulness
Defendants argue that they are entitled to summary judgment on any of Plaintiffs’ claims
that fall outside a two-year statutory limitations period. (See Defs.’ Mot. 19). According to
Defendants, Plaintiffs “admitted that any alleged failure to pay them overtime was not willful”
(id.), and therefore Plaintiffs are only entitled to a two-year limitations period, not the three-year
period applicable to willful violations of the FLSA. (Id. (citing 29 U.S.C. § 255(a)). Further,
Defendants argue that because Plaintiffs admitted Defendants did not act willfully, the Court can
conclude as a matter of law that Defendants acted reasonably, and therefore are not liable for any
claims of liquidated damages. (See id.).
Plaintiffs correctly point out that “[t]he issue of willfulness is not applicable as it relates
to the statute of limitations.” (Pls.’ Resp. 16). The Complaint was filed on December 13, 2011,
and amended on March 28, 2012 to add Blanco and Gomez as Plaintiffs. Even when considering
the later March 28, 2012 date, Plaintiffs would be permitted to bring claims dating as far back as
March 28, 2010. The date of the earliest violation claimed by Plaintiffs is June 2010, when
To the extent Defendants assert Plaintiffs’ attorneys have violated Florida Bar Rules and warrant
sanction by the Court (see Defs.’ Mot. 18), such issues are not appropriately raised on a motion for
summary judgment.
23
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Case No. 11-24476-CIV-ALTONAGA/Simonton
Hurtado alleges to have worked for Bravo. Accordingly, there is no dispositive legal issue for
the Court to decide, and therefore Defendants’ Motion for Summary Judgment on this issue is
denied as moot.
The Court next addresses Defendants’ argument that Plaintiffs’ admission that
Defendants did not act willfully necessarily means Plaintiffs may not recover liquidated
damages. The FLSA provides:
[I]f the employer shows to the satisfaction of the court that the act or omission
giving rise to such action was in good faith and that he had reasonable grounds for
believing that his act or omission was not a violation of the [FLSA] the court may,
in its sound discretion, award no liquidated damages . . . .”
29 U.S.C. § 260.
The only evidence presented by Defendants in support of the showing considered in 29
U.S.C. section 260 is Plaintiffs’ “admissions.” (See, e.g., Hurtado Depo. 183:10 – 13 (“Q. And
surely you agree with me that any failure to pay you overtime was not willful; correct? . . . . A.
Correct.”); Blanco Depo. 129:9–12 (“Q. And surely you agree that any failure to pay you
overtime was not willful; correct? . . . . A. Correct.”)). In effect, Defendants asked Plaintiffs
during their depositions to evaluate facts and apply law, and now assert Plaintiffs’ answers as
“fact” in their Motion for Summary Judgment. The Court considers these “admissions” wholly
inadequate to demonstrate whether Defendants acted in “good faith” or had “reasonable
grounds” for believing that their alleged acts or omissions were not in violation of the FLSA.
How would Plaintiffs have any insight as to what Defendants believed and the grounds therefor?
The Court declines to exercise its discretion to rule at this stage of the litigation, and on this
record, that Plaintiffs are not entitled to liquidated damages.
For the foregoing reasons, summary judgment on this issue is denied.
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Case No. 11-24476-CIV-ALTONAGA/Simonton
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1) Defendants’ Motion for Summary Judgment [ECF No. 56] is DENIED.
2) Plaintiffs’ Motion for Summary Judgment [ECF No. 58] is DENIED.
3) Plaintiffs shall file a Statement of Claim for Gomez and Blanco, setting forth the
amount of alleged unpaid wages, the calculation of such wages, and the nature of the
wages (e.g., overtime or regular) on or before August 30, 2012. Plaintiffs shall
promptly serve a copy of this Order and the Statement of Claim on Defendants.
Plaintiffs shall also file a Notice with the Court indicating the date and manner the
Plaintiffs served Defendants with the Statement of Claim.
A deadline for
Defendants’ response shall be set at the status conference the parties are to schedule
with the Court in compliance with the Order dated August 17, 2012 [ECF No. 103].
DONE AND ORDERED in Chambers at Miami, Florida, this 27th day of August, 2012.
_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc: counsel of record; Defendants
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