United 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.

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Civil Action No. 20-22873-Civ-Scola

Order Staying Deadlines and Ordering Further Briefing

Plaintiff Carlos H. Espinoza seeks relief under the Fair Labor Standards 

Act for payments he says his employers, Defendants South Beach Associates

LLC and Stefano Fritella, LLC, owe him for unpaid overtime wages. (Compl., 

ECF No. 1, 12–16.) In response, the Defendants have moved to compel 

arbitration. (Defs.’ Mot. to Compel, ECF No. 6.) Espinoza opposes that motion, 

questioning, among other things, the “validity” of the parties’ purported 

arbitration agreement. (Pl.’s Resp. at 4.) Espinoza urges the Court to conduct a 

trial on the issue of whether the agreement is “valid and enforceable.” (Id. at 4–

5.) In reply, the Defendants maintain the validity of the agreement based on 

their former manager’s declaration that he witnessed Espinoza sign it and that, 

regardless, Espinoza was advised of the policy and manifested his assent to it

by his continued employment. (Defs.’ Reply at 2–3.)

Based on the briefing, the Court is unable to discern whether there is 

truly a genuine dispute as to any material fact concerning the formation of the 

arbitration agreement. See Mason v. Midland Funding LLC, 18-14019, 2020 WL 

2466370, at *6 (11th Cir. May 13, 2020) (noting conclusory allegations or 

merely colorable and not significantly probative evidence are not sufficient to 

merit a trial on the issue of arbitration-contract formation). The Defendants 

initially attempted to establish the formation of the arbitration agreement by 

maintaining Espinoza “agreed to [its] terms when he signed the Dispute 

Resolution Agreement, and the parties’ mutual promises, as well as Plaintiff’s 

employment or continued employment, provided the consideration.” (Defs.’ Mot. 

at 6.) In support, the Defendants attached a copy of the parties’ purported 

employment dispute resolution agreement to their motion. (Agmt., Ex. 1, ECF 

No. 6-1, 1–6.) This document includes what the Defendants say is Espinoza’s 

electronic signature. (Agmt. at 6.) Additionally, the Defendants attached an

acknowledgment form, which purportedly shows both Espinoza as well as a 

“manager’s” signature. (Rcpt. Ackn., Ex. 1, ECF No. 6-1, 7.) That form, by its 

terms, expresses the signatories’ certification that they have read and agree to 

comply with the Defendants’ employee handbook, the dispute resolution 

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agreement, and another document. (Id.) In response, however, Espinoza, within 

a sworn affidavit, declared (1) he has “never seen the document titled 

‘Employment Dispute Resolution’ attached to Defendants’ [motion] before 

today”; (2) that he did not electronically sign the employment dispute resolution 

agreement; (3) and that the actual signature on the acknowledgment form is not 

his. (Pl.’s Aff., Ex. 11-1, 2.)1 In reply, the Defendants supplied an affidavit, in 

which, under penalty of perjury, their former manager, Demian Maggioni,

maintains he was present when Espinoza completed the process of reviewing 

and electronically signing both the “Staff Handbook Receipt Acknowledgement”

and the “Employment Dispute Resolution form.” (Maggioni Decl. ¶ 6, Ex. 1., 

ECF No. 12-1, 1.) Maggioni also states he personally witnessed Espinoza hand 

sign the receipt acknowledgement. (Id.)

The parties have indeed shown there is a dispute as to whether Espinoza 

signed the agreement, either electronically or physically. This, however, does 

not end the Court’s inquiry as to whether a trial on the matter is necessary. 

This is because arbitration agreements need not be signed to be enforceable. 

See Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1369 (11th Cir. 2005)

(“[T]he overwhelming weight of authority supports the view that no signature is 

required to meet the [Federal Arbitration Act’s] ‘written’ requirement.”) (citing 

Tinder v. Pinkerton Sec., 305 F.3d 728 (7th Cir. 2002) where the court enforced 

an arbitration agreement that had been unilaterally promulgated by an 

employer and never signed by the employee). Under Florida law, “[a] valid 

contract—premised on the parties’ requisite willingness to contract—may be 

‘manifested through written or spoken words, or inferred in whole or in part 

from the parties’ conduct.’” Kolodziej v. Mason, 774 F.3d 736, 741 (11th Cir. 

2014) (quoting L & H Constr. Co. v. Circle Redmont, Inc., 55 So. 3d 630, 634 

(Fla. 5th DCA, 2011). The Defendants, for the first time in reply, maintain,

through Maggioni’s sworn testimony, that Espinoza was aware of the 

arbitration agreement. If true, Espinoza’s continued employment thereafter, 

which is undisputed, would then have demonstrated his assent to the 

agreement. Santos v. Gen. Dynamics Aviation Servs. Corp., 984 So. 2d 658, 661 

(Fla. 4th DCA 2008) (finding a plaintiff’s continued employment after receipt 

of a contract sufficient to demonstrate assent to the terms of 

the arbitration agreement, and sufficient consideration because “the agreement 

1 In opposition Espinoza also complains the documents were “not translated into Spanish, 

which is the language he speaks.” (Pl.’s Resp. at 1.) In his affidavit, Espinoza says his “native 

language” is Spanish. (Pl.’s Aff. at ¶ 6.) Tellingly, nowhere in his opposition does Espinoza say 

he cannot read and understand English. Further, Antonio Rizzi, an owner of South Beach 

Associates, LLC, submitted a declaration, under penalty of perjury, saying he is personally 

aware Espinoza “speaks and understands English.” (Rizzi Decl. ¶ 4, Ex. B, ECF No. 12-1, 1.) 

The Court does not find a disputed issue, then, regarding Espinoza’s understanding of English

and, in fact, based on the briefing, finds Espinoza’s raising of the issue to be misleading, if not 

worse. 

Case 1:20-cv-22873-RNS Document 16 Entered on FLSD Docket 08/31/2020 Page 2 of 3
created a mutual obligation to arbitrate”). Although Espinoza testifies, in his 

affidavit, that he has never seen the particular document the Defendants 

attached to their motion, he fails to mention, whether through inadvertence or 

by design, if he was otherwise aware of the arbitration agreement. If it turns out 

Espinoza does not dispute being aware of the arbitration agreement, there 

would not appear to be any occasion for the Court to hold a trial on the matter. 

Since the issue was raised for the first time in reply, however, the Court 

recognizes Espinoza has not had occasion to address this issue head on.

To resolve this issue the Court orders as follows: (1) Espinoza must confer 

with the Defendants regarding the Defendants’ contention Espinoza was aware 

of the arbitration agreement (or its contents) and whether Espinoza disputes 

Maggioni’s representation as to his awareness; (2) if Espinoza maintains he was 

unaware of the arbitration agreement at all, he must file a sur-reply, indicating 

as much, and limited to this issue, supported by sworn testimony; (3) if there is 

no dispute, the parties must file a joint status report regarding their agreement 

on that fact; (4) if the Court finds the issue of contract formation to be disputed,

it will deny the Defendants’ motion to compel arbitration without prejudice,

allow thirty days for discovery, on this limited issue, and require the parties to 

submit a joint status report, including a proposed schedule regarding 

summary-judgment briefing, if warranted, and a trial on the issue, if necessary. 

The parties must confer, as set forth above, on or before September 4, 2020. 

Depending on the results of that conferral, on or before September 9, 2020, 

Espinoza must either file (a) a sur-reply, if he has a good-faith basis to do so, or 

(b) a joint status report.

In the meantime, the Court stays all other deadlines in this case.

Accordingly, the Court denies as moot the parties’ joint motion to stay 

deadlines and set a new schedule (ECF No. 15). 

Done and ordered at Miami, Florida, on August 31, 2020.

________________________________

Robert N. Scola, Jr.

United States District Judge

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