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’ REPLY TO “DEFENDANTS’ RESPONSE IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR RELIEF FROM TRIAL ORDERS . . .” [ECF NO. 192] 

Case 1:20-cv-22603-JG Document 193 Entered on FLSD Docket 05/30/2023 Page 1 of 14
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Plaintiffs, by and through undersigned counsel, Reply to “Defendants’ Response in 

Opposition to Plaintiffs’ Motion for Relief from Trial Orders . . .” [ECF No. 192], as follows: 

I. REPLY TO “INTRODUCTION”

This Fair Labor Standards Act (“FLSA”) case has been pending since 2020. It involves 

allegations entirely supported by the Defendants’ own records clearly showing that, for years, the 

employer paid no wages to wait-staff but, rather, disbursed only portions of the tips they collected 

from customers of the restaurant. It is clear from the Defendants’ records, and their handwritten 

annotations, that Defendants systemically confiscated Plaintiffs’ tips by disbursing less than the 

total tips collected and by requiring that they contribute to an invalid tip pool. Defendants used 

these confiscated tips to subsidize their operations, using them to pay “contractors”, management 

employees, and undocumented workers, none of whom are eligible participants in a tip pool. 

Original Trial Setting. This case was originally scheduled for trial on December 13, 2021. 

The parties prepared a Joint Pretrial Stipulation [ECF No. 81], which included six (6) disputed 

legal issues. The parties also submitted joint proposed jury instructions [ECF No. 84, pp. 45–48] 

and proposed verdict forms. The jury instructions made clear that the parties understood the 

applicable minimum wage would refer to the minimum wage which all workers in Florida are 

entitled to under the Florida Constitution. There were no issues regarding any supposed failure to 

abide by any condition precedent. Indeed, it is unrebutted that the Plaintiff complied with any 

condition precedent to bringing these claims. See ECF No. 171. The original trial setting was 

canceled pending the Court’s resolution of the pending cross-motions for summary judgment, 

which were substantially denied and thus reduced the disputed fact and legal issues to be resolved 

at trial. Accordingly, Plaintiffs sought to have the case returned to trial calendar. 

Special Trial Setting on Consent Jurisdiction. On February 13, 2023, the parties 

appeared before the Honorable Robin L. Rosenberg for a status conference; the Court encouraged 

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the parties to consent to Magistrate jurisdiction and obtain a date certain for trial. Two days later, 

the parties agreed to Magistrate Judge jurisdiction. ECF No. 123. Within one week, the parties 

appeared for a scheduling conference before the Honorable Jonathan Goodman and it was 

determined that trial would be specially set to commence Monday, May 8, 2023.

Fully six (6) weeks later, another lawyer entered an appearance on behalf of Defendants as 

co-counsel. Approximately six (6) weeks after that, Defendants, for the first time, submitted a draft 

of a second proposed joint pretrial stipulation. Defendants sought to include dozens of new factual 

and legal issues which do not appear anywhere in the pleadings and which were never mentioned 

in the original joint pretrial stipulation. Plaintiffs indicated their objections in writing to this 

attempt to introduce new issues. To be clear, in this second pretrial stipulation filed on April 24, 

2023, less than two weeks prior to the special trial setting, Defendants attempted to shoehorn 

dozens of new legal and factual issues over Plaintiffs’ objections. 

Pretrial Conference. Two days later, on April 26, 2023, counsel for the parties appeared 

before the Court for a pretrial conference. At that time, Plaintiffs brought to the Court’s attention 

that, over the Plaintiffs’ objection, Defendants were trying to introduce dozens of legal and factual 

issues not properly before the Court. The Court inquired of the Defendants words to the effect: “Is 

this the first time I’m hearing about these issues?” The Defendants admitted that it was, and 

apologized for attempting to raise new issues 12 days before the special set trial date. Further, 

Defendants also introduced, for the first time, an issue regarding a supposed U.S. Department of 

Labor (“DOL”) waiver, which they had not even raised as a factual or legal issue (disputed or 

otherwise) in the pretrial stipulation filed two (2) days earlier. 

The Defendants made no motion and proffered no basis for raising new issues into a threeyear-old case scheduled to commence trial in 12 days. Defendants never filed a motion under 

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Rule 16(e), Fed. R. Civ. P., and they have never even proffered any basis upon to support the 

necessary finding of “manifest injustice” for the introduction of issues contrary to the pretrial 

stipulations, and so shortly before a specially set trial. Defendants made no motions at all to amend 

pleadings or to dismiss claims, but the Court ordered the parties to brief 28 disputed legal issues, 

including at least 22 new issues raised over the Plaintiff’s objections, and limited each argument 

to no more than a half-page to each issue. Additionally, the Court also required that the parties 

separately brief the issue regarding a supposed DOL-supervised release, not even mentioned in the 

second stipulation submitted only two (2) weeks prior to trial.

The parties submitted their Court-ordered memoranda of law on May 4, 2023, four (4) days 

before trial. ECF Nos. 166 and 168. The Plaintiffs submitted their memorandum of law regarding 

the DOL “Form WH-58” issue that same day [ECF No. 167], as ordered by the Court. 

Court Orders Entered on the Eve of Trial. Without there being any pending motions 

before the Court, on the Thursday and Friday before a scheduled Monday trial, the Court entered 

numerous orders regarding the issues which were never properly before the Court in the first place. 

First, the Court entered an Order [ECF No. 169] indicating that it would admit into evidence a 

“DOL Form WH-58” over the Plaintiffs’ objection and before any evidentiary predicate had been 

laid at trial; by so ruling, the Court essentially permitted the Defendants to raise a defense that does 

not appear in the pleadings, did not appear in the first pretrial stipulation, and did not appear in the 

second pretrial stipulation. On Friday, May 5th, the Court also required that Plaintiff file copies 

and provide evidence of mailing a “pre-suit notice”. [ECF No. 170]. By doing so, the Court 

implicitly allowed the Defendants to introduce a defense which does not appear in the pleadings, 

and which did not appear in either of the pretrial stipulations (except over Plaintiffs’ written 

objections). Plaintiffs complied with the Order by filing a verified response demonstrating 

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complete and utter compliance with the supposed pre-suit notice requirement. The verified 

response remains unrebutted [ECF No. 171]. Thereafter, the Court went so far as to enter an Order 

“dismissing without prejudice” the Florida Minimum Wage Act (“FMWA”) claim of opt-in 

Plaintiff Leonel Diaz (“Diaz”).1 Thereafter, the Court also entered an “Order on Remaining Legal 

Issues” [ECF No. 177] in which it determined, among other things, that the case would proceed to 

trial as to both Plaintiffs, but that Plaintiff Erik Chavez (“Chavez”) would be permitted to seek the 

highest available minimum wage in the jurisdiction, while the opt-in Plaintiff Diaz would only be 

able to seek the “federal” $7.25/hour.2

 This is plainly erroneous and prejudicial. 

Plaintiffs’ Motion for Relief. At 11:56 a.m. Sunday, May 7th (the day before trial), 

Plaintiffs filed the “Motion for Relief from Trial Orders” [ECF No. 181], given that the Court had 

ruled on issues not even properly before it, erroneously and clearly contrary to applicable law, and 

granted relief for Defendants without their even filing any motion, fundamentally changing the 

character of the trial without necessary findings, and in a manner which proves manifestly unjust 

and contrary to Plaintiffs’ rights under the most remedial of remedial statutes.

Trial Postponed. One hour after Plaintiffs filed their motion for relief, the Court entered 

an Order [ECF No. 183] cancelling the May 8th jury trial and announcing the issuance of an order 

1

 / Diaz joined [ECF 39-1] this lawsuit months after it was filed; he could not have prepared 

a “pre-suit notice of intent”. Villarino v. Pacesetter Pers. Serv., Inc., 481 F.Supp.3d 1252 (2020). 

2

 / In calculating FLSA damages, employers in Florida are held to the higher MW. Quintero 

v. DTM Enterprises, Inc., 2022 WL 2392477 (S.D. Fla. 2022), citing 29 U.S.C. 206(a)(1) and 29 

C.F.R. §541.4. Specifically, the minimum wage in 2018 was $8.25/hour; in 2019, $8.46/hour; and 

in 2020, $8.56/hour. Compere v. Nusret Miami, LLC, 28 F.4th 1180, 1183 (11th Cir. 2022). See also 

Touzout v. Am. Bet Car Rental KF Corp., No. 15-61767-CV, 2017 WL 2541225 (S.D. Fla. June 

12, 2017)(“courts in the Southern District of Florida have generally used the Florida minimum 

wage to calculate damages in cases brought under the FLSA. Isaula v. Chicago Restaurant Group, 

LLC, No. 13–CV–24387–JLK, 2014 WL 3477917, (S.D. Fla. Jul. 11, 2014); Ortiz v. Santuli Corp., 

No. 08–20218–Civ, 2010 WL 2926517 (S.D. Fla. Jul. 23, 2010); Roldan v. Pure Air Solutions, 

Inc., No. 07–22203–Civ, 2009 WL 198911 (S.D. Fla. Jan. 27, 2009).”) 

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to follow to explain the postponement of the trial. Later that same day, the Court entered its “Order 

Re: Trial Postponement” [ECF No. 184] which provided, in pertinent part, as follows:

Mistakes happen when decisions are rushed. They also occur with greater frequency when 

many last-minute decisions need to be made at one time. Mistakes are more likely to occur 

when decisions are made on incomplete information. And mistakes are made when the 

information which was provided at the last minute is fuzzy . . . this is why the Undersigned 

has decided to postpone the trial scheduled to start tomorrow.

* * *

Counsel for the parties have been scrambling to meet shortened deadlines in the past two 

weeks, and the Undersigned (and the law clerk working with me) have also been working 

around the clock in an effort to address myriad issues which have arisen at the eleventh 

hour.

* * *

Given the choice of postponing the trial and causing inconvenience to the parties or pushing 

forward with the trial in a rushed atmosphere with legal rulings being made at the last 

minute, based on an incomplete factual record and rushed legal briefing on issues of first 

impression, the Undersigned opts for a rescheduled trial.

ECF No. 184. 

The case is rescheduled for trial on September 11, 2023. The parties are required to submit 

additional legal memoranda regarding 11 issues identified by the Court [ECF Nos. 185 and 190].

II. REPLY TO “ARGUMENT”

A. Reply to Defendants’ Argument that “The Court Properly Determines That 

Parties Already And Fully Litigated The Issues . . .”

The premise of the Plaintiffs’ underlying motion for relief is that the Court has essentially 

allowed the Defendants to introduce issues not properly before the Court, that have never been 

pleaded, preserved, or litigated, that the Court permitted the Defendants to do so without the 

Defendants having even filed a motion permitting them to do so, as required by Rule 16(e), 

Fed. R. Civ. P., and that the Court ruled on several of those issues erroneously, to the prejudice of 

the Plaintiffs. Within an hour of the filing of Plaintiffs’ motion, the Court sua sponte postponed

trial, and then entered a separate Order expressly stating that “mistakes happen” when decisions 

are rushed and when legal rulings are “made at the last minute, based on an incomplete factual 

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record and rushed legal briefing on issues of first impression . . .” [ECF No. 184, p. 3].

It is a pathetic and desperate plea to preserve a manifestly unjust status quo obtained by 

“gotcha” tactics for the Defendants to suggest, after they have unlawfully introduced so many 

issues “at the eleventh hour”, that the issues have been “fully litigated”. The Court itself has 

acknowledge that “mistakes happen” and has entered an Order asking for supplemental briefings, 

independent of the underlying Plaintiffs’ motion for relief. [ECF No. 184, p. 3].

3 The issues have 

not been fully litigated; they have not been fully briefed, or even properly pleaded or preserved. 

B. Reply to Defendants’ Argument that “The Plaintiffs’ Failure To

Identify A Legal Basis To Relitigate Issues . . .”

Relief from orders may be obtained in accordance with, inter alia, Fed. R. Civ. P. 60(a) 

and (b)(1), (3), and (6) for reasons which include the existence of mistake, inadvertence, surprise, 

fraud, misconduct by an opposing party, or any other reason which justifies relief. Specifically, 

Rule 60 provides in pertinent part as follows:

Rule 60. Relief from a Judgment or Order

(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The 

court may correct . . . a mistake arising from oversight or omission whenever 

one is found in a judgment, order, or other part of the record. The court may do 

so on motion or on its own, with or without notice . . . 

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion 

and just terms, the court may relieve a party or its legal representative from a 

final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

* * *

(3) fraud (whether previously called intrinsic or extrinsic), 

misrepresentation, or misconduct by an opposing party;

* * *

(6) any other reason that justifies relief.

Rule 60, Fed. R. Civ. P. The purpose of a motion under Rule 60 is “to permit the trial judge to 

3 / The Court has ordered the parties to provide five (5) pages of legal briefing regarding 11 

different issues, including all of the issues that were the subject of the Plaintiffs’ motion for relief. 

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reconsider . . . matters so that he can correct obvious errors or injustices . . .” Carter ex rel. Carter 

v. United States, 780 F.2d 925, 928 (11th Cir. 1986) (quoting Fackelman v. Bell, 564 F.2d 734, 

736 (11th Cir. 1977)). This includes the need to correct clear error or manifest injustice. Cover v. 

Wal-Mart Stores, Inc., 148 F.R.D. 294, 295 (M.D. Fla. 1993). 

Here, Defendants have created chaos by unlawfully wedging new issues on the veritable 

eve of trial. The Court has acknowledged sua sponte that these issues were raised “at the eleventh 

hour” and has required that the parties submit memoranda regarding the very same issues which 

are the subject of the underlying motion. It is clear that Defendants have led the Court to error. For 

example, the Court dismissed the FMWA claim of Diaz, even though the only published authority 

on this point clearly suggests that putative class members do not have to meet the pre-suit notice 

requirements of the FMWA. Villarino v. Pacesetter Pers. Serv., Inc., 481 F.Supp.3d 1252, 1257 

(2020). Moreover, the significance of this “pre-suit notice” issue is academic since the applicable 

MW in Florida for purposes of the FLSA is the higher Florida MW. See footnote 2, supra. 

Similarly, the decision to admit evidence regarding a fact and legal issue which does not 

appear in the stipulations is contrary to law since the Defendants have not even requested relief 

under Rule 16(e) and cannot meet their burden to show “manifest injustice”. 

C. Reply to Defendants’ Argument that: “The Parties Stipulated. . .That 

Numerous Disputed Issues Existed.”

Defendants actively mislead the Court by suggesting that Plaintiffs agreed to entertain the 

Defendants’ “eleventh hour” issues. Plaintiffs specifically objected that the “eleventh hour” issues 

were not properly before the Court. The issue pertaining to a supposed DOL-supervised waiver of 

claims, was not even mentioned as either a disputed issue of fact or a disputed issue of law in 

either the initial or subsequent pretrial stipulation. 

The “Statutory Condition Precedent” Defense. The idea that any plaintiff is barred from 

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raising FMWA claims for their alleged failure to abide by a statutory condition precedent is not 

raised in the pleadings. Chavez’s Complaint alleged compliance with any and all conditions 

precedent, which the Defendants did not plead or deny with specificity, as required by the rules of 

pleading. Rule 9(c), Fed. R. Civ. P. Defendants’ pleadings fail to mention the statutory provisions 

they relied upon, fail make any reference to non-performance of a “condition precedent”, fail to 

plead (or prove) any prejudiced resulting from this manufactured “lack of notice”. See Denton v. 

HSBC Bank USA, N.A., 290 So. 3d 72 (Fla. 4th DCA 2020); Gorel v. Bank of New York, 165 So. 

3d 44, 47 (Fla. 5th DCA 2015).

The Defendants’ Response also fails to note that in the second pretrial stipulation, when 

they attempted to introduce as a disputed issue of fact whether Plaintiffs had complied with FMWA 

pre-suit requirements, the Plaintiffs specifically objected to the idea that these issues were before 

the Court. ECF No. 144, pp. 5–6, ¶¶ 6(i), (j) (emphasis added):

6. A statement in reasonable detail of issues of fact which remain to be litigated at 

trial.

* * *

i. Whether Plaintiff, Erik Chavez, complied with the FMWA pre-suit requirements 

imposed by Fla. Stat. §448.110. [Plaintiff disputes that this is an issue for trial] 

j. Whether Opt-In Plaintiff, Leonel Diaz, complied with the FMWA pre-suit 

requirements imposed by Fla. Stat. §448.110. [Plaintiff disputes that this is an 

issue for trial] 

Similarly, when the Defendants tried to introduce the issue even as a disputed issue of law, the 

Plaintiffs likewise specifically objected in writing. Id. at p. 9, ¶ 8(a) (emphasis added):

8. Concise statement of issues of law which remain for determination 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. [PLAINTIFF DISAGREES 

THIS IS AN ISSUE OF FACT OR LAW BEFORE THE COURT]. 

Notwithstanding the Plaintiffs’ objections, Defendants never sought to meet their burden under 

Rule 16(e). They filed no motion, and even now they proffer no evidence in support of any 

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manifest injustice. Further, as previously noted, the issue is academic: for purposes of the FLSA

the minimum wage in 2018 was $8.25/hour; in 2019, $8.46/hour; and in 2020, $8.56/hour. 

Compere v. Nusret Miami, LLC, 28 F.4th at 1183 (11th Cir. 2022). See inter alia at fn. 2. 

The “DOL Supervised Release” Defense. There is no disputed issue of fact or law raised 

pertaining to this similarly un-pleaded defense. No disputed issue of fact or law appears in the first 

pretrial stipulation or the second pretrial stipulation. This issue was raised for the first time during 

the pretrial conference. Thus, again, the Defendants fail to comply with their obligation to establish 

that this issue must be litigated to avoid manifest injustice. Defendants are bound by their pretrial 

stipulations and they have not even asked the Court to consider this issue as required by Rule 16(e). 

D. Reply to “The FLSA Does Not Preempt The FMWA’s Pre-Suit Notice . . .” 

The Plaintiffs have never suggested that the FLSA “preempts” the FMWA’s pre-suit notice 

requirement. Rather, Plaintiffs have cited both the express language of the State statute and 

Constitution, as well as controlling authority, which all make clear that in interpreting the meaning 

of the FMWA, it must be read consistently with the FLSA. Florida Constitution, Art. X, §24; Fla. 

Stat. §448.110(3). Llorca v. Sheriff, Collier Cnty., Fla., 893 F.3d 1319, 1328 (11th Cir. 2018). 

Plaintiff did comply with the pre-suit notice requirement; this is unrebutted. However, the 

pre-suit notice requirement cannot be read in such a way as to require that protected employees 

waive substantive rights as a condition precedent to asserting those rights. See, generally, 

ECF No. 181, pp. 8–10, citing Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 65 S.Ct. 895, 902, 89 

L.Ed. 1296 (1945); Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 740, 101 S. Ct. 1437, 

1445, 67 L. Ed. 2d 641 (1981); Atlantic Co. v. Broughton, 146 F.2d 480, 482 (5th Cir. 1944). 

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E. Reply to “Court Determined That Both Plaintiffs Failed To Comply. . .”4

The record is verified and remains unrebutted for the proposition that Chavez complied 

with the supposed pre-suit notice requirement of the FMWA. Defendants have refused to verify 

with evidence their suggestion that they did not “receive” notice. Unwilling to verify a falsehood, 

Defendants now suggest that Defendant Ruben Sierra (“Sierra”), individually, was entitled to presuit notice only at his home residence. Defendants are now inventing statutory requirements. 

1. Reply to “registered agent” Argument.

Defendants’ falsely say Plaintiffs did “not claim . . . did not aver they sent the letter to 

Mr. Chavez [sic] . . . ” ECF No. 192, p. 14. This is false. Service by mail upon Sierra is clearly 

averred in the Verified Response of the Plaintiffs, which remains unrebutted. [ECF No. 171, p. 3,

¶¶ 7-8]. 

2. Reply to Defendants’ “Mr. Chavez improperly included 

liquidated damages . . .” Argument.

The FMWA Does Not Require that Plaintiffs Waive Substantive Rights. Defendants 

hope to advance a nonsensical argument that prior to filing a lawsuit under the FMWA, protected 

employees must provide “notice of intent to sue”, but they are forbidden from providing notice of 

what they intend to sue for. Liquidated damages and attorneys’ fees are clearly substantive 

remedies under the FMWA and these cannot be waived. Defendants seem to believe that Plaintiffs 

are required to waive their substantive rights and afford their employer the opportunity to avoid 

statutory liability by “tendering” no more than the unpaid minimum wages which employers failed 

to timely pay on pay day. This suggestion is contrary to controlling authority. It is well settled that 

hourly wage workers are entitled to payment of their statutory wages on the regularly scheduled 

4

 / Defendants erroneously suggest the Court determined “that both Plaintiffs failed to comply 

with the pre-suit notice requirements.” ECF No. 192, p. 13. This is patent untrue. 

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pay day, and that the liability for liquidated damages “arises immediately” when the minimum 

wage is not paid on the regularly scheduled pay day. Atlantic Co. v. Broughton, 146 F.2d 480, 482 

(5th Cir. 1944). It is equally well settled under controlling authority that substantive rights under 

these remedial statutes cannot be waived. Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1945);

Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 740 (1981). In fact, settlements between 

employers and employees are entirely unenforceable unless they are the subject of scrutiny in the 

context of contested litigation or when supervised by the Secretary of the DOL. Lynn’s Food 

Stores, Inc. v. United States, 679 F.2d 1350, (11th Cir. 1982). 

The Plaintiff’s Notice of Intent Does Not Prohibit the Defendants from Tendering 

Unpaid Minimum Wage. Even if we were to give the FMWA a reading which would actually 

require what is expressly forbidden (i.e., that employees must offer to waive substantive rights 

before suing), Defendants fail to explain how Plaintiff’s notice “does not allow an employer to 

tender the minimum wages claimed.” See ECF No. 192, p. 16:1–2. There is nothing about the 

words written on a page that could preclude an employer from tendering the MW due. 

Defendants do not Plead nor Establish any Prejudice. It is a fundamental element of 

this “eleventh hour” defense that the proponent must plead and prove prejudice resulting from the 

so-called lack of notice. A party entitled to notice as a condition precedent to the exercise of a right 

must allege and establish that they were prejudiced by the supposed lack of notice. See Gorel v. 

Bank of New York, 165 So. 3d 44, 47 (Fla. 5th DCA 2015); see also Denton v. HSBC Bank USA, 

N.A., 290 So. 3d 72 (Fla. 4th DCA 2020). Defendants have not alleged (as part of their duty to 

plead with specificity), nor do they now submit, that they were denied the opportunity to tender 

the unpaid minimum wage. Id. at p. 75, n.1 (“. . . prejudice is an essential element of an affirmative 

defense that a condition precedent was materially breached. Thus, the burden would be on the 

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proponent of the defense to provide prejudice sufficient to warrant the avoidance . . .” of liability). 

The notice of intent to sue [ECF No. 171-1, p. 4], served three years ago and again recently, 

clearly segregates the amounts sought for unpaid minimum wage, from statutory liquidated 

damages, and statutory attorneys’ fees and costs. Since the Defendants have never tendered nor 

averred that they would like to tender the MW demanded5

, the defense is entirely unavailable. 

Only Opt-In Plaintiff Diaz has had his Claim Dismissed. While the underlying Motion 

is addressed to the asserted error in the Court’s having dismissed the FMWA claim of Diaz, 

Defendants’ response avoids mentioning Diaz altogether. Rather, Defendants argue that the 

FMWA claim of Chavez should also be dismissed. This is because Diaz joined this lawsuit months 

after it was filed. The only published case on this point is studiously avoided by the Defendants. 

The Court has recognized that there is no authority requiring pre-suit notice by putative class 

members. See Villarino v. Pacesetter Pers. Serv., Inc., 481 F.Supp.3d 1252, 1257 (2020). 

F. Reply to “Plaintiffs’ Analysis Of The FMWA Is Fatally Flawed.” 

Defendants argue without authority that because the FMWA includes a statutory attorneys’ 

fees provision under a separate subsection of the statute, that the notice of intent to sue provision 

is required to be “strictly construed” as an attorneys’ fees statute. To be clear, there is no authority 

for the proposition that the pre-suit notice requirement found at § 448.110(6)(a), Fla. Stat., is

required to be strictly construed. The attorneys’ fees provision of the FMWA is provided under a 

separate subsection. § 448.110(6)(c)(1), Fla. Stat. 

G. Reply to “Plaintiffs Cannot Offer New Arguments In Their Reply.” 

The legal arguments are entirely a fortiori. No reply is required. 

5

 / Because only the employer has the obligation to maintain pay and timekeeping records, it 

is often impossible for the Plaintiff to accurately quantify the amount of the unpaid MW until after 

litigation commences. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). 

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CERTIFICATE OF SERVICE

I hereby certify that on May 30, 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

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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