1 | Page

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 1:20-cv-22873-RNS

CARLOS H. ESPINOZA, and all others

similarly situated under 29 U.S.C. § 216(b),

Plaintiffs,

v.

SOUTH BEACH ASSOCIATES, LLC, and

STEFANO FRITELLA, individually,

Defendants.

______________________________________/

PLAINTIFF’S PROPOSED FINDINGS OF FACT AND CONCULSIONS OF LAW

COMES NOW the Plaintiff, CARLOS H. ESPINOSA (hereinafter “Plaintiff”) by and 

through undersigned counsel, pursuant to this Scheduling Order at D.E. 21, hereby files his 

Proposed Findings of Fact and Conclusions of Law:

I. FINDINGS OF FACT

The Court, after hearing trial testimony from the parties and witnesses, after observing 

the witnesses, finds as follows:

1. Plaintiff was never brought into an office for hiring purposes, never logged into a 

Human Resources computer, never completed onboarding forms and/or signed the EDR and 

Plaintiff was unaware in any way that any sort of arbitration agreement existed. 

2. The signature that appears at the bottom of the agreement is not Plaintiff’s.

Case 1:20-cv-22873-RNS Document 56 Entered on FLSD Docket 01/05/2021 Page 1 of 5
2 | Page

3. The signature on the acknowledgement form was much dimmer in color than all the 

rest of the signatures [D.E. 6-1]. 

4. The only relevant documents Plaintiff signed for Defendant were an application for 

employment, denial of healthcare coverage, loan forms, and USCIS I-9 form.

5. Many of the forms attached to Antonio Rizzi’s Declaration [D.E. 12-2] that were

sworn by Antonio Rizzi to have been signed by Plaintiff, were disavowed/recanted by Antonio 

Rizzi at trial.

6. Plaintiff was never made aware of any Arbitration provision either verbally or in 

writing and never knew anything about the EDR.

7. Defendant’s manager Antonio Rizzi and Demian Maggioni, appear to have not known 

the importance or meaning of the suject arbitration provision.

8. Plaintiff testified that he did not even know what an arbitration agreement was until the 

instant lawsuit.

9. The Defendant’s managers Demian Maggioni and Antonio Rizzi (Defendant Corporate 

Representative), lacked credibility at trial and otherwise did not meet Defendant’s burden of 

proving the formation of the arbitration agreement at issue.

10. Antonio Rizzi was also the custodian of personnel files including Plaintiff’s. 

11. Antonio Rizzi testified that he had no clue if the signature in question was that of the 

Plaintiff. 

Case 1:20-cv-22873-RNS Document 56 Entered on FLSD Docket 01/05/2021 Page 2 of 5
3 | Page

12. Antonio Rizzi testified that he discarded the Plaintiff’s “original wet signature” by 

discarding his employee file in 2018. 

13. Furthermore, Antonio Rizzi testified that the original [wet signed documents] for the 

Plaintiff disappeared.

14. Manager Demian Maggioni’s testimony proved he too was unclear whether everyone 

signed the subject document or not.

15. Demian Maggioni testified that it was actually not Defendant’s policy to destroy 

important documents which conflicted with Antonio Rizzi’s testimony on this issue. 

16. Demian Maggioni stated that he assisted Plaintiff when he allegedly signed the 

Employment Dispute Resolution but he testified he was not present the entire time - it’s unclear 

if he saw him actually sign this document. 

17. Demian Maggioni was in charge of explaining the arbitration provision to new hires 

in 2015 -2016.

18. Plaintiff was employed by Defendant in 2012 and was not a new hire when the 

subject arbitration agreement was rolled out in 2015-2016.

19. There are other of Defendant’s former employees who also never recalled seeing or 

signing the Employment Dispute Resolution form or anything similar and were also never taken 

into an office to electronically sign documents and also were never made aware of any sort of 

Arbitration Agreement either verbally or in writing. 

Case 1:20-cv-22873-RNS Document 56 Entered on FLSD Docket 01/05/2021 Page 3 of 5
4 | Page

II. CONCLUSIONS OF LAW

“ A district court considering the making of an agreement to arbitrate should give to the party 

denying the agreement the benefit of all reasonable doubts and inferences that may arise Gustave 

v. SBE ENT Holdings, LLC, No. 19-23961-CIV, 2020 WL 5819847, at *3 (S.D. Fla. Sept. 30, 

2020). “Under Florida law, the party seeking enforcement of an arbitration agreement has the 

burden of establishing that an enforceable agreement exists.” Id at 3. “The Federal Arbitration 

Act (“FAA”) governs the validity of an arbitration agreement.” It is the burden of the Defendant 

to establish that an enforceable agreement exists. CEFCO v. Odom, 278 So. 3d 347, 352 (Fla. 

Dist. Ct. App. 2019). “A Plaintiff can raise a genuine issue of fact regarding the validity of an 

arbitration agreement by (1) making an unequivocal denial that there was an agreement, and (2) 

producing evidence to substantiate the denial.” Hilton v. Fluent, 297 F. Supp. 3d 1337, 1341 

(S.D. Fla. 2018) (citation and internal quotations omitted). The threshold question of whether an 

arbitration agreement exists at all is “simply a matter of contract.” First Options of Chicago, Inc. 

v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995). Absent such an 

agreement, “a court cannot compel the parties to settle their dispute in an arbitral forum.” Klay v. 

All Defendants, 389 F.3d 1191, 1200 (11th Cir. 2004). The Court concludes that Defendant did 

not meet its burden to prove that the arbitration agreement was formed and, therefore, the Court 

cannot compel the Parties to arbitrate.

[THIS SPACE INTENTIONALLY LEFT BLANK]

Case 1:20-cv-22873-RNS Document 56 Entered on FLSD Docket 01/05/2021 Page 4 of 5
5 | Page

Respectfully Submitted,

J.H. ZIDELL, P.A.

ATTORNEYS FOR PLAINTIFF

300 71ST STREET, #605

MIAMI BEACH, FL 33141

PH: 305-865-6766

FAX: 305-865-7167

By:__/s/ J.H. Zidell ________

J.H. Zidell, Esq.

Florida Bar Number: 10121

CERTIFICATE OF SERVICE

I HEREBY CERTIFY THAT A TRUE AND CORRECT COPY OF THE FOREGOING 

WAS PROVIDED VIA CM/ECF ON 1/5/2021 TO:

Cathy M. Stutin at cstutin@fisherphillips.com

Alexander Castro at acastro@fisherphillips.com

Fisher & Phillips LLP

450 East Las Olas Boulevard, Suite 800

Fort Lauderdale, Florida 33301

Telephone: (954) 525-4800

Facsimile: (954)-525-8739

Attorneys for Defendants

By:__/s/ J.H. Zidell ________

J.H. Zidell, Esq.

Case 1:20-cv-22873-RNS Document 56 Entered on FLSD Docket 01/05/2021 Page 5 of 5