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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:22-CV-22671-ALTONAGA/TORRES

DELIO BATISTA,

CARLOS LOPEZ, 

MARIANA LOPEZ, and 

RAFAELA VALIENTE,

Plaintiffs,

vs.

AVANT ASSURANCE INC., 

REINIER CORTES, and

ANDREA GONZALEZ QUINTERO,

Defendants.

/ 

DEFENDANTS' AMENDED RESPONSE TO PLAINTIFF'S MOTION IN LIMINE AND INCORPORATED 

MEMORANDUM OF LAW AND TO DEEM MATTERS ADMITTED PURSUANT TO RULE 201

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

QUINTERO (“Defendants”), through their undersigned counsel, file this Response to Plaintiff's 

Motion in Limine and memorandum of law in opposition to Plaintiff's Motion in Limine and/or to 

Exclude, and to deem matters sought to be excluded in their motion in limine admitted pursuant to 

Rule 201 and Section 90.201, Florida Statutes, and states as follows:

I. BACKGROUND

1. The Plaintiffs consist of four (4) former Insurance Sales agents for Defendants who have have 

filed a three (3) count complaint for Count I – FLSA Overtime Wage Violation(S) ; Count IIBreach of Contract (alleging unpaid commissions and Bonuses owed); and Count III - Unjust 

Enrichment (also for commissions and bonuses allegedly owed) . At all times, the Defendants have 

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maintained that the plaintiffs are exempt from the FLSA as independent contractors amongst other 

applicable exemptions for insurance sales agents paid via commissions and bonuses. 

2. The Plaintiffs Motion in Limine seeks to exclude certain disputed matters from being referred 

to at trial, including any references to: 

1) No Reference to Documents Not Timely Filed; 2) Inadmissible Hearsay 

(reference Documents); (a) No evidence, argument, or reference to what records from 

the insurance companies or the Radius Bob CRM software indicated; (b) No evidence, 

argument, or reference about the contents of emails purportedly sent by Plaintiff’s 

because the emails were not produced; 3) The Timing of when Defendants served a 

Cease and Desist Letter or filed their lawsuit against Plaintiffs; 4) Plaintiffs worked

as employees or independent contractors in their previous employment; 5) Plaintiffs 

work or insurance-related activities after they ceased working for Avant is Irrelevant: 

6) The mental state of the Plaintiffs as independent contractors; 7) Plaintiff Delio 

Batista’s Interfamily Relationship to Defendant Reinier Cortes; 8) Plaintiff’s made 

more money working for Defendants than they ever had before in their lives. (9) 

Department of Labor Opinions Letters and proposed Rule are not relevant, are 

hearsay and cannot be properly authenticated. 

II. GENERAL STANDARDS FOR MOTIONS IN LIMINE AND RULE 403

3. A motion in limine is a pretrial effort to prevent the admission of evidence. Biscayne Cove 

Condo. Ass'n Inc. v. QBE Ins. Corp., 2013 WL 2646828 (S.D. Fla. June 12, 2013), citing Stewart 

v. Hooters of America, Inc., 2007 WL 1752873 (M.D. Fla. June 18, 2007). Motions in limine

are generally used to ensure evenhanded and expeditious management of trials by eliminating 

evidence that is clearly inadmissible for any purpose. See Jonasson v. Lutheran Child and 

Family Serv., 115 F.3d 436, 440 (7th Cir. 1997). A motion in limine is traditionally disfavored 

because questions of admissibility should be dealt with at trial. Biscayne Cove, supra, citing 

Stewart, supra. The purpose of a motion in limine is to give the judge notice of a party's desire 

to prevent the introduction of damaging evidence that may impact the fairness of a trial. Id. In 

practice, federal district courts have the authority to make in limine rulings pursuant to their 

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authority to manage trials. Id., citing Luce v. United States, 469 U.S. 38, 41 n. 4 (1984). In order 

to exclude evidence in limine it must be inadmissible on all potential grounds. Id., citing 

Hawthorne Partners v. AT& T Technologies, 831 F. Supp. 1398, 1400 (N.D. 111.1993). Unless 

evidence meets this high standard, evidentiary rulings should be deferred until trial so that 

questions of foundation, relevancy and potential prejudice may be resolved in proper context. 

Indiana Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846-47 (N.D. Ohio 2004).

4. Under Rule 403, a court may exclude relevant evidence if “its probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, 

or by considerations of undue delay, waste of time, or needless presentation of cumulative 

evidence.” Ostrow v. GlobeCast Am. Inc., 825 F. Supp. 2d 1267 (S.D. Fla. 2011), citing Fed. R. 

Evid. 403. The Eleventh Circuit has emphasized repeatedly that courts should use Rule 403 to 

exclude evidence only “very sparingly.” Id., citing Wilson v. Attaway, 757 F.2d 1227, 1242 (11th

Cir. 1985); Luka v. City of Orlando, 382 Fed. Appx. 840, 841 (11th Cir. 2010); Tambourine 

Comercio Internacional v. Solowsky, 312 Fed. Appx. 263, 287 (11th Cir. 2009). Moreover, in 

determining whether evidence should be excluded under Rule 403, courts must “look at the 

evidence in a light most favorable to its admission, maximizing its probative value and 

minimizing its prejudicial impact.” Id., citing Luka, 382 Fed. Appx. at 841 (quoting United 

States v. Brown, 441 F.3d 1330, 1362 (11th Cir. 2006). Indeed, analysis under Rule 403 requires 

that “[t]he balance ... be struck in favor of admissibility.” Id., citing Tambourine Comercio 

Internacional, 312 Fed. Appx. at 287 (quoting United States v. Tinoco, 304 F.3d 1088, 1120 

(11th Cir. 2002).

A. The Defendant’s documents timely produced showing regularly kept proof of 

payments received and made are admissible.

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5. The Plaintiffs central argument to exclude reference to documents not timely documents is 

incorrect and their motion in limine, disguised as a motion to compel seeking discovery 

sanctions, is improper. In fact, the Defendants have timely produced authenticated and regularly

kept business records of payments made and received to each Plaintiff. On November 30th, 

2022, the court ordered “Defendants to provide Plaintiffs with all of their requested information 

necessary to prepare a more accurate statement of claim or a notice with the court explaining 

why they have not done so or why Defendants deem the records already provided to be 

sufficient. If Defendants provide Plaintiff’s with all of the requested information, Plaintiffs 

shall have seven (7) days from when they receive the requested records to file their statement 

of Claim. Defendants produced all requested documents and filed its notice of compliance on 

December 2, 2022. On December 12, 2022, a hearing was held and the court ordered 

Defendants to produce detailed time, pay, and commission records for 2021 and 2022 within 15 

days stating Once Defendants provide said records, Plaintiffs would have seven days to file 

their within their statement of claim, which they did file on 1/11/2023. There were no followup motions, hearings or orders regarding discovery violations or failure to produce. 

6. Furthermore, the evidence and argument Plaintiff wants to exclude is part of his burden of proof. 

Under Reich v. Department of Conservation and Natural Resources, 28 F.3d 1076 (11th Cir. 

1994), a plaintiff must prove that his employer knew or should have knowledge of the overtime 

work to show that he was employed within the meaning of the FLSA. Here, Plaintiff regularly 

accepted their commissions and bonuses without ever once protesting throughout their 

employment. Not until this action was filed months after their employment ended, did any of 

the Plaintiffs ever mention or claim a right to receive overtime pay. 

7. Moreover, any evidence of alleged record-keeping violations should be excluded because it is 

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irrelevant to any legal issue in the case. See Fed. R. Evid. 402. (“Evidence which is not relevant 

is not admissible.”). Evidence that the employer committed a record-keeping violation is not 

evidence that the employer acted willfully in failing to pay overtime. See, e.g., Elwell v. 

University Hospitals Home Care Services, 276 F.3d 832, 843-844 (6th Cir. 2002). Lastly, 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.

b. The emails from the Plaintiffs to Defendants asking that payments be made to their 

LLC’s and as Independent Contractors were timely produced and admissible. 

8. The Plaintiff’s are mistaken in their assertion that the emails from Plaintiffs wherein they ask 

to be paid to their LLC’s and as independent contractors were timely produced and the emails 

were exhaustively admitted in all depositions of plaintiffs and/or attached to the depositions. 

 c. Plaintiffs are asking the court to exclude all the bad facts and the Truth from the Jury. 

9. This is an ac�on under the Fair Labor Standards Act (“FLSA”) intertwined with a Breach of 

Contract/Unjust enrichment claim outside of the FLSA purview. From the onset, Plain�ffs knew 

they were independent contractors, they all prepared LLC’s for their own companies they were 

actually working, were paid via 1099’s and claimed business. Not once did any of the Plain�ff’s 

complain of anything unpaid or en�tlement to any hourly or over�me payments. Their credibility 

before the Jury will be a central issue. Delio Ba�sta is married to Avant CEO’s mother, was formerly 

“best friends” with the Avant CEO Reinier Cortes, and worked together for years as W-9 employees 

paid hourly. 

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10. Defendants deny the Plain�ff’s claim for unpaid over�me and liquidated damages for willful 

and reckless disregard and knowledge of his obliga�on to pay over�me and Defendants deny this. 

The truth is, and what Defendants intend to present to the jury for the jury's determina�on of fact, 

is the fact that Plain�ff Ba�sta and the other Plain�ffs knew that they were never supposed to 

receive any hourly payments or over�me and that the Plain�ffs never complained of not receiving 

any payments. In fact, the Plain�ffs le� Plain�ffs employment taking his confiden�al client lists 

and opera�ng model and system and started their own copycat insurance selling agency’s

business. The Defendants had to hire this firm to issue cease and desist leters which was 

followed by a state court case just around the same �me as this ac�on was filed. The cease and 

desist leters and the state based ac�on were answered and responded to by Plain�ffs pretextually in the form of this invented and FLSA contract-based commission ac�on intertwined and 

disguised as a FLSA over�me claim amoun�ng to about 10% of what the Plain�ffs are seeking in 

alleged damages essen�ally “bootstrapping” the FLSA and its liquidated damages and fee 

exposure. 

11. The Jury should and must weigh all evidence and facts and decide such issues based upon 

everything presented. However, these independent contractor agreements, together with all other 

evidence to be presented at trial on this issue, is the only way to give the jury a full, fair and 

appropriate presenta�on of all evidence relevant to this issue. Plain�ff's Mo�on seeks to 

improperly block the relevant, proba�ve, and material existence of the writen independent 

contractor agreements, the Plain�ffs knowledge therein, their credibility or lack thereof, is en�rely 

improper.

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12. That being said, it is up to the Plain�ff to present evidence at trial, if any, which suggests that 

Plain�ff, under the facts presented in this case and evidence adduced at trial, was not an 

independent contractor and was instead an employee under the FLSA. Then, based upon the 

par�es' presenta�on of the facts to the jury, it is up to the jury to decide.

13. For Plain�ff to claim that the existence of the independent contractor agreements would 

“unfairly prejudice” the jury in its thinking, is disingenuous and is legal fic�on. Plain�ff and 

Defendants will have the benefit of appropriate jury instruc�ons on this issue, and the jury will and 

should have all facts adduced at trial, for each side to argue their respec�ve posi�on. Conversely, 

for Defendants to not be able to present the independent contractor agreements to the jury would 

or may result in an unfair, unjust and unsubstan�ated result.

15. The jury has the ability to weigh all evidence presented, both documents and tes�mony. 

Anything less, would unfairly benefit the Plain�ff before the jury, and unfairly prejudice 

Defendants.

d. The United States Department Of Labor (DOL) Wage And Hours Letters And Proposed 

Rule Are Relevant, Not Hearsay And Can Be Properly Authenticated.

16. The DOL's Wage and Hour Division issues opinion letters to explain the requirements of the 

FLSA and the Secretary of Labor's regulations. The DOL considers these opinion letters to be 

“rulings,” 29 C.F.R. § 790.17(d). Given their provenance and legal effect, DOL opinion letters are 

entitled to great weight when they interpret the DOL's own regulations. Archuleta v. Wal-Mart 

Stores, Inc., 543 F.3d 1226, 1232 n.7 (10th Cir. 2008); see also Arriaga v. Fla. Pac. Farms, L.L.C., 

305 F.3d 1228, 1238 (11th Cir. 2002). “The Skidmore Court held that when considering the 

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deference to ‘rulings, interpretations and opinions of the Administrator,’ the ‘weight of such a 

judgment in a particular case will depend upon the thoroughness evident in its consideration, the 

validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors 

which give it power to persuade, if lacking power to control.”’ Arriaga, 305 F.3d at 1238 (quoting 

Skidmore v. Swift, 323 U.S. 134, 140, 89 L. Ed. 124, 65 S. Ct. 161 (1944)). (Copies of WHD DOL 

letters and Opinions attached and are a exact copy of the USDOL WHD website publications.) 

17. Respectfully, Defendants request this Honorable court deem said actual copies admitted and 

judicially noticed pursuant to pursuant to Rule 201 and Section 90.201, Florida Statutes. 

WHEREFORE, Defendants respectfully request that this Court deny Plaintiff's Motion in Limine 

and for such further relief as is just in the premises. 

RULE 7.1 CERTIFICATION

Counsel for Defendants conferred with all parties or non-parties who may be affected by the relief 

sought in this reply and made a good faith effort to resolve the issues raised in this reply and 

attachments. 

CERTIFICATE OF SERVICE

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

portal .to attorney for Plaintiffs on June 26, 2023. 

Respectfully submitted,

CUETO LAW GROUP P.L.

Attorneys for Employer/Contractor

4000 Ponce de Leon Blvd.,

Suite 470 Coral Gables, Florida 33146

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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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