UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

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

[CONSENT]

ERIC CHAVEZ and

LEONEL DIAZ

Plaintiffs,

v.

GRILL ENTERPRISES, LLC, a

Florida Limited Liability Company, d/b/a

Los Parrilleros and Parrilleros Tavern, and

RUBEN SIERRA, individually,

Defendants.

_____________________________/

ORDER RE: TRIAL RESCHEDULING, BRIEFING AND QUESTIONS

This Order arises from the Court’s decision to postpone and reschedule the trial. 

The Court will hold a Zoom hearing on Friday, May 12, 2023, at 9:30 a.m., to determine 

(with input from trial counsel) the date for the rescheduled trial. The Zoom instructions 

will follow in a later Order. The hearing will also lead to the establishment of a briefing 

schedule concerning issues listed in this Order.

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Specifically, the Court would like a separate, double-spaced memorandum of law, 

not to exceed five pages, on each of the issues listed below in the “Issues to be Briefed” 

topic heading. In addition, counsel should be prepared to discuss, at the May 12, 2023 

Zoom hearing, the questions listed below in the “Issues to be Discussed at the Hearing” 

topic heading.

Some of the issues to be briefed have already resulted in pre-trial rulings, but the 

Undersigned wants to make sure that the parties have submitted adequate legal 

argument on those points. Because a Court is always free to change its mind about a 

ruling before judgment, Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1231 (11th Cir. 2010), 

the mere fact that a ruling has been made does not mean that the Court is unwilling to 

modify the ruling.

Issues to be Briefed

[Instructions to the parties: In responding to each of the questions below, the 

parties will first state “yes” or “no” to the question of whether there is any binding, onpoint legal authority. If the answer is “yes,” then the parties will cite that authority. If the 

answer is “no” (i.e., there are no binding decisions by the Supreme Court (or the Florida 

Supreme Court/Florida intermediate appellate courts, if the issue pertains to the FMWA) 

or the Eleventh Circuit), then the parties will cite to on-point decisions by other circuit 

courts, and then on-point decisions by district courts.]

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1. Whether an FMWA pre-suit demand letter is invalid if it seeks damages 

beyond those available in an FMWA claim?

2. Whether a defendant must have received the pre-suit, written notice in order 

for an employee to comply with the pre-suit notice requirements of the FMWA (or is 

evidence that a plaintiff sent the notice adequate)?

3. Whether a court (as opposed to a jury) determines before a jury trial 

whether the pre-suit written notice was sent and received?

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?

5. Whether a tip pool is invalidated by the participation of an undocumented 

co-worker? [In earlier submissions, the parties have cited either immigration law or cases 

addressing the FLSA’s applicability to undocumented plaintiffs. The Court is looking for 

on-point legal authority on this specific topic involving an undocumented worker other 

than the plaintiff, not general recitations about the law.]

6. Whether an invalid tip pool, improper tax withholdings, and/or credit card 

surcharges constitute tip confiscation under the FLSA?

7. On the issue of willfulness, whether an employer is entitled to rely on an 

investigation of its pay practices conducted by the United States Department of Labor? 

[The case cited by Defendants as authority for Proposed Jury Instruction No. 48 states 

that “[E]vidence of the DOL investigation is relevant to the good-faith defense and not 

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outweighed by the risk of prejudice.” Garcia v. J&J, Inc., No. 19-CV-60728, 2020 WL 

209732, at *3 (S.D. Fla. Jan. 14, 2020) (emphasis added). It does not stand for the 

proposition in the proposed jury instruction that: “An employer was not reckless and did 

not willfully violate the FLSA and is entitled to rely on an investigation of its pay practices 

conducted by the United States Department of Labor, Wage and Hour Division.”]

8. Whether the verdict form should include a special interrogatory asking the 

jury to determine if an employer is entitled to a tip credit or if the tip pool was 

valid/invalid (or questions about how the tip pool was invalidated)? Alternatively, if 

(after conferring) the parties agree that these types of questions do not need to be 

included in the verdict form, then the parties may state so in their submission.

9. Whether a plaintiff’s damages are calculated by using the date of the 

lawsuit or the date of the opt-in notice, or the last day of employment?

10. Whether an initial joint pretrial stipulation can be superseded by a later 

joint pretrial stipulation when a court’s operative scheduling order includes a deadline 

for the later-filed joint pretrial stipulation? In other words, must a party show “manifest 

injustice” before submitting changes in a later-filed joint pretrial stipulation, when the 

Court’s operative scheduling order includes a deadline for the later-filed joint pretrial 

stipulation?

11. Is “unclean hands” an affirmative defense in an action for damages (as 

opposed to a defense when the Court is sitting in equity, such as in connection with a 

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motion for injunctive relief)?

Issues to be Discussed at the Hearing

The parties should be prepared to answer and otherwise discuss these questions 

at the May 12, 2023 Trial Scheduling Conference:

1. [To Plaintiffs] What evidence do you have of “tip confiscation” by 

Defendants?

2. [To Plaintiffs] What evidence do you have that Defendants’ records were 

inaccurate as to the number of hours worked by Chavez and/or Diaz (as opposed to the 

inaccuracy of the pay reflected)? In other words, is the accuracy of the hours disputed or 

just the accuracy of the pay?

3. [To Defendants] What evidence do you have (from Sierra or anyone else) 

that Grill Enterprises, LLC paid some or all of Plaintiffs’ payroll taxes during the relevant 

time period?

4. [To Defendants] What evidence do you have (from Sierra or anyone else) 

concerning Grill Enterprises, LLC’s payment of vendor card charges or credit card fees?

5. [To Defendants] In Proposed Jury Instruction No. 17, paragraph 2, you list 

the following affirmative defenses: “The action and/or the damages claimed in this action 

are barred by res judicata, waiver, estoppel (collateral or otherwise), laches, satisfaction, 

release or agreement.” [ECF No. 156-1, p. 34]. Are you withdrawing some of these 

affirmative defenses? For any that remain, cite to the record evidence supporting that 

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affirmative defense (or defenses).

6. [To Defendants] In Proposed Jury Instruction No. 17, paragraph 4, you 

state: “Plaintiff’s [sic] claims are barred in whole or in part due to Plaintiff’s [sic] failure 

to file suit within the applicable statute of limitations period.” Do you have any support 

for this affirmative defense, and, if so, what is it?

7. [To Defendants] What evidence do you have to support the affirmative 

defense that either Plaintiff has “unclean hands”?

8. [To Defendants] What evidence/legal authority do you have to support 

paragraph 5 of your Proposed Jury Instruction No. 17: “The amounts owed, if any, are de 

minimis and may be cured.”

9. [To Defendants] What evidence do you have that the tip pool was governed 

by the employees, rather than the employer? [Source: This is a dispute/objection raised 

by Plaintiffs to Jury Instruction No. 28.]

10. [To both parties] What effect, if any, does the anti-tip retention provision of 

the FLSA enacted March 23, 2018 have on Plaintiffs’ damages? [Source: Defendants’ 

objections to Jury Instructions 26, 32 and 34, including citation to Rodriguez v. City Buffet 

Mongolian Barbeque, Inc., No. 8:18-CV-2745-T-60CPT, 2020 WL 2476043, at *5 (M.D. Fla. 

Apr. 22, 2020), report and recommendation adopted, No. 8:18-CV-2745-T-60CPT, 2020 

WL 2473452 (M.D. Fla. May 13, 2020).]

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11. [To both parties]: Will you be introducing any testimony at trial through 

deposition transcripts?

DONE AND ORDERED in Chambers, in Miami, Florida, on May 8, 2023.

Copies furnished to:

All counsel of record

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