scUnited States District Court

for the

Southern District of Florida

Carlos H. Espinoza and all others 

similarly situated, Plaintiffs,

v.

South Beach Associates, LLC, and 

Stefano Fritella, Defendants.

)

)

)

)

)

)

)

Civil Action No. 20-22873-Civ-Scola

Verdict and Order Following Non-Jury Trial

Plaintiff Carlos H. Espinoza, through this Fair Labor Standards Act case, 

seeks damages from Defendants South Beach Associates, LLC, and Stefano 

Fritella for their failure to pay him overtime wages during his employment at 

Social, a restaurant in Miami Beach. (Compl., ECF No. 1, 12–16.) In response 

to the lawsuit, the Defendants filed a motion to compel arbitration, seeking to 

compel arbitration and stay the case based on Espinoza’s alleged execution of 

an employee-dispute-resolution agreement with South Beach. (Defs.’ Mot. to 

Compel, ECF No. 6.) In opposing the motion, Espinoza denied ever signing an 

arbitration agreement or otherwise agreeing to arbitrate any claims against the 

Defendants. (Pl.’s Resp., ECF No. ECF No. 11.) In light of the parties’ 

disagreement, the Court determined Espinoza had raised a genuine issue of 

material fact concerning the formation of the purported arbitration agreement 

and denied the Defendants’ motion to compel, without prejudice. (Order, ECF 

No. 19.) In doing so, and after denying the parties’ cross motions for summary 

judgment, the Court then set the matter for a bench trial on the sole issue of 

contract formation. (Order, ECF No. 51.)

The Court held a one-day, non-jury trial, beginning on January 19, 

2021.1 Prior to the trial, the parties submitted a joint pretrial stipulation (ECF 

No. 54), as well as their proposed findings of fact and conclusions of law (ECF 

Nos. 55, 56). The Court has carefully reviewed these submissions. The Court 

also paid close attention to the testimony and evidence presented during the 

trial. After considering the credible testimony and evidence, and the applicable 

law, the Court finds Espinoza did sign the arbitration agreement and its 

1 The entire trial on this matter was conducted virtually, by videoconference and 

without issue. This relieved the litigants and many witnesses from the burdens of 

expensive and inconvenient travel to the courthouse in downtown Miami. The Court 

highly recommends conducting hearings and nonjury trials using a virtual platform. 

There are many advantages and few downsides.

Case 1:20-cv-22873-RNS Document 65 Entered on FLSD Docket 01/20/2021 Page 1 of 10
associated acknowledgment form, thus establishing the formation of a contract 

to arbitrate. 

1. Summary of the Testimony

A. Demian Maggioni

Maggioni was called as a witness for the Defendants. 

Maggioni has worked for two years at Ceviche 105 and has been the 

corporate operations manager there for the past 14 months. He previously 

worked as a manager for South Beach Associates at Social, from January 2011 

through April 2018. Ceviche 105 is not affiliated with South Beach Associates.

Espinoza was the chef at Social. 

Maggioni was manager during the transition at Social to 

digital/electronic on-boarding employment contracts. Maggioni was trained by 

Antonio Rizzi on how employees were to fill out the arbitration provision.

Maggioni would open the contract on the computer but the employee 

would have to input their own personal information and sign documents 

electronically. This process took about twenty to twenty-five minutes. The 

employee would have to scroll through each document prior to signing. 

Maggioni made himself available in case the employees had any questions. 

Most of the questions of the employees related to how to list their dependents.

Maggioni does not recall today the specific language of the arbitration clause. 

Maggioni denies that only the new hires were required to sign the 

arbitration agreement. Maggioni also presented the arbitration agreement to 

current employees when the new policy took effect in approximately 2015. In 

his deposition, Maggioni had testified that his only role was to assist the new 

hirings to fill out the hiring package. Maggioni is certain that new employees 

signed the forms and, if everything was done correctly, all current employees 

should have signed the forms as well. 

Maggioni used his manager log-in credentials to start the process for 

Espinoza. Then Espinoza reviewed and signed the documents. Maggioni was 

not present during the entire time Espinoza was reviewing the documents on 

the computer but he was available in case Espinoza had any questions.

Maggioni does not recall Espinoza asking any questions. Maggioni did not see 

Espinoza electronically sign the document.

One of the most important parts of the process was to print out and have 

the employee sign an acknowledgement that he had electronically signed the 

handbook, dispute resolution, and service-charge distribution documents. 

Exhibit C is the form signed by Espinoza. Espinoza filled in his name and his 

Case 1:20-cv-22873-RNS Document 65 Entered on FLSD Docket 01/20/2021 Page 2 of 10
position as “Chef.” Espinoza and Maggioni signed the form at the bottom on 

March 3, 2016.

Exhibit B is the electronic version of the Employment Dispute Resolution 

form electronically signed by Espinoza. 

Espinoza was very familiar with using the office computer. He used it 

every day. When he started his shift, he would log in the food invoices either 

every day or every other day. At least once or twice per week, Espinoza would 

also use the computer to input the kitchen schedule.

Maggioni gave Espinoza’s signed acknowledgement form to Rizzi. 

Espinoza was in financial distress at one point. He was given a loan by the 

restaurant to be repaid by having monies deducted from his paycheck. Other 

employees told Maggioni that Espinoza said he was going to sue the company 

because he was not happy with his hours. Maggioni wanted to make sure the 

loan receipt signed by Espinoza was kept and Maggioni also placed Espinoza’s 

acknowledgement form in a file.

Mr. Mateo is Maggioni’s brother-in-law and Mateo has been a business 

associate of Fritella for a while. Mateo helped Maggioni get hired by South 

Beach Associates. Maggioni started in 2010. 

B. Antonio Rizzi

Rizzi was called as a witness for the Defendants.

Rizzi works at 850 Office LLC which manages several restaurants. He is a 

part-owner of Social.

His companies have used various payroll companies over the years. His 

present payroll company uses an electronic system. All documents are reviewed 

and signed electronically. He and the managers were trained in the new 

electronic system. The forms included an Obamacare waiver form, an I-9 form, 

and an employment contract. 

Rizzi signed a declaration indicating he is the custodian of personnel files 

for South Beach Associates. 

His attorney wanted him to have the employees sign a hard copy of the 

Obamacare waiver form so he also had them sign a hard copy of the 

acknowledgement of electronic signatures form.

Espinoza started working for Rizzi at a different restaurant and was later 

transferred to the Social restaurant. Rizzi is, thus, familiar with Espinoza. 

When Maggioni was about to leave his employment with the company, he 

told Rizzi that he felt Espinoza was going to sue the company and Maggioni 

gave Rizzi Espinoza’s employee file. Rizzi scanned the documents that were in 

the file.

Case 1:20-cv-22873-RNS Document 65 Entered on FLSD Docket 01/20/2021 Page 3 of 10
One of the documents given to Rizzi by Maggioni was an I-9 form that 

Espinoza filled out, in ink, and signed when he first started working for the 

company.

According to Rizzi, each employee who had already been hired at the time 

the new electronic payroll system was implemented was required to 

electronically review and sign the forms, including the arbitration form. Those 

same employees also signed a hard copy of the acknowledgement form. Each 

manager was supposed to scan the hard copy and send to Rizzi. Maggioni kept 

those forms in his office but never scanned and sent them to Rizzi. When 

Maggioni left and a new manager took over, the file(s) containing the hard 

copies of the employees’ acknowledgement forms disappeared inexplicably. 

Thus, only Espinoza’s hard copy of his acknowledgement form was provided to 

Rizzi. But, once Rizzi scanned Espinoza’s form he threw away the hard copy. At 

this time, there are no hard copies of any employee’s acknowledgement form. 

Espinoza was fired because he came into the restaurant on a day off, 

walked behind the bar, took a few beers, and walked out.

C. Douglas Kendig

Kendig was called as a witness for the Defendants.

Kendig works at Vick and Angelo’s in Boynton Beach which is operated 

by Fritella and Rizzi. Kendig has worked for many years with South Beach 

Associates at various locations and worked at Social as a manager from 

January 2016 until approximately January 2018. On March 4, 2016, one day 

after Espinoza signed his forms, Kendig signed electronic documents when he 

worked at Social including an arbitration agreement. Kendig also signed hard 

copies of an insurance waiver and an acknowledgement form.

Kendig worked with Espinoza at Social. Kendig did not have any 

conversations with Espinoza about the employment documents. Espinoza 

never told Kendig he was going to sue the restaurant.

Kendig was not responsible for explaining the new hiring process to new 

employees at Social. He does not know what happened to the signed, hard 

copies of the insurance waiver forms or the acknowledgement forms at Social.

D. Miguel Emmanuelli

Emmanuelli was called as a witness for the Defendants.

Emmanuelli now works for Vick and Angelo’s and prior to that worked at 

Social with Espinoza from approximately 2011 until 2017. Maggioni was the 

manager at Social during the time Emmanuelli worked there. Emmanuelli was 

the night-time chef and Espinoza was the day-time chef. 

Case 1:20-cv-22873-RNS Document 65 Entered on FLSD Docket 01/20/2021 Page 4 of 10
After he had been working at Social, Emmanuelli signed an employeedispute document. He does not recall when he signed the document and does 

not recall signing any other documents. In his deposition, Emmanuelli had 

testified that he signed the employee documents at the beginning of his 

employment.

Emmanuelli does recall that Maggioni sat with him at the computer and 

explained the forms to him before he signed them. Maggioni was with him the 

entire time he reviewed the forms.

Espinoza never complained to Emmanuelli about how he was treated by 

the restaurant and never mentioned going to see an attorney. Emmanuelli and 

Espinoza always spoke to each other in Spanish.

E. Carlos Espinoza

Espinoza was called as a witness by the Plaintiff.

Espinoza is from Honduras, is a legal resident in the United States, and 

is forty-seven years old. He worked at Social as a chef from 2013 through 2019.

Espinoza never threatened to sue the company during the time he was 

working there.

Espinoza was never asked by Maggioni in 2015 or 2016 to use a 

computer to review and sign employment documents.

Espinoza was shown Exhibit 1, a printout of an Employment Resolution 

form with his name and electronic signature. He testified he never reviewed 

that document on a computer and never electronically signed the document. 

He does not know how to use a computer. He was never told about arbitration.

Espinoza was shown Exhibit 2, the signed Acknowledgement Form, and 

testified it is not his handwriting and not his signature.

Espinoza was shown Exhibit K, his answers to interrogatories, which 

contain his initials on each answer. The “E” written on his initials appears to 

be different from the “E” written three times on the Acknowledgement Form.

Espinoza testified that he never sat at the computer with Maggioni to 

input the invoices for the food costs. Another chef who worked in the afternoon 

inputted the invoices. The other chef was given a tablet to use to input the 

invoices. 

Espinoza was shown Exhibit F, his permanent resident card with his 

signature. He agreed the signature on the permanent resident card is his 

signature. The signature includes a big loop around most of the letters within 

the signature. He only completed sixth grade in Honduras and never learned 

how to sign his name. His permanent resident card was the first time he had 

signed any documents.

Case 1:20-cv-22873-RNS Document 65 Entered on FLSD Docket 01/20/2021 Page 5 of 10
Espinoza was shown Exhibit E, his I-9 form, and admitted it contained 

his signature. He had previously signed an affidavit denying that it was his 

signature. 

F. Alberto Pomarica

Pomarica was called as a witness for the Plaintiff.

Pomarica worked at Social with Espinoza for four years, starting 

approximately 2014. He stopped working at Social at the end of 2018.

Pomarica worked the salad line from 9:00 a.m. to 4:00 p.m.

Damien Maggioni was the manager for the first three years Pomarica was 

there and another manager took over during Pomarica’s last year at Social.

Damien never asked him to go on a computer and review and sign 

documents and never told him anything about any arbitration agreements.

Pomarica was only given an employment application.

Pomarica was shown Exhibit 9, a printout of an Employment Resolution 

form with his name and an electronic signature of him. Pomarica claims he 

never saw the form and never signed the form electronically.

Espinoza never complained about his work and never told Pomarica he 

was going to sue the company.

Pomarica did not get along well with Maggioni. Maggioni was the kind of 

person who pressured you a lot at work. Also, Pomarica signed up to work the 

salad line and Maggioni was always asking him to do other work in addition to 

his salad work.

G. Alberto Everaldo Martinez Julien

Julien was called as a witness for the Plaintiff.

Julien has worked for many of South Beach Associates’ restaurants. He 

first worked at Carlyle in 2015, a restaurant of South Beach Associates, and 

met Espinoza there. Julien was a food-prep and line cook. He worked six days 

per week from 8:00 a.m. until 5:00 p.m. Julien and Espinoza always spoke to 

each other in Spanish.

Julien remembers that while he worked at Carlyle in early 2016 or late 

2015, he went into an office and entered his social-security number but he 

does not remember signing any documents. Julien does not remember seeing 

anything about arbitration in the paperwork and no one ever mentioned that 

word to him.

Julien later worked at Social while Maggioni was the manager. He did not 

sign any employment agreements while he worked at Social.

Case 1:20-cv-22873-RNS Document 65 Entered on FLSD Docket 01/20/2021 Page 6 of 10
The only thing Julien remembers signing is a form having to do with 

insurance/Obamacare.

Julien was shown Exhibit 10, a printout of an Employment Dispute 

Resolution form which indicates it was electronically signed by Julien on 

March 2, 2017. Julien does not recall ever seeing or electronically signing the 

form.

All the employees, including Espinoza, complained about the work 

conditions at the restaurant but he was not a leader of the complainers. Julien 

complained to Espinoza that he believes he is owed money by South Beach 

Associates.

H. Arlex Torres

Torres was called as a witness by the Plaintiff.

Torres worked at Social with Espinoza from early 2017 until late 2017. 

He worked total of seven months. Torres was a food runner at the restaurant. 

The waiter takes the order and he delivers the food to the table.

Torres only knows the manager was Italian but does not know his name.

When Torres started working, he was placed on probation. He does not 

remember ever going on a computer and signing documents electronically. He 

was asked if he knew how to use a computer and he told them he did not. After 

a few days of working and he had finished his probationary period, he was 

given documents to sign by the manager. He has no idea what documents he 

signed; he just knows he signed a bunch of documents. He had just arrived in 

the country. He did not sign documents relating to arbitration and no one ever 

mentioned arbitration to him

Espinoza never complained about the conditions of work at the 

restaurant. 

Torres left the job because he was fired for arguing with the manager. He 

was upset about being fired because his wife was pregnant at the time.

I. Elizabeth Cruz Evans

Evans was called as a witness for the Plaintiff.

Evans works for 850 Office which manages several restaurants owned by 

Fritella. Social is one of the restaurants owned by Fritella.

Evans does the accounting and speaks fluent Spanish and English.

Evans has worked with Rizzi for over ten years. Rizzi never told her that 

the “wet” signatures of the employees at Social were missing. She does the 

accounting and the only documents she works with are invoices.

Case 1:20-cv-22873-RNS Document 65 Entered on FLSD Docket 01/20/2021 Page 7 of 10
Evans has nothing to do with payroll. She has heard of an arbitration 

agreement, but she has nothing to do with arbitration agreements. She was 

never asked to translate employment documents back in 2015 and 2016. She 

has heard Rizzi speaking to managers that all the employees had to sign the 

arbitration agreements but she has no idea if they were referring to written 

agreements or electronic documents. 

All HR documents are stored in the office of the manager at each of the 

restaurants.

2. Findings of Fact

Espinoza worked as a chef at Social, a restaurant owned by South 

Beach, from 2013 to 2019. South Beach had utilized several different payroll 

companies over the years. Between late 2015 and early 2016, South Beach 

hired a new payroll company and implemented a computerized onboarding 

process for its employees. During this time, Maggioni was the general manager 

at Social.

The onboarding process involved logging both newly-hired and existing 

employees into the human-resources work-cycle program. As part of that 

process, each employee would have to input his or her basic information and 

then scroll through a number of electronic documents, including South 

Beach’s employee-dispute-resolution policy. Maggioni would open the program 

on the computer in his office and then the employee would enter his personal 

information to access the documents. Maggioni explained to each employee 

that he was available to answer any questions they had or assist them in the 

process. He was not physically present with the employee at the computer 

during the entire process but was in the restaurant. The system required the 

employee to scroll through each document before the employee could

electronically sign that document. Once the employee scrolled through and 

signed all the documents, Maggioni would have the employee sign, in ink, a 

hard copy of an acknowledgment form certifying that the employee had read 

and electronically signed the computerized documents. Each restaurant 

manager was responsible for maintaining the hard copies of the 

acknowledgement forms and the managers were supposed to scan and forward

digital copies of the forms to South Beach within a few days of the signing. 

Maggioni assisted Espinoza in migrating to the new system on March 3, 

2016. Espinoza went into Maggioni’s office. Maggioni initiated the computer

program for Espinoza and explained the process to him. Espinoza then 

inputted his personal information and reviewed the documents online. 

Maggioni was not present the entire time as Espinoza went through and 

electronically signed the documents, including the dispute-resolution 

Case 1:20-cv-22873-RNS Document 65 Entered on FLSD Docket 01/20/2021 Page 8 of 10
agreement. Maggioni went about attending to the restaurant but told Espinoza 

that if he had any questions or needed any help to let him know. Espinoza did 

not ask any questions. Nor did he ask for help. Once Espinoza completed the 

electronic reviewing and signing process on the computer, Maggioni presented 

him with a receipt-acknowledgment form, which itself lists the disputeresolution agreement as a document that was presented by the program and 

which the signer agrees to comply with. Maggioni was present when Espinoza 

signed the hard copy of the acknowledgement form. In court, Maggioni 

confirmed that the signature on the acknowledgment form is Espinoza’s. 

Maggioni specifically recalled going through the program with Espinoza 

because Espinoza had received a loan from the restaurant and because 

Maggioni suspected Espinoza might one day sue South Beach based on gossip 

among the other employees. Because of his concerns, Maggioni gave Espinoza’s 

complete paper file to Rizzi. Once Rizzi had possession of the paper file, he 

scanned and uploaded the documents and then threw away the hard copies of 

the documents.

Maggioni no longer works for South Beach and has no motive to perjure 

himself over a run-of-the-mill FLSA case. His memory was clear and specific of 

the relevant events and his testimony was corroborated by other credible 

witnesses.

Although Espinoza denied that he electronically signed the dispute 

resolution agreement and denied that the signature on the acknowledgment 

form is his, he had previously signed an affidavit in this case denying a 

signature on an I-9 form was his but later admitted it was, in fact, his 

signature. The Court compared the signature on the acknowledgement form 

with Espinoza’s signatures on his I-9 form and on his permanent resident card 

and the three signatures are generally similar. But the Court’s determination 

that Espinoza signed the forms electronically and by hand is based upon the 

testimony of the witnesses, not because of its amateur handwriting analysis. 

Although it is troubling that Espinoza’s is the only hard copy 

acknowledgement form from the Social that is still in existence within the 

company’s records, the greater weight of the evidence establishes he did sign 

the forms electronically, including the dispute resolution agreement. The 

greater weight of the evidence also establishes Espinoza did sign the hard copy 

of the acknowledgement form.

3. Conclusions of Law

Whether an arbitration agreement exists at all is “simply a matter of 

contract.” Burch v. P.J. Cheese, Inc., 861 F.3d 1338, 1346 (11th Cir. 2017). 

“Such a determination rests on the intent of the parties.” Seaboard Coast Line 

Case 1:20-cv-22873-RNS Document 65 Entered on FLSD Docket 01/20/2021 Page 9 of 10
R. Co. v. Trailer Train Co., 690 F.2d 1343, 1348 (11th Cir. 1982). For this, the 

Court must apply “ordinary state-law principles that govern the formation of 

contracts.” Am. Exp. Fin. Advisors, Inc. v. Makarewicz, 122 F.3d 936, 940 (11th 

Cir. 1997). Since the dispute resolution agreement and the acknowledgment 

form were signed and executed in Florida, neither party denies that Florida law 

governs this dispute. See Rodero v. Signal Fin. Co. LLC, 365 F. Supp. 3d 1263, 

1265 (S.D. Fla. 2018) (Altonaga, J.) (cleaned up) (“As Plaintiffs’ FLSA action 

involves an employment relationship in Florida and the contracts are alleged to 

have been signed and executed in Florida, Florida law governs whether valid 

arbitration agreements exist between the parties.”).

To prove the existence of a contract under Florida law, the party seeking

to enforce the contract must prove by a preponderance of the evidence: “(1) 

offer; (2) acceptance; (3) consideration; and (4) sufficient specification of the 

essential terms.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir. 

2009). And “the goal of Florida law vis-à-vis contract formation is to effectuate 

the parties’ intent.” Solymar Investments, Ltd. v. Banco Santander S.A., 672 

F.3d 981, 991 (11th Cir. 2012). Here, Espinoza’s sole arguments against 

formation is that he (1) did not electronically sign the dispute-resolution 

agreement, (2) did not hand sign the acknowledgement form, and (3) was 

wholly unaware of the existence of any arbitration agreement. In other words, 

Espinoza denies the offer and acceptance elements of contract formation.

Because the Court finds Espinoza did, in fact, both electronically sign the 

dispute-resolution agreement and hand sign the acknowledgment form,

reflecting his agreement to arbitrate and acknowledging he read and 

understood the terms of the agreement, the Court concludes the parties formed 

a contract in which Espinoza agreed to submit his claims to arbitration. The 

Defendants may therefore, after thoroughly conferring with Espinoza and his 

counsel, renew their motion to compel arbitration. The Defendants must file 

their motion, or a notice that they do not intend to do so, on or before January 

29, 2021.

Done and ordered in Miami, Florida on January 20, 2021.

_______________________________

Robert N. Scola, Jr.

United States District Judge

Case 1:20-cv-22873-RNS Document 65 Entered on FLSD Docket 01/20/2021 Page 10 of 10