LAW OFFICES OF ANTHONY F. SANCHEZ, P.A. 

6701 SUNSET DRIVE, SUITE 101, MIAMI, FL, 33143 • TELEPHONE (305) 665-9211

PLAINTIFFS’ MEMORANDUM OF LAW RE: “ISSUE TO BE BRIEFED” NO. 10 

Issue No. 10: Whether an initial joint pretrial stipulation can be superseded by a later joint 

pretrial stipulation when a court’s operative scheduling order includes a deadline for the 

later-filed joint pretrial stipulation? In other words, must a party show “manifest injustice” 

before submitting changes in a later-filed joint pretrial stipulation, when the Court’s 

operative scheduling order includes a deadline for the later-filed joint pretrial stipulation?

A. No. Controlling authority makes clear that parties are bound by pretrial 

stipulations which frame the issues for trial. A district court has discretion to 

consider new issues, and to disregard stipulated issues of law only to prevent 

“manifest injustice”. Moreover, pretrial conference is designed to restrict the 

scope of trial by limiting the issues involved, not expanding them in the days 

before a special set trial. 

Rule 16 and Pretrial Conference. The purpose of Rule 16 and pretrial conferences 

generally is that they establish a mechanism designed to restrict the scope of the trial by defining 

and limiting the issues involved and therefore expediting the just disposition of cases and reduction 

of costs of litigation. Hodges v. U.S., 597 F.2d 1014, 1017 (5th Cir. 1979). By manipulating and 

misleading the Court, Defendants have accomplished the opposite and caused harm to Plaintiffs.

Stipulations. Parties are bound by their stipulations and a pretrial stipulation frames the 

issues for trial. G.I.C. Corp., Inc. v. U.S., 121 F.3d 1447, 1450 (11th Cir 1997), citing, Hodges v. 

United States, 597 F.2d 1014 (5th Cir. 1979). A district court has discretion to consider issues not 

raised in a pretrial stipulation or to disregard stipulated issues of law, but such discretion is 

exercised only to consider a party’s request for relief to prevent “manifest injustice.” G.I.C. Corp., 

Inc. v. U.S., 121 F.3d at 1450, citing Fed.R.Civ.P. 16(e). The question posed refers to a “later-filed 

joint pretrial stipulation” [ECF No. 144] following an “operative scheduling order” [ECF No. 130], 

as potentially “superseding” the parties’ agreements as reflected in the original stipulation [ECF 

No. 81] and joint proposed jury instructions [ECF No. 84] wherein the parties stipulated inter alia

to the legal issues for trial, including the applicable MW rate precisely as identified by controlling 

authority (Compere v. Nusret Miami, LLC, 28 F.4th 1180, 1183 (11th Cir. 2022); 29 C.F.R. §541.4). 

Case 1:20-cv-22603-JG Document 194-10 Entered on FLSD Docket 06/12/2023 Page 1 of 9
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However, there is nothing about the “operative scheduling order” or the “later-filed” stipulation 

which permits Defendants to breach prior stipulations, or which opens the door to introduction of

new issues only days before a specially scheduled trial [ECF No. 129]; even if the Court were not 

bound by the original stipulations, there is “no good reason in this case why the [Defendants] 

should not be.” G.I.C. Corp., Inc. v. U.S., 121 F.3d at 1450. There is even less reason to excuse 

the Defendants from their agreements, when the Plaintiffs have clearly objected to the new issues 

being “shoe-horned” by the Defendants1, and especially when the effect of introducing the new 

issues in the “eleventh hour” is to lead the Court to err and to improvident last-minute orders which 

have the effect of causing unjust prejudice, cost and delay. Further, among the late issues raised 

are ones which did not even appear in the “later filed” stipulation, raised only ore tenus at Pretrial 

Conference. As previously argued (see footnote 1), Defendants unlawfully introduced new issues 

without even asking for relief from their agreements and without showing “manifest injustice”, 

and by doing so they wrought “manifest injustice” and prejudice upon Plaintiffs.

B. The Defendants have led the Court to error by introducing new issues at the 

“eleventh hour”. This reckless conduct caused Plaintiffs harm.

1. Defendants have failed to show “manifest injustice”.

a. The issues and orders which cause harm to Plaintiffs. 

As more specifically set forth in Plaintiffs’ briefing on their motion for relief from the 

Court’s orders on “Eleventh Hour Issues” [ECF Nos. 181 and 193], the Court required the parties 

brief dozens of issues raised over Plaintiffs objections, and then entered various rulings thereon on 

the eve of the scheduled trial which caused prejudice to the Plaintiffs. On the Thursday and Friday 

before Monday trial, the Court entered orders summarized below, regarding issues not properly 

before the Court.

1 / See Plaintiffs’ briefing on motion for relief from trial orders [ECF Nos. 181 and 193].

Case 1:20-cv-22603-JG Document 194-10 Entered on FLSD Docket 06/12/2023 Page 2 of 9
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Order a New Waiver Defense [ECF No. 169] First, the Court entered an Order 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 “later filed” pretrial stipulation. To be clear, the Court 

ruled on an evidentiary issue pertaining to a legal defense which is not alluded to even in the “later 

filed” stipulation mentioned in the predicate question above. 

Order Requiring Proof of Pre-suit Notice. [ECF No. 170] 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 in the “later filed”). Plaintiffs complied with 

the Order by filing a verified response demonstrating complete and utter compliance with the 

supposed pre-suit notice requirement. [ECF No. 171]. The verified response remains unrebutted. 

Order Dismissing FMWA Complaint of Opt-in Plaintiff. [ECF No. 176] The Court 

dismissed the FMWA Act Complaint of Opt-In Plaintiff based upon an unpublished and inapposite 

case for the idea that he failed to provide pre-suit notice. However, there is no controlling or even 

published authority to support the idea that an opt-in Plaintiff who joins a lawsuit months after

filing is required to provide “pre-suit notice”. The only published authority recognizes that no such 

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

Order Declaring Erroneous Minimum Wage Rate in FLSA Claims [ECF No. 177]

Shortly after dismissing the FMWA claim of opt-in Plaintiff Diaz, the Court also entered an “Order 

on Remaining Legal Issues” in which it determined, among other things, that the case would 

Case 1:20-cv-22603-JG Document 194-10 Entered on FLSD Docket 06/12/2023 Page 3 of 9
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proceed to trial on Monday next as to both Plaintiffs, but that Plaintiff Chavez would be permitted 

to seek the higher Florida MW, while opt-in Plaintiff Diaz would only be allowed to seek the lower 

“federal” rate of $7.25/hour.2 This is plainly erroneous and prejudicial and predicated upon the 

same supposed “lack of notice” by opt-in Plaintiff. 

b. The Defendants have not made a showing of manifest injustice. 

Defendants introduced various issues discussed contrary to their stipulations, over Plaintiff 

objections, and without even attempting or purporting to meet their burden of showing manifest 

injustice. The Court also ruled on the issues without making a finding of manifest injustice.

2. Plaintiffs have suffered manifest injustice and prejudice as a result of 

Defendants’ unlawful introduction of “eleventh hour” issues. 

As discussed below, the Plaintiffs have already been prejudiced by the introduction of these 

inapposite issues, in that they have suffered unnecessary expense and delay, and also because the 

Court has ruled on them incorrectly and contrary to law in ways which prejudice Plaintiffs.

a. Plaintiffs lost their special trial setting upon which they relied to 

their detriment. 

As a preliminary matter, as a result of the Defendants’ unlawful introduction of new issues, 

the Plaintiffs eventually lost their special trial setting, cancelled on less than 24 hours’ notice.

Attached hereto are invoices (totaling $1,943.60) for translation services cancelled on less than 24 

hours’ notice, and for travel expenses of Plaintiff Chavez who travelled from Oklahoma for his

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).”)

Case 1:20-cv-22603-JG Document 194-10 Entered on FLSD Docket 06/12/2023 Page 4 of 9
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special set trial. Plaintiffs also have had to undertake an unusually extensive and expensive briefing 

schedule as a result of the Court’s entertainment of the issues not properly before the Court.

b. Plaintiffs will suffer harm by the misapplication of the correct 

minimum wage rate established by law.

Plaintiffs are prejudiced by the Court’s erroneous decision to apply an unconstitutionally 

low MW rate to Plaintiffs’ FLSA claims which is contrary to controlling authority. See Compere 

v. Nusret Miami, LLC, 28 F.4th 1180, 1183 (11th Cir. 2022) (holding FLSA MW rate in Florida in 

2018 was $8.25/hour; in 2019, $8.46/hour; and in 2020, $8.56/hour; 29 C.F.R. § 541.4.

3

c. Diaz will suffer harm by erroneously dismissal of FMWA claim.

Opt-in Plaintiff Diaz suffers prejudice and manifest injustice as a result of the unlawful 

dismissal of his FMWA Claim. As an opt-in Plaintiff, there is not authority requiring him to 

provide pre-suit notice. Villarino v. Pacesetter Pers. Serv., Inc., 481 F.Supp.3d 1252, 1257 (2020). 

Moreover, even if notice were required, dismissal (even without prejudice) is contrary to 

controlling authority since it is tantamount to dismissal with prejudice and too drastic a remedy. 

Mickles v. Country Club Inc., 887 F.3d 1270, 1280 (11th Cir. 2018). The remedy for lack of notice 

is notice, not dismissal. See Beardsley v. Admiral Ins. Co., 647 So. 2d 327, 330 (3d DCA 1994). 

Also, there is absolutely no prejudice to Defendants who never even plead this issue.

d. The issue of the supposed waiver defense does not appear in any 

stipulation or in the pleadings.

The “later filed” stipulation makes no mention of this defense or legal issue. 

3 / A regulation promulgated following notice-and-comment procedures as was §541.4 (see 69 FR 

22260), it is entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 837 (1984), meaning it receives “controlling weight unless [it is] arbitrary, 

capricious, or manifestly contrary to the statute,” Id. at 844. See, e.g., U.S. v. Mead Corp., 533 

U.S. 218, 230–31 (2001) (describing “notice-and comment” procedures “as significant . . . in 

pointing to Chevron authority (emphasis added).

Case 1:20-cv-22603-JG Document 194-10 Entered on FLSD Docket 06/12/2023 Page 5 of 9
9:21 

< Todos Your trip confirmation (... A 

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Case 1:20-cv-22603-JG Document 194-10 Entered on FLSD Docket 06/12/2023 Page 6 of 9
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Case 1:20-cv-22603-JG Document 194-10 Entered on FLSD Docket 06/12/2023 Page 7 of 9
Recibo

Itinerario de Expedia: 72551508497081

Fecha de compra: 7 may 2023

Detalles de la reservación

Vuelo sencillo

De Miami (MIA) a Oklahoma City (OKC)

American Airlines 1698

Económica/turista (L)

Salida: 8 may 2023

Llegada: 8 may 2023

Pasajero 1: adulto

ERIK CHAVEZRIVERA

No. de boleto: 0017949792594

Detalles del pago

Precio del vuelo

Pasajero 1: adulto $402.79

Impuestos y cargos $52.91

Total $455.70

Pagado $455.70

[MasterCard 1952]

Case 1:20-cv-22603-JG Document 194-10 Entered on FLSD Docket 06/12/2023 Page 8 of 9
Legal Translations, Inc. 

a DBA of: Vega Interpreters, Inc. 3550 NW 20th Street

Miami, Florida 33142

United States

INVOICE

Invoice Number F21488

Invoice Date Tue May 9, 2023

Due Date Tue May 9, 2023

Balance Due $1,120.00

Anthony F. Sanchez, P.A..

6701 Sunset Drive

Miami 

faz@laborlawfla.com

Service Description Rate hours/ 

words/ days

Total

Interpretation Trial - - Eric Chavez et. al vs. GRILL 

ENTERPRISES, LLC, et al., - Federal Court - 

ANTHONY F. SANCHEZ, ESQ. - Date of 

Service:Started: May 08, 2023 at 09:30 AM - 

Ended: Late Cancellation - Regular hours: 0 at 

$140 p/h - - Overtime hours: 0 at $210.0 p/h - 

Minimum fee: 1120 JobID 21488 - Total: $1120 

Requestor: Frank Zwanink

$1,120.00 1 $1,120.00

Terms

Spanish interpreting jobs have a 24-hour cancellation policy.

Other language assignments have a 48-hour cancellation policy.

I understand my card will be debited automatically for any late 

cancellation fees or for additional work performed in excess of 

what has been quoted.

I declare I have read and agree with the terms and conditions 

posted on the website and that I have authority to bind myself and 

my company into this agreement. 

I will be responsible for all collection costs as described in the 

default clause.

Subtotal $1,120.00

Paid To Date $0.00

Balance Due $1,120.00

Page 1 of 1

Case 1:20-cv-22603-JG Document 194-10 Entered on FLSD Docket 06/12/2023 Page 9 of 9