UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

CASE NO. 1:22-CV-23074-BLOOM/OTAZO-REYES 

OCTAVIO COLLADO, 

for himself and all others 

similarly situated, 

Plaintiff, 

v. 

450 NORTH RIVER DRIVE, LLC, 

D/B/A KIKI ON THE RIVER, 

RJ RIVER, LLC, AND ROMAN JONES, 

Defendants. 

_______________________________________/

DEFENDANTS’ JOINT REPLY IN OPPOSITION TO PLAINTIFF’S 

RESPONSE AND IN SUPPORT OF THEIR MOTION TO 

STRIKE PLAINTIFF’S ALLEGATIONS AND REQUESTS FOR 

RELIEF IN COUNT II OF THE THIRD AMENDED COMPLAINT 

 SEEKING RECOVERY OF ALL TIPS AND/OR OVERTIPS 

Defendants, 450 North River Drive, LLC, d/b/a Kiki on the River (“Kiki”), RJ River, LLC, 

(RJ), and Roman Jones (“Jones”) (collectively “Defendants”), by and through their respective 

undersigned counsel, and pursuant to Local Rule 7.1(c)(1) of the United States District Court for 

the Southern District of Florida, hereby file their joint Reply in opposition to Plaintiff’s Response 

and in support of their motion to strike and state the following in support thereof: 

I. Defendants Properly Filed Their Motion to Strike before Their Motion to Dismiss 

First, Fed. R. Civ. P. 12(f) expressly provides that the “court may strike from a pleading an 

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter . . . on motion 

made by a party either before responding to the pleading, or if a response is not allowed, within 

21 days after being served with the pleading.” Fed. R. Civ. P. 12(f) (emphasis added). The express 

Case 1:22-cv-23074-BB Document 146 Entered on FLSD Docket 05/18/2023 Page 1 of 10
CASE NO. 1:22-CV-23074-BLOOM/OTAZO-REYES 

2 

reference to “before” is the reason Defendants filed the motion to strike a few hours prior to the 

motion to dismiss the third amended complaint.1 Critically, the language of Rule 12(f) requires 

the moving party to file its motion to strike “before” any response to the pleading is filed - not 

just a responsive pleading. In this case, Defendants motion to dismiss Counts II and III was their 

“response” to the Third Amended Complaint. Thus, Defendants were correct in filing their motion 

to strike “before” filing the motion to dismiss. See id. 

Second, rule 12(h)(1) only provides for waiver of defenses listed in rule 12(b)(2)-(5) when 

those defenses are omitted “in the circumstances described in Rule 12(g)(2).” Fed. R. Civ. P. 

12(h)(1). It is clear from the face of the motion to dismiss Counts II and III of the Third Amended 

Complaint that it is based on Rule 12(b)(6). See E.C.F. No. 137 at 1. Thus, there is no waiver or 

other basis to deny Defendants’ motion to dismiss based on Rule 12(g)(2). 

Third, Plaintiff was not prejudiced by the dual filings because the motion to strike and 

motion to dismiss were filed on the same day, in good faith based on the reference to “before,” 

and did not delay the case. See Chalk v. Lender Process Servs., No. CCB-13-1593, 2013 U.S. 

Dist. LEXIS 181585, at *6-8 (D. Md. Dec. 31, 2013) (“Rule 12(g) was designed to avoid delays 

caused by successive pretrial motions[.]”). In Chalk, the defendant filed a motion to strike and 

then a subsequent motion to dismiss 14 days later. Id. In response, the plaintiff argued that the 

motion to dismiss was procedurally barred under Rule 12(g)(2) because it was filed as a separate 

motion. Id. The court in Chalk explained that the plaintiff was not prejudiced by the successive 

filings because it did not delay the case or cause the plaintiff to waive her right to amend. Id. As 

1

 Defendants originally filed the motion to strike the day before the motion to dismiss but withdrew 

the motion to facilitate conferral and then refiled it hours prior to the motion to dismiss. 

Case 1:22-cv-23074-BB Document 146 Entered on FLSD Docket 05/18/2023 Page 2 of 10
CASE NO. 1:22-CV-23074-BLOOM/OTAZO-REYES 

3 

a result, the court ruled in the defendant’s favor and considered defendant’s motion to strike and

the subsequently filed motion to dismiss. Id. 

In this case, Defendants filed their Motion to Strike, [E.C.F. No. 136], and Motion to 

Dismiss, [E.C.F. No. 137], on the same day. Plaintiff was permitted to respond to both motions, 

and did so on May 11, 2023. See E.C.F. No. 142 and 143. Defendants’ successive filings on the 

same day have not delayed the litigation and did not cause Plaintiff to waive any right to amend 

his pleading. Accordingly, Plaintiff has not been prejudiced by the filing of separate motions.2

Finally, the case law cited by Plaintiff does not stand for the proposition that a motion to 

dismiss filed after a motion to strike must be denied or stricken or that both motions must be 

denied or stricken. In Chen, the defendant filed two successive motions to dismiss asserting 

discrete arguments that were known to the defendant based on the face of the complaint. See Chen 

v. Cayman Arts, Inc., No. 10-80236, 2011 U.S. Dist. LEXIS 28835, *6 (S.D. Fla. 2011). In Barfoot 

and Sharfman, the defendants filed a motion to dismiss and then a subsequent motion to strike. 

See Barfoot v. Dolgencorp, LLC, No. 15-24662, 2016 U.S. Dist. LEXIS 155267, at *1-2 (S.D. Fla. 

Feb. 5, 2016); Sharfman v. Premier Medical, Inc., No. 20-1278, 2021 U.S. Dist. LEXIS 247447, 

at *9 (M.D. Fla. Dec. 29, 2021). 

In this case, Defendants did not file multiple motions to dismiss or a motion to dismiss 

followed by a motion to strike. Instead, Defendants properly filed their Motion to Strike “before” 

their Motion to Dismiss as required by Rule 12(f). Accordingly, Chen, Barfoot, and Sharfman

2

 Although Defendants assert their Motion to Strike and Motion to Dismiss were properly filed 

based on the specific reference to “before” in rule 12(f), out of an abundance of caution, if the 

Court strikes or denies the Motion to Dismiss, Defendants respectfully request it be without 

prejudice and expressly permit Defendants to file a single motion seeking both reliefs. 

Case 1:22-cv-23074-BB Document 146 Entered on FLSD Docket 05/18/2023 Page 3 of 10
CASE NO. 1:22-CV-23074-BLOOM/OTAZO-REYES 

4 

are inapplicable and do not require the Court to deny the Motion to Strike and/or the Motion to 

Dismiss. 

II. Defendants Have Met the Standard Necessary to Strike the Referenced Allegations 

in the Third Amended Complaint 

As Defendants explain in their Motion, “the Court may strike from a pleading any 

redundant, immaterial, impertinent, or scandalous matter[.]” Fed. R. Civ. P. 12(f). Defendants 

assert that all allegations and claims for relief suggesting Plaintiff’s Florida Minimum Wage Act 

(FMWA) remedy is the “payment of all tips and/or overtips” are immaterial and must be stricken. 

Defendants subsequently provide a detailed legal analysis, which can only have one logical 

conclusion, and that is the FMWA only provides a cause of action for unpaid Florida minimum 

wages and the law’s only remedy for such a claim is the alleged unpaid minimum wages. See Fla. 

Stat. § 448.110(6)(a) (2022) (establishing the prerequisite for filing an FMWA civil action and 

stating, “prior to bringing any claim for unpaid minimum wages pursuant to this section . . ..”) 

(emphasis added). Lastly, Defendants assert that “a prayer for relief not available under the 

applicable law is properly subject to a motion to strike.” Hodge v. Orlando Utils. Comm’n, 6:09-

cv-1059-Orl-19DAB, 2009 U.S. Dist. LEXIS 110464, *10-11 (M.D. Fla. Nov. 23, 2009); see also 

Doe v. Royal Caribbean Cruises, No. 11-23321, 2012 U.S. Dist. LEXIS 139965, at *6-10 (S.D. 

Fla. Sept. 28, 2012) (striking allegations where damages sought are not supported by the facts of 

the case or law). 

Based on the above and as detailed further in the Motion to Strike, Defendants met the 

standard necessary to strike the paragraphs and claims for relief at issue because they contain 

immaterial allegations and/or claims for relief regarding the “payment of all tips and/or overtips,” 

which is not a remedy or cause of action afforded under the FMWA. Defendants’ analysis is 

buttressed by the fact that Plaintiff did not cite a single case allowing a plaintiff to recover tips or 

Case 1:22-cv-23074-BB Document 146 Entered on FLSD Docket 05/18/2023 Page 4 of 10
CASE NO. 1:22-CV-23074-BLOOM/OTAZO-REYES 

5 

file a lawsuit seeking to recover tips under the FMWA. It is also clear from the forgoing that 

Plaintiff’s allegations and claims for relief pertaining to the “payment of all tips and/or overtips” 

have no relation to the FMWA’s only cause of action and corresponding remedy to recover 

Florida minimum wages. See Fla. Stat. § 448.110 (2022). Lastly, allowing Plaintiff to proceed in 

the face of the facts and law before the Court is prejudicial to Defendants. Not only will 

Defendants have to unfairly defend a claim for alleged unlawfully retained and/or distributed tips 

under the FMWA, but they will also face a five-year statute of limitations under the FMWA as 

opposed to the three-year limitation period pursuant to the Fair Labor Standards Act (FLSA). 

Accordingly, the granting of Defendants’ Motion to Strike is proper and necessary. 

III. Defendants Cite the FMWA and Relevant Case Law in the Motion to Strike that 

Support Their Arguments and the Granting of the Motion to Strike 

As stated above and in the Motion to Strike, the FMWA supports Defendants’ position 

that the “payment of all tips and/or overtips” is not a remedy or cause of action afforded under the 

FMWA and Hodge supports the requested striking of the non-existent relief Plaintiff seeks. See 

Fla. Stat. § 448.110 (2022); Hodge, 2009 U.S. Dist. LEXIS 110464, at *10-11. Thus, Defendants 

cite ample legal authority for the Court to grant the Motion to Strike. 

Moreover, Plaintiff’s attempt to distinguish some of the cases Defendants cited in the 

Motion to Strike is a failure. As a preliminary matter, Plaintiff did not attempt to distinguish the 

most important case Defendants cite, Hodge, which stands for the proposition that “a prayer for 

relief not available under the applicable law is properly subject to a motion to strike.” 2009 U.S. 

Dist. LEXIS 110464, at *10-11. That is the precise relief Defendants request in the Motion to 

Strike and yet Plaintiff ignored the case in his response. See E.C.F. No. 142. 

To understand the reason Plaintiff’s attempt to distinguish the three cases referenced in his 

response fails, it is necessary to reiterate the fact that Count II of the Third Amended Complaint 

Case 1:22-cv-23074-BB Document 146 Entered on FLSD Docket 05/18/2023 Page 5 of 10
CASE NO. 1:22-CV-23074-BLOOM/OTAZO-REYES 

6 

alleges only a minimum wage violation.3 Specifically, Count II claims Plaintiff and the putative 

class were “paid a direct wage that was below the applicable minimum wage required by the 

FMWA [and] received tips and/or overtips from the ‘tip pool.’” See E.C.F. No. 122 at ¶¶ 85b, 

85d, 88, 95, and 96. Plaintiff then alleges he was paid on a tip credit basis. E.C.F. No. 122 at ¶¶ 

91-96. 

Against this backdrop we turn to the cases Defendants cite and the reason they are cited, 

which is to assert the appropriate remedy in tip credit cases under the FMWA is the difference 

between the direct wage Plaintiff and the putative class were paid and the Florida minimum wage. 

See Frank v. Fresh on the Square LLC, No. 5:20-cv-372-Oc-30PRL, 2021 U.S. Dist. LEXIS 

178426, *5 (M.D. Fla. Sept. 20, 2021) (plaintiff is “entitled to full minimum wage for the hours 

she worked” if defendant “improperly claimed a tip credit”) (emphasis added); Dalley v. CG RYC, 

LLC, No. 18-20128-CIV-COOKE/GOODMAN, 2018 U.S. Dist. LEXIS 150696, at *4 (S.D. Fla. 

Aug. 31, 2018) (“employees may recover only up to the tip credit and not the actual tips”

4

 in 

the context of an alleged tip credit violation) (emphasis added). 

Despite Plaintiff’s suggestion to the contrary, Frank and Dalley are applicable to Plaintiff’s 

alleged Florida minimum wage violation. Significantly, Frank involved the FMWA and was filed 

and decided after the March 23, 2018, effective date of the Consolidated Appropriations Act of 

2018. See Frank, 2021 U.S. Dist. LEXIS 178426, *1, 3, and 9. Moreover, the fact that the issue 

3

 Albeit it’s done by removing in bad faith the service charge allegations that were in the three 

prior complaints and was the reason the Court granted Defendants’ motion to dismiss Count II of 

the Second Amended Complaint. Additionally, Plaintiff knows the percentage of the service 

charge he received brought him well above the Florida minimum wage during his employment 

with Kiki. 

4

 Defendants also inadvertently cited Rosell v. Vsmb, No. 20-20857-Civ-WILLIAMS/TORRES, 

2021 U.S. Dist. LEXIS 116663, *4 (S.D. Fla. June 22, 2021) for the same proposition. 

Case 1:22-cv-23074-BB Document 146 Entered on FLSD Docket 05/18/2023 Page 6 of 10
CASE NO. 1:22-CV-23074-BLOOM/OTAZO-REYES 

7 

may have dealt with tips that were improperly shared does not change the fact that the allegations 

also involve a minimum wage violation when taking a tip credit and improperly sharing tips. See 

id. at 2-5. That is exactly what Plaintiff alleges in this case and that is why Frank is on point as it 

relates to the appropriate remedy in such a situation. See E.C.F. No. 122 at ¶¶ 91-96. While the 

Court in Dalley noted the case was filed on January 11, 2018, it did so as background information 

and without any reference or significance to the effective date of the Consolidated Appropriations 

Act of 2018. See Dalley, 2018 U.S. Dist. LEXIS 150696, at *1. That said, Dalley was filed prior 

to the Consolidated Appropriations Act of 2018’s effective date but that claim has no significance 

to the point for which Dalley is cited and that is “employees may recover only up to the tip credit 

and not the actual tips” in the context of an alleged tip credit violation. Id. at 4 (emphasis added). 

Lastly, Dalley’s discussion in the context of the proper remedy in an FLSA minimum wage and 

tip credit violation case is applicable to the FMWA. See Fla. Const. Art. X § 24(f) (“case law . . . 

under the federal FLSA shall guide the construction of this amendment and any implementing 

statutes or regulations.”). 

Plaintiff cannot avoid the express language of the FMWA or the legal precedent he ignored 

in his response or failed to adequately distinguish. Simply stated, Plaintiff’s allegations and claims 

for damages stating “payment of all tips and/or overtips” or anything similar are impermissible as 

a matter of law, and for that reason the Motion to Strike must be granted. 

IV. Florida Law Does Leave Plaintiff Without a Remedy to Recover Allegedly Unpaid 

Tips

Plaintiff cites to no support for his position that he is entitled to the recovery of anything 

beyond the difference between the amount he was paid as an alleged tip credit wage and the 

applicable minimum wage. Instead, Plaintiff attempts to create a fictious burden on Defendants 

to “explain how or why Florida law would leave [him] without a remedy to recover . . . tips.” See 

Case 1:22-cv-23074-BB Document 146 Entered on FLSD Docket 05/18/2023 Page 7 of 10
CASE NO. 1:22-CV-23074-BLOOM/OTAZO-REYES 

8 

E.C.F. No. 142 at 5. To prevail in the Motion to Strike, however, Defendants do not need to 

explain “how or why” the Florida legislature drafted the FMWA in the manner that it did. Whether 

Plaintiff likes it or not, the FMWA’s purpose is to “provide measures appropriate for the 

implementation of section 24, Article X, of the State Constitution . . ..” Fla. Stat. § 448.110(2). 

The Florida Constitution provides that “Employers shall pay Employees Wages no less than the 

Minimum Wage for all hours worked in Florida.” Fla. Const. Art. X § 24(c) (emphasis added). 

Since the FMWA was enacted to ensure employees are paid at least the Florida minimum wage, 

there is no reason why the recovery of tips beyond the minimum wage would be included as a 

remedy or a cause of action. That is why the FMWA does not contain a cause of action or language 

providing for the recovery of tips. See Fla. Stat. § 448.110 (2022). Therefore, Defendants’ Motion 

to Strike must be granted. 

CONCLUSION 

WHEREFORE, Defendants respectfully request that this Court enter an Order granting the 

motion to strike and specifically striking (i) paragraphs 82, 85(b)(x), 104, 113, 125, 128, and 

subparagraph “d” of Counts II’s “Wherefore” clause; (ii) striking any other allegation or claim for 

relief in the Third Amended Complaint that suggests Plaintiff’s remedy under the FMWA is the 

“payment of all tips and/or overtips;” (iii) awarding Defendants their reasonable attorney fees and 

costs for having to litigate this issue; and (iv) granting Defendants any other relief this Court deems 

just and proper. 

Dated: May 18, 2023 

Case 1:22-cv-23074-BB Document 146 Entered on FLSD Docket 05/18/2023 Page 8 of 10
CASE NO. 1:22-CV-23074-BLOOM/OTAZO-REYES 

9 

Respectfully submitted, 

By: s/ Allan Reiss 

Allan Reiss, Esq. 

Florida Bar No. 858500 

Email: asr@Levinelawfirm.com 

LEVINE & PARTNERS, P.A. 

3350 Mary Street 

Miami, Florida 33133 

Telephone: (305) 372-1352 

Counsel for Defendant, RJ River, LLC 

By: s/ Reynaldo Velazquez 

Reynaldo Velazquez, Esq. 

Florida Bar No.: 069779 

Email: rey.velazquez@jacksonlewis.com 

Roman Sarangoulis, Esq. 

Florida Bar No. 1011944 

Email: roman.sarangoulis@jacksonlewis.com

JACKSON LEWIS P.C. 

One Biscayne Tower 

2 South Biscayne Boulevard, Suite 3500 

Miami, Florida 33131 

Telephone: (305) 577-7600 

Counsel for Defendants, 450 North River Drive, 

LLC, Kiki on the River, and Roman Jones

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing document is being served on 

May 18, 2023, on all counsel of record on the Service List below via transmission of Notices of 

Electronic Filing generated by CM/ECF 

s/ Roman Sarangoulis 

Roman Sarangoulis, Esq. 

Case 1:22-cv-23074-BB Document 146 Entered on FLSD Docket 05/18/2023 Page 9 of 10
CASE NO. 1:22-CV-23074-BLOOM/OTAZO-REYES 

10 

SERVICE LIST 

Brian Pollock, Esq. 

Florida Bar No. 174742 

Email: brian@fairlawattorney.com 

FAIRLAW FIRM 

135 San Lorenzo Ave. 

Coral Gables, Florida 33146 

Telephone: (305) 230-4884 

Counsel for Plaintiff 

Reynaldo Velazquez, Esq. 

Florida Bar No.: 069779 

Email: rey.velazquez@jacksonlewis.com 

Roman Sarangoulis, Esq. 

Florida Bar No. 1011944 

Email: roman.sarangoulis@jacksonlewis.com

JACKSON LEWIS P.C. 

One Biscayne Tower 

2 South Biscayne Boulevard, Suite 3500 

Miami, Florida 33131 

Telephone: 305-577-7600 

Counsel for Defendants, 450 North River Drive, 

LLC, Kiki on the River, and Roman Jones 

Allan Reiss, Esq. 

Florida Bar No. 858500 

Email: asr@Levinelawfirm.com 

LEVINE & PARTNERS, P.A. 

3350 Mary Street 

Miami, Florida 33133 

Telephone: (305) 372-1352 

Counsel for RJ River, LLC

Case 1:22-cv-23074-BB Document 146 Entered on FLSD Docket 05/18/2023 Page 10 of 10