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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CRUZ VALDIVIESO FIGUERA, CASE NO: 0:22-CV-61553-WPD

Plaintiff, 

v.

ALL VIP CARE, INC., & LIZ

VELAZQUEZ McKINNON,

Defendants. 

__________________________________________/

DEFENDANTS’ AMENDED REPLY STATEMENT OF

MATERIAL FACTS IN SUPPORT OF ITS REPLY TO PLAINTIFF’S RESPONSE TO 

DEFENDANT’S AMENDED MOTION FOR SUMMARY JUDGMENT

The Defendants, ALL VIP CARE, INC. (“VIP”) and LIZ VELAZQUEZ McKINNON, 

(“McKinnon”) (collectively referred to as the “Defendants”), pursuant to and in accordance with 

Fed. R. Civ. P. 56, S.D. Fla. L.R. 56.1(a), and this Court’s Order (ECF No. 78), hereby file and 

submit their Amended Reply Statement of Material Facts in support of their Reply to Plaintiff, 

CRUZ VALDIVIESO FIGUERA (“Cruz”), Response to Defendants’ Amended Motion for 

Summary Judgment (ECF No. 75) and states as follows:

Additional Facts

70. Undisputed. 

71. Disputed. The “patient calendar” does not explain the types of services that will be 

provided to the clients by HHAs or CNAs. [Pl. Ex. E, ECF No. 75-5].

72. Disputed. The client’s health insurer, Medicare, or Medicaid plans authorizes the 

hours assigned by VIP to provide HHA services to the client. [Depo. of Ramirez, ECF 58-1 - Def. 

Ex. E, at p. 51 ln. 6-11; Depo. of McKinnon, ECF No. 58-1, Def. Ex. F, at p. 19 ln. 22-25, p. 20 

ln. 19-21, p. 39 ln. 9-12]. 

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73. Undisputed. 

74. Undisputed. 

75. Undisputed. 

76. Undisputed. 

77. Disputed. Cruz was explained her obligations as independent contractor because 

she did not understand English. [Def. SOMF at ¶50; Depo. of Ramirez, ECF No. 58-1, Def. Ex. E, 

at p. 26 ln. 21-25, p. 27 ln. 5-19]. 

78. Disputed. Caregivers, such as Cruz, are required to contact VIP if they could not 

work certain hours that were on their schedule “so that [VIP] can find a substitute for them to fill 

in those hours” that were previously agreed by Cruz to work. [Depo. of Ramirez, ECF No. 58-1, 

Def. Ex. E, at p. 116 ln. 18-25] (Emphasis Added). This does not have any bearing on whether 

Cruz was allowed to send anyone with her to provide her services to clients. 

79. Disputed. This is duplicative of Plaintiff’s Statement of Material Facts number 71. 

The “patient calendar” does not explain the types of services that will be provided to the clients by 

HHAs or CNAs. [Pl. Ex. E, ECF No. 75-5]. 

80. Undisputed.

81. Undisputed.

82. Disputed. HHAs obtain a license as opposed to a certification. [Depo. of Cruz, ECF 

No. 58-1, Def. Ex. D, at p. 12 ln. 24-25, p. 12 ln. 1-4].

83. Undisputed. 

84. Disputed. Non-medical services include “assisting with prescribed range of motion 

exercises”, “measuring intake and output fluids,” “measuring temperature, pulse, respiration or 

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blood pressure,” “keeping records of personal health care activities,” and “provide[] assistance 

with a client’s self-administration of medication.” [ICA, ECF No. 58-1, Def. Ex. C, at 000022].

85. Undisputed. 

86. Undisputed.

87. Disputed. HHAs require skills including maintaining “continuing education,” a 

“current CPR certification,” HIVA certificate, and medication management certificate to contract 

with VIP. [ICA, ECF No. 58-1, Def. Ex. C, at 000021; Depo. of McKinnon, ECF No. 58-1, Def. 

Ex. F, at p. 27 ln. 14-23]. 

88. Undisputed. 

89. Disputed. Cruz worked with three clients simultaneously. [Depo. of Cruz, ECF No. 

58-1, Def. Ex. C, at p. 34 ln. 11-13]. 

90. Disputed. The “Suspension and Termination” clause contemplates the “contractor 

relationship term of the contract “for successive one (1) year terms, unless sooner terminated. . ..” 

[ICA, ECF No. 58-1, Def. Ex. C, at 000014] (Emphasis Added).

91. Disputed. VIP made the decision to end its contractual relationship with Cruz 

because Cruz was working unauthorized hours and expecting payment from the client’s Medicaid 

plan for such unauthorized payments and was logging hours she did not work. [Depo. of Ramirez, 

ECF No. 58-1, Def. Ex. D, at p. 67 ln. 1-21, p. 134 ln. 1-5]. 

92. Disputed. VIP provides services as the middleman between the client and the 

insurance company as a nurse registry and connects the caregiver to the client as the client’s 

employee. [Depo. of McKinnon, ECF No. 58-1, Def. Ex. F, at p. 27 ln. 12-13, p. 33 ln. 23-25].

93. Undisputed.

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94. Disputed. Ramirez, not VIP nor VIP’s corporate representative, referred to a 

caregiver as HHAs, CNAs, and nurses for purposes of the Depo. of Diana Ramirez. [Depo. of 

Ramirez, ECF No. 58-1, Def. Ex. E, at p. 21 ln. 3-5].

95. Undisputed.

96. Undisputed.

97. Disputed. Rowland had a problem with VIP because Cruz was not paid for 

unauthorized hours during Cruz’ contracting relationship with VIP after Cruz complained about 

this alleged non-payment. [Depo. of Ramirez, ECF No. 58-1, Def. Ex. E, at p. 67 ln. 1-21, p. 43 

ln. 9-15]. 

98. Undisputed.

99. Disputed. McKinnon also learned about Cruz telling the Izique’s to leave VIP from 

the client’s Humana plan’s confirmation of Cruz taking VIP clients. [Depo. of McKinnon, ECF 

No. 58-1, Def. Ex. F, at p. 115 ln. 14-18, p. 116 ln. 19-25].

100. Disputed. McKinnon learned about Cruz telling the Izique’s to leave VIP from 

Ramirez, and the client’s Humana plan’s confirmation of Cruz taking VIP clients. [Depo. of 

McKinnon, ECF No. 58-1, Def. Ex. F, at p. 115 ln. 14-18, p. 116 ln. 19-25].

101. Undisputed.

102. Undisputed.

103. Undisputed. 

104. Disputed. When Cruz was no longer working at VIP, she called VIP client, A.G.M., 

and informed her that Cruz was “going to another agency,” and attempted to convince A.G.M. to 

follow her to her new job. [Affidavit of A.G.M., ECF No. 58-1, Def. Ex. G, at 2].

105. Undisputed.

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106. Undisputed.

107. Undisputed. 

108. Undisputed. 

109. Undisputed.

Respectfully submitted:

/s/ RANDY M. GOLDBERG, ESQUIRE

Florida Healthcare Law Firm

151 NW 1st Avenue

Delray Beach, FL 33444

754-224-0867

FBN: 045187

randy@floridahealthcarelawfirm.com

randymgoldberg@gmail.com

CERTIFICATION OF SERVICE

I hereby certify that a copy of this pleading which was filed with the Clerk of the Court 

was provided to Toussaint Cummings, Esq., Counsel for Plaintiff, at 135 San Lorenzo Ave., Ste. 

770, Coral Gables, FL 33146, toussaint@fairlawattorney.com via the Court’s ECM/ECF Portal on 

August 11, 2023.

/s/ RANDY M. GOLDBERG, ESQUIRE

FBN: 045187

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