UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-22835-BLOOM/Louis

ANTHONY RAMIREZ,

Plaintiff,

v.

AMERICAN TECHNOLOGY

VENTURES, LLC,

Defendant.

_________________________/

ORDER ON MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court upon Defendant American Technology Ventures, LLC’s 

(“Defendant”) Motion for Summary Judgment with Incorporated Memorandum of Law, ECF No. 

[38] (“Motion”). The Court has carefully reviewed the Motion, all opposing and supporting 

submissions, the record in this case, the applicable law, and is otherwise fully advised. For the 

reasons set forth below, the Motion is granted.1

I. BACKGROUND 

Plaintiff Anthony Ramirez (“Plaintiff”) initiated this action on July 10, 2020, seeking 

unpaid overtime wages pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201, et seq.

(“FLSA”). ECF No. [1] (“Complaint”). According to the Complaint, Defendant “was primarily 

engaged in providing motor vehicle customization, upholstery, fabrication, and similar services to 

1 Plaintiff urges the Court to strike the Motion because “Defendant failed to file the requisite Index required 

by the Court.” ECF No. [44] at 1 n.1; see also ECF No. [11] (instructing the parties that after filing a motion 

for summary judgment, “the movant shall separately file an index of the cited exhibits which names each 

exhibit and references the docket entry at which the exhibit may be found.”). Plaintiff is correct, and the 

Court reminds Defendant’s counsel that compliance with the Court’s order and the Local Rules is not an 

option but a requirement. In the interest of resolving the Motion on the merits, the Court accepts the Motion 

as filed and will not strike it.

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customers in and around Miami-Dade County, Florida.” Id. ¶ 10. Plaintiff alleges that he worked 

for Defendant “under the title of Custom Fabricator and Mechanic[,]” and his duties “were to 

perform custom fabrication and mechanical services on behalf of Defendant’s clients.” Id. ¶¶ 15, 

25. Plaintiff further alleges that he regularly worked fifty-four or more hours per week for 

Defendant, but Defendant failed to pay him full and proper overtime compensation for all hours 

worked above forty hours per week. Id. ¶¶ 26-32, 40. Based on the foregoing, the Complaint asserts 

a claim for violation of 29 U.S.C. § 207 due to Defendant’s failure to compensate Plaintiff for his 

overtime work. Id. ¶¶ 46-51. 

Regarding the instant Motion, ECF No. [38], Defendant filed its corresponding Statement 

of Undisputed Material Facts, ECF No. [38-1] (“Defendant’s SMF”). Plaintiff filed a Response, 

ECF No. [44] (“Plaintiff’s MSJ Response”), together with his Response to Defendant’s SMF, ECF 

No. [44-2] (“Plaintiff’s SMF Response”). Finally, Defendant filed a Reply in support of its Motion, 

ECF No. [46] (“Defendant’s MSJ Reply”). The Motion is ripe for consideration.

II. MATERIAL FACTS

Based upon the parties’ respective statements of material facts in support of and in 

opposition to the Motion, along with the evidence in the record, the following facts are not 

genuinely in dispute unless otherwise noted.2

2

In support of Plaintiff’s MSJ Response, Plaintiff filed a statement of facts in opposition to Defendant’s 

statement of facts, attached to which is a sworn declaration by Plaintiff. See ECF No. [44-1] (“Plaintiff’s 

Declaration”). Plaintiff’s MSJ Response is grounded in large part on Plaintiff’s Declaration, which consists 

of statements and opinions otherwise unsubstantiated by the record before the Court. It is well-established 

that “[s]uch unsubstantiated, conclusory allegations are insufficient to survive summary judgment” when 

contradicted by the record. Kloha v. Duda, 246 F. Supp. 2d 1237, 1242 (M.D. Fla. 2003). Thus, Plaintiff’s 

Declaration cannot alone create a genuine issue of material fact, and the Court disregards Plaintiff’s 

Declaration when and to the extent it contradicts Plaintiff’s testimony and other clear record evidence. See 

Hall v. Sunjoy Indus. Grp., 764 F. Supp. 2d 1297, 1304 (M.D. Fla. 2011) (“The Court can disregard an 

unsupported affidavit that contradicts the evidence.”); see also Holifield v. Reno, 115 F.3d 1555, 1564 n.6 

(11th Cir. 1997) (“[Plaintiff’s] conclusory assertions to the contrary, in the absence of supporting evidence, 

are insufficient to withstand summary judgment.”). The Court sets forth the facts insofar as they are 

supported by evidence in the record. 

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Defendant is in the business of customizing vehicles, and has a shop located in MiamiDade County, Florida. ECF No. [38-3]. Defendant’s tax returns reveal that it generated gross 

receipts totaling $204,904.00 in 2019 and $424,551.00 in 2020. ECF Nos. [38-3] at 3-12 and [46-

1] at 2-21.

According to Plaintiff, he was employed by Defendant as a “Custom Fabricator and 

Mechanic” from February 2020 through May 2020. ECF No. [38-2] at 68:7-10. Plaintiff’s role 

included manufacturing and constructing fiberglass parts, truck suspensions, bumpers, brackets, 

toppers, wiring and electrical components, bumpers, rails, paneling, and power inverters. Id. at 88-

108. During his deposition, Plaintiff testified that he did not speak with customers and received 

directives in the form of purchase orders directly from his supervisors. Id. at 14:17-15:10, 17:11-

18:2, 69:15-72:3. Additionally, because Defendant would either run out of materials or materials 

would not get delivered, Plaintiff “[had] to sit behind a computer and order things or go and call 

people that he [knew] . . . to get things for [Defendant.]” Id. at 49:9-20. Plaintiff also explains that 

he was required to use many of his own tools for work. Id. at 18:7-19:4. 

Prior to working for Defendant, Plaintiff worked for Mosquito Crushers. Id. at 8:15-12:13. 

Plaintiff testified during his deposition that Mosquito Crushers is owned by Defendant’s principal, 

operates from the same location as Defendant, and “sells the trucks after [he] built them.” Id. 

Plaintiff also testified that he signed an employment agreement with Defendant. Id. at 51:20-54:10; 

see also ECF No. [38-2] at 83-86 (“Contractor Agreement”). However, Plaintiff denies that he 

executed the Contractor Agreement presented to him during his deposition, maintaining that some 

of the signatures were not his own and that its contents were changed. Id. at 51:20-54:10.

Defendant now moves for summary judgment, arguing that it is entitled to judgment as a 

matter of law because: (1) Plaintiff does not qualify for FLSA coverage under either the enterprise 

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or individual theory of coverage, and (2) Plaintiff was not a covered “employee” within the 

meaning of the FLSA, but rather an exempted independent contractor. 

III. LEGAL STANDARD

A court may grant a motion for summary judgment “if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). The parties may support their positions by citations to materials in the record, 

including, among other things, depositions, documents, affidavits, or declarations. See Fed. R. Civ. 

P. 56(c). An issue is genuine if “a reasonable trier of fact could return judgment for the non-moving 

party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) 

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it 

“might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 477 U.S. 

at 247-48). 

A court views the facts in the light most favorable to the non-moving party, draws “all 

reasonable inferences in favor of the nonmovant and may not weigh evidence or make credibility 

determinations, which ‘are jury functions, not those of a judge.’” Lewis v. City of Union City, Ga., 

934 F.3d 1169, 1179 (11th Cir. 2019) (quoting Feliciano v. City of Mia. Beach, 707 F.3d 1244, 

1252 (11th Cir. 2013)); see also Crocker v. Beatty, 886 F.3d 1132, 1134 (11th Cir. 2018) (“[W]e 

accept [the non-movant’s] version of the facts as true and draw all reasonable inferences in the 

light most favorable to him as the non-movant.”). “The mere existence of a scintilla of evidence 

in support of the [non-moving party’s] position will be insufficient; there must be evidence on 

which a jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. “If 

more than one inference could be construed from the facts by a reasonable fact finder, and that 

inference introduces a genuine issue of material fact, then the district court should not grant 

summary judgment.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990). 

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The Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 

1140 (11th Cir. 2007) (quoting Carlin Comm’n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 

1356 (11th Cir. 1986)).

Initially, the moving party bears the “responsibility of informing the . . . court of the basis 

for its motion, and identifying those portions of ‘the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes 

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 

317, 323 (1986); see also Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant 

satisfies this burden, “the nonmoving party ‘must do more than simply show that there is some 

metaphysical doubt as to the material facts.’” Ray v. Equifax Info. Servs., LLC, 327 F. App’x 819, 

825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

586 (1986)). Instead, “the non-moving party ‘must make a sufficient showing on each essential 

element of the case for which he has the burden of proof.’” Id. (quoting Celotex Corp., 477 U.S. 

at 322). The non-moving party must produce evidence, going beyond the pleadings, and by its own 

affidavits, or by depositions, answers to interrogatories, and admissions on file, designating 

specific facts to suggest that a reasonable jury could find in the non-moving party’s favor. Shiver, 

549 F.3d at 1343. Yet, even where a non-movant neglects to submit any alleged material facts in 

dispute, a court must still be satisfied that the evidence in the record supports the uncontroverted 

material facts proposed by the movant before granting summary judgment. See Reese v. Herbert, 

527 F.3d 1253, 1268-69, 1272 (11th Cir. 2008); United States v. One Piece of Real Prop. Located 

at 5800 S.W. 74th Ave., Mia., Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004) (“One Piece of Real 

Prop.”). Indeed, even “where the parties agree on the basic facts, but disagree about the factual 

inferences that should be drawn from those facts,” summary judgment may be inappropriate. 

Warrior Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). 

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In resolving the issues presented under Rule 56, “the court may not weigh conflicting 

evidence to resolve disputed factual issues; if a genuine dispute is found, summary judgment must 

be denied.” Carlin Commc’n, Inc., 802 F.2d at 1356. Moreover, summary judgment is 

inappropriate where the Court would be required to weigh conflicting renditions of material fact 

or determine witness credibility. See Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th 

Cir. 1993); see also Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (“It is 

not the court’s role to weigh conflicting evidence or to make credibility determinations; the nonmovant’s evidence is to be accepted for purposes of summary judgment.”); Strickland v. Norfolk 

S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012) (“Credibility determinations, the weighing of the 

evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a 

judge, whether he [or she] is ruling on a motion for summary judgment or for a directed verdict.” 

(quoting Anderson, 477 U.S. at 255)); see also Ramirez v. Nicholas, No. 13-60820-CIV, 2013 WL 

5596114, at *4 (S.D. Fla. Oct. 11, 2013) (“The Court may not make the credibility determinations 

needed to resolve this conflict; only the jury may do so.”).

IV. DISCUSSION

The Fair Labor Standards Act requires that an employee who falls within its scope must be 

paid overtime for all time worked in excess of forty hours per week. 29 U.S.C. § 207(a). “If a 

covered employee is not paid the statutory wage, the FLSA creates for that employee a private 

cause of action against his employer for the recovery of unpaid overtime wages and back pay.” 

Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011). 

To invoke the FLSA’s protections, “an employee must first demonstrate that he is 

‘covered’ by the FLSA.” Id. The FLSA provides for two avenues of coverage—enterprise

coverage and individual coverage. See Thorne v. All Restoration Servs., Inc., 448 F.3d 1264, 1265-

66 (11th Cir. 2006) (“Under FLSA, an employer is required to pay overtime compensation if the 

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employee can establish enterprise coverage or individual coverage.”). Under “enterprise 

coverage,” an employee is protected by virtue of working for an enterprise that is engaged in 

“commerce” within the meaning of the statute, and that has at least $500,000.00 in gross annual 

sales. See Polycarpe v. E&S Landscaping Serv., Inc., 616 F.3d 1217, 1220 (11th Cir. 2010) (citing

29 U.S.C. § 203(s)(1)(A)). Additionally, under “individual coverage” an employee may be covered 

under the FLSA if he “(1) engaged in commerce or (2) engaged in the production of goods for 

commerce.” Thorne, 448 F.3d at 1266 (citing 29 U.S.C. § 207(a)(1)). 

In the Motion, Defendant argues that Plaintiff has not demonstrated that either enterprise 

or individual coverage applies to the facts of this case. Defendant also argues that Plaintiff’s FLSA 

claim fails regardless of coverage because Plaintiff has not carried his burden of proving that he 

was an “employee” as defined by the FLSA. See generally ECF No. [38]. 

A. Enterprise Coverage 

Enterprise coverage under the FLSA applies if the defendant employer: “(i) has employees 

engaged in commerce or in the production of goods for commerce, or that has employees handling,

selling, or otherwise working on goods or materials that have been moved in or produced for 

commerce by any person, and (ii) is an enterprise whose annual gross volume of sales made or 

business done is not less than $500,000[.]” 29 U.S.C. § 203(s)(1)(A)(i)-(ii). Defendant contends 

that Plaintiff is not entitled to enterprise coverage because Defendant generated less than 

$500,000.00 in annual gross revenues in 2019 and 2020. 

Upon review of the record, the Court agrees that the statute’s $500,000.00 gross sales 

requirement is determinative of Defendant’s enterprise coverage and finds that it has not been met.

Indeed, Defendant’s 2019 and 2020 tax returns reported $204,904.00 and $424,551.00 in gross 

receipts, respectively. ECF Nos. [38-3] at 3-12 and [46-1] at 2-21. In his Response, Plaintiff 

seemingly concedes that Defendant’s annual gross volume of sales is less than $500,000.00. ECF 

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No. [44] at 4. Nonetheless, Plaintiff alleges, for the very first time, that he can demonstrate

enterprise coverage under a joint enterprise theory.3Id.

Specifically, Plaintiff avers that Defendant, along with non-parties Devolro LLC and 

Mosquito Crusher, are joint employers and their annual gross volume of sales in 2020 exceed 

$500,000.00. ECF No. [44] at 4; see also ECF No. [38-2] at 8:15-9:6. However, even if Plaintiff 

could rely on this newly asserted theory of enterprise coverage, Plaintiff has failed to introduce 

any evidence showing that Defendant and the purportedly related entities earned a combined gross 

revenue to satisfy the $500,000.00 threshold. See Mendoza v. Disc. C.V. Joint Rack & Pinion 

Rebuilding, Inc., 101 F. Supp. 3d 1282, 1289 (S.D. Fla. 2015) (“Plaintiff’s mental calculations of 

the value of certain cash sales is not enough to rebut the contents of those tax returns.”) (emphasis 

in original) (citation omitted). Absent supporting evidence, the Court cannot speculate that the 

statute’s gross sales requirement has been met. See Scott v. K.W. Max Invs., Inc., 256 F. App’x

244, 250 (11th Cir. 2007) (affirming summary judgment where plaintiff failed to demonstrate that 

defendant, whether individually or under a joint enterprise theory, satisfied the $500,000.00

threshold); Mederos v. Garcia, No. 09-22842-CIV, 2011 WL 13172947, at *9 (S.D. Fla. Mar. 18, 

2011) (“Ultimately, the FLSA applies where an employee satisfies this second prong and, in the 

absence of supporting evidence, we cannot speculate as to its satisfaction.”). Accordingly, 

Defendant is not subject to FLSA enterprise coverage as a matter of law. 

3 To proceed under a joint enterprise theory, “a plaintiff must at least allege facts which demonstrate the 

[three] businesses: (1) performed related activities, (2) through a unified operation or common control, and 

(3) for a common business purpose.” See Gonzalez v. Old Lisbon Rest. & Bar L.L.C., 820 F. Supp. 2d 1365, 

1368 (S.D. Fla. 2011) (citing 29 C.F.R § 779.202; Donovan v. Easton Land & Dev., Inc., 723 F.2d 1549, 

1551 (11th Cir. 1984))). However, Plaintiff failed to allege any facts in support of his position that 

Defendant, along with Devolro LLC and Mosquito Crushers, are joint employers. See ECF No. [1].

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B. Individual Coverage 

Defendant next challenges Plaintiff’s entitlement to individual coverage under the FLSA. 

Specifically, Defendant maintains that Plaintiff has failed to present any evidence showing that he

regularly used the instrumentalities of interstate commerce for his work, or that his work is closely 

related to the production of goods for commerce. Upon review of the record evidence, the Court 

agrees.

As noted above, individual coverage requires an employee to demonstrate that he was 

either “(1) engaged in commerce or (2) engaged in the production of goods for commerce.” 

Thorne, 448 F.3d at 1266 (citing 29 U.S.C. § 207(a)(1)). The “engaged in commerce” requirement 

is satisfied where the employee “directly participat[es] in the actual movement of persons or things 

in interstate commerce by (i) working for an instrumentality of interstate commerce, . . . or (ii) by 

regularly using the instrumentalities of interstate commerce in his work.” Scott v. K.W. Max 

Investments, Inc., 256 F. App’x 244, 248 (11th Cir. 2007) (quoting Thorne, 448 F.3d at 1266).4

Additionally, an employee may be individually covered for being “engaged in the production of 

goods for commerce,” if his “work is closely related and directly essential to the production of 

goods for commerce.” Thorne, 448 F.3d at 1268. 

Plaintiff first argues that he was individually engaged in interstate commerce because he 

“was frequently online or using the telephone to locate and obtain product, in and out-of-state 

product, based on the purchase order delegated to [him] by Defendant.” ECF No. [44] at 6. 

However, Plaintiff has failed to introduce any evidence demonstrating that his use of the internet 

or telephone qualifies as recurring interstate activity. See Thorne, 448 F.3d at 1266. Specifically, 

4 While Plaintiff alleges in the Complaint that Defendant, at all material times “was, and continues to be, 

an ‘enterprise engaged in commerce’ or in the production of goods for commerce as defined by the FLSA” 

ECF No. 1 ¶ 9, Plaintiff has neither argued nor presented any evidence that Defendant is an instrumentality 

of interstate commerce. Thus, it appears that Plaintiff has abandoned his claim. 

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there is no evidence in the record that Plaintiff corresponded with merchants outside the state of 

Florida using the internet or telephone, nor did he produce evidence that he purchased goods from 

out-of-state vendors. Rather, the only evidence that could remotely support Plaintiff’s position is 

that “he [sat] behind a computer and [ordered] things or . . . call[ed] people that [he] know[s]” to 

pick up parts. ECF No. [38-2] at 49:9-20. However, without evidentiary support, Plaintiff’s 

conclusory allegations are simply insufficient to demonstrate a genuine issue of material fact that 

he regularly used the instrumentalities of interstate commerce in his employment. See Attai v. 

Delivery Dudes, LLC, No. 15-cv-62522, 2016 WL 828816, at *3 (S.D. Fla. Mar. 3, 2016) (“Merely 

because an instrumentality may be used in interstate commerce, does not mean the instrumentality 

is used in interstate commerce (for instance, a telephone may be used to call locally, or to call 

across state lines.”)) (emphasis in original).

Plaintiff next argues that he is entitled to individual coverage under the FLSA because his 

customization work was directly essential to the production of goods for commerce. Specifically, 

Plaintiff maintains that he serviced “vehicles to customers located in Florida and out-of-state—

most of whom resided in New York” and worked “directly with a female customer from another 

country.” ECF No. [44] at 6-7 (citing ECF Nos. [38-1] at 27 and [38-2] at 7-9, 11, 21-22, 24, 26-

27, 28-31, 34-36, 59, 62-64, 66, 70-71). However, Plaintiff’s proffered facts are not supported by 

the cited testimony or any evidence in the record. As Defendant correctly highlights, “at no place 

in DE 38-1 or Plaintiff’s deposition located at DE 38-2, did Plaintiff testify that he conversed with 

a woman from a foreign country or that [Defendant’s] customers were located outside Florida.” 

ECF No. [46] at 8.5 Plaintiff’s attempt to create an issue of fact by misstating the factual record is 

insufficient to defeat summary judgment.

5 During his deposition, Plaintiff testified that Defendant instructed a “woman that works for him[,]” of 

either Siberian or Syrian descent, to report to Defendant’s shop and watch Plaintiff as he worked on a 

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By his own admissions, the record demonstrates that Plaintiff provided services to 

customers primarily in Miami-Dade County, Florida, and were therefore purely local in nature. 

See ECF No. [1] ¶ 10 (“Defendant was primarily engaged in providing motor vehicle 

customization, upholstery, fabrication, and similar services to customers in and around MiamiDade County, Florida.”) (emphasis added); see also ECF No. [38-4] (“Plaintiff’s job duties 

included, but not limited to electrical, custom fabrication, welding, grinding, fiberglass and 

mechanic work needed for customers in Miami Dade County, Florida.”) (emphasis added). In the 

absence of supporting evidence, Plaintiff’s conclusory assertions to the contrary do not raise a 

genuine issue of material fact. Accordingly, as a matter of law, individual coverage does not apply 

in the instant case. 

Based on the undisputed factual record, there is no genuine issue of material fact that 

Plaintiff did not work for a covered enterprise, nor that he is entitled to individual coverage under 

the FLSA. Therefore, Defendant is entitled to summary judgment.6 

V. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows: 

1. The Motion, ECF No. [38], is GRANTED.

2. Pursuant to Federal Rule of Civil Procedure 58, Final Judgment will be entered by 

separate order.

vehicle. ECF No. [38-2] at 71:1-72:3. To the extent Plaintiff claims that working with a foreign national 

qualifies as engaging in interstate commerce, the Court is unaware of any authority that would support that 

position. Frankly, the Court would be surprised if Plaintiff could locate such a case.

6 Because the Court finds that the FLSA is inapplicable to this matter, the Court does not address whether 

Plaintiff has demonstrated a genuine issue of material fact as to whether he was an “employee” as defined 

under the FLSA. 

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3. To the extent not otherwise disposed of, all pending motions are DENIED AS 

MOOT, any scheduled hearings are CANCELED, and all deadlines are 

TERMINATED. 

4. The Clerk of Court is directed to CLOSE this case.

DONE AND ORDERED in Chambers at Miami, Florida, on June 30, 2021.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: 

Counsel of Record

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