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

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

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case No.: 1:20-cv-22603-GOODMAN

[CONSENT]

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.

PLAINTIFFS’ MOTION FOR RELIEF FROM TRIAL ORDERS INTRODUCING NEW 

ISSUES AND EVIDENCE FOR SPECIAL SET TRIAL CONTRARY TO PRETRIAL 

STIPULATIONS WITHOUT FINDING OF “MANIFEST INJUSTICE”, AND 

RESPONSE TO “PLAINTIFF’S [SIC] MOTION TO RECONSIDER ORDER 

DISMISSING . . . , AND ORDER ON REMAINING LEGAL ISSUES LISTED IN THE 

PARTIES’ JOINT PRETRIAL STIPULATION” [ECF NO. 179]

Plaintiffs, by and through undersigned counsel and in accordance with the Court’s 

“Paperless Order” [ECF No. 180], submit the instant Motion for Relief from Trial Orders 

Introducing New Issues and Evidence for Special Set Trial Contrary to Pretrial Stipulations 

Without Finding of “Manifest Injustice”, and Response to “Plaintiff’s [sic] Motion to Reconsider 

Order Dismissing without Prejudice Plaintiff Leonel Diaz’s Florida Minimum Wage Act Claim 

and Requiring Revised Proposed Verdict Forms, and Order on Remaining Legal Issues Listed in 

the Parties’ Joint Pretrial Stipulation” [ECF No. 179], as follows:

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INTRODUCTION

As set forth in the recent “Plaintiffs’ Verified Response to Paperless Order” 

[ECF No. 171], on July 1, 2020, undersigned counsel, on behalf of Plaintiff “Erik Chavez, 

individually and on behalf of others similarly situated”, sent a Demand Letter by First-Class U.S. 

Mail and email to the Registered Agent of the corporation, and by First-Class U.S. Mail to the 

individual Defendant Ruben Sierra (“Sierra”). A copy of the Demand Letter is attached hereto as 

Exhibit 1. The Demand Letter included as an attached exhibit a “Preliminary Statement of Claim” 

detailing, on an Excel spreadsheet, the formula and calculation of the amount demanded. The letter 

conforms in every way with every supposed requirement of a statutory condition precedent to 

bringing a lawsuit under the Florida Minimum Wage Act (“FMWA”). Defendants suggest, without 

averment, that they never received this letter when it was mailed and emailed on July 1, 2020. 

Thus, the Plaintiffs averment is unrebutted by competent evidence. 

As previously noted, the compliance with any and all conditions precedent was alleged by 

the Plaintiffs in accordance with the provisions of Rule 9(c), Fed. R. Civ. P., which specifically 

permits a party to allege compliance with a condition precedent generally. Id. By contrast, the 

denial of conditions precedent must be pleaded with specificity. Id. However, while the Defendants 

generally denied completion of conditions precedent, they did not specifically deny the completion 

of conditions precedent, as required by the rule. Defendants seem to suggest, without saying so, 

that they may plead the non-compliance with a supposed statutory condition precedent without 

even citing the statutory provision at issue. As Plaintiffs have previously noted, the Answer to the 

Amended Complaint does not cite to the Florida statute they rely on now and which they did not 

raise when the parties briefed cross-motions for summary judgment and which they did not 

mention in the original pretrial stipulation entered into between the parties in November 2021. See 

ECF No. 81. Neither did the Defendants ever request in the course of discovery a copy of any preCase 1:20-cv-22603-JG Document 181 Entered on FLSD Docket 05/07/2023 Page 2 of 13
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suit demand letter nor does Rule 26, as the Defendants suggest without citation, require the sharing 

of pre-suit settlement demands. It is notable that while the Defendants dare not aver that they did 

not receive the letter, they suggest that they have denied receiving it. Interestingly, even when 

served with a summons and Complaint, the Defendants did not respond to that either. Thus, 

Defendants scandalously suggest without any basis whatsoever that the letter is a recent 

fabrication. But this lame suggestion, which the Defendants know to be false, is not even the 

premise of their Motion. The premise of the Defendants’ recent Motion is not that the letter does 

not comply with the supposed statutory condition precedent requirement of the FMWA, but rather 

that it asks for additional remedies provided under the applicable statutes, but which are not 

required by or mentioned in § 448.110(6), Fla. Stat. In other words, it is not that Plaintiff did not 

comply with the supposed statutory condition precedent, but rather that he asked for what the 

statutes entitle him to receive from the non-compliant employers, which include mandatory relief 

provided thereunder and which the pre-suit demand statute supposedly does not require to be in 

the demand letter.

The suggestion made by the Defendants is that to comply with the pre-suit demand statute, 

an hourly wage worker may not demand all of the relief provided by the statutes, but must only 

demand and provide a calculation for the unpaid wages. Defendants essentially maintain that the 

pre-suit demand provisions are designed to encourage hourly wage workers to settle their claims 

with their employers by accepting only the unpaid wages and not the full complement of remedies 

available under the Fair Labor Standards Act (“FLSA”) and the FMWA. To be clear, Defendants 

do not maintain that there is anything in the demand letter which asks for relief which is not 

available under the statutes. In support of this contention, the Defendants rely upon an unpublished 

opinion of a U.S. Magistrate Judge which essentially adds terms and limitations not contained or 

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even suggested within the text of the Florida statute. Relying on this unpublished opinion, 

Defendants maintain that when an hourly wage worker demands what the FMWA entitles him to 

receive, he fails to comply with the condition precedent by asking for more than what the statutory 

provision requires. Requesting full relief under the statute would negate the demand letter. 

The necessary implication of what the Defendants suggest is that the supposed statutory 

condition precedent is designed to encourage an employer to settle minimum wage claims of their 

employees without providing the full relief required for employees whose statutory rights to a 

minimum wage are violated. This is an absurdity which ignores the foundational principles of the 

FLSA upon which the FMWA is expressly modeled. A Florida statute cannot require that an hourly 

wage worker demand less than what his employer owes him as a condition precedent to suing his 

employer for what his employer owes him. 

MEMORANDUM OF LAW

I. As a preliminary matter, the Defendants fail to raise any issue regarding the 

“non-compliance” with a condition precedent by failing to plead it with 

specificity as required by Rule 9(c). 

Fed. R. Civ. P. 9(c) clearly requires that, in pleading the denial of a condition precedent, a 

party is required to plead such a denial with specificity. In this case, the specific condition 

precedent is based upon a state statute. It would logically follow that if a party is going to plead 

the non-completion of a statutory condition precedent, the “specificity” required would necessarily 

include a reference to the statutory provision supposedly requiring it. In this case, neither 

Defendants’ Answer nor their affirmative defenses therein make any reference to Florida Statute 

§ 448.110(6). In fact, there is no federal or state statute cited anywhere in their pleading. See, 

generally, ECF No. 22. Defendants have suggested, erroneously, that they have complied with the 

specificity of pleading requirement with the following language contained in their Fifth 

Affirmative Defense, which reads in its entirety:

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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, p. 6 (emphasis added). As a preliminary matter, the Amended Complaint alleged 

three statutory causes of action. Count I alleged violation of the FLSA’s minimum wage 

requirement; Count II alleged violation of the FMWA and Florida Constitution, and; Count III 

alleged violation of FLSA’s anti-retaliation provisions. The proposed defense seems to be 

addressed to an overtime wage case which has never been alleged. Moreover, in addition to not 

making any reference to the statute in question, it does not even state to which Count of the 

Amended Complaint to which the defense may be directed. Further, the supposed defense, in 

addition to not being directed to any of the causes of action actually pleaded by the Plaintiff, 

purports to require notice of “any alleged unlawful pay practice”. Defendants suppose that this 

pleading meets the specificity required to alert a party that they are raising a defense under Florida 

Statute § 448.110(6). However, the statute purports to require a written notice of “intent to initiate” 

a cause of action which is entirely different from whatever affirmative defense number five seems 

to plead. The words in the pleadings do not even match or resemble the words in the statute. Thus, 

the Plaintiffs specifically object to the fact that the Court has dismissed Plaintiff Leonel Diaz’s 

minimum wage claim under the FMWA and Florida Constitution based upon his alleged noncompliance with a statutory condition precedent which does not appear in the pleadings. This 

applies with equal force to the suggestion raised in the subject Motion that Plaintiff Erik Chavez’s 

claim under the same statute should likewise be dismissed based upon a statute and a defense 

which was never pleaded by any party.

Not only have the Defendants not pleaded any such defense at all, let alone with specificity, 

they never mentioned it in briefing motions for summary judgment or in discovery requests. In 

fact, when this case was originally set for trial, the parties had agreed that the case would go to 

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trial on the highest applicable Florida minimum wage, which was cited specifically by both the 

Plaintiffs and the Defendants proposed jury instructions. ECF No. 84, pp. 41-48. Neither was the 

issue raised in the original pretrial stipulation entered into between the parties. ECF No. 81. It is 

well settled by controlling authority that pretrial stipulations are enforceable and will not be 

disturbed absent a specific request and upon a showing of “manifest injustice”. G.I.C. Corp., Inc. 

v. U.S., 121 F.3d 1447, 1450 (11th Cir. 1997).

II. The Court has permitted the Defendants to shoehorn issues for trial on the 

very eve of trial without even purporting to require a showing of “manifest 

injustice”, as required by controlling authority.

Over the Plaintiffs’ objection, the Court has already entered an order permitting the 

Defendants to litigate at trial an issue which was not even raised in the recent pretrial stipulation 

[ECF No. 144].1 Similarly, the Court has entered an order on the veritable eve of trial dismissing 

Plaintiff Leonel Diaz’s FMWA claim and requiring that Plaintiffs litigate their claims at trial based 

upon different applicable minimum wages, when the parties had already previously agreed what 

the applicable minimum wage would be at trial. The Court is not permitted to interject such 

fundamental and prejudicial deviations from the parties’ pretrial stipulations without making a 

finding that “manifest injustice” would result if the Court were to proceed as the parties had 

stipulated. The Eleventh Circuit has stated, unambiguously:

[P]arties are bound by their stipulations and a pretrial stipulation frames the issues 

for trial. See, e.g., Hodges v. United States, 597 F.2d 1014 (5th Cir.1979) (district 

court did not abuse its discretion in precluding IRS from asserting defense to refund 

suit not raised in pretrial order). A district court, of course, has discretion to 

1 / Plaintiffs refer to the Court’s recent “PAPERLESS ORDER regarding DOL Form WH58” [ECF No. 169] which states “Defendants will be permitted to introduce into evidence DOL 

Form WH-58. It relates to the defense of ‘waiver, satisfaction, release or agreement.’” This mixed 

issue of law and fact was not mentioned at all in even the most recent pretrial stipulation, yet the 

Court allows it without even requiring that Defendants meet their burden of showing “manifest 

injustice”. Plaintiffs maintain, respectfully, that the manifest injustice results from the Court’s 

requiring Plaintiffs to litigate an entirely different case than that which has long been litigated and 

stipulated. 

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consider issues not raised in a pretrial stipulation or to disregard issues of law 

stipulated by the parties in order to grant a party relief from a stipulation in order 

to prevent “manifest injustice.” Fed.R.Civ.P. 16(e). 

G.I.C. Corp., Inc. v. U.S., 121 F.3d 1447, 1450 (1997). 

The Court relied upon an unpublished U.S. Magistrate Judge opinion in order to materially 

change the parameters and issues to be litigated at trial. U.S. Magistrate Judge Bandstra’s opinion 

is not controlling authority on the issue of applicable minimum wage or on the application of 

conditions precedent under the FMWA. Not only does the Court deviate from prior stipulations 

without a finding of manifest injustice, it cannot have found manifest injustice under the 

circumstances of this case. The litigation of a minimum wage case in the Southern District of 

Florida by application of the highest applicable minimum wage in the jurisdiction does not 

represent a manifest injustice. Not permitting the Defendants to introduce an issue which they have 

not specifically pleaded does not represent a manifest injustice. On the contrary, letting the 

Defendants introduce new issues on the eve of trial, contrary to previous stipulations made on the 

record, certainly does represent a manifest injustice to the Plaintiffs, and more so in the context of 

litigating the rights of hourly wage workers under the most remedial of remedial statutes. 

III. The Florida statutory provision in question cannot require that litigants under 

the FMWA or the FLSA (after which it is designed) first attempt to settle their 

claims for less than the minimum provided by statute. Substantive rights 

under the FLSA and the FMWA cannot be waived. 

The premise of the Defendants’ Motion is that a pre-suit demand for complete statutory 

relief is invalid because it requests complete statutory relief, rather than only minimum wage relief. 

The premise of this argument is that an employer who violates the minimum wage provisions of 

the statute should be permitted an opportunity to satisfy his liability by paying his hourly wage 

worker no more than the minimum wage it failed to pay on the regularly scheduled payday. In 

other words, according to Defendants, the statutory provision they rely upon is designed to provide 

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an escape hatch for the non-compliant employer and afford them an opportunity to avoid statutory 

liability by paying only the unpaid minimum wage. The fallacy of this argument is multi-fold, as 

will be described herein.

Both the Florida Constitution and the FMWA expressly refer to the FLSA and its 

implementing regulations as the foundation of the state provisions guaranteeing workers a right to a 

Florida minimum wage. Florida Constitution, Art. X, s. 24; Fla. Stat. § 448.110(3). The federal and 

state minimum wage obligations are expressly inextricably intertwined, as the Eleventh Circuit has 

stated: 

The FMWA is to be interpreted as consistent with the FLSA. The Act provides, 

“Only those individuals entitled to receive the federal minimum wage under the 

federal Fair Labor Standards Act and its implementing regulations shall be eligible 

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

and this section.” Fla. Stat. § 448.110(3); accord Fla. Const. art. X, § 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.”)

Llorca v. Sheriff, Collier Cnty., Fla., 893 F.3d 1319, 1328 (11th Cir. 2018). The argument advanced 

by Defendants would be inconsistent with the FLSA and therefore also the FMWA. Minimum wage 

claimants under these statutes are not permitted and cannot waive substantive rights under the statute. 

Recognizing that there are often great inequalities in bargaining power between employers and 

employees, Congress made the FLSA’s provisions mandatory; thus, the provisions are not subject to 

negotiation or bargaining between employers and employees. Brooklyn Savings Bank v. O’Neil, 324 

U.S. 697, 65 S.Ct. 895, 902, 89 L.Ed. 1296 (1945). “FLSA rights cannot be abridged by contract or 

otherwise waived because this would ‘nullify the purposes’ of the statute and thwart the legislative 

policies it was designed to effectuate.” Barrentine v. Arkansas-Best Freight System, supra, 101 S.Ct. 

at 1445 (citations omitted). Thus, the FLSA results from “a recognition of the fact that due to the 

unequal bargaining power as between employer and employee, certain segments of the population 

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required federal compulsory legislation to prevent private contracts” which endanger national health 

and efficiency. Brooklyn Savings Bank 324 U.S. at 706, 65 S.Ct. at 902. 

It is well settled that a waiver of substantive FLSA rights can only be enforceable under one of 

two circumstances. The first circumstance is when a settlement is reached between parties litigating 

claims before a court of competent jurisdiction. Even in the context of litigation between represented 

parties, a settlement of substantive FLSA rights is only enforceable upon a judicial finding that the 

settlement is a fair compromise of a disputed issue of fact and law. Lynn’s Food Stores, Inc. v. United 

States, 679 F.2d 1350, 1352-3 (11th Cir. 1982). The other circumstance where substantive FLSA rights 

can be compromised arises when the U.S. Secretary of Labor supervises the payment of unpaid wages 

owed to them. Id.

In relying on an unpublished U.S. Magistrate Judge opinion, the Defendants attempt to 

interpret the Florida statutory provision in question in a manner which is diametrically opposed to the 

manner in which the FLSA must be interpreted. According to the Defendants, hourly wage works must 

first afford their employer the opportunity to pay them only the minimum wage before they can sue 

for the complete palette of statutory remedies. This turns the statutory design on its head. Notably, 

under controlling authority, the obligation to pay liquidated damages arises immediately upon the 

employer’s failure to pay the required minimum wage on the regularly scheduled payday. 

Under this section, if an employer on any regular payment date fails to pay the full 

amount of the minimum wages and overtime compensation due an employee, there 

immediately arises an obligation upon the employer to pay the employee the 

difference between the wages paid and the wages due, plus an equal additional 

amount as liquidated damages; and the payment thereafter of the balance due as 

wages, even though made prior to suit, does not release the accrued liability for 

liquidated damages.6 Such damages are not inflicted as a penalty, but are allowed as 

compensation for detention of a workman's pay.

Atlantic Co. v. Broughton, 146 F.2d 480, 482 (5th Cir. 1944). Thus, the Defendants’ interpretation of 

the Florida statute essentially requires that wage-earners offer to sacrifice a substantive remedy 

available under the minimum wage statutes before they would be permitted to sue for statutory 

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remedies. Similarly, the consummation of said agreement would take place entirely between unequal 

bargaining partners and without supervision of any court or administrative agency created to protect 

their rights. 

Further, the federal regulations which the state authority looks to for guidance specifically 

make clear that even in litigating an FLSA case in Florida, the highest applicable minimum wage 

would apply. 29 C.F.R. § 541.4 (“The Fair Labor Standards Act provides minimum standards that 

may be exceeded, but cannot be waived or reduced. Employers must comply, for example, with 

any Federal, State or municipal laws, regulations or ordinances establishing a higher minimum 

wage or lower maximum workweek than those established under the Act.”) 

IV. The statutory provision in question requires a claimant to give notice of their 

intent to sue. 

Absent from the Defendants’ Motion (and from their affirmative defense as well) is any 

reference to the language from the statute in question, which purports to specifically require that 

wage-earners give their employers notice of their “intent to initiate” a lawsuit for statutory 

remedies. § 448.110(6), Fla. Stat. It is incongruous to suggest that providing notice of intent to sue 

is inconsistent with providing notice of what you intend to sue for.

V. Defendants miscite authority by attempting to characterize the statutory 

provision in question as “fee-shifting” statute.

The Defendants’ argument seems to be premised upon the idea that the statutory provision 

they rely on, which purports to require a condition precedent to filing a lawsuit to collect statutory

remedies must be strictly construed because it is, in fact, not a condition precedent statute but a 

fee-shifting statute. There is no case law purporting to treat the statutory provision in question as 

a fee-shifting statute. Neither is there any authority for the proposition that the statutory provision 

in question requires “strict construction”. Moreover, given that the Plaintiff complied with every 

requirement of the statutory provision, there is no controlling authority and no Florida appellate 

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court authority to support the idea that a statutory “notice of intent to sue” must be strictly 

construed as a “fee-shifting statute”. On the contrary, authority supports the proposition that the 

right to sue for the Florida minimum wage is derived from the Florida Constitution and that the 

right is self-executing, requiring no implementing legislation. Alvarado v. Robo Enterprises, Inc., 

No. 615CV1420ORL40KRS, 2016 WL 11566330 (M.D. Fla. Jan. 6, 2016), report and 

recommendation adopted, No. 615CV1420ORL40KRS, 2016 WL 11566331 (M.D. Fla. June 2, 

2016), citing Bates v. Smuggler's Enters., Inc., No. 2:10-cv-136-FtM-29DNF, 2010 U.S. Dist. 

LEXIS 85378, at *8 (M.D. Fla. Aug. 19, 2010) (“Article 10, Section 24 [of the Florida 

Constitution] is self-executing and establishes a private cause of action.”) and Throw v. Republic 

Enter. Sys., Inc., No. 8:06-cv-724-T-30TBM, 2006 WL 1823783, at *2, 2006 U.S. Dist. LEXIS 

46215, at *6 (M.D. Fla. June 30, 2006).

WHEREFORE, Plaintiffs request that the Court reconsider its pretrial Orders as follows: 

a) that the Court reconsider the Orders requiring the Plaintiffs to litigate issues at trial 

which are contrary to enforceable stipulations between the parties and without any 

finding of “manifest injustice” as required by Rule 16, including issues pertaining 

to introduction of a purported supervised release of claims, issues relating to the 

supposed failure of the Plaintiffs to comply with any statutory condition precedent

(which does not even appear in the pleadings), and the Order dismissing FMWA 

claims of Plaintiff Leonel Diaz and otherwise requiring that Plaintiffs proceed to 

trial only on unconstitutionally low minimum wage rates; 

b) that in granting relief, the Court permit the Plaintiffs to proceed to trial in 

accordance with the highest applicable minimum wage, as was previously 

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stipulated between the parties and that the Court deny relief based upon 

insufficiently pleaded defenses which were not stipulated to by the parties;

c) that in granting relief, the Court deny the ability of the Defendants to introduce 

evidence of a supposed “DOL supervised” release which was never an issue raised 

in either of the pretrial stipulations at trial; and

d) that the Court deny Defendants’ Motion seeking to dismiss the FMWA claim of 

Plaintiff Erik Chavez.

CERTIFICATE ON CONFERRAL

Pursuant to Local Rule 7.1(a)(3), undersigned counsel hereby certifies that he has conferred 

with opposing counsel for the Defendants who, as of the time of filing, has not yet indicated 

whether Defendants oppose the relief requested herein.

CERTIFICATE OF SERVICE

I hereby certify that on May 7, 2023 a true and correct copy of the foregoing was 

electronically filed with the Clerk of the Court via CM/ECF and served on the parties listed in the 

Service List below in the manner indicated therein.

Anthony F. Sanchez, P.A. Attorneys for Plaintiffs

6701 Sunset Drive, Suite 101

Miami, Florida 33143

Tel.: 305-665-9211

By: /s/ Anthony F. Sanchez

Anthony F. Sanchez

Florida Bar No.789925

afs@laborlawfla.com

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SERVICE LIST

Anthony F. Sanchez, Esq.

Florida Bar No.: 789925

afs@laborlawfla.com

faz@laborlawfla.com 

Counsel for Plaintiffs

ANTHONY F. SANCHEZ, P.A.

6701 Sunset Drive, Suite 101

Miami, Florida 33143

Tel: 305-665-9211

Todd W. Shulby, Esq.

Florida Bar No.: 068365

tshulby@shulbylaw.com

llangford@shulbylaw.com

Counsel for Defendants

TODD W. SHULBY, P.A.

1792 Bell Tower Lane

Weston, Florida 33326

Tel: 954-530-2236

Fax: 954-530-6628

Via Notice of Electronic Filing

Brian H. Pollock, Esq.

Florida Bar No.: 174742

brian@fairlawattorney.com

Co-Counsel for Defendants

FAIRLAW FIRM

135 San Lorenzo Avenue, Suite 770

Coral Gables, Florida 33146

Tel: 305-230-4884

Via Notice of Electronic Filing

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