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’ MEMORANDUM ON THE ADMISSIBILITY OF DOL FORM WH-58

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

through the undersigned counsel, and pursuant to the Court’s Post-Pretrial Conference

Administrative Order (ECF No. 147), hereby file this Memorandum on the Admissibility of 

DOL Form WH-58, and state as follows:

I. RELEVANT FACTUAL AND PROCEDURAL HISTORY

1. Plaintiff Leonel Diaz makes a claim for alleged unpaid minimum wages under the 

FLSA for the period spanning from the workweek ending 5/9/18 to the workweek ending 

11/6/19. See Leonel Diaz’s Phase I and Phase II Calculations [ECF Nos. 99-9 and 99-10]; Cf.

Joint Pretrial Stipulation, ¶¶5.d and 5.e [ECF No. 144.]

2. On April 24, 2023, Defendants’ Exhibit List was filed with the Court [ECF No. 

144-2.]

3. Defendants identified the “WH-58 Signed by Diaz” as a trial exhibit. Id. 

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According to Exhibit 1, Mr. Diaz received all compensation that he was required to receive for 

his work at Grill Enterprises, LLC, for work performed through the workweek ending March 9,

2019.

4. The “WH-58 Signed by Diaz” also provides as follows, in relevant part, regarding

the payment of the wages to him and the preclusive effect of payment and/or receipt of the

required wages:

**   ** 

(Exhibit 1.)

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5. Plaintiffs asserted the following objections to the introduction at trial of the WH58 Form that Diaz signed: (a) A – Authenticity; (b) I – Contains inadmissible matter; (c) R –

Relevance; (d) H – Hearsay; and (e) UP – Unduly prejudicial. [ECF No. 144-2.]

6. During the Pretrial Conference, the Plaintiffs acknowledged receipt of the “WH58 Form Signed By Diaz” and of the remainder of the file produced by the Department of Labor, 

Wage and Hour Division (“DOL”) relative to its investigation of Defendants but claimed that 

Defendants could not authenticate the documents for admission into evidence.

7. Following the Pretrial Conference, the Court entered a Post-Pretrial Conference 

Administrative Order, ruling as follows:

By Tuesday, May 2, 2023, Defendants will submit a memorandum of law explaining 

why the WH-58 form and other documents from the Department of Labor (“DOL”) 

investigation are admissible. Defendants may include affidavits or declarations to support 

their argument. The memorandum should also explain how these documents will be 

properly authenticated in the absence of a DOL witness or an attestation or other 

authentication from the DOL.

See Order (ECF No. 147).

II. ADMISSIBILITY OF THE WH-58 FORM DIAZ SIGNED

The Plaintiffs seek to avoid the introduction of the WH-58 Form that Diaz signed because

of its preclusive effects on any claim by him under the FLSA that predates the workweek ending 

March 9, 2019. “A WH–58 is a standard form used by the DOL to inform an employee that, 

although he has the right to file suit under 29 U.S.C. § 216(b), acceptance of the back wages 

offered will result in waiver of those rights.” Niland v. Delta Recycling Corp., 377 F.3d 1244, 

1248 (11th Cir. 2004) (plaintiff waived the right to sue by signing the WH-58 Form). “[T]he 

WH-58 form serves as a receipt....” Rivers v. Zeno Office Sols., 2020 WL 6434515, at *2 (N.D. 

Fla. Oct. 2, 2020), report and recommendation adopted, 2020 WL 6430354 (N.D. Fla. Nov. 2, 

2020). Once admitted into evidence, the signed WH-58 Form Diaz, accompanied by proof of 

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payment, operates as a complete to any claim by Diaz under the FLSA before the “workweek

ending 03/09/2019.” (Exhibit 1.)

Defendants seek to introduce the WH-58 Form and the accompanying payment 

confirmation documents required by 29 C.F.R. §516.2(b) to establish their defenses that Diaz 

waived, released, and was paid in full for any FLSA claim before the workweek ending March 9, 

2019. See e.g., Cappelli v. Miami Beach Hosp., LLC, 2017 WL 945187, at *3 (S.D. Fla. Jan. 10, 

2017) (finding waiver and release of FLSA claim covered by WH-58 Form); and Blackwell v. 

United Drywall Supply, 362 Fed. Appx. 56, 58 (11th Cir. 2010) (affirming summary judgment 

for employer based on WH-58 Form). Diaz doesn’t need to admit that signing the WH-58 Form

for it to operate as a waiver since “An employee who accepts such a payment supervised by the 

Secretary thereby waives his right to bring suit for both the unpaid wages and for liquidated 

damages, provided the employer pays in full the back wages.” Lynn’s Food Stores, Inc. v. U.S. 

By & Through U.S. Dept. of Labor, Employment Standards Admin., Wage & Hour Div., 679 F.2d 

1350, 1353 (11th Cir. 1982). In other words, whether a plaintiff signs the WH-58 form is 

irrelevant if the plaintiff accepted the required payment. See Mion v. Aftermarket Tool & 

Equipment Group, 990 F. Supp. 535 (W.D. Mich.1997); Heavenridge v. Ace-Tex Corp., 1993 

WL 603201 (E.D. Mich. Sept. 3, 1993); Selz v. Investools, Inc., 2010 WL 1451347 (D. Utah Apr. 

8, 2010). 

A. The “WH-58 Form Signed by Diaz” Is Admissible As Authentic.

At the Pretrial Conference, the Plaintiffs’ counsel represented that he inquired of Mr. 

Diaz about the WH-58 Form and that Mr. Diaz responded that he did not recall signing it and did 

not recognize the signature as his own. As will be shown below in the deposition testimony of 

Leonel Diaz, this is untrue. The Plaintiffs further objected to introducing the WH-58 Form 

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because it did not bear a seal from the DOL. Plaintiffs identified no other authenticity objection 

at the Pretrial Conference, so Defendants reserve the right to supplement this memorandum upon 

Plaintiffs asserting any other objection to not previously identified and explained during the 

Pretrial Conference. 

Defendants submit that the documents at issue are authentic, because they were received 

from the DOL. Fed. R. Evid. 901(7)(B). In this regard, Defendants will seek to introduce their 

written public records request and the responsive documents provided by the DOL. (Exhibits 2

and 3.) 

Defendants intend to authenticate the WH-58 Form in three different ways if required:

i. Through Leonel Diaz.

ii. Through Ruben Sierra;

iii. Through Yeison Gonzalez; and 

i. Through Leonel Diaz. Defendants intend to confront Mr. Diaz with the “WH-58 Form 

Signed By Diaz” during cross-examination. During this questioning, Mr. Diaz will be presented 

with the document and asked questions about whether he recognizes the document, whether his 

handwriting appears on the document, whether his signature appears on the document, and 

whether he received the payment required of the document. If Mr. Diaz were to concede each of 

these points, then the objection to authenticity vanishes. In fact, Plaintiff already unequivocally 

testified in his deposition that he signed the WH-58 and received the payment. See Exhibit 2, 

Deposition of Leonel Diaz, Pgs. 42-44 and 66-70. Although Plaintiffs’ counsel represented at the 

hearing that Diaz did not remember signing the document and did not know if that was his 

signature on the document, that is seemingly not the case, based on Mr. Diaz’s deposition 

testimony.

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ii. Through Ruben Sierra. Ruben Sierra will testify that the document is signed by himself 

and also by Leonel Diaz. In fact, Sierra will testify that he personally witnessed Diaz sign the 

document in front of him, right before he gave Diaz the payment. Aside from authenticating the 

document, Sierra will also be able to testify to its relevance and admissibility. See Exhibit 3 

(Declaration of Sierra).

iii. Through Yeison Gonzalez. Defendants proffer that Mr. Gonzalez can testify that he is 

familiar with Mr. Diaz’s handwriting and that the signature on the WH-58 is, in fact, Mr. Diaz’s

signature, and also that Mr. Sierra’s signature is his signature, having seen numerous documents 

during the course of his employment penned by each person. Fed. R. Evid. 901(2).

B. The “WH Form Signed By Diaz” Does Not “Contain Inadmissible Matter.”

Although Plaintiff objects to the exhibit as containing inadmissible matter, Plaintiffs’

counsel made no effort at the Pretrial Conference to identify the inadmissible matter to be 

excluded and did not file a motion in limine to exclude the document nor any inadmissible matter 

in the document, despite having known about the document for several years and having 

included the document on Plaintiff’s own prior exhibit list (ECF No. 81-1, Pg 2).

C. The “WH Form Signed By Diaz” Is Relevant To The Claims And Defenses.

The “WH-58 Form Signed By Diaz” is relevant to Mr. Diaz’s claim at Count I and the 

Defendants’ defenses asserted thereto. Mr. Diaz joined the claim by Mr. Chavez at Count I,

alleging that Defendants failed to pay him the minimum wage required by the FLSA. [ECF No. 

7.] The document also is relevant to the Defendants’ seventh affirmative defense (waiver, 

satisfaction, release, or agreement) because the document will tend to prove that Mr. Diaz 

waived, released, or was paid in full for all wages that predate the workweek ending March 9, 

2019, while the DOL supervised the process. [ECF No. 22 at 6.] See also Fed. R. Evid. 401. The 

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document also will relate to the Defendants’ ninth affirmative defense (and to the Plaintiffs’

claim of willfulness) because it will tend to prove how and why Defendants reasonably believed 

that they paid their employees the minimum wages required by the law. [ECF No. 22 at 6.] No 

other rule of evidence, federal statute, or provision of the United States Constitution precludes 

the admissibility of the “WH-58 Form Signed By Diaz”. See Fed. R. Civ. P. 402. 

Evidence is admissible if relevant, and evidence is relevant if it has any tendency to prove

or disprove a fact of consequence. Fed. R. Evid. 401, 402; Advisory Comm. Notes, Fed. 

R. Evid. 401 (“The standard of probability under the rule is ‘more probable than it would 

be without the evidence.’ ”); United States v. Patrick, 513 F. App'x 882, 886 (11th Cir. 

2013).

Gov't Employees Ins. Co. v. Seco, 2022 WL 17551449, at *2 (S.D. Fla. Dec. 8, 2022). The WH58 Form will prove that Grill Enterprises, LLC, paid Mr. Diaz all the money that the DOL 

required to be paid to him under the FLSA up to March 9, 2019, and that any claim by him under 

the FLSA through the workweek ending March 9, 2019, was released, waived, and/or satisfied 

by the payment made by Grill Enterprise, LLC. (Exhibit 1.)

In this regard, Mr. Sierra can testify as to the discussions he had with the DOL’s 

investigator, the nature of the investigation that was conducted, the findings, why he entered into 

an agreement to pay the wages required by the DOL to employees of Grill Enterprises, LLC, the

payment of the wages required by the DOL, and the process by which he confirmed that each 

affected employee knew of the payment required by the DOL, that each affected employee 

signed the WH-58 Form, and that all payments required were in fact made. See Exhibit 3 

(Declaration of Sierra).

D. The WH-58 Form Is Not Hearsay At All And/Or Falls Within A Recognized 

Hearsay Exception.

The Defendants anticipate that Mr. Sierra will testify at trial that the DOL conducted an 

extensive and intrusive investigation into the pay practices at the “Los Parrilleros” restaurant 

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operated by Grill Enterprises, LLC, that the DOL was provided with its time and pay records, 

that the DOL interviewed employees, and that the DOL calculated that overtime wages were not 

being properly paid to certain employees because overtime was not calculated weekly. See

Exhibit 3 (Declaration of Sierra). Mr. Sierra also is expected to testify at trial that on behalf of

Grill Enterprises, LLC, he agreed for it to pay the overtime wages required by the DOL to the 

affected employees, in the manner required by the DOL, and that Plaintiff Diaz was one of the 

affected employees owed overtime wages. See Exhibit 3 (Declaration of Sierra).

Mr. Sierra intends to testify at trial that the DOL provided pre-filled forms (WH-58 

Forms) for each affected employee and that it instructed him to have each affected employee 

sign the appropriate WH-58 Form in order to receive payment, and for Mr. Sierra to counter-sign 

it as confirmation that each payment was made. See Exhibit 3 (Declaration of Sierra). Mr. Sierra 

will then testify that the documents appended hereto as Exhibit 1 include the WH-58 Form that 

Plaintiff Diaz signed (in front of Mr. Sierra) and that Mr. Sierra counter-signed it to confirm that 

payment was made to Plaintiff Diaz. See Exhibit 3 (Declaration of Sierra). Mr. Sierra will testify 

that as a result of the DOL investigation, and the small amounts paid under the WH-58, he was 

under the impression that no payroll changes whatsoever were needed to comply with the FLSA. 

Id.

All of the witnesses are listed on Defendants’ witness list (see ECF No. 144-3), will be 

present at trial to present live testimony and lay the necessary foundation to show the 

admissibility of the exhibit, and it is proffered that they will be able to testify from personal 

knowledge as to the exhibit and authenticate the exhibit. The witnesses will be able to establish a 

prima facie showing of authenticity, relevance and admissibility through testimony based on 

their personal knowledge that:

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a. The exhibit is what Defendants claim it is (i.e. a Form WH-58 signed by Ruben 

Sierra and Leonel Diaz purporting to release FLSA minimum wage claims for the 

period beginning with the workweek ending 3/11/2017 through the workweek 

ending 3/9/2019);

b. That Ruben Sierra’s signature is in fact Ruben Sierra’s signature;

c. That Leonel Diaz’s signature is in fact his signature, based on the testimony of 

Leonel Diaz or, if he denies it, based on nonexpert’s opinions that the signature is

genuine based on familiarity with his signature that was not acquired for the 

current litigation;

d. That there were conversations between Leonel Diaz and Ruben Sierra concerning 

the WH-58 Form and the payment to Leonel Diaz, confirming that Leonel Diaz 

had signed the form and accepted the payroll check attached to the exhibit in 

satisfaction of the claims;

e. That the two (s) attachments to the WH-58 were created by Grill Enterprises;

f. That the payroll check attached to the WH-58 Form was in fact provided to 

Leonel Diaz and deposited by Leonel Diaz; and

g. The appearance, contents, substance, internal patterns, or other distinctive 

characteristics of the exhibit, taken together with all the circumstances, show it is 

genuine.

See Rule 901, Fed.R.Evid. “Rule 901 requires only the presentation of ‘sufficient evidence to 

make out a prima facie case that the proffered evidence is what it purports to be.’” United States 

v. Harris, 338 Fed. Appx. 892, 894 (11th Cir. 2009) (citing United States v. Caldwell, 776 F.2d 

989, 1001-02 (11th Cir. 1985)); see also Rule 801(d)(1)(A Declarant-Witness’s Prior Statement);

Rule 801(d)(2) (An Opposing Party’s Statement); Rule 803(1) (Present Sense Impression); Rule 

803(5) (Recorded Recollection); Rule 803(6) (Records of Regularly Conducted Activity); and 

Rule 803(8) Public Records.

It is also worth noting that this WH-58 Form comes as no surprise to Plaintiffs. 

Plaintiffs were provided the document years ago during discovery and, in fact, Plaintiffs 

previously listed the exhibit on their exhibit list (see ECF No. 81-1, Pg 2) at which time Plaintiffs

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had no objections to the exhibit or its authenticity given that it was on Plaintiffs’ own exhibit list.

E. The WH-58 Form Signed By Diaz Is Not Unduly Prejudicial And Is Properly 

Admitted.

Plaintiffs object to the admissibility of the “WH-58 Form Signed By Diaz” by claiming 

that it is unduly prejudicial, i.e., that its probative value is substantially outweighed by the danger 

of unfair prejudice under Fed. R. Evid. 403. 

“Rule 403 is an extraordinary remedy which the district court should invoke sparingly, 

and the balance should be struck in favor of admissibility.” Patrick, 513 F. App'x at 886 

(citing United States v. Lopez, 649 F.3d 1222, 1247 (11th Cir. 2011); United States v.

Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir. 2010)). Rule 403’s “major function ... is 

limited to excluding matter of scant or cumulative probative force, dragged in by the 

heels for the sake of its prejudicial effect.” United States v. Grant, 256 F.3d 1146, 1155 

(11th Cir. 2001). The movant has the burden to demonstrate that the evidence is 

inadmissible. Gonzalez, 718 F. Supp. 2d at 1345.

Gonzalez v. Ross Dress for Less, Inc., 2022 WL 17070828, at *1 (S.D. Fla. Nov. 17, 2022). 

Plaintiffs failed to articulate how or why the danger of unfair prejudice would substantially

outweigh the probative value of the “WH-58 Form Diaz Signed” because they cannot. While 

damaging, there is no rule against the admission of damaging evidence at trial. 

Dated this 2

nd day of May, 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

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on May 2, 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 May 2, 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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