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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-22694-Civ-WILLIAMS/TORRES

ROBERTO PAGUAGA, 

Plaintiff,

v.

PINNACLE ONE PRICE DRY CLEANING

OF DAVIE, LLC d/b/a PINNACLE CLEANERS,

ERIC DRAUDT, and GALINA DRAUDT, 

Defendants. 

___________________________________________/

REPORT AND RECOMMENDATION ON PLAINTIFF’S RENEWED 

MOTION FOR PARTIAL SUMMARY JUDGMENT

This matter is before the Court on Roberto Paguaga’s (“Plaintiff”) renewed 

motion for partial summary judgment against Eric Draudt, Galina Draudt, and 

Pinnacle One Price Dry Cleaning of Davie, LLC d/b/a/ Pinnacle Cleaners (“Pinnacle”). 

[D.E. 41]. On April 14, 2021, Defendants responded to the renewed motion [D.E. 47] 

to which Plaintiff replied on April 21, 2021 [D.E. 54]. Therefore, the renewed motion

is now ripe for disposition.1 After careful consideration of the motion, response, reply, 

relevant authority, and for the reasons discussed below, the motion should be

DENIED. Defendants’ motion for leave to file a sur-reply [D.E. 57] should therefore 

be DENIED as moot. 

1 The Honorable Kathleen M. Williams referred the renewed motion to the 

Undersigned for disposition on April 22, 2021. [D.E. 56]. 

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I. FACTUAL BACKGROUND

This is an unpaid overtime and unlawful retaliation action brought under the 

Fair Labor Standards Act (“FLSA”). Plaintiff claims that he was employed by 

Defendants and they failed to pay him approximately 3 to 14 overtime hours per week 

for 156 weeks. Plaintiff’s initial motion for partial summary judgment was stricken 

on March 29, 2021 for failing to follow Local Rule 56.1 by not providing any statement 

of material facts. [D.E. 40]. In Plaintiff’s renewed motion, he seeks a ruling that (1) 

Pinnacle is liable for violations of the FLSA’s overtime and recordkeeping provisions, 

(2) Plaintiff is due overtime wages of one-and-one half times his regular hourly rate 

for each overtime hour working on behalf of Pinnacle, (3) Plaintiff is entitled to 

attorneys’ fees and costs against Pinnacle, and (4) the burden-shifting analysis 

articulated in Anderson v. Mr. Clemens Pottery Co., 328 U.S. 680 (1946) should apply 

at trial in determining damages. 

II. LEGAL STANDARD

A court shall grant 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). 

A party asserting that a fact cannot be or is genuinely disputed must 

support the assertion by: (A) citing to particular parts of materials in 

the record, including depositions, documents, electronically stored 

information, affidavits or declarations, stipulations (including those 

made for purposes of the motion only), admissions, interrogatory 

answers, or other materials; or (B) showing that materials cited do not 

establish the absence or presence of a genuine dispute, or that an 

adverse party cannot produce admissible evidence to support the fact.

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Fed. R. Civ. P. 56(c)(1). On summary judgment the inferences to be drawn from the 

underlying facts must be viewed in the light most favorable to the party opposing the 

motion. See Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597 

(1986) (quoting another source). 

In opposing a motion for summary judgment, the nonmoving party may not 

rely solely on the pleadings, but must show by affidavits, depositions, answers to 

interrogatories, and admissions that specific facts exist demonstrating a genuine 

issue for trial. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-

24 (1986). The existence of a mere “scintilla” of evidence in support of the 

nonmovant’s position is insufficient; there must be evidence on which the jury could 

reasonably find for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

252 (1986). “A court need not permit a case to go to a jury . . . when the inferences 

that are drawn from the evidence, or upon which the non-movant relies, are 

‘implausible.”’ See Mize v. Jefferson City Bd. Of Educ., 93 F.3d 739, 743 (11th Cir. 

1996) (citing Matsushita, 475 U.S. at 592-94). 

At the summary judgment stage, a court’s function is not to “weigh the 

evidence and determine the truth of the matter but to determine whether there is a 

genuine issue for trial.” Anderson, 477 U.S. at 249. In making this determination, 

the court must decide which issues are material. A material fact is one that might 

affect the outcome of the case. See id. at 248 (“Only disputes over facts that might 

affect the outcome of the suit under the governing law will properly preclude the entry 

of summary judgment. Factual disputes that are irrelevant or unnecessary will not 

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be counted.”). “Summary judgment will not lie if the dispute about a material fact is 

genuine, that is, if the evidence is such that a reasonable jury could return a verdict 

for the nonmoving party.” Id.

III. ANALYSIS

The FLSA requires an employer to pay an employee “an overtime wage of one 

and one-half times his regular rate for all hours he works in excess of forty hours per 

week.” See Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1298 

(11th Cir. 2011); see also 29 U.S.C. § 207(a). A plaintiff who has worked overtime 

without pay may bring a private FLSA action for damages. See 29 U.S.C. § 216(b). 

An unpaid-overtime claim has two elements: (1) an employee worked unpaid 

overtime, and (2) the employer knew or should have known of the overtime work. See 

Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1314-15 (11th Cir. 2007). 

“Although a FLSA plaintiff bears the burden of proving that he or she worked 

overtime without compensation, . . . [i]t is the employer’s duty to keep records of the 

employee’s wages, hours, and other conditions and practices of employment.” Id. “[I]f 

an employer has failed to keep proper and accurate records and the employee cannot 

offer convincing substitutes,” then “an employee has carried out his burden if he 

proves that he has in fact performed work for which he was improperly compensated 

and if he produces sufficient evidence to show the amount and extent of that work as 

a matter of just and reasonable inference.” Id. at 1315-16 (quotation marks omitted).

Plaintiff first argues that there is no dispute that he is a non-exempt hourly 

employee based on a few inconsistent time entries and the way his job was described 

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in a few different human resource documents. However, while Plaintiff provided a 

“statement of material facts” this time, he woefully supported it with specific citations 

to the record and created a mire of his attached exhibits. Plaintiff’s arguments thus

fail at the outset. For instance, portions of certain exhibits are imbedded and jumbled 

together within the renewed motion violating the Local Rules. Second, the exhibits 

consist of over three hundred pages with much of the pages being only barely legible 

time entries. Third, Plaintiff mostly cites to the exhibits in general with only a few

specific citations that proport to show relevant evidence. And for the few specific 

citations he does provide, the corresponding information cannot be easily found in the 

illegible document. Fourth, the second page of what looks to be Exhibit A contradicts 

Plaintiff’s own argument as the document states that Plaintiff was a salaried 

employee to be paid $700 weekly. Fifth, Plaintiff completely fails to properly label 

the exhibits or use exhibit page numbers making it almost impossible for the Court 

to tell precisely which exhibit is which. 

Plaintiff tries to remedy this confusion in his reply by stating: 

Because the Renewed Motion consisted of 349 pages, it had 

to be scanned and uploaded the (sic) document by (sic) way 

in several separate batches consisting of DE #41 (107) 

pages, DE #41-1 (72 pages) DE #41-2 (71 pages), and DE 

#41-2 (99 pages). The end result of these technical 

difficulties was that Exhibit “B” (entitled Register Reports) 

which actually begins on Page 21 of DE#41 and does not 

end until Page 45 of DE#41-1 appeared out of order on the 

docket. 

[D.E. 54]. This delinquent attempt by Plaintiff to try and clear things up goes on for 

a few more sentences but it only makes things murkier. 

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We are “under no independent obligation to rummage through the . . . exhibits 

submitted . . . in search of some excerpt that might bolster [Plaintiff’s] point.” Shaw 

v. City of Selma, 241 F. Supp. 3d 1253, 1280 (S.D. Ala. 2017), aff'd, 884 F.3d 1093 

(11th Cir. 2018) (citing Rule Fed. R. Civ. P. 56(c)(3) (nothing that on summary 

judgment, “[t]he court need consider only the cited materials”); Longmire v. City of 

Mobile, Alabama, 2016 WL 6403327, at *1 n.1 (S.D. Ala. Oct. 26, 2016) (“Courts have 

frowned on the all-too-prevalent litigation practice of stuffing a record with exhibits 

and leaving it to the court to sift through an undifferentiated mass of uncited 

materials in search of facts that might help one side or the other.”)). Because Plaintiff 

does not reference specific evidence in the record and thus the arguments presented 

are conclusory and generic, Plaintiff’s renewed motion for partial summary judgment 

may be denied on this basis alone.

Putting aside that inadequacy, Plaintiff’s motion fails for an entirely separate 

reason because there is conflicting evidence in the record on whether Plaintiff was an 

exempt employee. Eric Draudt testified, for example, that Plaintiff was a salaried 

employee because he arguably had management duties:

Q: And why is it, sir, that you don’t have the hours that Mr. 

Paguaga worked each day and each work week?

A: Because Mr. Paguaga was not an hourly employee. He 

was not an exempt, a non-exempt employee. He was a 

production manager/spotter, and the contact that I had 

with him when we agreed to engage him originally was 

spelled out specifically what his job requirements were and 

his compensation was. 

Q: Okay.

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A: He was originally supposed to be paid $700 a week, and 

I hold him if you prove your merits, it will go to $750, and 

by the conclusion of the week, predicated upon his 

interactions, he was placed at $750 a week. 

[D.E. 39, Pg. 40 lines 10-24]. Further, some of the evidence that Plaintiff presents to 

show that Plaintiff had no management duties, namely the deposition of Jeff Conley, 

is brought up for the first time in his reply, not in his renewed motion. We thus do 

not consider this improperly referenced evidence. While Plaintiff presents some 

proper evidence that he only completed unskilled tasks not related to management, 

the Court’s duty is not to weigh this evidence, it’s the jury’s duty. See Anderson, 477 

U.S. at 249. 

Ultimately, we cannot decide the other questions presented on the renewed

motion for summary. To begin with, because there is a genuine dispute if Plaintiff 

was an exempt or non-exempt employee, Pinnacle possibly did not need to keep his 

hourly time records. See 29 C.F.R. §512.2 (only requiring certain records kept for 

employees eligible for overtime). And obviously, a finding that Defendants are liable 

for overtime wages and for Plaintiff’s attorneys’ fee and costs are not appropriate at 

this stage. Last, the application of the burden-shifting framework under Anderson

is premature because – even if Plaintiff should have been an hourly employee and 

Defendants failed to keep adequate time records – there are genuine issues of 

material fact as to whether Plaintiff can establish that he performed work for which 

he was improperly compensated. If Plaintiff meets his burden at trial, he may renew 

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his argument that this framework applies and its relevance to his entitlement to 

damages. 2

Accordingly, Plaintiff’s motion should be DENIED because there are genuine 

issues of material fact as to whether Plaintiff was an exempt or non-exempt employee. 

Defendant’s motion for leave to file a sur-reply [D.E. 57] should therefore be DENIED

as moot. 

IV. CONCLUSION

For the foregoing reasons, we RECOMMEND that Plaintiff’s renewed partial 

motion for summary judgment [D.E. 41] should be DENIED. Defendants’ motion for 

leave to file a sur-reply [D.E. 57] should therefore be DENIED as moot.

Pursuant to Local Magistrate Rule 4(b) and Fed. R. Civ. P. 73, the parties 

have fourteen (14) days from service of this Report and Recommendation within 

which to file written objections, if any, with the Honorable Judge Kathleen 

M. Williams. Failure to timely file objections shall bar the parties from de 

2 Under the FLSA, an employee has the initial burden of establishing “the hours 

he claims to have worked and the work he claims to have performed for which he was 

not paid.” McLaughlin v. Murphy, 436 F. Supp. 2d 732, 737 (D. Md. 2005), aff'd, 247 

F. App’x 430 (4th Cir. 2007). The framework Plaintiff seeks to apply provides that 

where an employer does not have exact records of an employee’s hours, an employee 

carries his burden “if he proves that he has in fact performed work for which he was 

improperly compensated and if he produces sufficient evidence to show the amount 

and extent of that work as a matter of just and reasonable inference.” Anderson, 328 

U.S. at 687. Once the employee has sustained his burden, the burden then shifts to 

the employer to negate the inference drawn from the plaintiff’s evidence. See 

Whittaker v. David’s Beautiful People, Inc., 2016 WL 429963, at *11 (D. Md. Feb. 4, 

2016) (citing McLaughlin, 436 F. Supp. 2d at 737). If the employer fails to negate the 

inference and it does not have accurate records, the Court “may then award damages 

to the employee, even though the result be only approximate.” Anderson 328 U.S. at 

688. 

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novo determination by the District Judge of any factual or legal issue covered in the 

Report and shall bar the parties from challenging on appeal the District Judge’s 

Order based on any unobjected-to factual or legal conclusions included in the 

Report. 28 U.S.C. § 636(b)(1); 11th Cir. Rule 3-1; see, e.g., Patton v. Rowell, 2017 WL 

443634 (11th Cir. Feb. 2, 2017); Cooley v. Comm’r of Social Sec., 2016 WL 7321208 

(11th Cir. Dec. 16, 2016).

DONE AND SUBMITTED in Chambers at Miami, Florida, this 15th day 

of June, 2021.

/s/ Edwin G. Torres 

EDWIN G. TORRES

United States Magistrate Judge

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