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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:20-CV-22606-GOODMAN [CONSENT CASE]

ERIC CHAVEZ, ET AL.,

Plaintiff, 

v. 

GRILL ENTERPRISES, LLC AND 

RUBEN SIERRA, 

Defendants.

_______________________/

DEFENDANTS’ MEMORANDUM OF LAW

REGARDING PARAGRAPH 8 OF THE JOINT PRE-TRIAL STIPULATION

Defendants, Grill Enterprises, LLC and Ruben Sierra, pursuant to the Court’s Post-Pretrial 

Conference Administrative Order [ECF No. 147] and its Paperless Order [ECF No. 155], submit 

the following Memorandum of Law: 

I. INTRODUCTION

Defendants did not agree (or stipulate) that all the items identified in a. through gg. were 

disputed issues of law to be resolved by the Court. Rather, Defendants suggested the wholesale 

removal of many of the issues that were repetitive and derivative of the umbrella issue (for instance,

whether the FLSA’s minimum wage was $7.25 per hour or the Florida minimum wage, whether 

the “tip credit” wage should be based on the FLSA’s $7.25 per hour or the higher Florida minimum 

wage, and so on). Plaintiffs insisted on identifying each granular, derivative issue (such as by 

identifying the minimum wage and “tip credit” wage on a year-by-year basis) as requiring 

determination by the Court.

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II. ISSUES OF LAW THAT REQUIRE THE RESOLUTION BY THE COURT

a. Whether FMWA requires each Plaintiff to comply with the pre-suit notice 

provisions contained in Fla. Stat. §448.110(6) as a prerequisite to bringing 

a claim in court for unpaid/underpaid minimum wages. 

Yes. Section 448.110(6), Florida Statutes, imposes a mandatory condition precedent on 

persons seeking to enforce the FMWA:

[P]rior to bringing any claim for unpaid minimum wages pursuant to this section, the 

person aggrieved shall notify the employer alleged to have violated this section, in writing, 

of an intent to initiate such an action. The notice must identify the minimum wage to which 

the person aggrieved claims entitlement, the actual or estimated work dates and hours for 

which payment is sought, and the total amount of alleged unpaid wages through the date 

of the notice.

Resolution of this issue impacts the minimum wages at issue and the tip credit at issue, 

affecting the issues of liability and damages. If the Court determines that Fla. Stat. §448.110(6) 

required Plaintiffs to send pre-suit notice, but that they failed to do so, then such a finding would 

require dismissal of Count II. Hayes v. Coco Dulce, Inc., 2019 WL 7371838, at *4 (S.D. Fla. Aug. 9, 

2019) (“For failure to comply with the applicable statutory pre-suit notice requirements, Plaintiff’s 

FMWA claims must be dismissed with prejudice.”)

The resolution of this issue also will impact the Court’s instructions to the jury on the 

applicable minimum wage (as being the $7.25 per hour minimum wage identified in the FLSA at 

29 U.S.C. §206(a)(1)(C)), the direct hourly wage Defendants were required to pay, and the tip credit 

available. 

b. What was the applicable minimum wage rate under the FLSA in this 

jurisdiction? 

$7.25 per hour. “For most employees, the minimum wage that an employer must pay an 

employee under the FLSA is $7.25 an hour.” 29 U.S.C. § 206(a)(1)(C). “That rule gives way, 

however, if the employee is a ‘tipped employee.’ In that scenario, § 203(m) authorizes the employer 

to pay the employee (1) an hourly wage of $2.13 plus (2) an additional amount in tips that brings 

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the total wage up to the federal minimum wage of $7.25 an hour.” Malivuk v. Ameripark, LLC, 694 

Fed. Appx. 705, 706 (11th Cir. 2017) (citing 29 U.S.C. § 203(m).) See also P&k Rest. Enter., LLC v. 

Jackson, 758 Fed. Appx. 844, 847 (11th Cir. 2019) (“The federal minimum wage is $7.25 per hour.”)

The Department of Labor identifies the federal minimum wage as $7.25 per hour. See 

https://www.dol.gov/whd/state/tipped.htm#Florida. 

In Count I, the Plaintiffs are only entitled to seek damages based on the federal minimum 

wage of $7.25 per hour. Although states can enact a higher minimum wage under 29 U.S.C. 

§218(a), “the FLSA does not incorporate state minimum or overtime requirements.” Villarino v. 

Pacesetter Pers. Serv., Inc., 2022 WL 18023213, at *3 (S.D. Fla. Dec. 1, 2022). In recognition of the 

principle that the FLSA establishes the ceiling for the federal minimum wage, the United States 

Supreme Court refused to supplant a higher state (California) minimum wage as the federal 

minimum wage in Parker Drilling Mgmt. Services, Ltd. v. Newton, 204 L. Ed. 2d 165 (2019) (“the FLSA 

already provides for a minimum wage, 29 U.S.C. § 206(a)(1), so the California minimum wage 

does not apply.”); see also Bonich v. NAS Component Maint., Inc., 2020 WL 3000187, at *2 (S.D. Fla. 

June 4, 2020) (“The Fair Labor Standards Act only entitles Plaintiff to the federal minimum wage.”) 

(citing Moser v. Action Towing Inc. of Tampa, 2017 WL 10276702, at *3 (M.D. Fla. Feb. 6, 2017).) 

Courts routinely determine minimum wage damages under the FLSA at a rate of $7.25 per hour. 

Feliciano v. Styrofoam Moulding Company, 2021 WL 3230683, at *4 (M.D. Fla. Jul. 9, 2021) (collecting 

cases). 

This issue is relevant if the Court determines that the Plaintiffs cannot proceed with the 

FMWA claim at Count II because the Plaintiffs would be limited to seeking only the minimum 

wage established by and enforceable under the FLSA. Any liability of the Defendants would be 

limited to the difference between the direct hourly wage required by the FLSA and the direct 

hourly wage paid to Plaintiffs. 

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The resolution of the applicable minimum wage required by the FLSA will impact the 

Court’s instructions to the jury, the “tip credit” wage that the Plaintiffs were required to receive, 

and any damages recoverable by the Plaintiffs. 

c. Whether the applicable minimum wage under the FLSA in this jurisdiction 

was $7.25 per hour at all times material or the higher minimum wage set 

by the State of Florida. 

Yes to Part 1. Please refer to paragraph b., above for the response to the first question and 

the first part of the second question. 

c2.Whether the applicable MW in this jurisdiction in 2017 in this jurisdiction 

was $8.10 per hour under the FLSA as well as Florida law?

No to Part 2, as phrased. The Defendants agree that the minimum wage required by the 

FMWA was $8.10 per hour in 2017 but maintain that the minimum wage under the FLSA was 

$7.25 (see argument under section b, above).

If the Court determines that Plaintiffs can pursue their minimum wage claims under the 

FMWA, then the Defendants agree to use the Florida Minimum Wage rate in effect each week at 

issue as the “applicable minimum wage.” 

This issue is relevant because it would impact the hourly wage that Defendants were 

required to pay to Plaintiffs, the “tip credit” wage they were required to pay to Plaintiffs, and the 

damages that Plaintiffs could seek to recover.

[c]. Whether the highest applicable “reduced minimum wage” in this 

jurisdiction for 2017 in this jurisdiction was $5.08 under the FLSA as well 

as Florida law?

No. Please refer to the Defendants’ response to paragraph b., above for the response to the 

first part of the question.

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Defendants agree that the applicable “reduced minimum wage” required by the FMWA 

was $5.08 per hour from January 1, 2017, to December 31, 2017. The applicable “reduced 

minimum wage” under the FLSA was $2.13 ($7.25 - $5.12 = $2.13).

The FLSA allows employers to pay a direct hourly wage of $2.13 plus tips. Nail v. Shipp, 

2019 WL 3719397, at *3 (S.D. Ala. Aug. 6, 2019) (“The maximum tip credit against minimum 

wage is $5.12/hour and the minimum cash wage is $2.13/hour (to total the federal minimum wage 

rate of $7.25/hour)).” Put another way, “§ 203(m) authorizes the employer to pay the employee (1) 

an hourly wage of $2.13 plus (2) an additional amount in tips that brings the total wage up to the 

federal minimum wage of $7.25 an hour. 29 U.S.C. § 203(m).” Malivuk, 694 Fed. Appx. at 706; 

and P&k Rest. Enter., LLC, 758 Fed. Appx. at 847.

If the Court determines that Plaintiffs are entitled to pursue their minimum wage claims 

under the FMWA, then the Defendants agree to use the Florida Minimum Wage rate in effect 

each week at issue as the “applicable minimum wage” and the tip credit of $3.02 per hour (or $5.08 

per hour) in 2017. If not, and one or both Plaintiffs can only proceed under the FLSA, then the 

“applicable minimum wage” would be $2.13.

This issue is relevant because it impacts the hourly wage that Defendants were required to 

pay to Plaintiffs, the “tip credit” wage they were required to pay to Plaintiffs, and the damages that 

Plaintiffs could seek to recover.

d. Whether the maximum, conditional “tip credit” for 2017 in this 

jurisdiction was $3.02 per hour under the FLSA as well as Florida law?

No. Please refer to the Defendants’ response to paragraph. d., above for the response to the 

question and the relevancy.

e. Whether the applicable MW in 2018 in this jurisdiction was $8.25 per hour 

under the FLSA as well as Florida law?

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No. Please refer the Defendants’ response to paragraph b., above for the response to the 

part of the question and the relevancy.

Defendants agree that the minimum wage required by the FMWA was $8.25 per hour in

2018 but maintain that the minimum wage under the FLSA was $7.25 (see argument under section 

b, above).

If the Court determines that Plaintiffs are entitled to pursue their minimum wage claims 

under the FLSA and the FMWA, then the Defendants agree to use the Florida Minimum Wage 

rate in effect each week at issue as the “applicable minimum wage” and the tip credit of $3.02 per 

hour (or $5.23 per hour) in 2018. 

f. Whether the highest applicable “reduced minimum wage” for 2018 in this 

jurisdiction was $5.08 under the FLSA as well as Florida law? 

No. Please refer to Defendants’ response to paragraph d., above, above for the response to 

the part of the question and the relevancy.

Defendants agree that the minimum wage required by the FMWA was $8.25 per hour in 

2018 but maintain that the minimum wage under the FLSA was $7.25 (see argument under section 

b, above).

If the Court determines that Plaintiffs are entitled to pursue their minimum wage claims 

under the FLSA and the FMWA, then the Defendants agree to use the Florida Minimum Wage 

rate in effect each week at issue as the “applicable minimum wage” and the tip credit of $3.02 per 

hour (or $5.23 per hour) in 2018. 

g. Whether the maximum, conditional “tip credit” for 2018 in this 

jurisdiction was $3.02 per hour under the FLSA as well as Florida law?

No. Please refer to Defendants’ response to paragraph d., above for the response to the 

question and the relevancy.

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h. Whether the applicable MW in 2019 in this jurisdiction was $8.46 per hour 

under the FLSA as well as Florida law?

No. Please refer to the Defendants’ response to paragraph b., above for the response to the 

first part of the question and the relevancy.

Defendants agree that the minimum wage required by the FMWA was $8.46 per hour in 

2019.

If the Court determines that Plaintiffs are entitled to pursue their minimum wage claims 

under the FLSA and the FMWA, then the Defendants agree to use the Florida Minimum Wage 

rate in effect each week at issue as the “applicable minimum wage” and the tip credit of $3.02 per 

hour (or $5.43 per hour) in 2019. 

i. Whether the highest applicable “reduced minimum wage” for 2019 in this 

jurisdiction was $5.44 under the FLSA as well as Florida law?

No. Please refer to the Defendants’ response to paragraph b., above for the response to the 

first part of the question and the relevancy.

Defendants agree that the minimum wage required by the FMWA was $8.46 per hour in 

2019.

If the Court determines that Plaintiffs are entitled to pursue their minimum wage claims 

under the FLSA and the FMWA, then the Defendants agree to use the Florida Minimum Wage 

rate in effect each week at issue as the “applicable minimum wage” and the tip credit of $3.02 per 

hour (or $5.44 per hour) in 2018. 

j. Whether the maximum, conditional “tip credit” for 2019 in this 

jurisdiction was $3.02 per hour under the FLSA as well as Florida law?

No. Please refer to the Defendants’ response to paragraph d., above for the first part of the 

question and the relevancy. 

k. Whether the applicable MW in 2020 in this jurisdiction was $8.46 per hour 

under the FLSA as well as Florida law?

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No. Please refer to the Defendants’ response to paragraph 7., above for the first part of the 

question and the relevancy. 

l. Whether the highest applicable “reduced minimum wage” in this 

jurisdiction for 2020 was $5.44 under the FLSA as well as Florida law? 

No. Please refer to the Defendants’ response to paragraph d., above for the first part of the 

question and the relevancy.

m. Whether the maximum, conditional “tip credit” in this jurisdiction for 

2020 was $3.02 per hour under the FLSA as well as Florida law? 

No. Please refer to the Defendants’ response to paragraph d., above for the response to the 

first question and the relevancy. The FLSA allows employers to pay a direct hourly wage of $2.13 

per hour plus tips. Nail v. Shipp, 2019 WL 3719397, at *3 (S.D. Ala. Aug. 6, 2019) (“The maximum 

tip credit against minimum wage is $5.12/hour and the minimum cash wage is $2.13/hour (to 

total the federal minimum wage rate of $7.25/hour)).” Put another way, “§ 203(m) authorizes the 

employer to pay the employee (1) an hourly wage of $2.13 plus (2) an additional amount in tips 

that brings the total wage up to the federal minimum wage of $7.25 an hour. 29 U.S.C. § 203(m).” 

Malivuk, 694 Fed. Appx. at 706; and P&k Rest. Enter., LLC, 758 Fed. Appx. at 847.

If the Court determines that Plaintiffs are entitled to pursue their minimum wage claims 

under the FLSA and the FMWA, then the Defendants agree to use the Florida Minimum Wage 

rate in effect each week at issue as the “applicable minimum wage” and the tip credit of $3.02 per 

hour. 

This issue is relevant because it impacts the hourly wage that Defendants were required to 

pay to Plaintiffs, the “tip credit” wage they were required to pay to Plaintiffs, and the damages that 

Plaintiffs could seek to recover.

n2. Whether Plaintiff, Erik Chavez, was required to comply with any FMWA’s 

pre-suit requirement imposed by Fla. Stat. §448.110.

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Yes. Please refer to the Defendants’ response to paragraph a., above for an explanation

and the relevancy. 

n. Whether Plaintiff, Leonel Diaz, was required to comply with any FMWA’s 

pre-suit requirement imposed by Fla. Stat. §448.110.

Yes. Please refer to the Defendants’ response to paragraph a., above and for the relevancy.

Neither Plaintiff complied with the pre-suit requirements imposed by Fla. Stat. §448.110, and they 

confirmed in their discovery responses that they did not send any document to Defendants 

“regarding Defendants’ pay practices or alleged failure to properly compensate persons for hours 

worked or wages earned.” [ECF Nos. 70-1 at 6.] Plaintiffs did not produce any such notice sent in 

conformity with Fla. Stat. §448.110 to Defendants in discovery. 

o. Whether any “pre-suit requirement imposed by Fla. Stat. §448.110" is 

constitutional under the Florida Constitution. 

Yes. Courts routinely find that the pre-suit notice requirement imposed by Fla. Stat. 

§448.110(6) is constitutional. Epsilantis vs. Scozzari Roof Services Contracting & Consulting Inc., 2021 WL 

10725013, at *3 (S.D. Fla. Nov. 19, 2021) (collecting cases). 

This issue is relevant because it impacts the hourly wage that Defendants were required to 

pay to Plaintiffs, the “tip credit” wage they were required to pay to Plaintiffs, and the damages that 

Plaintiffs could seek to recover.

p. Whether Plaintiffs reported their gross or net tips to the restaurant 

through an automated computer program and when.

Defendants do not believe this to be an issue of law for the Court. Defendants conferred 

with Plaintiffs on this issue, but they refused to agree that this question of law “q.” is a question of 

fact and not a question of law to be determined by the Court. Plaintiffs insisted that the issue be 

preserved and included in the Joint Pre-Trial Stipulation. This appears to be a factual issue for 

determination at trial.

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Defendants do not believe that this issue is relevant for trial purposes and submit that it 

should not have been submitted to the Court as an issue of fact or law. 

q. Whether Plaintiffs’ “Total tips” reported on the “Shift Reports” during 

any given pay period were recorded in shift report records maintained by 

the restaurant. 

Please refer to the Defendants’ response to paragraph q., above for an explanation. It also 

is difficult to respond substantively to this question as it does not explain the distinction Plaintiffs 

are drawing between the words “reported” and “recorded” and the use of the terms “Shift 

Reports” and “shift report records.” If “total tips” are “reported” on the “Shift Reports,” then it is 

also true that they are “recorded in the shift report records” unless Plaintiffs are making a 

distinction between the words “reported” and “recorded” or between the terms “Shift Reports” 

and “shift report records.” This appears to be a factual issue for determination at trial.

r. Whether Defendants have properly pleaded non-compliance with any 

condition precedent. 

Yes. Defendants specifically denied the allegation that Mr. Chavez complied with all 

conditions precedent at Count II. [ECF Nos. 7 at §26 and 47 at §26.] “The specific denial of 

performance of conditions precedent may be raised by motion as well as by answer.” Associated 

Mech. Contractors, Inc. v. Martin K. Eby Const. Co., Inc., 271 F.3d 1309, 1317 (11th Cir. 2001) [emphasis 

added.] Defendants specifically raised the issue of failure to provide pre-suit notice in their Fifth 

Affirmative Defense, wherein they alleged as follows: “The action and/or the damages 

claimed in this action are barred by Plaintiff’s failure to provide notice of any alleged 

unlawful pay practice and/or alleged overtime hours worked.” [ECF No. 22 at 6.] Defendants 

complied with the requirements imposed by Fed. R. Civ. P. 9(c) by raising the issue of “failure to 

provide notice” as an affirmative defense. [ECF No. 22 at 6.]

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The only condition precedent to pursuing a claim under the Florida Minimum Wage Act is 

found in Fla. Stat. §448.110:

(6)(a) Any person aggrieved by a violation of this section may bring a civil action in a 

court of competent jurisdiction against an employer violating this section or a party 

violating subsection (5). However, prior to bringing any claim for unpaid minimum wages 

pursuant to this section, the person aggrieved shall notify the employer alleged to have 

violated this section, in writing, of an intent to initiate such an action. The notice must 

identify the minimum wage to which the person aggrieved claims entitlement, the actual 

or estimated work dates and hours for which payment is sought, and the total amount of 

alleged unpaid wages through the date of the notice. [Emphasis added.]

Mr. Chavez alleged that he complied with the pre-suit condition precedent in the Amended 

Complaint.1 [ECF No. 7 at §26.] Defendants denied that he satisfied the (only) condition precedent 

in paragraph 27 of their Answer to the Count II of the Amended Complaint. Defendants again 

specifically raised the issue of “Plaintiff’s failure to provide notice” in their Fifth Affirmative 

Defense. [ECF No. 22 at 6.] By asserting there was a “failure to provide notice,” as contemplated 

by the language of Fla. Stat. §448.110 (referring to the pre-suit “notice”), Defendants pled the 

“failure to provide notice” required by Fla. Stat. §448.110(6) with sufficient particularity. Put 

another way, Defendants did not merely deny the allegation at paragraph 27 of Count II, but 

specifically denied that Plaintiff’s claim was defective for “failure to provide notice”. [ECF 

Nos. 6, 22.] By specifically identifying the “failure to provide notice” as a defense to Count II, 

Defendants properly pleaded non-compliance with the pre-suit notice condition precedent 

imposed by Fla. Stat. §448.110(6) in conformity with Fed. R. Civ. P. 9(c). Compare Jackson v. Seaboard 

Coast Line R. Co., 678 F.2d 992, 1009 (11th Cir. 1982) (“Under this rule, if a party disagrees with a 

1 Opt-In Plaintiff, Leonel Diaz, is never mentioned in the Amended Complaint. [ECF No. 

6.] There is no allegation that Mr. Diaz complied with Fla. Stat. §448.110(6). By failing to follow 

the requirements imposed by Fed. R. Civ. P. 15 to further amend the operative Complaint so he 

could become a party to the claim at Count II brought pursuant to Florida law, in particular Fla. 

Stat. §448.110, Defendants were not given the opportunity to assert any defenses specific to Mr. 

Diaz. 

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general averment that the conditions precedent have been met, that party may raise the issue with 

a specific and particular denial.”)

Once Defendants specifically denied that Plaintiff failed to provide the “notice” required 

by the law, “The plaintiff then bears the burden of proving that the conditions precedent, which 

the defendant has specifically joined in issue, have been satisfied.” Jackson v. Seaboard Coast Line R. 

Co., 678 F.2d 992, 1010 (11th Cir. 1982).

Determining that Defendants complied with Fed. R. Civ. P. 9(c) will shift the burden to 

Plaintiffs to establish through record evidence that they complied with pre-suit noticed 

requirements imposed by Fla. Stat. §448.110(6). Once the Court determines that they did not,

applicable minimum wage rate, the “tip credit” wage, the Court’s instructions to the jury, the 

questions to be answered by the jury, and the damages Plaintiffs can seek to recover, if any.

s. Whether the failure by one or both Plaintiffs to comply with the pre-suit 

requirements imposed by Fla. Stat. §448.110 prevents them from 

pursuing claims under the Florida Minimum Wage Act.

Yes. Please refer to the Defendants’ response to paragraphs b. and t., above. Neither 

Plaintiff complied with the pre-suit requirements imposed by Fla. Stat. §448.110. Defendants never 

produced any documents in discovery to establish that they notified Defendants in writing and in 

compliance with Fla. Stat. §448.110(6) at least 15 days before either Plaintiff asserted a claim under 

the FMWA, as evidenced by the following:

[ECF Nos. 70-1 at 7; 70-2 at 7.] Plaintiffs did not disclose any pre-suit notice letter they claim to 

have sent to Defendants in their Rule 26 Disclosures. They also failed to produce (and supplement 

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their production of) documents they intend to use at trial with any pre-suit notice in response to 

Request No. 21 directed to the Plaintiffs. [ECF Nos. 70-1 at 8; 70-2 at 8.]

Determining that Plaintiff failed to comply with Fla. Stat. §448.110(6) will preclude 

Plaintiffs from claiming entitled to a wage higher than that required by the FLSA ($7.25/hour) as 

it relates to the applicable minimum wage, the tip credit wage, the tip credit wage, and the damages 

that Plaintiffs can seek in this case, as well as the jury instructions to be given thereon.

t. Whether the FMWA provides a mechanism to alter Fed. R. Civ. P. 17 

and/or the ability to “opt-in” or join a FMWA claim under Florida state 

law. 

No. Plaintiff Erik Chavez filed his initial Complaint on June 23, 2020 (ECF No. 1) and an 

Amended Complaint on July 17, 2020 (ECF No. 7). A Notice of Consent to Opt-In Pursuant to 

29 U.S.C. §216(b) on behalf of Leonel Diaz was filed on December 9, 2020 [ECF No. 39.] Diaz 

only opted-in to the Fair Labor Standards Act (FLSA) minimum wage claim, not the Florida 

Minimum Wage Act (FMWA) claim. [ECF No. 39.] Mr. Diaz could have, but did not, invoke the 

Federal Rules of Civil Procedure to join the FMWA claim. The procedure to add a party to a claim 

not governed by the FLSA is as follows:

“In order to amend a complaint to add additional parties ..., a plaintiff must satisfy both 

the requirements of Rule 15(a) and demonstrate compliance with one of the other rules 

governing the addition of parties, such as Rules 19, 20, or 21.”). Id. (quoting Fincher v. 

Georgia-Pacific, LLC, No. 108-CV-3839, 2009 WL 2601332, at *1 (N.D. Ga. Aug. 24, 

2009) ). Under Rule 15, a party who seeks to amend a complaint after the deadline in the 

Case Management and Scheduling Order may only do so “with the opposing party's 

written consent or the court's leave.” Fed. R. Civ. P. 15(a)(2).

Griffin v. Blanchette, 2018 WL 8369386, at *1 (M.D. Fla. Dec. 7, 2018). 

Plaintiffs could/should have sought leave to amend the pleading under Fed. R. Civ. P. 15 

to add Mr. Diaz as a party to the case and/or as a party to Count II (the FMWA claim). Mr. Diaz 

could have sought leave to join the FMWA claim pursuant to Fed. R. Civ. P. 17-18 but did not. 

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The Court established a deadline of April 8, 2021, for “Joinder of parties and claims, and 

amendment of pleadings.” [ECF No. 42.] Mr. Diaz never sought leave to join the FMWA claim

by amending the complaint and is, therefore, not a part of that claim. Mr. Diaz’s notice was 

expressly filed pursuant to the FLSA’s procedural opt-in provision (29 U.S.C. §216(b)) and does 

not amount to a joinder of non-FLSA claims. Moreover, as Mr. Diaz admits, “The FMWA does 

not include a separate procedural mechanism for joining a minimum wage claim under the 

FMWA.” See Plaintiffs’ Response [ECF No. 105, §IV at 16.] In the absence of a statutory 

mechanism under the FMWA to join a claim (as exists under the FLSA for FLSA claims), it was 

incumbent upon Mr. Diaz to join the FMWA claim by other means (e.g. amended pleading, motion 

to join, motion to ratify), as allowed under the Federal Rules. Mr. Diaz did not pursue any such 

course of action and thus did not join in and is not a party to Count II.

u. Whether the Consent to Join form filed by Opt-In Plaintiff, Leonel Diaz, 

operates to join him as a party plaintiff to the FMWA claim filed by 

Plaintiff, Erik Chavez.

No. Please refer to the Defendants’ response to paragraph u., above, and for the relevancy.

v. The type and amount of “unpaid minimum wages” that Plaintiffs can seek 

to recover in Count I, if any. 

None. Plaintiffs are not entitled to recover any unpaid minimum wages under the FLSA 

because Defendants properly paid Plaintiffs their minimum wages in compliance with the FLSA, 

informed them of the tip credit, did not require Plaintiffs to share or pool their tips, did not 

improperly deduct any money from Plaintiffs’ tips or wages, and did not include non-tipped 

employees in any tip pool. Please also refer to Defendants’ responses to a., b., s., and t., above and 

for the relevancy. The only minimum wage claim at issue should be that required by the FLSA at 

Count I, pursuant to which Plaintiffs seek the difference between the hourly wage paid to them (as 

reflected on their pay stubs) and the hourly wage required by the FLSA, if any.

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w. The type and amount of “unpaid minimum wages” that Plaintiffs can seek 

to recover in Count II, if any.

None. If the Court determines that Plaintiffs can pursue their minimum wage claims under 

the FMWA, then the Defendants agree to use the Florida Minimum Wage rate in effect each week 

at issue as the “applicable minimum wage.” 

x. Whether Defendants’ reliance on the DOL’s investigation is sufficient to 

satisfy the “good faith” requirement to avoid the imposition of liquidated 

damages for any FLSA and/or FMWA violation proven by Plaintiffs. 

Yes. Defendants believe this is a mixed question of fact and law for the Court to decide 

post-trial. See Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150 (11th Cir. 2008) (“...the 

Act assigns to the judge the role of finding whether the employer acted in subjective and 

objective good faith for liquidated damages purposes. See 29 U.S.C. §260.”) As a matter of law, 

the Court can determine that the evidence adduced at trial is sufficient to find that Defendants 

reasonably and in good faith relied on an investigation and the findings by the DOL to avoid the 

imposition of liquidated damages. 

There are two components that an employer must establish to satisfy the “good faith” 

requirement: objective and subjective. 29 C.F.R. §790.13, et seq.; see also See Alvarez Perez, 515 F.3d 

1150.

In this case, it was objectively reasonable for a reasonable employer to believe that following 

the DOL’s investigation into all of their payroll practices regarding all of their workers, where the 

employer provided the investigator all payroll records concerning all employees, including records 

of tip-outs and the tip credit taken for servers, and having settled and corrected the minimal 

overtime issues cited, that the remainder of their payroll practices comported with the FLSA. In 

this case, Defendants proffer that they met with the DOL, the DOL conducted interviews, the 

DOL was provided with all payroll records including records that showed the tip credit taken and 

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tip-outs, the DOL cited them for minimal overtime issues unrelated to any minimum wage issue 

in this case, and that they had conversations with the DOL investigator that assured them that 

their payroll practices (aside from the very limited overtime issue cited by the DOL, that was settled 

and corrected) complied with the FLSA, including their practices with regards to minimum wages, 

tip-outs and the tip credit. This all created the present sense impression on Defendants that their 

payroll practices complied with the law and did not require any change. This satisfies both the 

subjective and objective elements of the “good faith” analysis. See Garcia v. J&J, Inc., 2020 WL 

209732, at *3 (S.D. Fla. Jan. 14, 2020)( “[T]he Court determines that evidence of the DOL 

investigation is relevant to the good-faith defense and not outweighed by the risk of prejudice.”). 

y. Whether liquidated damages apply to any minimum wage and/or FLSA 

violations established by Plaintiffs.

No. Defendants have asserted that they acted in “good faith” and that liquidated damages 

should not apply. For example, please see the argument above in relation to y.

z. What is the applicable statute of limitation?

The statute of limitations for Mr. Chavez begins 2 years before the date he filed the 

Complaint in this case (June 23, 2020) [ECF No. 1] unless the jury finds that Defendants willfully 

violated the minimum wage provisions of the FLSA, which would allow the statute of limitations 

to extend to three years before he filed the Complaint. The statute of limitations for Mr. Diaz 

commences on the workweek beginning on March 10, 2019, by operation of the Department of 

Labor, Wage and Hour Division’s supervision of payment to him, his waiver of any claims that 

predate the workweek ending March 9, 2019, and the WH-58 Form issued to and signed by him. 

A WH–58 is a standard form used by the DOL to inform an employee that, although he 

has the right to file suit under 29 U.S.C. § 216(b), acceptance of the back wages offered will result 

in waiver of those rights.” Niland v. Delta Recycling Corp., 377 F.3d 1244, 1248 (11th Cir. 2004) 

Case 1:20-cv-22603-JG Document 168 Entered on FLSD Docket 05/04/2023 Page 16 of 18
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(plaintiff waived the right to sue by signing the WH-58 Form). “[T]he WH-58 form serves as a 

receipt....” Rivers v. Zeno Office Sols., 2020 WL 6434515, at *2 (N.D. Fla. Oct. 2, 2020), report and 

recommendation adopted, 2020 WL 6430354 (N.D. Fla. Nov. 2, 2020). The signed WH-58 Form Diaz, 

accompanied by proof of payment, operates as a complete to any claim by Diaz under the FLSA 

before the “workweek ending 03/09/2019.”

The WH-58 Form and the accompanying payment confirmation documents required by 

29 C.F.R. §516.2(b) establish that Diaz waived, released, and was paid in full for any FLSA claim 

before the workweek ending March 9, 2019. See e.g., Cappelli v. Miami Beach Hosp., LLC, 2017 WL 

945187, at *3 (S.D. Fla. Jan. 10, 2017) (finding waiver and release of FLSA claim covered by WH58 Form); and Blackwell v. United Drywall Supply, 362 Fed. Appx. 56, 58 (11th Cir. 2010) (affirming 

summary judgment for employer based on WH-58 Form). The WH-58 Form operate as a waiver, 

regardless of whether Mr. Diaz acknowledges signing it, since “An employee who accepts such a 

payment supervised by the Secretary thereby waives his right to bring suit for both the unpaid 

wages and for liquidated damages, provided the employer pays in full the back wages.” Lynn’s Food 

Stores, Inc. v. U.S. By & Through U.S. Dept. of Labor, Employment Standards Admin., Wage & Hour Div., 

679 F.2d 1350, 1353 (11th Cir. 1982). In other words, whether Mr. Diaz admits to signing the 

WH-58 form is irrelevant if he accepted the required payment. See Mion v. Aftermarket Tool & 

Equipment Group, 990 F. Supp. 535 (W.D. Mich.1997); Heavenridge v. Ace-Tex Corp., 1993 WL 603201 

(E.D. Mich. Sept. 3, 1993); Selz v. Investools, Inc., 2010 WL 1451347 (D. Utah Apr. 8, 2010).

aa.What is the period of recovery for wages under the applicable statutes of 

limitation: two years or three years from the date the Complaint was filed 

for Mr. Chavez and from the date when Mr. Diaz filed his Consent to Join, 

and for which claim(s). 

Please refer to the Defendants’ response to paragraph aa., above and for the relevancy.

bb. Whether the filing of the Amended Complaint that contains claims not 

pled in the initial Complaint requires the Court to determine that Grill 

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Enterprises, LLC, cannot be found to be in default of the initial Complaint 

due to the additional claims contained in the Amended Complaint as a 

matter of law. 

Yes. “The filing of an amended pleading moots the entry of a default based on a prior 

pleading.” Barbuto v. Miami Herald Media Co., 2022 WL 2237164, at *2 (S.D. Fla. June 22, 2022) 

(refusing to enter default judgment because amended complaint asserted new claims and 

superseded initial complaint) (collecting cases). 

Resolution of this issue will allow Defendant, Grill Enterprises, LLC, to continue to litigate 

this case on the merits and to present its defenses to Plaintiffs’ claims.

Respectfully submitted this 4th day of May 2023.

/s/Todd W. Shulby, Esq.

Todd W. Shulby, Esq. (068365)

Todd W. Shulby, P.A. 

1792 Bell Tower Lane

Weston, FL 33326

Telephone: (954) 530-2236

E-mail: tshulby@shulbylaw.com

Co-Counsel for Defendants

/s/Brian H. Pollock, Esq. 

Brian H. Pollock, Esq. (174742)

FairLaw Firm

135 San Lorenzo Avenue

Suite 770

Coral Gables, FL 33146

Telephone: (305) 230-4884E-mail: 

brian@fairlawattorney.com

Co-Counsel for Defendants

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