UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 1:20-cv-22603-GOODMAN

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.

______________________________________/

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION IN LIMINE (ECF NO. 138)

Defendants, GRILL ENTERPRISES, LLC, and RUBEN SIERRA, individually, by and 

through the undersigned counsel, and pursuant to the Court’s “Order Specially Setting Civil Jury 

Trial ...” (ECF No. 130), hereby file this Response to Plaintiffs’ Motion in Limine (ECF No. 

138), and state as follows:

I. Lay Trial Witnesses.

Plaintiffs’ motion in limine argues that at some point in time in the past, Defendants created 

a rough draft witness list that listed 78 witnesses and that this Court must now enter an order that 

many of those witnesses cannot be permitted to testify. But Plaintiffs also acknowledge in their 

motion that the final witness list (and the only witness list filed with the Court) only listed only 34 

witnesses (ECF No. 81-3). Essentially, Plaintiffs are asking the Court to strike witnesses from an 

old rough draft witness list, that was never filed with the Court, and preclude people who are not on 

Defendants’ current witness list from testifying. To the extent Plaintiffs are asking that the Court 

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enter an order striking witnesses who are not on Defendants’ witness list (ECF No. 81-3), the 

motion should be denied.

Plaintiffs also claim that Defendants’ current witness list (ECF No. 81-3) contains 34 

witnesses whereas Defendants’ interrogatory responses contain only 25 witnesses. This is not true. 

First, the witness list actually contains only 29 named witnesses (not 34)(Id.). The additional 5 

“witnesses” are:

30. Any witnesses listed by Plaintiffs or Defendants

31. Any rebuttal or impeachment witness

32. Any witness identified in Plaintiffs’ responses to Defendants’ discovery requests

33. Any witness identified in Defendants’ responses to Plaintiffs’ discovery requests

34. Any witness identified during depositions taken in this case

Notably, these standard type “witnesses” are routinely included on trial witness lists in this 

jurisdiction and, in fact, are also contained on Plaintiffs’ own witness list, which includes the 

following similar “witnesses”:

- Any witnesses listed by Defendants

- Any rebuttal or impeachment witnesses

- Any witness identified in Defendants’ responses to Plaintiffs’ discovery requests

- Any witness identified in Plaintiffs’ responses to Defendants’ discovery requests

- Any employee or non-employee “contractor” of the Defendants who participated in the 

“tip pool”

- Any witness identified during the depositions taken in the case

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See ECF No. 81.1 (Plaintiffs’ witness list). Defendants should not be precluded from calling 

witnesses identified on Defendants’ witness list where Defendants have identified the witnesses in 

the same manner that Plaintiffs have identified witnesses on their own witness list. If Plaintiffs can 

identify witnesses as “rebuttal” witnesses or “impeachment” witnesses, then so can Defendants. If 

Plaintiffs can identify witnesses by reference to deposition transcripts or the discovery responses of 

either party, then so should Defendants. If such “witnesses” are to be stricken from Defendants’ 

witness list, then they must be stricken from Plaintiffs’ witness list as well.

With only one exception, all other witnesses listed on Defendants’ witness list (ECF No. 81-

3) are identified in Defendants’ original or supplemental answer to Interrogatory No. 13. The only

exception is Cesar Pacheco/ VIP Crew. Cesar Pacheco/ VIP Crew became a significant issue for 

Plaintiffs in this case after U.S. Magistrate Judge Goodman’s Discovery Order was entered on June 

17, 2021. It was not until several weeks later on July 8, 2021, that Plaintiffs served a 3rd Request for 

Production of Documents specifically requesting documents pertaining to “Cesar P.” and VIP Crew. 

Defendants served their response to the discovery request on August 9, 2021, which was again long 

after Magistrate Judge Goodman’s Discovery Order. Because Plaintiffs’ discovery concerning what 

has been determined to be Cesar Pacheco (i.e. “Cesar P.”) and VIP Crew was not served until after 

the discovery dispute concerning Interrogatory #13, and the significance of Cesar Pacheco/ VIP 

Crew to Plaintiffs was not known to Defendants until after Magistrate Judge Goodman’s Order, it 

was not determined that he would be a witness in this action until after the original and 

supplemental responses to Interrogatory #13 were served.

Also, it is notable that Cesar Pacheco by the names of “VIP Crew” and “Cesar LNUK” is 

listed as a witness on Plaintiffs’ witness list not just once, but twice (see ECF No. 81-1). Because 

Plaintiffs have Cesar Pacheco on their own witness list, they cannot claim that there is any prejudice 

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in allowing Defendants to call the witness at trial.

II. Expert Witnesses and Testimony.

Plaintiffs’ motion in limine seeks to exclude expert testimony at trial. However, as pointed 

out by Plaintiffs in their motion, Defendants have not listed any expert witnesses on its trial witness 

list (ECF No. 81-3) nor have Defendants otherwise identified any experts or given any notice of 

experts testifying in this case. Therefore, Plaintiffs’ motion in limine must be denied.

Plaintiffs’ motion goes on to make an argument that Defendants may attempt to introduce 

expert testimony through lay witnesses, but Plaintiff does not identify the lay witnesses at issue. 

Plaintiffs’ motion also argues that the lay witness testimony may be based on hearsay or other 

inadmissible evidence, but does not disclose which witnesses, nor what hearsay or inadmissible 

evidence, Plaintiff is concerned about. To the extent that the motion in limine is based on 

unidentified witnesses and/or unidentified hearsay or other evidence, without specifying same, 

Defendants cannot be expected to intelligently respond to the motion and the motion must be 

denied.

Reading between the lines, what Plaintiffs seem to be attempting to do here is preclude 

Defendants from offering a defense. Plaintiffs are seemingly attempting to preclude either the use 

of Plaintiffs’ payroll records and paystubs, or Defendants’ testimony concerning those records at 

trial. As Plaintiffs are aware, Defendants contend that the payroll records and paystubs irrefutably 

show that Plaintiffs were, in fact, paid the minimum wage during “Phase I.” The evidence that 

Plaintiffs were paid the minimum wage includes Plaintiff’s payroll records and paystubs. But since 

the inception of this case, Plaintiffs have contended that paychecks for net zero dollars violate the 

FLSA, regardless of why the paychecks are for net zero dollars. In this case, Plaintiffs seek to 

preclude any explanation of why the paychecks were for net zero dollars, as if the mere fact that 

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they were for net zero dollars is a per se violation of the FLSA and no further explanation is 

required. Plaintiffs even go so far as to argue that employers are not allowed to withhold taxes from 

employees’ wages, and to do so violates the FLSA, if it reduces the employee’s wage to net zero 

dollars. Of course, this is not the law and has been briefed extensively throughout the course of this 

case. But, for purposes of this motion in limine, Defendants feel compelled to repeat those 

arguments again since Plaintiffs are seemingly attempting to preclude payroll evidence, paystubs, 

and testimony concerning those payroll records and pay stubs at trial.

It has always been Defendants’ contention that Plaintiffs were paid the federal tip credit 

minimum gross wage for all of the hours that they worked. The only reason that Plaintiffs’ pay 

stubs during Phase I reflect pay of net zero dollars ($0.00) is because, as is common with tipped 

employees, the hourly wages they earned went to pay taxes on (1) not only the hourly minimum 

wages paid to them by Grill Enterprises, but also (2) the cash tips they earned and took home 

with them in cash each night, as required. Statutory withholdings, as shown on Plaintiffs’ 

paystubs, were withheld from Plaintiffs’ earnings to account for taxes owed by Plaintiffs on both

(1) the hourly minimum wages paid to them by Grill Enterprises and (2) the cash tips retained by

Plaintiffs, which Plaintiffs took home with them each night.

The record in this case established that all of Chavez’s and Diaz’s paystubs were in the 

same form each and every week that they worked at Grill Enterprises. ECF No. 96, ¶¶26, 30-45, 

96-3.A (Chavez paystubs) and 96-3.B (Diaz paystubs). The paystubs all clearly show the reduced 

tip credit minimum wage paid to Chavez and Diaz, the tip credit taken by Grill Enterprise, and 

the tips received by Chavez and Diaz. Id. The paystubs of Chavez and Diaz also all show the 

minimum wage that was paid as gross wages to Chavez and Diaz. ECF No. 96, ¶33, 96-3.A 

(Chavez paystubs) and Ex. 96-3.B (Diaz paystubs). For example, on the paystub for the pay 

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period ending July 4, 2018, the pay stub shows that Chavez was paid $5.23 per hour. ECF No. 

96, ¶34 and 96-3.A (Chavez paystubs), P. 47 (example attached as Exhibit 1). Likewise, on the 

paystub for the pay period ending July 18, 2018, the paystub shows Diaz was paid $5.23 per 

hour. ECF No. 96, ¶35 and 96-3.B (Diaz paystubs), P. 36 (example attached as Exhibit 2).

While Plaintiffs currently deny understanding why their paychecks were for net zero 

dollars ($0.00) and that their wages went to pay taxes they owed to the federal government on (1) 

their wages; and (2) the cash tips they took home each shift, in their deposition they expressed an 

understanding. Chavez and Diaz were aware that they were required to pay taxes on their wages 

and also on their cash tips that they had taken home with them each shift. Even when Chavez

took his tips home in cash at the end of each shift, the tips he received were included on his W-2. 

ECF No. 96, ¶43. As explained by Chavez himself, he understood that his paychecks were for 

zero dollars because he was paying taxes on the cash tips he received. ECF No. 96, ¶43. Chavez 

understood that he was paying taxes on the cash tips he received, not Grill Enterprises. Id.

Likewise, Diaz was aware that he owed taxes and that the restaurant was paying taxes to the 

federal government based on his written reports of tips received that provided to Grill 

Enterprises. ECF No. 96, ¶43.

In fact, Chavez admits that Grill Enterprises explained to him that his paychecks were for 

net zero dollars because his wages went to pay the taxes he owed on the cash tips he took home 

each shift. ECF No. 96, ¶44. Diaz claims that although the net zero paychecks were discussed at 

the restaurant, he still did not understand. However, Diaz never asked anybody at Grill 

Enterprises to explain to him why his paystub had a zero balance. ECF No. 96, ¶44. Even after 

the change in January 2019 (Phase II), when Grill Enterprises began paying servers their wages 

and tips by check, rather than allowing servers to take their tips in cash at the end of each shift, 

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Chavez understood that Grill Enterprises was withholding taxes to pay to the federal government 

based on his gross pay, including both wages and tips. ECF No. 96, ¶45.

It is impossible for Plaintiffs to argue that they do not understand why their checks were 

for net zero dollars ($0.00) or negligible amounts when the math and calculations were set forth 

right on their paystubs. The paystubs of Chavez and Diaz all show the statutory deductions and 

withholdings that Grill Enterprises deducted from Chavez’s and Diaz’s wages and paid to the

federal government. ECF No. 96, ¶39 and 96-3.A (Chavez paystubs) and 96-3.B (Diaz paystubs). 

The statutory deductions were explicitly for Federal Income Taxes, Social Security and 

Medicare. ECF No. 96, ¶40. The statutory deductions were paid to the federal government, on 

behalf of Chavez and Diaz, by Grill Enterprises. Id. Diaz even admitted he has no reason to 

believe that Grill Enterprises did not pay the statutory deductions to the federal government. ECF 

No. 96, ¶40.

For example, for the pay period ending July 4, 2018, when Chavez’s net pay was zero 

dollars ($0.00), the pay stub shows under the “Earnings” section that Chavez worked 69.35 hours 

and was paid $5.23 per hour, or a gross amount of $362.70. The paystub also shows under the 

“Earnings” section that Chavez received cash tips that week of $1,669.23 (which he took home 

with him, in cash, each shift). Finally, under the “Statutory Deductions” section, the paystub 

shows that Grill Enterprises withheld exactly $362.70 as taxes (Federal Income Tax of $207.26, 

Social Security of $125.98 and Medicare of $29.46) on the $2,031.93 in gross wages and tips 

earned by Chavez, thereby explaining why Chavez’s check was for net zero dollars ($0.00). 

ECF No. 96, ¶41 (example attached Exhibit 1).

Likewise, for Diaz, for the pay period ending July 18, 2018, when Diaz’s net pay was a 

mere $32.77 dollars, the pay stub shows under the “Earnings” section that Diaz worked 69.61 

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hours and was paid $5.23 per hour, or a gross amount of $364.06. The paystub also shows under

the “Earnings” section that Chavez received cash tips that week of $1,385.59 (which he took 

home with him, in cash, each shift). Finally, under the “Statutory Deductions” section, the 

paystub that Grill Enterprises withheld $331.29 as taxes (Federal Income Tax of $197.44, Social 

Security of $108.48 and Medicare of $25.37) on the $1,749.65 in gross wages and tips earned by 

Diaz, thereby explaining why Diaz’s paycheck was for only $32.77 (example attached Exhibit 

2). ECF No. 96, ¶42 and 96-3.A (Chavez paystubs) and 96-3.B (Diaz paystubs).

Every single paystub of Chavez and Diaz during Phase I follows the same pattern as 

above. Every single paystub shows (1) the gross minimum wages Plaintiffs earned (hours 

worked x minimum wage), (2) the tips they took home in cash that week (which were taken 

home in cash and not taxed yet (see Section II, infra, for further explanation), (3) the taxes that 

they owed on those wages and tips, (4) the withholdings calculated and deducted by ADP to pay 

to the U.S. government, and (5) the resulting balance, which was understandably often for net 

zero ($0.00) dollars. ECF No. 96-3.A (Chavez paystubs) and 96-3.B (Diaz paystubs). This is 

how it works in the restaurant industry and anyone who has ever worked in the industry and took 

their tips home in cash at the end of their shifts knows this. In any event, and for purposes of this

motion, this is how payroll worked at Grill Enterprises and it is perfectly legal and legitimate.

Defendants intend to prove that the Plaintiffs were paid the minimum wage for every hour

worked, including during Phase I, and will do so by use of Plaintiff’s payroll records. This does not 

amount to “forensic accounting testimony” at all and is easily able to be explained by lay witnesses.

This is not expert testimony, rather, it will be testimony from witnesses who were involved with 

and/or understand how payroll was processed at Defendants’ restaurant.

III.Charge of Discrimination. 

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Plaintiffs’ motion in limine seeks to exclude Plaintiff Erik Chavez’s charge of 

discrimination from evidence at trial. It is true that Defendants originally listed Plaintiff Chavez’s 

Charge of Discrimination pertaining to national origin discrimination as an exhibit (ECF No. 81-2, 

Exhibit #15). However, that exhibit list was filed prior to the previously set trial of this case when 

Plaintiff Chavez still had an FLSA retaliation claim pending. After the filing of that exhibit list, 

Plaintiff’s FLSA retaliation claim was dismissed by the Court on summary judgment (ECF No. 

116), and therefore Defendants do not need to use the Charge of Discrimination as an exhibit.

Plaintiffs are aware that this exhibit was only necessary in relation to the FLSA retaliation claim 

(ECF No. 82, Pgs 2-3) and that Plaintiff’s FLSA retaliation claim was dismissed (ECF No. 116).

Thus, this is a non-issue as Defendants do not intend to use the Charge of Discrimination as an 

exhibit and Plaintiffs’ motion in limine must be denied.

IV. Hearsay Statements.

Plaintiffs’ motion in limine contends that Defendants will try to introduce hearsay testimony 

regarding out of court statements made by “various people.” The only example provided is Ruben 

Sierra’s anticipated testimony that he personally provided verbal notice to employees, including 

Plaintiffs, of an intent to take the tip credit. Plaintiffs argue that these statements by Mr. Sierra 

should be excluded because (1) they are hearsay; and (2) there is no “evidence in the record” other 

than the statements by Ruben Sierra that he provided this notice verbally to Plaintiffs and others. 

First of all, to be clear, verbal notice of an intent to take the tip credit is sufficient to meet the 

statutory prerequisite of providing notice to ripped employees before taking the tip credit. There is 

no requirement that notice be in writing or in any other form. Notifying employees orally is more 

than sufficient. See e.g. U.S. Department of Labor Fact Sheet #15 (attached as Exhibit 

3)(“Employers may provide oral or written notice to tipped employees informing them of items 1-5 

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above.”). That said, if verbal notice is sufficient, and if Defendants contend that this FLSA 

prerequisite was satisfied verbally, Defendants cannot be precluded from introducing testimony at

trial from the person who provided the verbal notice and witnesses at the meeting who witnessed the 

verbal notice. To do so would be reversible error.

Additionally, Ruben Sierra’s anticipated testimony at trial that he verbally notified 

employees including Plaintiffs of the tip credit is not hearsay at all. It is not offered for the truth of 

the matter asserted. It is not offered to prove that Defendants actually took the tip credit. It is only 

offered to prove that Defendants provided verbal notice to employees, including Plaintiffs, of the tip 

credit, as required by the FLSA and refute Plaintiffs’ contention that they were never notified that 

Defendants were availing themselves of the tip credit provisions of the FLSA. See Rule 801(c)(2)

and 801(d)(1)(B). Fed.R.Evid.

As a secondary basis to exclude Ruben Sierra’s testimony that he verbally notified 

employees of the tip credit, Plaintiffs argue that (according to Plaintiffs) there is no other evidence 

proving that Ruben Sierra made these statements and provided employees with verbal notice of the 

tip credit. First of all, even if it were true that there is no other evidence, that is not a reason to 

exclude the testimony. Testimony can be presented at trial even if there is no other evidence 

corroborating the testimony. The testimony is itself the evidence, and can stand alone, particularly 

in this case where there could be no other “evidence” of verbal notice to employees other than 

testimony concerning the verbal notice. Also, Defendants contend that there is corroborating 

evidence in this case because: (1) Defendants anticipate that other witnesses on Defendants’ witness 

list (who Plaintiff chose not to depose) will corroborate that Ruben Sierra provided this verbal 

notice to Plaintiffs and other employees; and (2) Defendants will provide exhibits, including 

Plaintiff’s own payroll records, corroborating that Plaintiffs were notified of the tip credit on each 

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and every paystub they received during their employment. See Exhibits 1 and 2 (payroll records 

exemplars showing the tip credit taken on Plaintiffs’ pay stubs).

Dated this 1

st day of April, 2023.

Respectfully submitted,

TODD W. SHULBY, P.A.

Todd W. Shulby, Esq.

1792 Bell Tower Lane

Weston, Florida 33326

Telephone: (954) 530-2236

Facsimile: (954) 530-6628

E-mail: tshulby@shulbylaw.com

Counsel for Defendants

By: /s/Todd W. Shulby, Esq.

Florida Bar No.: 068365

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on April 1, 2023, I electronically filed the foregoing with the 

Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to 

the following: Anthony F. Sanchez, Esq. 

I HEREBY CERTIFY that on April 1, 2023, I electronically filed the foregoing with the 

Clerk of the Court by using the CM/ECF system and will mail a copy of the foregoing and notice 

of electronic filing to the following non-CM/ECF participants: None. 

By: /s/Todd W. Shulby, Esq.

For Todd W. Shulby, P.A.

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