LAW OFFICES OF ANTHONY F. SANCHEZ, P.A. 

6701 SUNSET DRIVE, SUITE 101, MIAMI, FL, 33143 • TELEPHONE (305) 665-9211

PLAINTIFFS’ MEMORANDUM OF LAW RE: “ISSUE TO BE BRIEFED” NO. 4 

Issue No. 4: Whether an opt-in plaintiff needs to send a separate pre-suit demand 

to pursue an FMWA claim if the initial plaintiff has already sent a pre-suit demand 

letter? 

A. No. There is no authority for the idea that an opt-in plaintiff must provide presuit notice under FMWA. Published authority suggests otherwise.

There is neither controlling nor published authority in support of the proposition that an 

opt-in plaintiff is required to send a separate “pre-suit demand” as a condition precedent to joining

a lawsuit which has already been filed. The only published case addressing the issue specifically 

notes the absence of any case law on this point and specifically concluded that for purposes of a 

motion to dismiss, a representative plaintiff had satisfied the supposed pre-suit notice requirement 

when he delivered pre-suit notice on behalf of himself and on behalf of all putative class members 

as well. Villarino v. Pacesetter Pers. Serv., Inc., 481 F. Supp. 3d 1252, 1257 (S.D. Fla. 2020). 

B. An opt-in plaintiff is not required to provide pre-suit notice. An opt-in plaintiff 

may join the case by filing a written consent to join. 

There is no authority to support the idea that an Opt-in Plaintiff must provide “pre-suit 

notice. There is controlling authority to support that dismissal under the circumstances of this case 

is clear error since it prejudices a litigant unnecessarily. Mickles v. Country Club Inc., 887 F.3d 

1270, 1280-81 (11th Cir. 2018). An opt-in plaintiff becomes a party in the action upon filing a 

consent to join and nothing else is required of him. Id. at 1278. The remedy for lack of notice is 

notice, not dismissal. See Beardsley v. Admiral Ins. Co., 647 So. 2d 327, 330 (Fla. 3d DCA 1994). 

1. There is no authority to support that an opt-in plaintiff must provide 

pre-suit notice.

As a preliminary matter, the Plaintiffs note that the requirement of §448.110(6)(a), Fla. 

Stat., is not correctly characterized as a “pre-suit demand letter”. Rather, the referenced provision 

is more aptly described as a “pre-suit notice” requirement. Indeed, the statute provides: 

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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.

§ 448.110(6)(a), Fla. Stat. After receiving the notice, the employer has 15 calendar days to resolve 

the matter to Plaintiffs satisfaction. Villarino v. Pacesetter Pers. Serv., Inc., 481 F.Supp.3d 1252, 

1256 (2020), citing Fla. Stat. § 448.110(6)(b). It is notable that in the nearly 20 years since the 

statute was enacted by the Florida Legislature, there have been exactly zero published or 

unpublished opinions from state courts interpreting the meaning of the supposed statutory 

condition precedent provision of § 448.110(6)(a), Fla. Stat. Almost all of the authority interpreting 

this subsection is from unpublished federal cases. The only published authority recognizes that the 

Florida statute must be read consistently with its federal predecessor (the FLSA). Llorca v. Sheriff, 

Collier Cnty., Fla., 893 F. 3d 1319, 1328 (11th Cir. 2018) (“The FMWA is to be interpreted as 

consistent with the FLSA.”) Indeed, “the FMWA expressly adopts the statutory and regulatory 

provisions of the FLSA, so the claims are co-extensive” and must be considered together. Villarino 

v. Pacesetter Pers. Serv., Inc., No. 20-60192-CIV, 2023 WL 2471286 at *1, fn. 2 (S.D. Fla. Jan. 3, 

2023). See also Fla. Const. art X, s. 24(b) (“As used in this amendment, the terms “Employer,” 

“Employee” and “Wage” shall have the meanings established under the federal Fair Labor 

Standards Act (FLSA) and its implementing regulations.”); Fla. Const. art X, s. 24(f) (“... It is 

intended that case law, administrative interpretations, and other guiding standards developed under 

the federal FLSA shall guide the construction of this amendment and any implementing statutes 

or regulations.”); § 448.110(3), Fla. Stat. (“Only those individuals entitled to receive the federal 

minimum wage under the federal Fair Labor Standards Act and its implementing regulations shall 

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be eligible to receive the state minimum wage pursuant to s. 24, Art. X of the State Constitution 

and this section. The provisions of ss. 213 and 214 of the federal Fair Labor Standards Act, as 

interpreted by applicable federal regulations and implemented by the Secretary of Labor, are 

incorporated herein.”).

In the Villarino case, the defendant employer filed a motion to dismiss based upon the 

alleged failure of a putative class member to provide pre-suit notice. The defendant maintained 

that while the named plaintiff had sent a notice letter, it did “not specifically list the other named 

or opt-in plaintiffs.” Id. at 1257. The district court found that no such authority was provided: 

[T]he Court concludes that Plaintiffs have satisfied the notice requirement. Neither

party has presented any case law concerning the statutory notice requirement and 

the realities of class action litigation. Taking Defendants’ position to the extreme, 

maintenance of a class action under the FMWA would require notice from every 

putative class member before suit is filed.

Id. 

In the case at hand, Plaintiff Erik Chavez complied with the supposed pre-suit notice 

requirement by delivering notice to the employer and its principle by email and U.S. mail to the 

employer’s registered agent, and by U.S. mail to the employer’s sole owner and principle. See 

ECF No. 171. The representative Plaintiff, Erik Chavez, provided “pre-suit notice” both on behalf 

of himself and on behalf of others similarly situated. However, the Court dismissed the FMWA 

and Florida Constitution claims of opt-in Plaintiff Leonel Diaz because he had not himself 

provided “pre-suit notice” before joining a lawsuit already pending before the Court.1 The Court 

1 / The Court did so notwithstanding the fact that the supposed non-compliance with the 

statutory condition precedent provided under § 448.110(6)(a), Fla. Stat., is not mentioned 

anywhere in the pleadings. Neither did the Defendants file any motion to dismiss for such failure 

of an alleged condition precedent, and they did not raise it in two separate summary judgment 

briefings. Indeed, the issue was not part of a pretrial stipulation entered into between the parties in 

November 2021. Rather, the issue was raised for the first time only in a pretrial conference which 

took place fully two months after the case had been specially set for trial. Over the Plaintiffs’ 

objections, during the pretrial conference, the Court ordered both parties to brief this issue and 

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did so sua sponte and without any motion having been filed seeking such relief. The basis for 

dismissing the FMWA claim was premised upon the idea that the opt-in Plaintiff, Leonel Diaz, 

who joined this lawsuit approximately six (6) months after it was filed, had failed to comply with 

the supposed pre-suit notice requirement. The Court relied on no authority whatsoever for the 

proposition that Plaintiff Diaz’s FMWA claim should be dismissed. Moreover, the Court 

conspicuously failed to mention the published Villarino case making clear that there was no 

authority for the proposition that an opt-in plaintiff is required to provide “pre-suit notice”. 

2. An opt-in plaintiff becomes a party by filing a consent to join under 

§ 216(b) and nothing else is required. 

The FLSA expressly permits that a representative employee may maintain an action to 

recover unpaid minimum wages against any employer in any federal or state court, and that he 

may do so on behalf of himself and any “other employees similarly situated.” 29 U.S.C. § 216(b). 

As an Opt-in Plaintiff Diaz became a party to this case upon filing his consent to join in accordance 

with §216(b). An Opt-in becomes a party in the action upon filing a consent to join and nothing 

else is required of him. Mickles v. Country Club Inc., 887 F.3d at 1278 (11th Cir. 2018). Indeed 

“by referring to opt-in plaintiffs as ‘party plaintiff[s]’ Congress indicated that opt-in plaintiffs 

should have the same status in relation to the claims of the lawsuit as do named plaintiffs”. Id. 

quoting Prickett v. DeKalb County, 349 F.3d 1294, 1296 (11th Cir. 2003) (emphasis added).

There is nothing in either the FLSA or the FMWA prohibiting a representative employee 

from providing notice to an employer of an intent to bring such an action on behalf of others 

similarly situated. In this case, the pre-suit notice delivered by the representative Plaintiff, Erik 

dozens of other issues raised for the first time at the pretrial conference, and then sua sponte

dismissed the opt-in Plaintiff’s claim under the FMWA and Florida Constitution. However, within 

moments of receiving the Plaintiffs’ motion for relief [ECF No. 181] from the Court’s various trial 

orders entering relief for the Defendants on issues which had never been raised, the Court sua 

sponte canceled the special set trial the Sunday afternoon prior to the Monday morning trial date.

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Chavez, specifically stated that he was providing notice both individually and on behalf of others 

similarly situated. He did not, and could not, have known who or when any other employee of the 

Defendants in this case might elect to join by filing their consent to join. Similarly, the opt-in 

Plaintiff Leonel Diaz could not have provided “pre-suit notice” as a condition precedent to joining 

a lawsuit which had already been filed by someone else. Plaintiff Diaz could not provide written 

notice of “an intent to initiate such an action” as contemplated by the statute when he did not intend 

to “initiate such an action” but, rather, intended to join a lawsuit which had already been filed. He 

became a party upon consenting to join and achieved the same status as the representative plaintiff.

3. Dismissal of Diaz’s claim causes prejudice and in contrary to 

controlling authority.

Obviously, Diaz is prejudiced by the unlawful dismissal of his FMWA case. While the 

dismissal purports to be “without prejudice” the prejudice attaches since he might have to try the 

same case twice. Dismissal also prejudices both Plaintiffs because of the confusion created by the 

Courts order suggesting the Plaintiffs will be entitled to seek different MW rates for work at the 

same place during the same periods. Further, Defendant will argue that the FMWA statute of 

limitations continued to toll while Defendants pretended to have not “received” their “notice”. 

Under these circumstances, dismissal without prejudice is highly prejudicial and tantamount to 

dismissal with prejudice. Mickles v. Country Club Inc., 887 F.3d at 1280-81 (11th Cir. 2018); see 

also Beardsley v. Admiral Ins. Co., 647 So. 2d at 330.

The Florida Constitution and FMWA expressly refer to the FLSA, its implementing 

regulations, and caselaw interpreting it, as the guiding framework to be adopted in interpreting 

FMWA. Dismissal of an opt-in plaintiff’s claim essentially prohibits similarly situated employees 

from joining existing lawsuits. Diaz was not required to provide notice, he is a party by virtue of 

compliance with §216(b), and his case was dismissed in clear violation of controlling authority.

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