UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 20-21839-CIV-COOKE/GOODMAN

DESTINY SHELTON,

Plaintiff,

v.

11USA GROUP, LLC, et al.,

Defendants.

________________________/

REPORT AND RECOMMENDATIONS ON DEFENDANTS’ [ECF No. 15] MOTION 

TO COMPEL ARBITRATION, TO STAY PROCEEDINGS AND TO DISMISS 

CLAIMS OF OPT-IN PLAINTIFFS AND [ECF No. 30] MOTION TO COMPEL 

ARBITRATION AND TO STAY PROCEEDINGS PENDING ARBITRATION

Plaintiff Destiny Shelton, individually and on behalf of all others similarly 

situated, brought a collective action against Defendants 11USA Group, LLC d/b/a 

E11EVEN, GR OPCO, LLC d/b/a E11EVEN Miami, Dennis DeGori, Frances K. Martin, 

and DOES 1 through 10, inclusive, (collectively, “Defendants”). [ECF No. 1]. Defendants 

operate E11EVEN Miami, an adult-oriented entertainment facility or 24-hour club (a/k/a

the “Club”) featuring nude or semi-nude female entertainers. Plaintiff filed her complaint 

for damages against Defendants, alleging that Defendants are evading the mandatory 

minimum wage and overtime provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 

201, et seq. (“FLSA”), evading the mandatory minimum wage and overtime provisions 

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of the FLSA, illegally absconding with Plaintiff’s tips, and demanding illegal kickbacks,

including in the form of “House Fees,” as well as engaging in other wage violations.

In response to the Complaint, Defendants filed a Motion to Compel Arbitration, 

to Stay Proceedings and to Dismiss Claims of Opt-In Plaintiffs [ECF No. 15] and a latersubmitted Motion to Compel Arbitration and to Stay Proceedings Pending Arbitration

[ECF No. 30]. The first motion to compel arbitration [ECF No. 15] was filed in response 

to claims by the original Plaintiff, Destiny Shelton, and Opt-In Plaintiffs Danielle Cruz, 

Myah Knighton-Black, and Naomi Smith. The second motion to compel arbitration [ECF 

No. 30] was filed in response to Opt-In Plaintiff Celina Konegan joining the collective 

action after the other Plaintiffs [ECF No. 27]. 

Plaintiffs filed responses in opposition to the two motions [ECF Nos. 20; 31] and 

Defendants filed a reply in support of their first motion to compel arbitration [ECF No. 

22]. At the hearing on the motions, defense counsel stated that Defendants would not be 

filing a reply in support of the second motion to compel arbitration. Regardless of that 

informal, oral notice, the time to do so has since passed. 

United States District Judge Marcia G. Cooke referred the two motions to the 

Undersigned for a Report and Recommendations [ECF No. 32] and the Undersigned 

entertained oral argument from the parties on the two motions for more than two hours

[ECF Nos. 33; 34; 37]. For the reasons outlined below, the Undersigned respectfully 

recommends that Judge Cooke grant Defendants two motions to compel arbitrations 

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between Plaintiffs and Defendants, which would result in a stay of the instant case. To 

the extent that Defendants’ motions seek the dismissal of the Opt-In Plaintiffs, the 

Undersigned respectfully recommends that the motion to dismiss be denied at this point 

in the litigation. The claims will be stayed pending arbitration of individual claims filed 

by the Plaintiffs. 

Finally, the Undersigned respectfully recommends that Judge Cooke deny 

without prejudice Ms. Cruz’s claims because it is unclear whether she ever worked at 

the Club, or, if she did, whether she ever signed an agreement with an arbitration 

provision. Determining the answers to those questions will require additional discovery 

and perhaps even an evidentiary hearing. Alternatively, Ms. Cruz’s counsel might decide 

to voluntarily dismiss her claim and not proceed with an individual arbitration claim if 

he were to determine that she never worked at the Club or if he is unsure of her prior 

employment there and does not feel ethically comfortable continuing with her claim in 

any forum.

I. Factual Background

In her Complaint, Plaintiff Destiny Shelton alleges that she was employed by 

Defendants between July and October 2017 as a dancer at the Club. During her

employment with Defendants, Plaintiff alleges that she was denied minimum wage 

payments and denied overtime “as part of Defendants’ scheme to classify Plaintiff and 

other dancers/entertainers as ‘independent contractors.’” [ECF No. 1, p. 2].

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Plaintiff claims that E11EVEN failed to pay her minimum wages and overtime 

wages for all hours worked in violation of the FLSA, which requires non-exempt 

employees to be compensated for their overtime work at a rate of one and one-half times 

their regular rate of pay. See 29 U.S.C. § 207(a). Additionally, she claims that Defendants’ 

practice of failing to pay tipped employees pursuant to 29 U.S.C. § 203(m), violates the 

FLSA’s minimum wage provision. See 29 U.S.C. § 206.

As a result of the alleged FLSA violations, Plaintiff brought this collective action 

against Defendants to recover the unpaid overtime compensation and minimum wage 

owed to Plaintiff individually and on behalf of all other similarly situated employees of 

the Club. Since Shelton initiated the action, the following individuals have opted in as 

Plaintiffs: Danielle Cruz,

1 Myah Knighton-Black, Naomi Smith, and Celina Konega (the 

“opt-in Plaintiffs”). [ECF Nos. 4; 8; 16; 17; 19; 27]. Each are current or former dancers at 

E11EVEN during the relevant time period.

Plaintiff and the opt-in Plaintiffs seek to recover “double damages for failure to 

pay minimum wage, overtime liquidated damages, interest, and attorney’s fees.” [ECF 

No. 1, p. 3]. 

Defendants contend that on July 14, 2017, Plaintiff entered into a Dancer 

Performance Lease with Defendant GR OPCO, LLC in which she agreed to arbitrate any 

1 The status of Danielle Cruz as an Opt-In Plaintiff will be discussed in more detail 

below in Section III, Subpart C. 

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claims arising from her relationship with Defendants and waived all rights to pursue 

such claims as part of a collective or class action. [ECF Nos. 15, p. 1; 15-1, ¶¶ 20(a)-(b)]. 

Specifically, the arbitration provisions expressly require Plaintiff to arbitrate claims

“arising out of, or relating to [the terms of the Agreement] entertainer performing and/or 

working at the club at any time, or the termination of such performance or work.” See

ECF No. 15-1, Agreement at ¶21. Defendants also claim that the Opt-In Plaintiffs entered 

into a business relationship with Defendants pursuant to a contract that prohibits 

collective adjudication of disputes and includes the same arbitration clauses. [ECF No. 

15, p. 2]. 

Accordingly, Defendants filed the two instant motions to compel Plaintiffs to 

arbitrate their claims and to stay or dismiss the case until the claims are arbitrated. [ECF 

Nos. 15; 30]. Plaintiffs counter Defendants’ argument and contend that the arbitration 

clauses found in the Plaintiffs’ contracts run afoul of Eleventh Circuit precedent because 

they essentially require the employees seeking to enforce their FLSA claims to pay 

arbitrators’ fees and costs. Plaintiffs argue that the arbitration clauses are both 

procedurally and substantively unconscionable. 

II. Legal Standard

The Federal Arbitration Act (“FAA”) governs the validity of an arbitration 

agreement. Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326, 1329 (11th Cir. 2014)

(citation omitted). The FAA “embodies a liberal federal policy favoring arbitration 

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agreements.” Id. (internal quotations omitted). The FAA provides that a written 

agreement to arbitrate is “valid, irrevocable, and enforceable, save upon such grounds as 

exist at law or in equity for the revocation of any contract.” Id. (internal quotations and 

citations omitted).

III. Analysis

The Plaintiffs each signed materially identical copies of a “Dancer Performance 

Lease” (the “Agreements”) that purports to govern their relationships with the 

Defendants. The Agreements contain the following provisions requiring arbitration:

IN ORDER TO RESOLVE DISPUTES THAT MAY ARISE OUT OF YOU 

PERFORMING AT THIS CLUB, THE CLUB HAS ESTABLISHED A 

PRIVATE “ARBITRATION” PROCESS SET OUT IN THIS SECTION 21. 

ARBITRATION IS SIMILAR TO A COURT PROCEEDING, BUT IT’S LESS 

FORMAL, LESS TIME-CONSUMING, AND CAN BE LESS EXPENSIVE 

THAN GOING TO COURT. THIS IS THE ARBITRATION PROCESS THAT 

WILL GOVERN FOR ANY NON-ADMINISTRATIVE DISPUTES: 

A. ANY CONTROVERSY, DISPUTE, OR CLAIM ARISING OUT OF, OR 

RELATING IN ANY WAY TO, THIS LEASE, ITS TERMINATION, 

ENTERTAINER PERFORMING AND/OR WORKING AT THE CLUB AT 

ANY TIME, OR THE TERMINATION OF SUCH PERFORMANCES OR 

WORK (COLLECTIVELY IN THIS PARAGRAPH 21, A “CLAIM” OR 

“CLAIMS”), SHALL BE RESOLVED EXCLUSIVELY BY BINDING 

ARBITRATION IN ACCORDANCE WITH THE FEDERAL 

ARBITRATION ACT (THE “F.A.A.”). 

THIS REQUIREMENT TO ARBITRATE ANY AND ALL NONADMINISTRATIVE CLAIMS APPLIES REGARDLESS OF WHETHER 

SUCH A CLAIM IS BASED UPON CONTRACT, TORT OR OTHER 

COMMON LAW, STATUTE, REGULATION, ORDINANCE, OR 

OTHERWISE, AND REGARDLESS OF WHETHER A CLAIM BY ONE 

PARTY IS ONLY AGAINST THE OTHER PARTY OR IS AGAINST 

PERSONS OR ENTITIES ASSOCIATED IN ANY WAY WITH THE OTHER 

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PARTY (INCLUDING BUT NOT LIMITED TO PAST, PRESENT, AND 

FUTURE OWNERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, 

CONSULTANTS, LANDLORDS, LICENSORS AND/OR AGENTS, WITH 

EACH SUCH INDIVIDUAL AND ENTITY ALSO BEING CONSIDERED 

TO BE A “PARTY” FOR PURPOSES OF THIS PARAGRAPH 21). 

THE ARBITRATION PROCEEDING SHALL OCCUR IN THE STATE OF 

FLORIDA, AND SHALL BE ADMINISTERED BY AND INDEPENDENT, 

NEUTRAL ARBITRATOR AGREED UPON BY THE PARTIES, WHO 

SHALL BE PERMITTED TO AWARD – SUBJECT ONLY TO THE 

RESTRICTIONS CONTAINED IN THIS PARAGRAPH 21 – ANY RELIEF 

AVAILABLE IN A COURT. THE PARTIES WAIVE ANY RIGHT TO 

LITIGATE SUCH CLAIMS IN A COURT OF LAW, AND WAIVE THE 

RIGHT TO TRIAL BY JURY. 

***

B. ENTERTAINER AND THE CLUB AGREE THAT ANY AND ALL 

CLAIMS THAT THEY MAY HAVE AGAINST THE OTHER (AND/OR 

AGAINST ANY PERSONS OR ENTITIES ASSOCIATED WITH THE 

OTHER PARTY), SHALL BE BROUGHT AND MAINTAINED 

INDIVIDUALLY BY THAT PARTY IN ARBITRATION; THAT THEY 

WILL NOT CONSOLIDATE THEIR CLAIMS WITH THOSE OF ANY 

OTHER PERSON OR ENTITY; THAT THEY WILL NOT SEEK CLASS, 

COLLECTIVE, OR REPRESENTATIVE ACTION TREATMENT FOR ANY 

CLAIM; AND THAT THEY WILL NOT PARTICIPATE, IN ORDER TO 

RESOLVE A CLAIM, IN ANY CLASS, COLLECTIVE, OR 

REPRESENTATIVE ACTION AGAINST THE OTHER PARTY (AND/OR 

AGAINST PERSONS OR ENTITIES ASSOCIATED WITH THE OTHER 

PARTY).

[ECF Nos. 15-1, ¶ 21; 30-1, ¶ 21 (emphasis in original)].

Defendants argue that Plaintiffs must arbitrate their claims against Defendants, 

pursuant to their Agreements. In response to the Defendants’ motions to compel

arbitration, Plaintiffs allege that the arbitration provisions of their Agreements are 

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unconscionable, and therefore, unenforceable. In particular, the Plaintiffs challenge 

Section 21 of the Agreements, which provides:

EACH PARTY SHALL INITIALLY BE RESPONSIBLE FOR THEIR OWN 

ATTORNEY FEES AND OUT-OF-POCKET COSTS ASSOCIATED WITH 

THE ARBITRATION PROCEEDING. THE ACTUAL COSTS OF 

ARBITRATION (THE ARBITRATOR’S FEES AND RELATED EXPENSES) 

SHALL BE BORNE EQUALLY BY THE ENTERTAINER AND THE CLUB 

UNLESS APPLICABLE LAW REQUIRES THE ARBITRATOR TO IMPOSE 

A DIFFERENT ALLOCATION.

[ECF Nos. 15-1, ¶ 21; 30-1, ¶ 21 (emphasis in original)].

Plaintiffs oppose Defendants’ motions to compel arbitration, arguing that the 

Agreements are unenforceable because they are procedurally and substantively 

unconscionable under Florida state law.

A. The Arbitration Agreements Are Not Unconscionable.

The parties dispute whether the arbitration provisions in Plaintiffs’ Agreements

are unconscionable, and therefore unenforceable. The Court must look to state law to 

determine whether an arbitration provision is unconscionable, and consequently the 

provision is interpreted according to state law rules of contract construction. See Dale v. 

Comcast Corp., 498 F.3d 1216, 1219 (11th Cir. 2007) (internal citations omitted) (“The FAA 

allows state law to invalidate an arbitration agreement, provided the law at issue governs 

contracts generally and not arbitration agreements specifically. Thus, generally 

applicable contract defenses, such as fraud, duress, or unconscionability, may be applied 

to invalidate arbitration agreements.”).

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Florida law requires a “showing of both procedural and substantive 

unconscionability” to invalidate a contract. Pendergast v. Sprint Nextel Corp., 592 F.3d 1119, 

1134 (11th Cir. 2010) (emphasis in original). The Undersigned finds that Plaintiffs’ claim 

that the Agreements are unconscionable fails under both the substantive and the 

procedural prongs of the two-part analysis.

i. Substantive Unconscionability

In order for the Agreements to be substantively unconscionable, Plaintiffs need to 

demonstrate that “the terms of the contract are unreasonable and unfair.” Powertel, Inc. v. 

Bexeley, 743 So.2d 570, 574 (Fla. 1st DCA 1999). The Court must consider “whether the 

disputed terms limit available remedies, exclude punitive damages, prevent equitable 

relief, impose substantial costs, or lack mutuality of obligation with respect to the 

arbitration of disputes.” E.E.O.C. v. Taco Bell of Am., Inc., No. 8:06-cv-1792-T-30MAP, 2007 

WL 809660, at *1 (M.D. Fla. Mar. 15, 2007) (citing Palm Beach Motor Cars Ltd., Inc. v. Jeffries, 

885 So. 2d 990, 992 (Fla. 4th DCA 2004)). An arbitration provision may be unenforceable 

if it “preclude[s]” a plaintiff “from effectively vindicating his federal statutory right in 

the arbitral forum.” Musnick v. King Motor Co. of Ft. Lauderdale, 325 F.3d 1255, 1259 (11th 

Cir. 2003) (holding that the fee-shifting provision in the arbitration agreement did not by 

itself render the agreement unenforceable, and requiring employee to arbitrate claim in 

the absence of demonstrating that the high cost of arbitration precluded him from 

“vindicating his Title VII rights in the arbitral forum”).

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Plaintiffs argue that “[u]nder the FLSA, an award of reasonable attorney’s fees is 

mandatory to a prevailing party plaintiff, but that the arbitration agreement here 

precludes the recovery of such fees as they are not explicitly stated.” [ECF No. 20, p. 9]. 

The Undersigned finds that the attorney’s fees and costs provision within Section 21 of 

the Agreements does in fact deny Plaintiffs their basic statutory rights under the FLSA to 

guaranteed attorneys’ fees and costs if Plaintiffs were to prevail. 

Section 21 states that “the actual costs of arbitration (the arbitrator’s fees and 

related expenses) shall be borne equally by the entertainer and the club . . .” [ECF Nos. 

15-1, ¶ 21; 30-1, ¶ 21 (emphasis added)]. As Plaintiffs argue, “Plaintiffs’ rights under the 

FLSA cannot be waived. 29 U.S.C. § 253 specifically provides that plaintiffs’ rights to 

overtime and liquidated damages and other rights under the FLSA are not waivable.” 

[ECF No. 20, p. 9 (emphasis in original)].

Nevertheless, as Defendants point out, Plaintiffs’ Agreements contain a 

“severability” clause. [ECF Nos. 15-1, ¶ 19; 31-1, ¶ 19]. Section 19 of the Agreements 

states: 

IF ANY PROVISION OF THIS LEASE IS DECLARED TO BE ILLEGAL OR 

UNENFORCEABLE, THIS LEASE SHALL, TO THE EXTENT POSSIBLE, 

BE INTERPRETED AS IF THAT PROVISION WAS NOT A PART OF THIS 

LEASE; IT BEING THE INTENT OF THE PARTIES THAT SUCH PART BE, 

TO THE EXTENT POSSIBLE, SEVERABLE FROM THIS LEASE AS A 

WHOLE.

Id. 

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In light of Section 19, “Plaintiffs fail to satisfy the substantive prong of the 

unconscionability analysis because the allegedly unconscionable contract terms are 

severable from the rest of the agreement between the parties.” See Aquino v. BT’s on the 

River, LLC, No. 20-20090-CIV, 2020 WL 4194477, at *3 (S.D. Fla. July 21, 2020) (compelling

arbitration after determining the offensive provisions identified by plaintiff could be 

severed pursuant to a severability clause contained in the “Lease Agreement” between a 

dancer and an adult entertainment club). 

Plaintiffs cite to Hudson v. P.I.P., Inc., 793 F. App’x 935 (11th Cir. 2019) as an 

example of the Eleventh Circuit holding that “a similar provision in an arbitration 

agreement was unenforceable as contrary to the provisions of the FLSA.” [ECF No. 20, p. 

8]. However, as discussed at the hearing on Defendants’ pending motions to 

compel, Hudson actually supports the Defendants’ position that the offending arbitration 

provision can be severed from the remainder of the otherwise-valid agreement. [ECF No. 

22, p. 4]. In Hudson, the Court held that “if a provision is not enforceable, then the court 

must determine whether the unenforceable provisions are severable.” Id. at 938. 

Thus, Hudson stands for the proposition that an agreement to arbitrate that contains 

unenforceable provisions is nevertheless enforceable if those provisions can be severed 

from the rest of the contract.

As noted, the Undersigned recognizes that the Agreements at issue contain a 

severability clause at Section 19 which allows the Court to sever the offending terms and 

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enforce the rest of the provision requiring arbitration. [ECF Nos. 15-1, ¶ 19; 31-1, ¶ 19]. 

“Under these circumstances, where ‘the offensive terms are severable,’ ‘the court must 

compel arbitration according to the remaining, valid terms of the parties’ agreement.’” 

Aquino, 2020 WL 4194477, at *4 (citing Terminix Int’l Co., LP v. Palmer Ranch Ltd. P’ship, 

432 F.3d 1327, 1331 (11th Cir. 2005)). 

“But before severing the unenforceable provision, the Court must first make sure 

that the unenforceable provision does not go to the ‘essence’ of the parties’ agreement.” 

Aquino, 2020 WL 4194477, at *4 (citing Local No. 234 of United Ass’n of Journeymen & 

Apprentices of Plumbing & Pipefitting Indus. Of U.S. & Canada v. Henley & Beckwith, Inc., 66 

So. 2d 818, 821-22 (Fla. 1953)). The newly-severed Agreement, which has been revised to 

remove the offending language, must still reflect the “intention of the parties” and

contain valid promises by both sides. Local No. 234, 66 So. 2d at 822. A court makes this 

determination “by a fair construction of the terms and provisions of the contract.” Id. 

After severing the attorney’s fees and costs portion of Section 21 from the 

remainder of the Agreements, the Undersigned finds that parties have valid Agreements

to arbitrate, and respectfully recommends that Judge Cooke grant the pending motions 

to compel arbitration and stay the proceedings in this case while the parties proceed with 

arbitration. 

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ii. Procedural Unconscionability

For this prong of the unconscionability test, Plaintiffs argue that the “Lease 

Agreements,” which are 12 pages long, were presented to Plaintiffs “on a take-it-or-leaveit basis with no opportunity to negotiate the terms. Moreover, there is no clause providing 

that they had the power or option to opt-out of any provision or clause.” [ECF No. 20, pp. 

6-7]. Plaintiffs also claim that there is a disparity in bargaining power because Plaintiffs 

are “young adult women needing employment” and Defendants “likely had counsel 

draft and prepare” the Agreements. Id. at p. 7. 

The Undersigned finds Plaintiffs’ procedural unconscionability arguments to be

unpersuasive and unsupported by adequate, competent evidence. 

“The procedural component of unconscionability concerns the manner in which 

the contract was entered. It involves consideration of . . . the relative bargaining power of 

the parties and their ability to understand the contract terms.” Dorward v. Macy's Inc., No. 

2:10-CV-669-FTM-29, 2011 WL 2893118, at *5 (M.D. Fla. July 20, 2011) (citing Orkin 

Exterminating Co. v. Petsch, 872 So.2d 259, 265 (Fla. 2d DCA 2004)). 

“Courts must consider the following four factors to determine whether a contract 

is procedurally unconscionable under Florida law: (1) the manner in which the contract 

was entered into; (2) the relative bargaining power of the parties and whether the 

complaining party had a meaningful choice at the time the contract was entered into; (3) 

whether the terms were merely presented on a ‘take-it-or-leave-it’ basis; and (4) the 

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complaining party’s ability and opportunity to understand the disputed terms of the 

contract.” Dorward, 2011 WL 2893118, at *5.

The “central question” is “whether the consumer has an absence of meaningful 

choice in whether to accept the contract terms.” Pendergast, 592 F.3d at 1135 (citing Belcher 

v. Kier, 558 So.2d 1039, 1042 (Fla. 2d DCA 1990)). When assessing procedural and 

substantive unconscionability, “a balancing approach is employed allowing one prong to 

outweigh another provided that there is at least a modicum of the weaker prong.” Basulto 

v. Hialeah Auto., 141 So. 3d 1145, 1159 (Fla. 2014).

At this point in the analysis, the Undersigned need not examine the alleged 

procedural unconscionability prong because the Undersigned already ruled out the 

possibility of substantive unconscionability when the offending term was severed from 

the Agreements. As mentioned above, the unconscionability analysis requires both 

substantive and procedural unconscionability. See Pendergast, 592 F.3d at 1134 (finding 

that Florida law requires a “showing of both procedural and substantive 

unconscionability” to invalidate a contract). Nevertheless, the Undersigned will briefly 

address Plaintiffs’ unconvincing procedural unconscionability argument. 

Plaintiffs wholly fail to demonstrate through evidence (or anything more than 

general, unsupported allegations) that procedural unconscionability occurred in the 

bargaining phase of the agreement between the parties. This is not enough to rise to the 

level of a finding of procedural unconscionability. 

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For example, in Lujan v. Carnival Corp., No. 11-23826-Civ-SCOLA, 2012 WL 

1104253, at *3 (S.D. Fla. Apr. 2, 2012), a Peruvian national who signed a seafarer’s 

agreement that contained an arbitration clause argued that procedural unconscionability 

occurred because he was required to sign quickly and without an opportunity to properly 

review the Agreement or seek advice of counsel concerning its terms. The Court granted 

the employer’s motion to compel arbitration, finding that such allegations were

“insufficient to avoid arbitration.” Id. The court found that while a plaintiff that is “rushed 

into signing an agreement without adequate time to review upon fear of losing 

employment surely faces a tough choice, this does not amount to duress, nor does it mean 

that the agreement was invalidly formed.” Id.; see also Koda v. Carnival Corp., No. CIV. 06-

21088, 2007 WL 1752410, at *3 (S.D. Fla. Mar. 30, 2007) (upholding arbitration agreement 

where “plaintiff allege[d] he was put in a difficult ‘take it or leave it’ situation when 

presented with the terms of employment, which he blindly entered into without a clear 

understanding of the terms of the contract”).

Similarly, Plaintiffs fail to provide any evidence whatsoever that Plaintiffs were 

presented with their agreements on a take-it-or-leave-it basis, that they were 

unreasonably rushed when signing the agreements, or that they did not understand what 

they were signing and/or lacked the ability to understand the terms of the agreement 

other than the demeaning suggestion that they were merely “young adult women 

needing employment.” [ECF No. 20, p. 7]. The Undersigned is not convinced. 

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B. Denial of Defendants’ Motion to Dismiss the Opt-In Plaintiffs

Defendants argue that the Opt-In Plaintiffs should be dismissed from this case 

because they have not been certified as parties to any collective action and “collective 

action waivers, such as the one at issue her, are valid, enforceable, and should be enforced 

in this case.” [ECF No. 15, p. 10]. 

Defendants also argue that because Shelton is unable to maintain her action 

because she signed an agreement with an arbitration provision and waived her rights to 

pursue any claim as a collection action or class action, there can be no action for the OptIn Plaintiffs to opt-into in the first place.

The Undersigned disagrees with Defendants and finds that at this point in the 

litigation, when discovery has not yet been completed, the Opt-In Plaintiffs should not 

be dismissed from the lawsuit. 

As a matter of first impression, employees who opt into a collective action become

party plaintiffs upon the filing of their written consents. See Mickles v. Country Club, Inc., 

887 F.3d 1270 (11th Cir. 2018). There are two requirements for opt-in plaintiffs under the 

FLSA collective action statute. First, the named plaintiff must file on behalf of herself and 

“other similarly situated employees.” 29 U.S.C. § 216(b). This requirement has been met. 

See ECF No. 1, p. 1 (“Plaintiff Destiny Shelton (‘Plaintiff’), individually and on behalf of 

all others similarly situated . . .”).

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The second requirement is that the opt-in employees must give their “consent in 

writing to become such a party and such consent [must be] filed in the court in which 

such action is brought.” 29 U.S.C. § 216(b). This requirement has also been met, as the 

Opt-In Plaintiffs, Danielle Cruz, Myah Knighton-Black, Naomi Smith, and Celina 

Konega, filed their statements of claims and consents. [ECF Nos. 4; 8; 16; 17; 19; 27]. 

Thus, the Opt-In Plaintiffs remain party plaintiffs until the district court 

determines they are not similarly situated and dismisses them from the case; however, 

the parties in this case have not yet reached that stage of litigation. Mickles, 887 F.3d at

1276; see also Campbell v. City of Los Angeles, 903 F.3d 1090, 1104 (9th Cir. 2018) (finding 

that all individuals who opt in to a FLSA action prior to conditional certification become 

party plaintiffs with the same status in relation to the claims as do the named plaintiffs 

and remain so until the district court determines they are not similarly situated and 

dismissed them). 

Accordingly, the Undersigned respectfully recommends that Judge Cooke deny

Defendants’ request to dismiss the Opt-In Plaintiffs from the case at this point in the 

litigation. However, other than Ms. Cruz, the Opt-In Plaintiffs signed arbitration 

agreements, so they should be required to pursue individual arbitration claims (with the 

offending provision severed), and this federal court lawsuit should be stayed pending 

resolution of the arbitration (should they each decide to file one).

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C. Danielle Cruz 

Danielle Cruz is an Opt-In Plaintiff in this case; however, Defendants can find no 

record that she ever worked at the Club. [ECF No. 39]. In her consent form, Ms. Cruz 

could state only that “[t]o the best of [her] knowledge . . . [she] worked for E11even as a 

dancer at some point between May 1, 2017 and the present.” [ECF No. 4-1]. Even after 

Plaintiffs’ counsel provided specific, personal identification information and possible 

alias names for Ms. Cruz, the Club could still find no record that she ever worked at the 

Club. [ECF No. 39].

At this point, the Undersigned cannot recommend that Judge Cooke simply 

dismiss Ms. Cruz’s case and compel arbitration because there is no signed arbitration 

agreement between Ms. Cruz and Defendants and no sufficient evidence that she agreed 

to arbitration. 

It is possible that the arbitration matter for Ms. Cruz may be resolved by an 

evidentiary hearing or by summary judgment because the issue of whether she in fact 

ever worked for Defendants is a factual dispute. It is possible that Ms. Cruz could provide 

the names of other dancers at the Club who could confirm that she worked there during 

the relevant timeframe, or perhaps Ms. Cruz can find photos or videos of herself dancing 

at the Club as evidence of her employment there. 

The issue of whether Ms. Cruz worked for Defendants goes to the heart of any 

potential claim. If she never worked as a dancer at the Club, then the Court cannot reach 

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the arbitration issue because she never would have been presented with an Agreement 

with an arbitration provision in the first place. 

Ms. Cruz and her counsel will need to comply with Rule 11 and their due diligence 

responsibilities and confirm whether she worked at the Club in the first place. If it turns 

out that she did not work at the Club, then there may be consequences for Ms. Cruz and 

her counsel if they persist in pursuing her claim. If there is evidence that she did work at 

the Club, then Defendants can refile their motion to compel arbitration if the facts support 

such a motion. If, on the other hand, there is insufficient factual grounds to support Ms. 

Cruz’s “belief” that she danced at the Club, then she would, presumably, withdraw this 

lawsuit and not pursue arbitration.

IV. Conclusion

Having determined that the offending provisions identified by the Plaintiffs are 

severable, and in the absence of any evidence of procedural unconscionability, the 

Undersigned respectfully recommends that Judge Cooke compel arbitration of the 

claims brought by Destiny Shelton, Danielle Cruz, Myah Knighton-Black, Naomi Smith, 

and Celina Konegan, and stay this case with respect to those specific Plaintiffs. Anders v. 

Hometown Mortg. Servs., Inc., 346 F.3d 1024, 1032 (11th Cir. 2003) (“Because any invalid 

provisions are severable, the underlying claims are to be arbitrated regardless of the 

validity of the remedial restrictions.”). Additionally, the Undersigned respectfully 

recommends that Judge Cooke deny Defendants’ motion to dismiss the claims of the OptCase 1:20-cv-21839-MGC Document 40 Entered on FLSD Docket 11/20/2020 Page 19 of 20
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In Plaintiffs at this stage in the case and deny without prejudice the motion to compel 

arbitration against Ms. Cruz. 

V. Objections

The parties will have fourteen (14) calendar days from the date of being served 

with a copy of this Report and Recommendations within which to file written objections, 

if any, with the District Judge. Each party may file a response to the other party’s objection 

within fourteen (14) calendar days of the objection. Failure to timely file objections shall 

bar the parties from a de novo determination by the District Judge of an issue covered in 

the Report and shall bar the parties from attacking on appeal unobjected-to factual and 

legal conclusions contained in this Report except upon grounds of plain error if necessary 

in the interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); 

Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1 (2016).

RESPECTFULLY RECOMMENDED in Chambers, in Miami, Florida, on 

November 20, 2020.

Copies furnished to:

The Honorable Marcia G. Cooke

All counsel of record

Case 1:20-cv-21839-MGC Document 40 Entered on FLSD Docket 11/20/2020 Page 20 of 20