Dimingo v. Midnight Xpress, Inc. et al

Filing 101

Omnibus Order on Motions for Summary Judgment; denying 51 Motion for Partial Summary Judgment; granting 54 Motion for Summary Judgment. Closing Case. Signed by Judge Robert N. Scola, Jr on 6/29/2018. See attached document for full details. (ail)

Case 1:17-cv-23010-RNS Document 101 Entered on FLSD Docket 07/02/2018 Page 1 of 15

United States District Court
for the
Southern District of Florida
Eduardo E. Dimingo, Plaintiff,
v.
Midnight Xpress, Inc. and others,
Defendants.

)
)
) Civil Action No. 17-23010-Civ-Scola
)
)

Omnibus Order on Motions for Summary Judgment
This matter is before the Court upon Plaintiff Eduardo E. Dimingo’s
(“Dimingo”) motion for partial summary judgment and the Defendants’ motion
for summary judgment. Upon review of the record, the parties’ briefs, and the
relevant legal authorities, the Court grants the Defendants’ motion (ECF No.
54) and denies Dimingo’s motion (ECF No. 51).
I.

Background

This case arises from a work relationship that existed between Dimingo
and the Defendants from September of 2014 to July of 2017. The Defendants
are four corporate defendants, Defendants Midnight Xpress, Inc. (“Midnight”),
JR Trucks Corp. (“JR Trucks”), APR Trucking, Inc. (“APR Trucking”), United
Transport Logistics, Inc. (“United”), and Yanel Martinez, Sr. (“Martinez”).1
Martinez was the owner and president of three of the corporate defendants,
Defendants Midnight, JR Trucks, and APR Trucking during the relevant period.
(Defendants’ Statement of Material Facts (“Defendants’ SMF”) ¶ 4, ECF No. 53.)
The parties, however, dispute Martinez’s involvement with United and
Dimingo’s relationship with United. Each of the corporate defendants was
incorporated at different times, and while Midnight and APR Trucking were
active entities during the entire relevant period, JR Trucks and United were
only active for part of the period. (Dimingo’s Statement of Material Facts
(“Dimingo’s SMF”) ¶ 3, ECF No. 50.)
Dimingo provided security services for the Defendants at a parking yard
where the Defendants’ tractors and trailers were parked before and after they
were used for cargo shipments. Dimingo secured the premises, guarded the
vehicles and the relevant cargo, ensured that the drivers were parking
correctly, shut down the engines, locked up the tractors and trailers, and
This Court dismissed Dimingo’s claims against Anatella Martinez without prejudice. (Order,
ECF No. 96.)
1

Case 1:17-cv-23010-RNS Document 101 Entered on FLSD Docket 07/02/2018 Page 2 of 15

reduced damage to the vehicles. (Defendants’ SMF ¶ 21, ECF No. 53.) Dimingo
was scheduled to provide security services seven days a week. He was usually
paid $1,080.00 a week by one of the corporate defendants. (See Dimingo’s SMF
at ¶ 10, 11, 21.) However, Dimingo paid several other people $10.00 an hour to
cover for him at the yard and paid them from the sums he received from the
corporate defendants. (See Defendants’ SMF ¶ 68, 70, ECF No. 53.)
Dimingo’s First Amended Complaint alleges that the Defendants owe him
overtime wages under the Fair Labor Standards Act, 29 U.S.C. § 201, et. seq.
(Compl., ECF No. 26.) Although Dimingo attempted to allege individual
coverage and enterprise coverage, per the Court’s order on the Defendants’
motion to dismiss Dimingo’s First Amended Complaint, Dimingo can only
proceed under an individual coverage theory. (Order, ECF No. 32.)
Upon completion of discovery, the parties filed the present motions. The
parties essentially seek the opposite legal determinations on the main issues in
this case. The parties dispute: (1) whether there is individual coverage under
the FLSA; (2) whether Dimingo was an employee or independent contractor; (3)
whether the corporate defendants were joint employers and Martinez was an
individual employer; and (4) whether certain FLSA exemptions apply.
II.

Legal Standard

Summary judgment is proper if following discovery, the pleadings,
depositions, answers to interrogatories, affidavits and admissions on file show
that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Fed. R. Civ. P. 56. “The purpose of summary judgment is to
isolate and dispose of factually unsupported claims or defenses.” Santelices v.
Cable Wiring, 147 F. Supp. 2d 1313, 1316 (S.D. Fla. 2001) (Jordan, J.).
In reviewing a motion for summary judgment, the Court must “view the
evidence and all factual inferences therefrom in the light most favorable to the
non-moving party, and resolve all reasonable doubts about the facts in favor of
the non-movant.” Feliciano v. Miami Beach, 707 F.3d 1244, 1247 (11th Cir.
2013) (quoting Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1143 (11th Cir.
2007)). The moving party bears the burden of proof to demonstrate the absence
of a genuine issue of material fact. Celotex, 477 U.S. at 323. However, “the
mere existence of a scintilla of evidence in support” of the non-moving party’s
position is insufficient to deny summary judgment. Santelices, 147 F. Supp. 2d
at 1317 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

Case 1:17-cv-23010-RNS Document 101 Entered on FLSD Docket 07/02/2018 Page 3 of 15

III.

Analysis

Before turning to the parties’ FLSA arguments, the Court addresses the
Defendants’ arguments that Dimingo submitted two sham affidavits and failed
to properly admit or deny the facts they asserted in their statement of
uncontested facts.
A. Dimingo’s Affidavits
Dimingo filed two separate affidavits in support of his summary
judgment briefing. Dimingo’s first affidavit was filed in conjunction with his
motion for partial summary judgment (ECF No. 48-2), and his second affidavit
(ECF No. 63-1) in response to the Defendants’ motion for summary judgment.
The Defendants insist that the affidavits should be disregarded because they
contradict Dimingo’s prior deposition testimony and discovery responses.
District courts may disregard sham affidavits when evaluating summary
judgment motions. See Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736
F.2d 656, 656 (11th Cir. 1984); Bank of Am., NA v. Louis, No. 8:11–cv–1745–T–
27EAJ, 2012 WL 12905987, at * 3 (M.D. Fla. Dec. 20, 2012) (“A review of the
record including written discovery, pleadings, and deposition testimony,
demonstrate that the Affidavit . . . is at best, a belated attempt to avoid
summary judgment . . . by manufacturing factual disputes which are not
supported by, and inconsistent with, the record.”). The Eleventh Circuit has
held that “a district court may find an affidavit which contradicts deposition
testimony a sham when the party merely contradicts its prior testimony
without giving any valid explanation.” Van T. Junkins, 736 F.2d at 656. “When
a party has given clear answers to unambiguous questions which negate the
existence of any genuine issue of material fact, that party cannot thereafter
create such an issue with an affidavit that merely contradicts, without
explanation, previously given clear testimony.” Id. at 657. However, the Court
must be aware of the difference between sham affidavits and affidavits that
have “discrepancies which create an issue of credibility or go to the weight of
the evidence.” Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986). In
doing so, this Court must evaluate whether there is an unexplained
“irreconcilable conflict” between Dimingo’s prior testimony and the statements
in the affidavits. Id. at 954–55.
The Defendants insist that Dimingo’s affidavits should be disregarded
because they contradict his prior discovery responses and deposition
testimony, and are at times internally inconsistent. Aside from fleeting

Case 1:17-cv-23010-RNS Document 101 Entered on FLSD Docket 07/02/2018 Page 4 of 15

references to the Defendants’ argument, Dimingo does not address the
inconsistencies pointed out by the Defendants. Nonetheless, the Court cannot
blindly conclude that the Defendants’ assertions are true. Upon review of the
record and the submitted affidavits, the Court finds that only certain of the
statements made in Dimingo’s affidavits present irreconcilable conflicts. As a
result, the Court will only disregard the affidavits to the extent they present
contradictory statements that cannot be reconciled with Dimingo’s prior
testimony or discovery responses.
For example, the Defendants take issue with paragraphs four and seven
of Dimingo’s first affidavit (ECF No. 48-2). (Defendants’ Resp., ECF No. 68 at 3–
4.) In paragraph four, Dimingo asserts that he “had no other jobs while
employed by the Defendants and [ ] was completely economically dependent on
the Defendants for [his] livelihood, as [he] had no other source of income.” The
evidence the Defendants cite as contradictory, however, reflects only that
Dimingo admitted that he could have obtained another job while working for
the Defendants, that his tax returns for the relevant years included information
related to a company he used to be an officer of, and that Dimingo was
unaware of a 2015 property deed with his signature on it. This evidence does
not inherently conflict with Dimingo’s assertion that he had no other
employment or income while working for the Defendants.
Similarly, the Defendants’ claim that Dimingo’s statement in paragraph
seven that he “would regularly have to report activities to company
management and [ ] was not responsible for making any decisions concerning
the administration or operation of Defendants’ business,” ECF No. 48-2, is
contradicted by Dimingo’s prior admission that he was not physically
supervised and that he could direct the truck drivers as necessary to protect
the trucks and freight. (See, e.g., ECF No. 66-2, Req. No. 19, ECF No. 66-1,
Req. Nos. 3, 4.) That evidence is not inherently inconsistent. Dimingo could
have been reporting to management via telephone, as he attests in his briefing,
and the fact that he could direct the truck drivers does not necessarily conflict
with his statement that he was not responsible for making decisions
“concerning the administration or operation of Defendants’ businesses.”
This is also true for the issues pointed out by the Defendants with
paragraph six of Dimingo’s first affidavit. (Defendants’ Resp., ECF No. 68 at 5–
6.) His prior admission that no one physically supervised him does not conflict
with his statements that Martinez and another individual, Danny Patron, had
some control over him. (Dimingo’s First Aff. ¶ 6, ECF No. 48-2.) Further,
Dimingo’s prior discovery response in which he designated the percentage of
time he spent on each of his work tasks and failed to mention handing out gas
cards is not directly contradictory with the new assertion in his affidavit that

Case 1:17-cv-23010-RNS Document 101 Entered on FLSD Docket 07/02/2018 Page 5 of 15

he also handed out gas cards. Id. at ¶ 8. This inconsistency, rather, goes more
appropriately to Dimingo’s credibility.
The Court also rejects Defendants’ argument that Dimingo’s first affidavit
includes inadmissible hearsay in paragraphs six and thirteen because the
statements allegedly made by others are not necessarily being relied upon to
prove the truth of the matters asserted. See Fed. R. Evid. 801(c)(defining
hearsay); Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.”).
The closest example of an “irreconcilable conflict” is the information
presented in paragraph nine of Dimingo’s first affidavit, which states that he
was “not required to generate profit or loss through performance of managerial
skills . . . [and] did not supervise anyone and had no management duties of
any kind.” (Dimingo’s First Aff. ¶ 9, ECF No. 48-2.) The Defendants claim that
this is contradicted by evidence that Dimingo hired at least six individuals,
determined their wages, paid them, and set their schedules. (Resp., ECF No. 68
at 6.) The Court concludes that the Defendants have not provided sufficient
evidence to demonstrate that Dimingo’s statements about generating profits or
having the opportunity to maximize his income through a type of loss/profit
structure are contradicted by his deposition testimony or his discovery
responses. However, Dimingo’s statement that he “did not supervise anyone or
have any managerial duties of any kind,” is irreconcilable with the evidence
that Dimingo found other people to cover his shifts and paid them. The Court
also agrees that Dimingo’s prior statements about who signed his checks
conflicts with his affidavit. (Defendants’ Resp., ECF No. 68 at 3–4.)
In their reply in support of their motion for summary judgment, the
Defendants also take issue with certain portions of Dimingo’s second affidavit
(ECF No. 63-1). The Court agrees that certain statements directly contradict
Dimingo’s prior discovery responses without explanation and should therefore
be disregarded. For instance, Dimingo previously admitted to having time to
work elsewhere during the workweek, see ECF No. 66-2, Req. No. 14, and now
claims that he had no time to work anywhere else given the number of hours
he had to cover. (Dimingo’s Second Aff. ¶ 27, ECF No 63-1.)
Two other examples cited in the Defendants’ reply do not present such
an “irreconcilable conflict.” First, although the Court agrees that Dimingo’s
statement that he worked from 7:00 a.m. to 7:00 p.m. from Monday through
Friday, see id. at ¶ 6, conflicts with his prior admission that he worked from
7:00 p.m. to 7:00 a.m. during the workweek, see, e.g., ECF No. 66-2, Req. No.
11, and should therefore be disregarded, his weekend schedule can be

Case 1:17-cv-23010-RNS Document 101 Entered on FLSD Docket 07/02/2018 Page 6 of 15

reconciled with other evidence in the record that he was expected to provide
security services from 7:00 a.m. Saturday morning to 7:00 a.m. Monday
morning. Similarly, while the Defendants point to evidence in the record where
Dimingo admitted to “hiring other individuals to provide security services he
was hired to provide,” ECF No. 66-2, Req. No. 15, which directly contradicts his
statement that these individuals were never his employees, see ECF No. 63-1
at ¶ 9, there is other evidence in the record that indicates that Dimingo also
testified that he did not “hire” these individuals. Accordingly, the Court finds
that this affidavit statement does not conflict with Dimingo’s prior testimony.
As for the other examples cited in the Defendants’ reply, the Court concludes
that the statements in Dimingo’s affidavit are not irreconcilable with his prior
testimony and do not include inadmissible hearsay. See id. at ¶¶ 4, 6, 20, 26,
27, 29.
Accordingly, the Court will only disregard the statements that present an
irreconcilable conflict. All other statements will be considered to the extent
Dimingo relies on them.
B. Local Rule 56.1
Local Rule 56.1(b) states that “[a]ll material facts set forth in the
movant’s statement filed and supported as required . . . will be deemed
admitted unless controverted by the opposing party’s statement, provided that
the Court finds that the movant’s statement is supported by evidence in the
record.” S.D. Fla. L.R. 56.1(b). The Defendants argue that the Court should
deem admitted all of the facts Dimingo failed to contest in his response (ECF
No. 65) to the Defendants’ statement of material facts. (Defendants’ Reply, ECF
No. 70 at 4–7.) They cite to a series of facts that Dimingo failed to admit or
deny and failed to provide relevant citations for.
Although the Court agrees that Dimingo failed to comply with Local Rule
56.1, Dimingo does refer the Court to his second affidavit, in which he directly
admits or denies some of the material facts he failed to address in his response
to the Defendants’ statement of material facts. (See Dimingo’s Second Aff., ECF
No. 63-1.) To the extent Dimingo failed to admit or deny any of the Defendants’
material facts in either his response or his affidavit, the Court will deem those
facts admitted so long as the Defendants’ statement is supported by evidence
in the record. See Robles v. RFJD Holding Co., No. 11-62069-CIV, 2013 WL
2422625, at *2 (S.D. Fla. June 3, 2013) (Rosenbaum, J.) (“[E]ven where an
opposing party neglects to submit any alleged material facts in controversy, the
court must still satisfy itself that the evidence on the record supports the
uncontroverted material facts that the movant has proposed.”). However, the

Case 1:17-cv-23010-RNS Document 101 Entered on FLSD Docket 07/02/2018 Page 7 of 15

Court will not do Dimingo’s work for him. Dent v. Giaimo, 606 F. Supp. 2d
1357, 1359 (S.D. Fla. 2009) (Ryskamp, J.) (“It is the obligation of the nonmoving party . . . not the Court, to scour the record in search of the evidence
that would defeat a motion for summary judgment[.]”)(quoting Lawrence v. WalMart Stores, Inc., 236 F. Supp. 2d 1314, 1322 (M.D. Fla. 2002)).
C. FLSA Individual Coverage
The FLSA requires an employer to pay its employee “an overtime wage of
one and one-half times his regular rate for all hours he works in excess of forty
hours per week.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d
1292, 1298 (11th Cir. 2011). “In order to be eligible for FLSA overtime,
however, an employee must first demonstrate that he is ‘covered’ by the FLSA.”
Id. at 1298. This requires a showing that the jurisdictional prerequisite of
“interstate commerce” exists in a given case, a showing that may be made one
of two ways––individual coverage or enterprise coverage. Id.; see also Vallecillo
v. Wall To Wall Residence Repairs, Inc., No. 08-22271, 2008 WL 11333114, at
*1 (S.D. Fla. Oct. 31, 2008) (Ungaro, J.) (“Determining the existence of
individual or enterprise coverage implicates both the jurisdictional basis and a
requisite element of Plaintiff’s claim.”). Here, Dimingo is only able to pursue his
case under an individual-coverage theory as per this Court’s previous order.
Congress intended to “regulate only activities constituting interstate
commerce, not activities merely affecting commerce.” Thorne v. All Restoration
Services, Inc., 448 F.3d 1264, 1266 (2006). For individual coverage to apply
under the FLSA, a plaintiff must provide evidence that he is “(1) engaged in
commerce or (2) engaged in the production of goods for commerce.” Id. For an
employee to be “engaged in commerce,” “he must be directly participating in
the actual movement of persons or things in interstate commerce by (i) working
for an instrumentality of interstate commerce, e.g., transportation or
communication industry employees, or (ii) by regularly using the
instrumentalities of interstate commerce in his work, e.g., regular and
recurrent use of interstate telephone, telegraph, mails, or travel.” Id. And,
“whether an employee is ‘engaged in commerce’ under the FLSA is ‘whether the
work is so directly and vitally related to the functioning of an instrumentality or
facility of interstate commerce to be, in practical effect, a part of it, rather than
isolated, local activity.’” Mederos v. Garcia, No. 09-22842, 2011 WL 13172947
at *3 (S.D. Fla. March 18, 2011) (Torres, Mag. J.) (quoting Mitchell v. C.W.
Wollmer & Co., 349 U.S. 427, 429 (1955)). “To determine whether an employee
performed such work, a court must focus its inquiry on the activities of the
employee and not on the business of the employer.” Casseus v. First Eagle,

Case 1:17-cv-23010-RNS Document 101 Entered on FLSD Docket 07/02/2018 Page 8 of 15

L.L.C., No. 07-23228CIV, 2008 WL 1782363, at *3 (S.D. Fla. Apr. 18, 2008)
(Gold, J.). The burden is on the plaintiff-employee to demonstrate that
individual coverage applies. Perez v. New Auto Image Marketing, Inc., No.: 1:15cv-21893, 2016 WL 7540272, at *6 (S.D. Fla. May 20, 2016) (Lenard, J.).
Dimingo argues that individual coverage exists because he was guarding
trucks and cargo that were regularly traveling in interstate commerce.
(Dimingo’s Mot., ECF No. 51 at 4.) Relying on Russell Co. v. McComb, 187 F.2d
524 (5th Cir. 1951) and related cases, Dimingo argues that security guards,
like himself, who watch and guard instrumentalities of interstate commerce are
covered by the FLSA. (Id. at 2–4.)
To assess whether Dimingo was engaged in interstate commerce, the
Court must decide (1) whether the Defendants were instrumentalities of
interstate commerce, and if so, (2) whether Dimingo’s work involved the
interstate movement of persons or things. See Perez, 2016 WL 7540272, at *6.
The Court must analyze Dimingo’s job duties to assess whether he “regularly
and ‘directly participate[d] in the actual movement of persons or things in
interstate commerce’ such that individual coverage could exist.” See Montaya v.
L.C. 1 Trucking Corp., No. 12–23816, 2013 WL 5007621, at *3 (S.D. Fla. Sept.
12, 2013) (Seltzer, J.).
Both parties move for summary judgment on this issue. The Defendants,
however, seem to conflate the two ways that an employee can demonstrate that
he or she is “engaged in commerce.” The Defendants argue that because
Dimingo guarded goods and materials that left Florida “once a month,” his
involvement in interstate commerce is much like the employees who were
found by courts to only use instrumentalities of interstate commerce
sporadically. The cases the Defendants cite to, however, were cases in which
there was a question of whether the employee had regularly used an
instrumentality of interstate commerce. See, e.g., Mayo v. Jean Nicole Hair
Salons, Inc., 2015 WL 4751202, No. 2:15–cv–115–FtM–38MRM, at *3 (M.D. Fla.
Aug. 11, 2015) (concluding that use of telephone to book out-of-state clients
and use of credit cards were insufficient for FLSA coverage). Dimingo does not
contend that he regularly used an instrumentality of interstate commerce.
Rather, Dimingo relies on the fact that he was engaged in commerce by
working as a security guard at a yard for companies that had trucks and
trailers that transported cargo interstate.
Dimingo relies on Martinez’s deposition testimony in support of his
position, and while the Defendants claim that his presentation of that
testimony is incomplete, the Defendants do not contest the Defendants helped
transport cargo across state lines, whether it be from Florida to other states or
from other states to California on a regular basis. Instead, the Defendants

Case 1:17-cv-23010-RNS Document 101 Entered on FLSD Docket 07/02/2018 Page 9 of 15

focus on the frequency of the cargo shipments from Florida to California, and
point to Martinez’s testimony that goods would be transported from Florida to
California one or two times a month or twice every three months. (Defendants’
Resp., ECF No. 68 at 8–9.) However, the Defendants say nothing about the fact
that the trucks and trailers were carrying cargo from California to Florida and
between other states on a regular basis. Critically, the Defendants do not
contest that the vehicles Dimingo was guarding were instrumentalities of
interstate commerce.
The Court is persuaded that Dimingo was doing work related to
instrumentalities of interstate commerce based on Martinez’s testimony.
Further, 29 CFR § 776.11(b) states, “employees have been held covered . . .
where they perform such work as watching or guarding . . . vehicles which are
regularly used in commerce or . . . maintain, watching, or guarding
warehouses, railroad or equipment yards, etc., where goods moving in
interstate commerce are temporarily held.” This describes Dimingo’s function
at the truck yard. Also, much like the guard in Russell, Dimingo’s security
services contributed materially to the Defendants’ interstate business.
Accordingly, the Court finds that Dimingo is covered by the FLSA to the extent
he can demonstrate that he is an employee under the statute.
D. Employment Relationship
The FLSA’s overtime and minimum wage protections “extend only to
‘employees,’ a term given a rough outline by a series of broad definitions in the
[FLSA].” Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1311 (11th Cir. 2013).
The FLSA defines “employee” in relevant part as “any individual employed by
an employer,” 29 U.S.C. § 203(e)(1), and an “employer” as “any person acting
directly or indirectly in the interest of an employer in relation to an employee,”
29 U.S.C. § 203(d). These definitions, albeit broad, do not bring independent
contractors within the FLSA’s scope. Scantland, 721 F.3d at 1311.
Dimingo and Defendants both seek summary judgment on the issue of
whether Dimingo was an employee or an independent contractor. “Employment
status under the FLSA is a matter of law; however, subsidiary findings are
considered issues of fact.” Artola v. MRC Express, Inc., No. 14-CV-23219, 2015
WL 12672722, at *1 (S.D. Fla. Sept. 25, 2015) (Seitz, J.). Accordingly, if there
are disputed material facts supporting a reasonable conclusion that Dimingo
was an employee, the Court must allow those disputed facts to be resolved by a
jury. Diego v. Victory Lab, Inc., 282 F. Supp. 3d 1275, 1280 (S.D. Fla. 2017)
(Moreno, J.).

Case 1:17-cv-23010-RNS Document 101 Entered on FLSD Docket 07/02/2018 Page 10 of 15

To determine whether an individual is either an employee or an exempted
independent contractor, courts look to the economic reality of the relationship
between the parties, and whether that relationship demonstrates that the
alleged employee is economically dependent on the alleged employer.
Scantland, 721 F.3d at 1311. The Eleventh Circuit has considered six factors to
assess whether economic dependence exists. Id. at 1312. These factors are:
(1) the nature and degree of the alleged employer’s control
as to the manner in which the work is to be performed; (2)
the alleged employee’s opportunity for profit or loss
depending upon his managerial skill; (3) the alleged
employee’s investment in equipment or materials required for
his task, or his employment of workers; (4) whether the
service rendered requires a special skill; (5) the degree of
permanency and duration of the working relationship; (6) the
extent to which the service rendered is an integral part of the
alleged employer’s business.
Id. “No one of these considerations can become the final determinant, nor can
the collective answers to all of the inquiries produce a resolution which
submerges consideration of the dominant factor—economic dependence.” Id.
(quoting Usery v. Pilgrim Equipment Co., Inc., 527 F.2d 1308, 1311–12 (5th Cir.
1976). The touchstone inquiry is “whether the alleged employee is economically
dependent on the alleged employer or whether, instead, the alleged employee is
in business for him or herself.” Robles, 2013 WL 2422625, at *3.
(1) Nature and Degree of Employer’s Control
“The first factor considers the nature and degree of the alleged employer’s
control as to the manner in which the work is to be performed.” Scantland, 721
F.3d at 1313. “Control arises when the purported employer goes beyond
general instructions and begins to assign specific tasks, to assign specific
workers, or to take an overly active role in the oversight of the work.” Diego,
282 F. Supp. 3d at 1281; see also Robles, 2013 WL 2422625, at *4 (“When an
alleged employer provides specific direction for how workers, particularly
lowskilled workers, are to perform their jobs, courts have weighed the control
factor in favor of employee status.”) (internal quotation marks and citations
omitted). “The nature and degree of an alleged employer’s control over work
performance matters to the extent that ‘it shows that an individual exerts such
control over a meaningful part of the business that [they] stand as a separate

Case 1:17-cv-23010-RNS Document 101 Entered on FLSD Docket 07/02/2018 Page 11 of 15

economic entity.’” Artola, 2015 WL 12672722, at *6 (quoting Usery, 527 F.2d at
1312–13).
The Defendants argue that this first factor heavily points to independentcontractor status because they claim they did not maintain any authority or
control over Dimingo’s provision of security services. (Defendants’ Mot., ECF
No. 54 at 6, Defendants’ Resp., ECF No. 68 at 12–13.) Defendants claim that
Martinez never went to the truck yard or provided Dimingo with “any
instruction whatsoever” as to how to provide security services. Moreover, the
Defendants insist that Dimingo hired his own employees and assigned them
the task of providing security services without their involvement. The
Defendants also present evidence that Martinez never questioned Dimingo
about who was covering his shifts and never completed background checks on
these individuals. Further, the Defendants claim that Martinez’s only concern
was that security was being provided at the truck yard.
Dimingo asserts that Martinez hired and fired him, and dictated his
hours. (Dimingo’s Mot., ECF No. 51 at 11.) He also claims that he had direct
supervisors, one of which was Martinez, whom he would communicate with on
a regular basis. He argues that he had to regularly report his activities and was
not responsible for making administrative or operational decisions. He cites to
examples of instances when he had to speak directly with Martinez about
issues at the yard.
Although Dimingo disagrees with the Defendants’ characterization of his
payment of individuals who covered his shifts as his own hired employees, it is
undisputed that he paid others to do his work. Moreover, is undisputed that
Martinez never questioned Dimingo about who covered his shifts, and that
none of the Defendants performed background checks on these individuals.
(Defendants’ SUF ¶¶ 24–25, ECF No. 53.) Dimingo also admitted that Martinez
would not physically supervise him while he was at the yard and that he only
saw Martinez once every three months. (See, e.g., Discovery Resp., ECF Nos.
52-5, Req. No. 7, 66-2, Req. No. 19.)
Based on the evidence presented, this factor weighs heavily in favor of
finding that Dimingo was an independent contractor. Dimingo’s evidence does
not demonstrate that he received specific instructions on how to perform his
tasks throughout his employment period. Rather, the evidence indicates that
Dimingo was able to manage his time and work with little interference from the
Defendants. Further, the fact that Dimingo outsourced his work to individuals
without any interference by the Defendants is indicative of the type of
independence Dimingo had in complying with his responsibilities.

Case 1:17-cv-23010-RNS Document 101 Entered on FLSD Docket 07/02/2018 Page 12 of 15

(2) Opportunity for Profit & Loss
In evaluating the second factor, the Court “considers the alleged
employee’s opportunity for profit or loss depending upon [the employee’s]
managerial skill.” Scantland, 721 F.3d at 1316. This factor indicates
independent-contractor status where the opportunity for profit or loss is
dependent on managerial skills “such as initiative, judgment and foresight.”
Artola, 2015 WL 12672722, at *7. An opportunity for profit or loss based “on
the worker’s efficiency or technical efficiency are not particularly meaningful in
distinguishing between employees and independent contractors.” Id.
Dimingo asserts that he was paid the same rate by the Defendants over
the course of his employment and relies on Martinez’s deposition testimony
and on his statement that he “was not required to generate profit or loss
through performance of managerial skills,” ECF No. 48-2 ¶ 9, to argue that the
second economic-realities factor favors the Court finding that he was an
employee. The Defendants insist that Dimingo “very clearly controlled his
opportunity for profit by hiring other individuals to perform security services”
and rely on the fact that Dimingo admitted that he was able to pursue other
work while working for the Defendants in support of their argument that this
factor favors a finding of independent-contractor status. (Defendants’ Mot.,
ECF No. 54 at 7; Defendants’ Resp., ECF No. 68 at 13–14.)
In evaluating whether Dimingo was able to increase his opportunities for
profit, the Court must focus on whether Dimingo was able to increase his
opportunities for profit with the Defendants rather than on his own. See, e.g.,
Robles, 2013 WL 2422625, at *5 (rejecting the defendants’ argument that the
plaintiffs could have increased their opportunities for profit by working for
other cleaning services because “th[at] fact extend[ed] beyond the scope of the .
. . inquiry, which focuses on the nature of the [p]laintiffs’ relationship with
[d]efendants”). In evaluating the evidence presented, it appears that Dimingo
was paid the same rate throughout his employment period and that his
responsibilities at the truck yard did not lend themselves to acquiring
additional profits by exercising his managerial skills. See Diego, 282 F. Supp.
3d at 1282 (“Diego’s work did not require him to exert any managerial skill,
especially not in a way that impacted his opportunity for profit or loss.”).
Therefore, this factor supports finding that Dimingo was an employee.
(3) Investment
Next, “[c]ourts may find independent contractor status when a worker
invests in equipment or materials required for completing his tasks, or hires

Case 1:17-cv-23010-RNS Document 101 Entered on FLSD Docket 07/02/2018 Page 13 of 15

other workers to assist him in the completion of his tasks.” Maldonado v.
Callahan’s Express Delivery, Inc., No. 8:13–cv–292–T–33AEP, 2018 WL 398724,
at *5 (Jan. 12, 2018). The Defendants argue that Dimingo provided the
equipment and materials necessary to provide his security services. The
Defendants point to the fact that Dimingo provided his own uniform, badge,
security license, and handgun. (Defendant’s Mot., ECF No. 54 at 7–8,
Defendants’ Resp., ECF No. 68 at 14.) The Defendants also cite to the fact that
Dimingo deducted those costs from his taxes. Dimingo does not contest these
facts and fails to submit argument on this point. This factor accordingly highly
favors a finding that Dimingo was an independent contractor, especially
considering the fact that Dimingo recruited others to cover his security duties,
which is also relevant consideration when evaluating this factor.
(4) Special Skills
The “utilization of initiative and the employment of special skills
indicates independent contractor status.” Artola, 2015 WL 12672722, at *8. “A
worker with unique skills and the opportunity to exercise initiative is more
likely to be able to operate as an independent business entity than an
interchangeable worker who completes routine tasks.” Id. Accordingly, “[a] lack
of specialization indicates that an individual is an employee, not an
independent contractor.” Maldonado, 2018 WL 398724, at *6 (quoting Molina v.
S. Fla. Express Bankserv, Inc., 420 F. Supp. 2d 1276, 1286 (M.D. Fla. 2006).
The Defendants argue that they relied upon Dimingo’s particular skills
and qualifications to protect the trucks and cargo in the yard. The Defendants
cite to the fact that Dimingo was hired because of his vast experience in
providing security services and the fact that he had a security license.
(Defendant’s Mot., ECF No. 54 at 8, Defendants’ Resp., ECF No. 58 at 14.).
Dimingo concedes that this factor indicates he was an independent contractor.
(Dimingo’s Resp., ECF No. 64 at 11.) This factor therefore weighs in favor of
finding that Dimingo was an independent contractor.
(5) Permanency and Duration
“The fifth factor considers the degree of permanency and duration of the
working relationship.” Scantland, 721 F.3d at 1318. Generally, a longer, more
permanent working relationship weighs toward employee status, whereas a
finite, non-exclusive work relationship is indicative of independent-contractor
status because they allow for more economic independence. Artola, 2015 WL
12672722, at *9.

Case 1:17-cv-23010-RNS Document 101 Entered on FLSD Docket 07/02/2018 Page 14 of 15

The Defendants argue that this factor weighs in favor of finding that
Dimingo was an independent contractor because Dimingo reported his income
on his tax returns as a sole proprietor, hired others to perform his services,
and was able to pursue other job opportunities, among other bases.
(Defendant’s Mot., ECF No. 54 at 8, Defendants’ Resp., ECF No. 68 at 14–15.)
Dimingo did not respond to the Defendants’ motion nor did it provide an
affirmative argument in its motion on this point.
The Court first notes that Dimingo’s tax-filing status is not determinative
because it is the economic reality of the relationship between Dimingo and the
Defendants that matters; in fact, some courts have disregarded a plaintiff’s tax
filing status when the reality of the relationship between the parties indicated a
different result. See, e.g., Robicheaux v. Radcliff Material, Inc., 697 F.2d 662,
667 (5th Cir. 1983); Artola, 2015 WL 12672722, at *2. Nonetheless, Dimingo’s
testimony about his tax returns supports the Defendants’ assertion that he
was paying others to do his work. Although this fact is more relevant to the
control and investment factors, this fact does suggest that Dimingo was able to
pursue other job opportunities. Despite the fact that Dimingo received payment
from the corporate defendants for several years, Dimingo does not claim, and
there is no evidence to suggest, that his relationship with the Defendants was
exclusive. Cf. Quarles v. Hamler, 652 F. App’x 792, 794 (11th Cir. 2016)
(concluding that the plaintiff was an employee in part because the defendantemployer told him that he could not work for anyone else). Given these facts,
this factor weighs in favor of finding that Dimingo was an independent
contractor.
(6) Integral Part of Business
The last factor the Court considers is whether Dimingo played an integral
role in the Defendants’ business. Scantland, 721 F.3d at 1319. “The more
integral the service, the more likely the worker is an employee.” Artola, 2015
WL 12672722, at *10. Dimingo asserts that he performed several tasks that
were central and integral to the Defendants’ business. (Diming’s Mot., ECF No.
51 at 12.) The Defendants concede that Dimingo’s services were an integral
part of their business. (Defendant’s Mot., ECF No. 54 at 8–9, Defendants’
Resp., ECF No. 68 at 15.) Therefore, the Court finds that this factor favors a
finding that Dimingo was an employee.
(7) Consideration of the Factors
The undisputed facts indicate that Dimingo was an independent
contractor. In evaluating the reality of the economic relationship between
Dimingo and the Defendants, the record indicates that Dimingo provided

Case 1:17-cv-23010-RNS Document 101 Entered on FLSD Docket 07/02/2018 Page 15 of 15

security services with little oversight, outsourced much of his work to others
without the Defendants’ interference, and was able to obtain other job
opportunities during the relevant period. Further, Dimingo was hired because
of his experience in the field and particular qualifications. Although Dimingo
was unable to profit based on his managerial skill and played an integral role
in the Defendants’ businesses, the facts in the record indicate that he was not
economically dependent on the Defendants.2
Because the FLSA only applies to “employees,” see Diego, 282 F. Supp.
3d at 1280, the Court need not decide whether Martinez is an individual
employer or whether the corporate defendants were joint employers. Nor must
the Court reach the question of which, if any, of the FLSA exemptions could
have applied had the Court found that Dimingo was an employee.
IV.

Conclusion

Accordingly, the Court finds that Dimingo has no claim under the FLSA
because he is an independent contractor. The Court therefore grants the
Defendants’ motion for summary judgment (ECF No. 54) and denies Dimingo’s
motion for partial summary judgment (ECF No. 51). The Clerk shall
administratively close this case. Any other pending motions, aside from the
parties’ pending sanctions motions (ECF Nos. 72, 74), are denied as moot. The
calendar call set for July 3, 2018 and the trial set for the trial period beginning
July 9, 2018 are hereby canceled.
Done and ordered, at Miami, Florida, on June 29, 2018.

________________________________
Robert N. Scola, Jr.
United States District Judge

Based on the Court’s ruling, the Court need not evaluate the Defendants’ arguments about
Dimingo’s Class D License. (Defendants’ Mot., ECF No. 54 at 9–10.)
2