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

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

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case No.: 1:20-cv-22603-GOODMAN

[CONSENT]

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.

PLAINTIFFS’ RESPONSE IN OPPOSITION TO 

“DEFENDANTS’ MOTION IN LIMINE” [ECF NO. 137] 

Plaintiffs, Erik Chavez and Leonel Diaz, by and through undersigned counsel and pursuant 

to the Court’s “Order Specially Setting Civil Jury Trial . . .” [ECF No. 130], hereby file their 

response in opposition to “Defendants’ Motion in Limine” [ECF No. 137], as follows: 

RESPONSE TO “PRELIMINARY STATEMENT”

The Plaintiffs seek relief under the Fair Labor Standards Act (“FLSA”) and the Florida 

Minimum Wage Act (“FMWA”) for their undisputed contention that, for a period a years, they 

labored under a pay plan by which their employer did not pay them any wages at all, but rather, 

compensated them by returning to them portions of the tips they had received from customers of 

the Defendant restaurant. Additionally, Plaintiffs maintain that throughout their employment they 

were required to subsidize their employer’s wage obligations by requiring that they contribute to 

a tip pool through which the employer diverted tips earned by the Plaintiffs to make payments to 

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other laborers who were not employees of the restaurant and not lawfully permitted to work in the 

restaurant because of their immigration statuses.

To overcome the Plaintiffs’ allegations, the Defendants argue against their own records 

that they actually did pay the Plaintiffs a reduced hourly wage applicable to tipped employees, 

because they withheld taxes from the Plaintiffs’ earnings and tips in an amount exactly equal to 

the hourly wages owed. In other words, Defendants seek to somehow establish the payment of 

wages to the Plaintiffs with evidence of supposed tax records reflecting the amounts withheld and 

paid to taxing authorities on behalf of the Plaintiffs. Defendants seek to do this notwithstanding

the fact that it is a clear finding of the Court that Defendants controlled the redistribution of tips 

collected back to the Plaintiffs, and that they withheld far less than they were required to withhold 

in order to comply with their tax withholding obligations. However, the Defendants file their

Motion in Limine [ECF No. 137] seeking to prevent the Plaintiffs from introducing into evidence

any of the Defendants’ tax records.

Similarly, with respect to the unlawful subsidization of the Defendants’ wage obligations 

through an invalid tip pool, Defendants maintain that they are permitted to divert Plaintiffs’ tip 

earnings by a mandatory contribution into the hands of persons who do not appear as employees 

in the Defendants own payroll tax returns, and whom the Defendants purportedly compensated by 

making payments to fictitious corporations listed as wage-earners rather than by their natural 

names. However, the Defendants seek to exclude evidence of this practice of funneling payments 

to laborers of its restaurant who are not documented employees through fictitious corporations, 

and further seek to exclude evidence that its operations were carried out largely through use of 

unlawful and undocumented laborers.

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For the reasons set forth below, the Plaintiffs maintain that Defendants have made their 

financial practices and conditions necessary fact issues in this case and that, accordingly, tax 

records and other financial applications and instruments are clearly admissible evidence which 

must not be excluded by the Court. Likewise, the Defendants’ practice of using an undocumented 

labor force which they require their actual tipped employees to subsidize, is also clearly admissible 

under the facts of this case. 

RESPONSE TO “LEGAL STANDARD”

In order to prevail on a motion in limine, the moving party bears “the burden of 

demonstrating that the evidence is inadmissible on any relevant ground,” United States v. 

Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010). To be granted, a motion in limine must be 

directed to specific items of evidence. Holley v. Carnival Corp., No. 20-CV-20495, 2021 WL 

5299836 (S.D. Fla. Nov. 15, 2021), at *4 (“To be appropriate, motions in limine should address 

specific pieces of evidence that are inadmissible on any relevant ground.” (emphasis in original)); 

Mowbray v. Carnival Corp., No. 08-20931-CIV, 2009 WL 10667070 (S.D. Fla. Apr. 13, 2009), at 

*2; A.T.O. Golden Constr. Corp. v. Allied World Ins. Co., No. 17-24223-Civ, 2018 WL 5886663, 

at *7 (S.D. Fla. Nov. 9, 2018) (“The movant has the burden of demonstrating that the evidence is 

inadmissible on any relevant ground.” (citation and quotation marks omitted)); Southpoint Condo. 

Assoc., Inc. v. Lexington Ins. Co., No. 19-cv-61365, 2020 WL 3547028, at *4 (S.D. Fla. June 30, 

2020) (same). 

The Defendants’ Motion in Limine fails because it neither provides any legal basis in 

support of the inadmissibility of even the broad evidentiary topics they seek to exclude, and

because it is not directed to the exclusion of any specific evidence which Defendants maintain to 

be inadmissible. The only vague legal premise for the Defendants’ Motion is their bare assertions 

that financial records and immigration/“contractor” records will create confusion or unduly 

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prejudice the Defendants. Defendants fail to detail why their unlawful pay practices are not 

relevant to the Plaintiffs’ claims that they were unlawfully paid, nor do the Defendants explain 

how they are unduly prejudiced by evidence of their unlawful pay practices. 

I. Response to Defendants’ Attempt to Exclude “Evidence of Undocumented 

Workers and Independent Contractors.” 

Defendants’ own “Tip Pool Calculations” during Phase II consistently reflect tip pool 

payments made to a person named “Cesar” [ECF No. 97, pp. 10-11, ¶ 29-29b]; however, the name 

“Cesar” does not appear in pay or time-keeping records produced by Defendants, nor does the 

name appear in any of the “Employer’s Quarterly Report[s]” wherein Defendants reported wages 

paid to employees by name during applicable periods [See ECF Nos. 98-8; 99-8]. Notwithstanding 

their own pay and timekeeping records, and their own tax reporting of wages paid to employees, 

Defendants offer only their own self-serving, conclusory, hearsay statements in support of the idea 

that “Cesar” was nevertheless an employee (a “dishwasher/busser”). However, they maintain he 

worked during both Phases I and II as both a dishwasher and a busser, but that he would be paid 

inexplicably under the fictitious moniker “VIP Services” [ECF No. 96-3, pp. 2-3, ¶¶ 14-20; ECF 

No. 96-4, pp. 2-3, ¶¶ 12-18]. Further, in their motion in limine, and in proposed jury instructions, 

Defendants also clearly suggest: i. that “Cesar” was an undocumented worker; ii. that they used 

“undocumented workers”, and; iii. that Defendants’ practice of using undocumented workers 

should be excluded from evidence (ECF No. 82, p.4, ¶¶4-5; ECF No. 84, p.55: 1-2). Defendants 

even suggest (in their original proposed jury instructions), without authority, that they should be 

permitted to divert the tips earned by their employees to underwrite the payment of wages to 

“undocumented aliens” hired by Defendants. (ECF No. 84, p. 55, proposed Instruction 28b). There 

is no authority in support of the proposition that Defendants may use their lawful employees’ tips 

to subsidize payment to undocumented workers of the Defendants. This is contrary to logic and 

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established authority. Indeed, Defendants may not use employee tips for any purpose. 29 U.S.C. 

§203(m)(2)(B) (“An employer may not keep tips received by its employees for any purposes...”).

Moreover, it is unlawful for employers to knowingly hire undocumented workers or to hire any 

individual without verifying their eligibility for employment. Hoffman Plastic Compounds v. Nat'l 

Labor Relations Bd., 535 U.S. 137, 141 (2002); 8 U.S.C. § 1324a (a), (b), (h)(3). Employers are 

solely liable for the payment of wages to undocumented workers they hire unlawfully. Id. see also 

INS v. National Center for Immigrants' Rights, Inc., 502 U.S. 183, 194, and n. 8 (1991); Patel v. 

Quality Inn South, 846 F.2d 700, 704-05 (11th Cir. 1988). Holding employers who violate 

immigration laws and federal employment law liable for both violations advances the purpose of 

federal immigration policy by “offset[ting] what is perhaps the most attractive feature of 

[unauthorized] workers – their willingness to work for less than the minimum wage.” Patel v. 

Quality Inn South, 846 F.2d 700, 704 (11th Cir. 1988). See also Sure-Tan, 467 467 U.S. 883, 893 

(1984) and Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 936 (8th Cir. 2013). There is no evidence 

to support the idea that “Cesar” was a lawful employee of the Defendants, let alone an employee 

eligible to participate in a valid tip pool. There is also no reason to believe that he would be the 

only undocumented employee since there are numerous corporate monikers listed in lieu of actual 

individuals in the Defendants’ own timekeeping records.

The Defendants maintain that the “only person Plaintiff has identified and argues was an 

independent contractor and supposedly should not have been part of the tip pool is Cesar Pacheco 

(a/k/a “Cesar” or “VIP Crew”)”. [ECF No. 137 p. 2:22-24]. Further they suggest that evidence of 

all other “independent contractor[s]” should be excluded. This argument puts the cart before the

horse. It is the Defendants who have a legal obligation to ensure that the people who work in their 

restaurant are eligible to work in this country. It is also their obligation to maintain the types of 

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records from which to demonstrate that they complied with their statutory wage obligations. 29 

U.S.C. § 211(c); Anderson v. Mt. Clemons Potter Co., 328 U.S. 680, 687 (1946). It is farcical for 

the Defendants to suggest that Plaintiffs have failed to document the existence of more than one 

undocumented laborer at the restaurant. Obviously, this scheme to hide the identity of its labor 

force through the use of undocumented laborers is designed for the very purpose of secreting the 

unlawful employment of its workers by failing to document their actual identities. Moreover, for 

the entirety of Phase I of the Plaintiffs’ employment, the employers kept no records and have 

produced no records by which to identify the actual identities of the individuals who participated 

in its longstanding unlawful tip pool scheme. Thus, the fact that Defendants use fictitious corporate 

monikers to identify hourly wage workers in their own pay and timekeeping records is clearly 

relevant to show the motive, intent, knowledge, and opportunity to divert the tips earned by tipped 

employees into the hands of the Defendants’ undocumented workforce. Rule 404(b)(2), Fed. R. 

Evid.

Each of the named entities, including “VIP Crew” (a/k/a “Cesar”) appeared in Defendants’ 

timekeeping records as “employees” paid an hourly wage by Defendants. However, the complete 

name of “Cesar” was never provided within the discovery period and neither was any contact 

information provided for him, or any of the other corporate monikers listed as hourly wage earners. 

Those corporate entities appear in timekeeping records together with other hourly wage 

employees, but those “names” do not appear in any other payroll records provided by Defendants 

and Defendants have not provided any information regarding the identity of the “employees” 

whom they now refer to as “independent contractors”. The fact that Defendants utilize corporate 

monikers as a means to facilitate the use of undocumented individuals as a part of their labor force 

is and has always been relevant to this case since it is now, apparently, undisputed that at least one 

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of the individuals (identified only through a corporate moniker) participated in the tip pool. The 

fact that Defendants’ pay practices have obfuscated the ability of the Plaintiffs to know the 

fictitious corporate moniker that Defendants associate with any specific wage-earner is not a basis 

for excluding evidence of the fact that the Defendants’ pay practices are constructed for the very 

purpose of obfuscation and deceit. 

Evidence of wrongs or other unlawful acts are clearly admissible to prove the motive, 

purpose, and design of the Defendants’ pay practices. See Rule 404(b)(2), Fed. R. Evid. (“This 

evidence may be admissible for another purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”). Similarly, and 

especially in light of the fact that Defendants have indicated an intent to explain away their failure 

to deliver even a reduced hourly wage to the Plaintiffs through introduction of tax payments which 

are not even sufficient to meet the employers’ withholding obligation, the Defendants’ use of 

undocumented workers is also relevant to impeach the credibility of witnesses attempting to testify 

contrary to the plain meaning of the Defendants’ own pay records. 

Defendants recognize that their pay practices are relevant in a case alleging the failure to 

lawfully pay wages to protected employees, but argue that their pay practices are so confusing that 

they should be excluded from the jury so that the jury won’t be confused. This is a kind of circular 

reasoning which attempts to prevent the jury from understanding what the Defendants were trying 

to accomplish when they collected tips from credit card payments but then redistributed them to 

employees (and non-employees) through cash payments.

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II. Response to Defendants’ Attempt to Exclude “Evidence Concerning 

Defendants’ Finances and/or Income.”

It is clear from the evidence that during Phase I of Plaintiffs’ employment, their pay stubs 

reflected the payment of “net zero” dollars ($0.00) on account of the Plaintiffs’ hourly wages 

earned. Defendants have indicated that this is okay because they compensated the Plaintiffs for 

those hours by withholding 100% of the hourly wages due during Phase I and then making tax 

payments to the federal government on account of the same. However, it is clear from Defendants’

own admissions that they did not withhold taxes as required by law. Thus, while the Defendants 

hope to explain the payment of wages through some unexplained tax legerdemain, they seek to 

prevent the Plaintiffs from introducing Defendants’ tax records. This is incongruous, particularly 

since there are no records demonstrating the actual payment of withholding taxes by the 

Defendants on an individualized basis.

Moreover, financial records and tax records are relevant in this case for numerous reasons, 

including the fact that that Defendant Ruben Sierra denies that he has operational control over a 

closely-held family business of which he is the sole owner and shareholder. Financial documents, 

including tax returns and PPP loan applications, reflect that they were signed by Defendant Ruben 

Sierra, who is listed as the sole owner of the Defendant corporation. These facts represent factual 

findings made in connection with the Plaintiffs’ motion for summary judgment. See ECF No. 111, 

p. 9:1–3. Similarly, RT-6 tax returns requiring employers to list the names and payments made to 

employees are also relevant because they reflect the absence of workers who appear in timekeeping 

records under fictitious corporate monikers.

It is a factual finding of the Court that the Defendants controlled the disbursement of tip 

revenues back to the Plaintiffs. [ECF No. 111, p. 11, n. 16]. There is no reason for the Defendants 

to have reduced those revenues into cash before delivering them to the Plaintiffs. Therefore, the 

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Defendants’ financial condition is relevant to show that at least during Phase I of the Plaintiffs’ 

employment, the Defendants did not have to reduce payments to tipped employees to cash before 

handing them over. The Defendants clearly had the financial wherewithal and resources to either 

write checks on account of earnings or to otherwise disburse wages and tip distributions 

electronically, as they did at the commencement of Phase II.1 They did not have to pay in cash. 

Similarly, since Defendants controlled the collection of tips, Defendants were in a position to 

properly withhold from the redistribution of those tips amounts representing tax withholdings. 

The quizzical aspect of the Defendants’ position in this regard is that – notwithstanding the 

$0.00 paychecks – Defendants maintain they actually paid Plaintiffs’ hourly wages through 

statutory tax withholdings even as they deny withholding. Defendants do not explain why they 

believe that withholding taxes would obviate their obligation to pay hourly wages. No calculation 

is provided to justify the way in which, during Phase I – when tips were disbursed by Defendants 

in cash – the amount Defendants withheld for “taxes” always equaled exactly the amount the 

Defendants owed on account of unpaid hourly wages. This position is also self-contradicting 

because while the Defendants recognize both in legal arguments (See ECF No. 104, p. 10, n. 2.), 

and in testimony (See Sierra decl., ECF No.103-1, ¶ 25; Carrillo decl., ECF No.103-2, ¶ 21; 

Gonzalez decl., ECF No.103-3, ¶ 21) that they were required to withhold taxes from the Plaintiffs’ 

tip distributions2

, they maintain that they never actually withheld taxes from the Plaintiffs’ tips 

1

 / Defendants admit tips were collected via credit card payments payable to Grill Enterprises, 

and that Defendants then disbursed tips to Plaintiffs in cash. [Sierra decl., ECF No. 103-1, p. 4, 

¶ 12]. This is also a finding of the Court for purposes of summary judgment. [ECF No. 111, p. 11, 

n. 16] 

2

 / Defendants aver under penalty of perjury that because “...Grill Enterprises was required 

to withhold taxes for the (1) wages and (2) cash tips received by Plaintiffs, their paychecks often 

were for net $0.00.” [Id.](emphasis added). 

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during “Phase I” (See Sierra decl., ECF No. 103-1, ¶ 13)3, even though their own pay records 

reflect they consistently withheld flat percentages of 20% (sometimes 10%) from Plaintiffs’ tips. 

In other words, Defendants acknowledge that they were required to withhold taxes from the 

Plaintiffs’ tips, that their own pay records reflect disbursement of less than all tips, but then also 

maintain they never actually withheld taxes from tip distributions as required. The only thing the 

Defendants maintain they withheld on account of taxes was exactly 100% of the Plaintiffs’ hourly 

wages. The record is completely devoid of any evidentiary suggestion that the Defendants paid 

Plaintiffs’ Phase I wages. Any attempt to prove otherwise would necessarily involve tax records 

of the Defendants. 

CERTIFICATE OF SERVICE

I hereby certify that on April 3, 2023 a true and correct copy of the foregoing was 

electronically filed with the Clerk of the Court via CM/ECF and served on the parties listed in the 

Service List below in the manner indicated therein.

Anthony F. Sanchez, P.A. Attorneys for Plaintiffs

6701 Sunset Drive, Suite 101

Miami, Florida 33143

Tel.: 305-665-9211

By: /s/ Anthony F. Sanchez

Anthony F. Sanchez

Florida Bar No.789925

afs@laborlawfla.com

3

 / Defendants also aver: “Grill Enterprises did not retain or withhold 20% of Plaintiffs’ tips 

for statutory deductions.” [Id.].

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SERVICE LIST

Anthony F. Sanchez, Esq.

Florida Bar No.: 789925 

afs@laborlawfla.com 

faz@laborlawfla.com 

Counsel for Plaintiffs

ANTHONY F. SANCHEZ, P.A.

6701 Sunset Drive, Suite 101 

Miami, Florida 33143 

Tel: 305-665-9211 

Todd W. Shulby, Esq.

Florida Bar No.: 068365 

tshulby@shulbylaw.com

llangford@shulbylaw.com 

Counsel for Defendants 

TODD W. SHULBY, P.A.

1792 Bell Tower Lane 

Weston, Florida 33326 

Tel: 954-530-2236 

Fax: 954-530-6628 

Via Notice of Electronic Filing

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