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 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 Federal Rule of Civil Procedure 12(f), hereby file their joint 

motion to strike and state the following in support thereof: 

1. Plaintiff filed his Third Amended Complaint on April 7, 2023. (ECF No. 122). 

2. Count II of the Third Amended Complaint attempts to allege a minimum wage 

violation of the Florida Minimum Wage Act (FMWA). (See ECF No. 122, ¶¶ 80-128). 

3. Count II of the Third Amended Complaint contains a claim for relief and allegations 

that are immaterial to the cause of action alleged. 

4. Count II alleges repeatedly that Plaintiff’s remedy for the purported violation of the 

FMWA is “payment of all tips and/or overtips” that Defendants allegedly unlawfully retained 

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and/or distributed. Such allegations and claims for relief, as well as any other allegation or claim 

for relief in the Third Amended Complaint that suggests Plaintiff’s remedy is the “payment of all 

tips and/or overtips” as it relates to Count II, are immaterial because the FMWA does not provide 

a cause of action to recover tips. Specifically, the allegations that must be stricken are paragraph 

82, 85(b)(x), 104, 113, 125, 128 and subparagraph “d” of Counts II’s “Wherefore” clause. 

5. Based upon the forgoing, Defendants respectfully request that their motion to strike 

be granted. 

ARGUMENT AND INCORPORATED MEMORANDUM OF LAW 

“[T]he Court may strike from a pleading any redundant, immaterial, impertinent, or 

scandalous matter” upon a defendant’s motion prior to filing a responsive pleading. Fed. R. Civ. 

P. 12(f). “[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). 

A. Allegations and Claims for Relief in Count II Claiming Plaintiff’s Remedy for 

the Purported Violation of the FMWA is the “payment of all tips and/or 

overtips” Must be Stricken Because the FMWA Does Not Provide a Cause of 

Action to Recover Tips 

The FMWA’s purpose is to “provide measures appropriate for the implementation of 

section 24, Art. 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). As Plaintiff acknowledges 

in his Third Amended Complaint, Article X, Section 24 only provides that “[f]or tipped Employees 

meeting the eligibility requirements for the tip credit under the FLSA, Employers may credit 

towards satisfaction of the Minimum Wage tips up to the amount of the allowable FLSA tip 

credit.” Fla. Const. Art. X § 24(c) (emphasis added). However, neither section 448.110, Florida 

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Statutes, or Article X, Section 24, of the Florida Constitution guarantee or protect an employee’s 

tips from, or create a cause of action for, an employer’s alleged improper retention/distribution of 

tips when it does not relate directly to a Florida minimum wage violation. In fact, the FMWA 

specifically states that “[t]he court shall not award any economic damages on a claim for unpaid 

minimum wages not expressly authorized in this section.” Fla. Stat. § 448.110(6)(c)1. 

It is clear the FMWA only provides a cause of action to recover unpaid Florida minimum 

wages. See Fla. Stat. § 448.110(6)(a) (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). As a result, Plaintiff’s only remedy in the unlikely event he prevails with the 

FMWA claim is the difference between the alleged direct wage he was paid and the applicable 

minimum wage, and not the “payment of all tips and/or overtips” that were allegedly retained or 

distributed unlawfully. See Rosell v. Vsmb, No. 20-20857-Civ-WILLIAMS/TORRES, 2021 U.S. 

Dist. LEXIS 116663, *4 (S.D. Fla. June 22, 2021) (when there is a tip credit violation the 

“employees may recover only up to the tip credit and not the actual tips”) (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.”) (emphasis added); see e.g., Frank v. Fresh on the Square LLC, No. 5:20-cv372-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). 

Thus, all allegations and claims for relief suggesting Plaintiff’s FMWA remedy is the 

“payment of all tips and/or overtips” are immaterial and must be stricken. Such allegations 

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include, but may not be limited to, paragraphs 82, 85(b)(x), 104, 113, 125, 128 and subparagraph 

“d” of Counts II’s “Wherefore” clause. 

CONCLUSION 

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

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: April 27, 2023 

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

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CERTIFICATE OF SERVICE 

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

April 27, 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. 

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

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