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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:22-CV-22671

DELIO BATISTA, CARLOS 

LOPEZ, MARIANA LOPEZ,

and RAFAELA VALIENTE,

Plaintiffs,

vs.

AVANT ASSURANCE INC., REINIER 

CORTES, and

ANDREA GONZALEZ QUINTERO,

Defendants.

/

MOTION FOR SUMMARY JUDGMENT & INCORPORATED

MEMORANDUM OF LAW

 COMES NOW the Defendants, AVANT ASSURANCE INC., and REINIER CORTES, and

ANDREA GONZALEZ QUINTERO, by and through their undersigned counsel and pursuant to

Federal Rule of Civil Procedure 56, and file this, their Motion for Summary Judgment and

Incorporated Memorandum ofLaw against Plaintiffs as follows:

a. UNDISPUTED FACTS

1. The Plaintiffs consist of four (4) collective insurance sales agents’ [hereinafter

referred to “Plaintiffs”]. The Plaintiffs complaint alleges “were each employee[‘s] of Defendants,

asthe term “employee” is defined by 29 U.S.C. §203(e). (Complaint ¶¶ 1-CMF 1)and that each were 

“non-exempt employee of Defendants from about October 2020 to June 20,2022”. (Complaint ¶¶

2 ). The Plaintiff’s lawsuit is against Defendant, AVANT

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ASSURANCE INC., A Florida Corporation, [hereinafter referred to as “AVANT”] and the

company’s President, Renier Cortes, individually [hereinafter referred to as ‘CORTES”] and

its managing officer, ANDREA GONZALES QUINTERO. [hereinafter referred to as

“ANDREA’].

2. Count one (1) of Plaintiff’s complaint alleges Plaintiffs are seeking unpaid and owed 

overtime wages in violation of FLSA. (Complaint, pg. 3). The remaining counts II & III consist of 

Breach of Contract pursuant to Fla. Stat. §448.08 and Unjust Enrichment, respectively, for work

“Plaintiffs performed under the parties ‘contract/agreement by performing work for Defendants. 

(Complaint ¶¶ 50) based on the insurance policies sold by Plaintiffs and alleges Plaintiffs are owed 

“commissions and bonuses” based on the policies soldby Plaintiffs. (Complaint ¶¶ 46-52 ).

3. Essentially, the plaintiff’ complaint seek “backpay award of overtime wages for all

overtime hours they worked prior to the filing of the initial Complaint, plus an equal amount as

liquidated damages, plus all attorneys’ fees and costs” (Complaint ¶¶ 3” further alleging 

“Defendants were Plaintiffs’ direct employers, joint employers, and co-employers, asthat term

“employer” is defined by 29 U.S.C. §203 (d). (Complaint ¶¶ 20). .

4. Interestingly, plaintiff’s 53 paragraph complaint, about 46 said paragraphs all relate to or

involve the FLSA Count for overtime with only three (3) paragraphs alleging generally

without any supporting facts that “Defendants acted “willfully’ and “recklessly” [Complaint

¶¶ 43 & 44]. The remaining 3-5 paragraphs referring to Count II contact and Unjust

Enrichment, which incidentally was not pled in the alternative, alleging “Plaintiffs seek

recovery of the “pure gap time” wages that they worked and earned, but did not

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receive’(Complaint ¶¶ 47) that were “performed under the parties’ contract/agreement by

performing work’ (Complaint ¶¶ 50).

5. The Plaintiff’s lawsuit alleges that the Jurisdictional Basis of Plaintiff’s action is based on

“Defendants were Plaintiffs’ direct employers, joint employers, and co-employers, as that term

“employer” is defined by 29 U.S.C. §203 and (2) and that , “this Court has jurisdiction over the

subject matter of this action pursuant to 29 U.S.C. § 216(b) and 28 U.S.C. § 1331 and

supplemental/pendent jurisdiction over Plaintiff’srelated state law claim. (Complaint ¶¶ 20 & 21).

b. MOTION

6. Defendants, AVANT ASSURANCE INC., and REINIER CORTES, and ANDREA GONZALEZ,

move thisCourt for entryofa summaryjudgmentfindingthatwhere Plaintiffs, DELIO BATISTA, CARLOS 

LOPEZ, MARIANALOPEZ, and RAFAELA VALIENTE,were independent contractors notsubject to FLSA

for purpose of overtime wages, that their positions were notsubject to FLSA for the purpose of overtime

wages, and further, that their position further meet the Outside Sales Retail, the Administrative, and Salary 

Test Exemptions. The Plaintiffs simply need to show one exemption and under any facts and law 

applicable herein clearly and squarely meet all four exemptions therefor Plaintiffs have no claimunder the 

FLSA as a matter oflaw and judgment

c. Legal Standard for Summary Judgment

7. Summary judgment under Federal Rule Civil Procedure 56(c) is appropriate when “the 

pleadings, depositions, answers to interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving 

party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247 (1986). The moving party bears the initial responsibility of showing the Court, by referenceto 

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the record, that there are no genuine issues of material fact to be decided at trial. Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986). This burden may be met by “showing” or “pointing out” to the 

Court that there are no genuine issues of material fact. Jeffrey v. Sarasota White Sox., 64 F.3d 590, 

593 (11th Cir. 1995) (per curiam) (quoting Celotex, 447 U.S. at 325). Once the initial burden is 

met, the non-moving party must go beyond the pleadings and “come forward with ‘specific facts 

showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co.v. Zenith Radio Corp. 

475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)); see also Celotex, 477 U.S. at 324. In so 

doing, the non-moving party “must do more than simply show that there is some metaphysical 

doubt as to the material facts.” Id. at 586. Instead, there must be a sufficient showing that the jury 

could reasonably find for that party. Anderson, 477 U.S. at 252; see also Walker v. Darby, 911 

F.2d 1573, 1577 (11th Cir. 1990). When deciding whether summary judgment is appropriate, the 

Court must view the evidence and all reasonable factual inferences therefrom in the light most 

favorable to the non-moving party. Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1369 (11th Cir. 

1998) (citations omitted). The Court must then decide whether “the evidence presents a sufficient 

disagreement to require submission to a jury or whether it is so one-sided that one party must 

prevail as a matter of law.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting 

Anderson, 477 U.S. at 251-52)). 

d. MEMORANDUM OF LAW AND ARGUMENT

i. The Plaintiff/Insurance sales agents are independent contractors exempt from the FLSA 

8. On January 7, 2021, the Department published a final rule titled “Independent Contractor Status 

Under the Fair Labor Standards Act,” with an effective date of March 8, 2021 (2021 IC Rule).

See 86 FR 1168. The 2021 IC Rule set forth regulations to be added to a new part (part 795) in title 

29 of the Code of Federal Regulations titled “Employee or Independent Contractor Classification 

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under the Fair Labor Standards Act, providing guidance on the classification of independent 

contractors under the FLSA applicable to workers and businesses in any industry. The 2021 IC 

Rule also addressed the Department's prior interpretations of independent contractor status in 29 

CFR 780.330(b) and 788.16(a)—both of which applied to specific industries—by cross-referencing 

part 795. See 86 FR 1246-48. The 2021 IC Rule explained that independent contractors are not 

employees under the FLSA and are therefore not subject to the Act's minimum wage, overtime pay, 

or recordkeeping requirements. It adopted an economic reality test under which a worker is an 

employee of an employer if that worker is economically dependent on the employer for work. n By 

contrast, the worker is an independent contractor if the worker is in business for themself. Id. at 

1168, 1246 (§ 795.105(a) & (b)).

ii. Plaintiff /Insurance Agents are exempt from FLSA based on the Outside Sales, 

Administrative and Salary Test Exemptions .

9. Section 13(a)(1) of the FLSA provides an exemption from the statute’s minimum wage and 

overtime requirements for “any employee employed . . . in the capacity of outside salesman.” The 

Department’s regulations define that phrase as including “any employee”: (1) Whose primary duty 

is: (i) making sales within the meaning of section 3(k) of the Act, or (ii) obtaining orders or contracts 

for services or for the use of facilities for which a consideration will be paid by the client or 

customer; and (2) Who is customarily and regularly engaged away from the employer’s place or 

places of business in performing such primary duty. 29 C.F.R. § 541.500. “Primary duty” means 

“the principal, main, major, or most important duty that the employee performs.” 29 C.F.R. § 

541.700. Section 3(k) of the FLSA defines “sale” as “any sale, exchange, contract to sell, 

consignment for sale, shipment for sale, or other disposition.” See also 29 C.F.R. § 541.501. U

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10. Under 29 C.F.R. § 541.701, “[t]he phrase ‘customarily and regularly’ means a frequency that must 

be greater than occasional but which, of course, may be less than constant. Tasks or work performed 

‘customarily and regularly’ includes work normally and recurrently performed every workweek; it 

does not include isolated or one-time tasks.” The regulations provide further guidance regarding 

what it means to be “engaged away from the employer’s place of business” for purposes of 29 

C.F.R. § 541.500. “The outside sales employee is an employee who makes sales at the customer’s 

place of business or, if selling door-to-door, at the customer’s home. Outside sales does not include 

sales made by mail, telephone or the Internet unless such contact is used merely as an adjunct to 

personal calls.” 29 C.F.R. § 541.502. Outside sales employees may perform promotional work as 

an exempt outside sales activity if it “is actually performed incidental to and in conjunction with an 

employee’s own outside sales or solicitations.” 29 C.F.R. § 541.503. Whether promotional work is 

to be considered exempt is determined on a case-by-case basis. Id.

11. Finally, the Plaintiffs/Agents qualify for the outside sales exemption even though they perform 

some activities at their employers’ place of business, so long as the inside sales activity is incidental 

to and in conjunction with qualifying outside sales activity. See 69 Fed. Reg. 22,160, 22,163 (Apr. 

23, 2004) (copy enclosed); 29 C.F.R. §§ 541.500(b); Olivo v. GMAC Mortgage Co., 374 F. Supp. 

2d 545, 551 (E.D. Mich. 2004). The performance of activities related to the sales of insurance and 

financial products made outside the employer’s place of business does not disqualify the agents 

from the exemption. Activities such as making phone calls, sending emails, and meeting with 

clients in the office are considered exempt if performed incidental to or in conjunction with the 

agent’s outside sales activities. 29 C.F.R. § 541.503; FOH § 22e02; Opinion Letter FLSA2006-11 

(Mar. 31, 2006).

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12. Therefore, taking facts applicable to each individual Plaintiff/Insurance sales agents, there is no 

question under facts and law that Plaintiffs qualify for the outside sales exemption, since each of 

their job duties match the duties described above thereby making each exempt from the minimum 

wage and overtime requirements of the FLSA. The salary basis test is inapplicable to outside sales 

employees. 29 C.F.R. § 541.500(Section 13(a)(1) of the FLSA provides a minimum wage and 

overtime pay exemption for any employee employed in a bona fide administrative capacity as 

defined in 29 C.F.R. Part 541. An employee may qualify for an exemption if all of the duties and 

salary tests are met. 

13. Under 29 C.F.R. § 541.200(a), “employee employed in a bona fide administrative capacity” means 

“any employee”: (1) Compensated on a salary or fee basis at a rate of not less than $455 per week 

; (2) Whose primary duty is the performance of office or non-manual work directly related to the 

management or general business operations of the employer or the employer’s customers; and (3) 

Whose primary duty includes the exercise of discretion and independent judgment with respect to

matters of significance. Based upon the amounts of compensation the Plaintiffs themselves have 

conceded in their own Plaintiffs statement of facts , they clearly meet the salary basis test. “Work 

directly related to the management or general business operations” of the employer refers to work 

in such functional areas as quality control, research, and marketing. 29 C.F.R. § 541.201(b). An 

employee’s primary duty is “the principal, main, major or most important duty that the employee 

performs.” 29 C.F.R. § 541.700(a). Section 541.203 includes specific examples of occupations that 

would generally meet the administrative duties test, including in paragraph (b) “[e]mployees in the 

financial services industry” who perform duties as the agents described in their own complaint 

statement of the case. 

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14. The Plaintiffs are considered to meet the duties requirements for the administrative exemption since 

their duties include: work such as collecting and analyzing information regarding the customer’s 

income, assets, investments or debts; determining which financial products best meet the customer’s 

needs and financial circumstances; advising the customer regarding the advantages and 

disadvantages of different financial products; and marketing, servicing or promoting the employer’s 

financial products. Servicing existing customers, promoting the employer’s financial products, and 

advising customers on the appropriate financial product to fit their financial needs are duties directly 

related to the management or general business operations of the Defendants or Defendant’s 

customers, and which require the exercise of discretion and independent judgment. Defining and 

Delimiting the Exemption for Executive, Administrative, Professional, Outside Sales and Computer 

Employees, 69 Fed. Reg. 21,122, 22,146 (Apr. 23, 2004); see also Hogan v. Allstate Ins. Co., 361 

F.3d 621 (11th Cir. 2004); Reich v. John Alden Life Ins. Co., 126 F.3d 1 (1st Cir. 1997); Wilshin v. 

Allstate Ins. Co., 212 F. Supp. 2d 1360 (M.D. Ga. 2002); Opinion Letter FLSA2006-43 (Nov. 27, 

2006).

15. The Plaintiff/Insurance sales agents satisfy the duties requirements of the administrative exemption 

by performing office or non-manual work directly related to the management or general business 

operations of the employer, and by performing duties that include the exercise of discretion and 

independent judgment with respect to matters of significance. See 29 C.F.R. §§ 541.200(a)(2)-(3); 

541.203(b). Each of the four (4) Plaintiff/agents satisfy the duties requirements of the 

administrative exemption—the agents service their employer’s financial services business by 

engaging in promotion and business development activities, including the marketing, servicing, and 

promoting of the employing firm’s insurance and financial services and products, and by making 

themselves visible to the appropriate segments of the public in order to meet and retain potential 

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new clients for their employing firm. See Hogan, 361 F.3d at 626-28 (insurance agents 

administratively exempt who serviced and advised existing customers, adapted customer’s policies 

to their needs, promoted sales, and hired and trained staff, among other duties); John Alden, 126 

F.3d at 8-14 (administrative exemption applied to insurance marketing representatives who 

represented company to third party agents, promoted sales, and kept informed about market to help 

match products with customer needs); Wilshin, 212 F. Supp. 2d at 1376-79 (administrative 

exemption applied to insurance agents who stayed knowledgeable about market and needs of 

customers, recommended products to clients, provided claims help, promoted company, and 

directed day-to-day affairs of the office). 

16. The Plaintiff/agents duties are to sell insurance to current and prospective clients and compare and 

evaluate insurance products to develop individualized advice and strategies for each client based 

upon each client’s insurance and financial status, risk tolerance, needs, and objectives, thus 

satisfying this element of the administrative exemption. Therefore, although each Plaintiff/Agent 

unequivocally and on an individual basis qualifies for the above stated exemptions, since their 

primary duties would be exempt from the minimum wage and overtime requirements of the FLSA. 

17. Finally, an administrative employee’s work must be “office or non-manual work directly related to 

the management or general business operations of the employer or the employer’s customers.” 29 

C.F.R. § 541.200(a)(2). These regulations give examples of such duties in an illustrative list of

“work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance;

quality control; purchasing; procurement; advertising; marketing; research; safety and health; 

personnel management; human resources; employee benefits; ... legal and regulatory compliance; 

and similar activities.” 29 C.F.R. § 541.201(b). (Emphasis added)

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ii. Plaintiffs Count II & III Contract Supplemental claims seeking “GAP” time fails.

 The Plaintiffs contractual based supplemental causes of action in their Counts I & II both state in 

their complaint on both counts : 

“ Plaintiffs seek to recover the “pure gap time” wages that they worked and earned, but did 

not receive. See e.g., Jernigan v. 1st Stop Recovery, Inc., 2017 WL 3682332 (M.D. Fla. 

Aug. 25, 2017) (citing Davis v. Abington Memorial Hosp., 765 F.3d 236, 244 (3d Cir. 2014); 

Botting v. Goldstein, 2015 WL 10324134 (S.D. Fla. Dec. 21, 2015); Lundy v. Catholic 

Health Sys. of Long Island, Inc., 711 F. 3d 106 (2d Cir. 2013); and Monahan v. Cty. Of 

Chesterfield, Va., 95 F.3d 1263, 1280 (4th Cir. 1996).” (complaint counts II & III)

18. The cases cited and relied upon by Plaintiff, upon inspection, hold “Courts widely agree that there 

is no cause of action under the FLSA for “pure” gap time wages—that is, wages for unpaid work 

during pay periods without overtime. See, e.g., Nakahata,723 F.3d at 201 (“[T]he FLSA is 

unavailing where wages do not fall below the statutory minimum and hours do not rise above the 

overtime”) Id. . 

19. The Altare case held, "Where a plaintiff's state law claims are merely the FLSA claims recast in 

state law terms, those state law claims are preempted by the FLSA." Garcia v. Nachon 

Enters., Inc., 223 F. Supp. 3d 1257, 1268 (S.D. Fla. 2016); Bule v. Garda CL Southeast, Inc., No. 

14-21898, 2014 WL 3501546, at *2 (S.D. Fla. July 14, 2014) (unjust enrichment claim preempted 

where plaintiffs "[pled] under a theory of unjust enrichment to avoid the statutory framework of the 

FLSA" and asserted claims "dependent on a finding of the same violations of the FLSA"). But it's 

not clear whether a claim for unjust enrichment survives a preemption challenge where it's pled 

solely as an alternative to the FLSA. See e.g., Botting v. Goldstein, No. 15-CV-62113, 2015 WL 

10324134, at *3-4 (S.D. Fla. Dec. 21, 2015).

CONCLUSION

WHEREFORE, Defendants prays that this Court grant its motion in allrespects along with 

such other reliefthis Court deems just and proper.

CERTIFICATE OF SERVICE

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I hereby certify that a true and correct copy of the foregoing has been furnished via CMF efiling 

portal .to attorney for Plaintiffs on May 16, 2023. 

Respectfully submitted,

CUETO LAW GROUP P.L.

Attorneys for Employer/Contractor

4000 Ponce de Leon Blvd.,

Suite 470 Coral Gables, Florida 33146

Tel.: (305) 777-0377

By: Isl Daniel E. Tropp, Esq. 

Fla. Bar #948128

Tel.: (direct line) (786) 306-1293 

Email: dantroppesq@gmail.com

By: Daniel Tropp

 

DANIEL E. TROPP, ESQ.

Fla. Bar Lic. #948128

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