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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’ REPLY IN OPPOSITION TO PLAINTIFF’S RESPONSE AND IN 

SUPPORT OF DEFENDANTS’ JOINT MOTION TO DISMISS WITH PREJUDICE 

COUNTS II AND III OF PLAINTIFF’S THIRD AMENDED COMPLAINT 

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 Defendants’ joint motion to dismiss with prejudice Counts II and III of the Third 

Amended Complaint filed by Octavio Collado (“Plaintiff”). Defendants state as follows. 

I. DEFENDANT’S MOTION TO DISMISS ON WAS PROPERLY FILED 

Plaintiff’s half-hearted attempt to suggest that Defendants’ rule 12(b)(6) motion to dismiss 

should be denied because it was filed after Defendants’ motion to strike must be rejected. First, 

Rule 12(f) states that a court may act on a motion to strike that is filed “before responding to the 

pleading.” Fed. R. Civ. P. 12(f) (emphasis added). The express reference to “before” is the reason 

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Defendants filed the motion to strike a few hours prior to the motion to dismiss the third amended 

complaint.1 Critically, 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. Here, the filing of the Motion 

to Dismiss was Defendants’ “response” to the Third Amended Complaint. Thus, Defendants were 

correct in filing their motion to strike before filing the motion to dismiss. See Fed. R. Civ. P. 12(f). 

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) (court rejected plaintiff’s claim that 

defendant’s motion to dismiss was procedurally barred under Rule 12(g)(2) because it was filed as 

a separate motion where plaintiff was not prejudiced by the successive filings because it did not 

delay the case or cause plaintiff to waive her right to amend). 

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

dismiss filed immediately after a motion to strike must be denied or stricken. Plaintiff cites to 

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

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

247447, at *9 (M.D. Fla. Dec. 29, 2021) for the alleged proposition that Rule 12(g)(2) precludes 

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 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. 

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this Court from considering Defendants’ motion to dismiss. However, in Barfoot and Sharfman, 

the defendants filed a motion to dismiss than a subsequent motion to strike. Here, Defendants 

properly filed the motion to strike “before” filing its response to the Third Amended Complaint in 

the form of their motion to dismiss. Defendants’ prior filing of the motion to strike is consistent 

with Rule 12(f)’s requirement and it distinguishes this case from Barfoot and Sharfman. See Fed. 

R. Civ. P. 12(f). Accordingly, Barfoot and Sharfman are inapplicable and do not require the Court 

to deny Defendants’ subsequently filed motion to dismiss. 

II. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS 

COUNT II DOES NOT HAVE MERIT 

Defendants did not “cherry-pick” the parts of the FLSA to incorporate into the FMWA. 

Instead, the Florida Constitution expressly requires that the term “‘Wage’ shall have the meaning[] 

established under the federal Fair Labor Standards Act (FLSA) and its implementing regulations.” 

Fla. Const. Art. X § 24(b). Ironically, but not surprisingly given Plaintiff’s prior contortions of 

the FMWA, he wants the Court to create an FMWA cause of action to recover tips in Count II on 

the back of the argument he vehemently opposes in Count III as it relates to the Florida 

Constitution’s express incorporation of the FLSA and its regulations to define “wage” as excluding 

tips above and beyond the tip credit. 

Defendants’ argument suddenly makes so much sense to Plaintiff that he wants the Court 

to extend the Florida Constitution’s limited incorporation of the FLSA and its regulations to 

define “wage” to create a cause of action to recover tips. Incredibly, Plaintiff characterizes this 

extreme construction and attempted expansion of the FMWA as “roll[ing] the [FLSA’s] 

prohibition against tip confiscation into [the FMWA’s] statutory framework by incorporating the 

definition of wage.” See E.C.F. No. 143 at 6. When you break down Plaintiff’s latest contortion 

of the FMWA, he wants the Court to fashion a new cause of action simply because the Florida 

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Constitution refers to the FLSA and its regulations to define “wage.” Not surprisingly, Plaintiff 

fails to cite any federal or state case law supporting his attempt to create such a cause of action and 

that is because courts cannot rewrite a statute to defeat its clear purpose. See Artuz v. Bennett, 531 

U.S. 4, 11 (2000) (“Whatever merits these and other policy arguments may have, it is not the 

province of this Court to rewrite the statute to accommodate them”); Blount v. Rizzi, 400 U.S. 410, 

419 (1971) (“it is for congress, not this Court, to rewrite the statute”); Nguyen v. United States, 

556 F.3d 1244, 1256-57 (11th Cir. 2009) (“We are not authorized to rewrite, revise, modify, or 

amend statutory language in the guise of interpreting it[,] . . . especially when doing so would 

defeat the clear purpose behind the provision”); Albritton v. Cagle’s Inc., 508 F.3d 1012, 1017 

(11th Cir. 2007) (“We are not empowered to rewrite statutes.”). 

Plaintiff’s next concocted theory to try to create a cause of action where none exists under 

the FMWA, is his claim that the interchange of the phrases “unpaid minimum wages” and 

“minimum wage” along with “unpaid wages” and “back wages” somehow creates a cause of action 

to recover tips. Plaintiff’s suggestion, however, disregards the clear and overwhelming language 

in the Florida Constitution and FMWA that unequivocally expresses the intent of the statute is to 

recover unpaid minimum wages. 

For example, section 24 of the Florida Constitution is titled “Florida minimum wage” and 

the amendment’s stated public policy conveys that “[a]ll working Floridians are entitled to be paid 

a minimum wage that is sufficient to provide a decent and healthy life for them and their families 

. . ..” Fla. Const. Art. X § 24(a) (emphasis added). Section 24(c) then states, “Employers shall 

pay Employees Wages no less than the Minimum Wage for all hours worked in Florida” and 

“Employers may credit towards satisfaction of the Minimum Wage tips up to the amount of the 

allowable FLSA tip credit in 2003.” Fla. Const. Art. X § 24(c) (emphasis added). 

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The FMWA is also replete with plain language expressing the intent of the statute is to 

recover unpaid minimum wages. For example, the statute is titled the “Florida Minimum Wage 

Act.” Fla. Stat. § 448.110(1) (2022). The FMWA states that “employers shall pay employees a 

minimum wage . . . for all hours worked in Florida.” Fla. Stat. § 448.110(3) (2022) (emphasis 

added). The FMWA requires the Department of Economic Opportunity to annually “calculate an 

adjusted state minimum wage rate by increasing the state minimum wage by the rate of inflation” 

and “publish the amount of the adjusted state minimum wage and the effective date. Fla. Stat. § 

448.110(4)(a) and (b) (2022) (emphasis added). The FMWA requires notice “prior to bringing 

any claim for unpaid minimum wages pursuant to this section” and “[t]he notice must identify 

the minimum wage to which the person aggrieved claims entitlement.” Fla. Stat. § 448.110(6)(a) 

(2022) (emphasis added). Significantly, these provisions from the FMWA undermine entirely 

Plaintiff’s interchanging theory, “[i]f the employer fails to pay the total amount of unpaid wages

. . . then the person aggrieved may bring a claim for unpaid minimum wages” and the court my 

award “liquidated damages or award any amount thereof not to exceed an amount equal to the 

amount of unpaid minimum wages.” Fla. Stat. § 448.110(6)(b) and (c)1 (2022) (emphasis added). 

The forgoing FMWA provisions establish that the statutes occasional references to “unpaid wages” 

and “back wages” are merely a different way to convey the FMWA’s clearly stated purpose and 

intent, which is to guarantee a Florida minimum wage and a cause of action to recover unpaid 

minimum wages. See Fla. Const. Art. X § 24(c); Fla. Stat. § 448.110(6)(b). This fact is confirmed 

further by the FMWA’s provision that states “[t]he court shall not award any economic damages 

on a claim for unpaid minimum wages not expressly authorized in this section.” Nowhere in 

section 24 of the Florida Constitution or FMWA is there language “expressly authoriz[ing]” an 

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award of any tips and that is because the FMWA only expressly creates a cause of action to recover 

unpaid Florida minimum wages. See Fla. Const. Art. X § 24; Fla. Stat. § 448.110 (2022). 

III. PLAINTIFF’S THIRD AMENDED COMPLAINT MUST AND CAN BE 

SCRUTINZED IN CONJUNCTION WITH THE PRIOR COMPLAINTS 

Plaintiff, again, misrepresents content from Defendants’ filing. Despite Plaintiff’s claim, 

Defendants explicitly acknowledge “the general rule prohibiting it from analyzing prior 

pleadings.” See E.C.F. No. 137 at 4. However, Defendant presented the Court with legal authority 

from this District recognizing that, in certain circumstances, a court does not need to follow the 

general rule. See Fernandez v. Sch. Bd. of Miami-Dade Cnty., 201 F. Supp. 3d 1353, n. 1 (S.D. 

Fla. 2016). As Defendants stated in their motion, Fernandez acknowledged the “general” rule but 

noted the following exception, which Defendants rely upon to call out Plaintiff’s bad faith 

manipulation of the Third Amended Complaint to avoid a dispositive defense: 

[T]he Court has found no Eleventh Circuit authority that would bar the invocation of this 

exception under these specific circumstances - where plaintiffs have manipulated the 

allegations in their pleadings to avoid a dispositive defense. 

Id. (emphasis added). The Fernandez decision remains correct in that there is no Eleventh Circuit 

case expressly holding that a district court is barred from applying the exception noted in the 

opinion when a plaintiff manipulates allegations in a subsequent amended complaint to avoid a 

dispositive defense. Like Fernandez, the case Plaintiff cites, Johnson v. Israel, is from the 

Southern District of Florida. Defendants respectfully submit, however, that Fernandez is the better 

reasoned opinion as Plaintiff should not be allowed to avoid a prior basis for dismissal by omitting 

the allegation upon which the prior Second Amended Complaint was dismissed. 

Plaintiff suggests disingenuously that he omitted the service charge references from the 

Third Amended Complaint because it is not necessary to the analysis. See E.C.F. No. 143 at 11. 

But the service charge is very relevant because the FMWA only creates a cause of action to recover 

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unpaid Florida minimum wages and service charges can be used to satisfy the FMWA’s minimum 

wage requirement. See Fla. Const. Art. X § 24; Fla. Stat. § 448.110 (2022); see also Rosell v. 

VMSB, LLC, No. 20-20857, 2021 U.S. Dist. LEXIS 116663, at *11(S.D. Fla. June 22, 2021) report 

and recommendations adopted 2022 U.S. Dist. LEXIS 55739 (Mar. 28, 2022) (“compensation that 

qualifies as a service charge can satisfy the FLSA’s minimum wage . . . obligations”). Lastly, 

Defendants have and continue disputing that they unlawfully confiscated and/or distributed tips. 

IV. PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS 

COUNT III DOES NOT HAVE MERIT 

First, Plaintiff mischaracterizes Defendants’ argument by suggesting incorrectly that 

Defendants are urging the Court to abrogate Florida common law based on a statute. See E.C.F 

No. 143 at 2. It is clear from the Motion to Dismiss the Third Amended Complaint that Defendants 

argue the Florida Constitution, not the Florida Minimum Wage Act (FMWA), defines the term 

“wage” to include only tips that are part of a tip credit afforded employers to meet the state’s 

minimum wage obligation and does not include tips that are above and beyond the tip credit. See 

E.C.F. No. 137 at 6-7. Specifically, Defendants’ argument is based on the express language of the 

Florida Constitution, which states the term “‘wage’ shall have the meaning[] established under the 

federal Fair Labor Standards Act (FLSA) and its implementing regulations.” Fla. Const. Art. X § 

24(b). To convey the express intent of the Florida Constitution, Defendants then refer to the 

FLSA’s implementing regulations, which state that tips “in excess of the tip credit . . . are not 

payments made by the employer to the employee as renumeration for employment within the 

meaning of the Act. 29 C.F.R. § 531.60 (emphasis added). That construction and Defendants’ 

argument flows directly from the Florida Constitution’s mandate. The FLSA and its regulations 

are only quoted to express what the Florida Constitution requires. See Fla. Const. Art. X § 24(b). 

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Second, Plaintiff again tries to double talk his way out of Defendants’ simple and 

convincing argument that the tips at issue in this case are not wages under the Florida Constitution. 

Plaintiff claims out of one side of his mouth that “there is no expressed purpose in abrogating 

the common law definition of ‘wages’” in the Florida Constitution but out of the other side of his 

mouth claims the “Florida Constitution, like the FLSA, is in derogation of the common law.” 

E.C.F No. 143 at 2-3 (emphasis added). Plaintiff’s contradiction confirms his inability to convey 

a cogent argument to defeat Defendants’ position that tips above and beyond a tip credit are not 

wages under the Florida Constitution, and as a result, such tips cannot be deemed wages under 

Florida common law. See State ex rel. Clayton v. Bd. Of Regents, 635 So 2d. 937, 938 (Fla. 1994) 

(“For a principle of law to be governed by the common law in Florida, that principle . . . must not 

be inconsistent with the constitution and the laws of the United States or the acts of the 

legislature of this State.”) (emphasis added) (citing Fla. Stat. § 2.01 (1993)). Significantly, there 

is no language limiting the Florida Supreme Court’s analysis in State ex rel. Clayton, which 

expressly prohibits any inconsistency between the Florida Constitution and the State’s common 

law irrespective of whether the constitutional provision is narrowly or generally applicable. See 

id. at 938. Indeed, State ex rel. Clayton states only that the common law “principle . . . must not 

be inconsistent with the constitution.” Id. In this case, Plaintiffs suggestion that the term wages 

under Florida common law includes tips above and beyond a tip credit is inconsistent with the 

Florida Constitution. See Fla. Const. Art. X § 24(b). 

Additionally, “[f]or a principle of law to be governed by the common law in Florida, that 

principle must have existed as part of the common and statutory law of England on July 4, 1776, . 

. ..” State ex rel. Clayton, 635 So 2d. at 938 (citing Fla. Stat. § 2.01 (1993)). “[T]he common law 

principle, as it existed on July 4, 1776, must have been ‘clear and free from doubt.’” State ex rel. 

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Clayton, 635 So 2d. at 938 (quoting Hoffman v. Jones, 280 So.2d 431 (Fla. 1973)). Plaintiff’s 

response is devoid of any suggestion that his Florida common law wage theory as it relates to tips 

“clear and free from doubt” as of July 4, 1776. See State ex rel. Clayton, 635 So 2d. at 938 

(denying writ of mandamus because there was “no common law principle in existence in England 

on July 4, 1776, that governs the issue in this case”).

Third, Plaintiff’s suggestion that section 24(f) of Article X “expressly states that the 

‘Definitions’ are not generally applicable” is a fiction. E.C.F No. 143 at 3-4. In reality, section 

24(f) does not reference the word “definition.” See Fla. Const. Art. X § 24(f). Instead, section 

24(f) preserves the right of the Florida legislature and other governmental entities to provide 

for the payment of a greater minimum wage than the Florida minimum wage or otherwise provide 

supplemental compensation or benefits or expand the minimum wage requirement to employers 

or employees not covered by the Florida Constitution’s minimum wage requirement. See id. (the 

amendment cannot be “construed to preempt or otherwise limit the authority of the state legislature 

or any other public body to adopt or enforce any other law, regulation, requirement, policy or 

standard that provides for the payment of higher or supplemental wages or benefits, or that extends 

such protections to employers or employees not covered by this amendment.”) 

Fourth, Plaintiff’s response, despite its suggestion to the contrary, only cites a single case 

finding that tips are recoverable as wages under Florida common law. The balance of the cases in 

the response do not pertain to tips and do not hold that tips are wages under Florida common law. 

See Gulf Solar, Inc., v. Westfall, 447 So. 2d 363, 364 (Fla. 2nd DCA 1984) (plaintiff sought to 

recover “commission on sales made”); Ware v. Cadre Consulting Group, No. 8:21-cv-01743, 2022 

U.S. Dist. LEXIS 172550, at *5 (M.D. Fla. Sept. 6, 2022) (plaintiff alleged he was not paid 

overtime pursuant to the FLSA); Pastrana v. Level Up Fitness, LLC, No. 21-cv-21985, 2021 U.S. 

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Dist. LEXIS 230226, at *4-5 (S.D. Fla. Dec. 1, 2021) (plaintiffs alleged they were not paid by the 

employer for personal trainer services rendered); Bonich v. NAS Component Maint., Inc., No. 20-

21582, 2020 U.S. Dist. LEXIS 98137, at *2 (S.D. Fla. June 4, 2020) (plaintiff alleged he was not 

paid “wages for the 120 hours of work” he performed). Plaintiff’s cases merely make references 

to definitions that summarily convey tips are included within the definition of wages, but do not 

hold as such or consider the Florida Constitution’s definition of “wage” in their analysis. See id. 

In relation to the one case that concludes tips are wages, Hamann v. Little Italy’s Meatballs, 

LLC, No. 8:20-cv-2589, 2021 U.S. Dist. LEXIS 64142 (M.D. Fla. Mar. 31, 2021) report and 

recommendations adopted, 2021 U.S. Dist. LEXIS 75564 (M.D. Fla. Apr. 20, 2021), it is not 

binding and unpersuasive because it reaches the conclusion without considering the Florida 

Constitution’s definition of “wage” that only includes tips that are used to reach the state’s 

minimum wage, i.e., tip credit. Since Count III fails to allege that Plaintiff was paid on a tip credit 

basis or paid below minimum wage (See E.C.F. No. 122 ¶¶ 1–36 and 129–47), there is no tip credit 

and that means none of the tips are wages under the Florida Constitution and common law. 

Finally, Plaintiff’s attempt to redirect the Court to section 443.1217 must fail because the 

statute loosely uses the term “wages” to require reporting of income in the form of tips only for 

purposes of calculating reemployment assistance contributions. See Fla. Stat. § 443.1217 (2022). 

Similarly, Plaintiff’s reference to 26 U.S.C. §§ 3102, 3401-03 must fail because the statute uses 

the term “wages” as it relates only to requiring the reporting or taxing of income in the form of 

tips for purposes of federal income taxes. See 26 U.S.C. §§ 3102, 3401-03. Moreover, section 

24(b), Article X, of the Florida Constitution preempts the reemployment assistance language in 

section 443.1217 because it specifically incorporates the FLSA and its regulations, which exclude 

tips above and beyond a tip credit from the definition of “wage.” See Fla. Const. Art. X § 24(b). 

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Dated: May 18, 2023 

Respectfully submitted, 

JACKSON LEWIS P.C. Levine & Partners, P.A. 

One Biscayne Tower, Suite 3500 3350 Mary Street 

Two South Biscayne Boulevard Miami, Florida 33133 

Miami, Florida 33131 Telephone: (305) 372-1352 

Telephone: (305) 577-7600 

/s/ Reynaldo Velazquez /s/ Allan Reiss 

Reynaldo Velazquez, Esq. Allan Reiss, Esq 

Florida Bar No.: 069779 Florida Bar No. 858500 

Email: rey.velazquez@jacksonlewis.com Email: asr@levinelawfirm.com

Roman Sarangoulis, Esq. Counsel for RJ River, LLC

Florida Bar No. 1011944 

Email: roman.sarangoulis@jacksonlewis.com 

Counsel for 450 North River Drive, LLC, 

d/b/a 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 147 Entered on FLSD Docket 05/18/2023 Page 11 of 12
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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 

Attorneys 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 

Facsimile: 305-373-4466 

Counsel for 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 

Facsimile: (305) 372-1352 

Attorneys for RJ River, LLC

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