UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 1:20-cv-22603-GOODMAN

ERIK CHAVEZ, individually, and

on behalf of others similarly situated, 

Plaintiff,

vs.

GRILL ENTERPRISES, LLC, a 

Florida Limited Liability Company, d/b/a 

Los Parrilleros and Parrilleros Tavern, and 

RUBEN SIERRA, individually,

Defendants.

______________________________________/

DEFENDANTS’ MOTION IN LIMINE

Defendants, GRILL ENTERPRISES, LLC, and RUBEN SIERRA, individually, by and 

through the undersigned counsel, and pursuant to the Court’s “Order Specially Setting Civil Jury 

Trial ...” (ECF No. 130), hereby file this Motion in Limine, and state as follows:

PRELIMINARY STATEMENT

At issue in this lawsuit is whether Defendants properly compensated Plaintiffs for the 

minimum wage pursuant to the Fair labor Standards Acts, 29 U.S.C. § 201, et seq., as amended 

(the “FLSA”) and the Florida Minimum Wage Act (“FMWA”). Plaintiffs’ claims are based on 

their contention that the tip credit provisions of the FLSA were violated, thereby invalidating the 

tip pool. In seeking to support their contentions and/or to otherwise persuade the jury to rule in 

their favor, Defendants anticipate that Plaintiffs will seek to introduce evidence related to: (1) 

presumed undocumented workers working for Defendants and (2) Defendants’ finances and/or 

income. Through this motion, Defendants seek to exclude this evidence pursuant to Fed.R.Evid. 

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401, 402, and 403, on the grounds that this information is not relevant, not probative, and will 

unduly prejudice Defendants and confuse the jury as to the matters at issue. 

LEGAL STANDARD

“The purpose of an in limine motion is to aid the trial process by enabling the Court to 

rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are 

definitely set for trial, without lengthy argument at, or interruption of, the trial.” Pandora 

Jewelers 1995, Inc. v. Pandora Jewelry, LLC, 2011 U.S. Dist. LEXIS 62969, 2-3 (S.D. Fla. June 

7, 2011)(citing Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 176 (S.D.N.Y. 

2008)). Any evidence, tending to make the existence of any fact of consequence more probably 

or less probably, is relevant and admissible, except as the Federal Rules of Evidence otherwise 

provide. Fed.R.Evid. 401 & 402. Relevant evidence “may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading 

the jury...” Fed.R.Evid.403.

EVIDENCE SOUGHT TO BE EXCLUDED

I. Evidence Concerning Undocumented Workers and Independent Contractors.

Defendants anticipate that Plaintiffs will seek to introduce evidence related to presumed 

undocumented workers and independent contractors working for Defendants. This issue has been 

raised repeatedly by Plaintiffs throughout the course of the litigation. 

Plaintiffs have listed a number of witnesses who Plaintiffs will contend were independent 

contractors and/or undocumented workers for Defendants. However, whether these persons or 

entities were independent contractors or undocumented workers is irrelevant to the issues in this 

case unless they participated in the tip pool from which Plaintiffs were paid. The only person 

Plaintiff has identified and argues was an independent contractor and supposedly should not 

have been part of the tip pool is Cesar Pacheco (a/k/a “Cesar” or “VIP Crew”). Defendants do 

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not object to him testifying as a witness (but for reasons discussed below, his presumed status as 

an undocumented worker should be excluded from evidence). However, Defendants do object 

to all other “independent contractor” witnesses including Alejandro C. Chef, Consultora 

Latinoamerica, Global Castle, Jacob Supply, Lux Pro Detail, and Troxx. Allowing such 

evidence would be highly prejudicial to Defendants and may cause confusion and/or cause the 

jury to question Defendants’ business practices and/or use of undocumented employees in other 

areas of Defendants’ business, which have nothing to do with the issues in this case. 

Plaintiffs list as an exhibit several “Sunbiz” records for entities Plaintiffs contend were 

independent contractors and/or undocumented workers for Defendants. However, whether 

these persons or entities were independent contractors or undocumented workers is irrelevant to 

the issues in this case unless they participated in the tip pool from which Plaintiffs were paid. 

The only person Plaintiff has identified and argues was an independent contractor and should 

not have been part of the tip pool is Cesar Pacheco (a/k/a “Cesar” or “VIP Crew”). Defendants 

do not object to him testifying as a witness. However, Defendants do object to all other 

“independent contractor” documents or evidence, including the Sunbiz records of Alejandro C. 

Chef, LLC, At Your Fingertips 81, LLC, Consultora Latinoamerica T I, Inc., Global Castle 

LLC, Jacob Supply LLC, Lux-Pro Detail, LLC, T&S Supplies, Inc., and Troxx LLC. 

Defendants object to the introduction of all evidence, testimony and documents regarding 

independent contractors or undocumented workers who worked for Defendants with the 

exception of Cesar Pacheco (a/k/a “Cesar” or “VIP Crew”) as there is no evidence nor any 

allegation that any other independent contractor participated in the tip pool. Allowing such 

evidence would be highly prejudicial to Defendants and may cause confusion and/or cause the 

jury to question Defendants’ business practices and/or use of undocumented employees in other 

areas of Defendants’ business, which has nothing to do with the issues in this case. 

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Lastly, as to Cesar Pacheco’s alleged status as an “undocumented” worker and the claim 

that this disqualifies him as an “employee” and from participation in the tip pool and thereby 

invalidates the tip pool, this is a red herring. The law in the Eleventh Circuit is clear that the 

FLSA’s definition of “employee” includes undocumented workers. Lamonica v. Safe Hurricane 

Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013); Patel v. Quality Inn South, 846 F.2d 700 (11th Cir. 

1988). So, whether Pacheco was undocumented or not, so long as he was an “employee” as 

defined by the FLSA, he could participate in the tip pool.

Evidence concerning the presumed undocumented status of Cesar Pacheco and/or the 

other workers or independent contractors at Defendants’ restaurant is not relevant to any issue at 

stake in this trial. To the extent that the Court finds that the undocumented status of workers has

some marginal relevance, it would be unduly prejudicial to Defendant to allow such evidence at 

trial, thereby potentially influencing and/or confusing the jury on actual issues at stake in this 

case.

II. Evidence Concerning Defendants’ Finances and/or Income.

Defendants anticipate that Plaintiffs will seek to introduce evidence related to the 

finances and/or income of Defendants. This issue has been raised repeatedly by Plaintiffs 

throughout the course of the litigation including in Plaintiff’s exhibit list where they list 

numerous financial records of Defendants as trial exhibits. 

Under “enterprise coverage,” an employee is protected by virtue of working for an 

enterprise that is engaged in “commerce” within the meaning of the statute and that has at least 

$500,000.00 in gross annual sales. See Polycarpe v. E&S Landscaping Serv., Inc., 616 F.3d 

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1217, 1220 (11th Cir. 2010)(citing 29 U.S.C. § 203(s)(1)(A))(emphasis added). Enterprise 

coverage under the FLSA applies only if the defendant employer: “(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[.]” 29 U.S.C. §203(s)(1)(A)(i)-(ii)(emphasis added).

As to the second element (i.e. whether Defendants had gross sales of $500,000), on June 

3, 2021 Defendants filed a motion and amended complaint admitting they had gross sales over 

$500,000 (ECF No. 52). Notwithstanding Defendants’ concession almost two (2) years ago that 

it had gross annual sales of $500,000, Plaintiffs continuously make arguments concerning 

Defendants’ finances and income and include their gross revenues in numerous pleadings. Again, 

Defendants do not contest that they had gross sales over $500,000. The second element of

enterprise coverage is not an issue in this case. In the joint pretrial stipulation, the fact that 

Defendant Grill Enterprises had over $500,000 in gross sales is an uncontested issue of fact. 

Nevertheless, Plaintiffs include numerous exhibits on their exhibit list, including tax 

returns and related documents, quarterly revenue reports, RT-6 forms, K-1 forms, 1040 forms, 

and a PPP loan application. These documents and the information contained therein concerning 

Defendants’ finances and income is completely irrelevant to the issues at stake in this case. 

Allowing such evidence would be highly prejudicial to Defendants and may cause confusion 

and/or cause the jury to see Defendants in a negative light because of their financial status and/or 

other businesses, which have nothing to do with the issues in this case. The financial information 

is also confidential and highly sensitive and, as a general rule, privileged and protected from 

disclosure with only narrow exceptions, none of which are applicable in this case.

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Other than meeting the $500,000 threshold, there is no other relevance to Defendants’

finances and/or income in this case and it must therefore be excluded from evidence at trial.

Plaintiffs raise the issue of Defendants’ wealth, presumably, to send a message to the Court 

and/or jury that Defendants can afford the verdict that Plaintiffs hope to receive and to persuade 

the jury to award damages to Plaintiffs not because of the merits of their case, but because of 

financial disparity and the wealth of Defendants. To the extent that the Court finds that 

Defendants’ income and/or finances has some marginal relevance, it would be unduly prejudicial 

to Defendants to allow such evidence at trial, thereby potentially influencing and/or confusing 

the jury on actual issues at stake in this case.

CERTIFICATE OF CONFERRAL

Counsel for Defendants conferred with Plaintiff’s counsel regarding the subjects raised in 

this motion and Plaintiff’s counsel confirmed that they do intend to introduce the subject 

evidence and that they object to this motion in limine to exclude such evidence. The matters 

raised herein were raised when the case was originally set for trial and Plaintiffs’ detailed 

position on these matters was set forth in the Parties’ previously filed Joint Summary of Parties 

Motions in Limine (ECF No. 82). Plaintiff’s counsel confirmed that their position on these 

matters is the same.

Dated this 23

rd day of March, 2023.

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Respectfully submitted,

TODD W. SHULBY, P.A.

Todd W. Shulby, Esq.

1792 Bell Tower Lane

Weston, Florida 33326

Telephone: (954) 530-2236

Facsimile: (954) 530-6628

E-mail: tshulby@shulbylaw.com

Counsel for Defendants

By: /s/Todd W. Shulby, Esq.

Florida Bar No.: 068365

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 23, 2023, I electronically filed the foregoing with

the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing 

to the following: Anthony F. Sanchez, Esq. 

I HEREBY CERTIFY that on March 23, 2023, I electronically filed the foregoing with 

the Clerk of the Court by using the CM/ECF system and will mail a copy of the foregoing and 

notice of electronic filing to the following non-CM/ECF participants: None. 

By: /s/Todd W. Shulby, Esq.

For Todd W. Shulby, P.A.

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