United States District Court 

for the 

Southern District of Florida 

Barbara Alexis, and others, 

Plaintiffs, 

v. 

Nomi Health, Inc., and MedX 

Staffing, Inc., Defendants.

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Civil Action No. 22-23938-Civ-Scola 

Order 

This matter is before the Court on the Defendants Nomi Health, Inc., and 

MedX Staffing, Inc.’s first motion to compel arbitration or dismiss (“First Mot.,” 

ECF No. 15) and second motion to compel arbitration or dismiss (“Second Mot.,” 

ECF No. 27). The Plaintiffs responded to both motions. (“First Resp.,” ECF No. 20; 

“Second Resp.,” ECF No. 29). The Defendants filed replies in support of both 

motions. (“First Reply,” ECF No. 23; “Second Reply,” ECF No. 30.) After careful 

consideration of the briefing, the record, and the relevant legal authorities, the 

Court grants the Defendant’s motions. (ECF Nos. 15, 27.) 

1. Background 

The Plaintiffs, medical personnel of various backgrounds, bring suit against 

the Defendants, Nomi Health, Inc. (“Nomi”) and MedX Staffing, Inc. (“MedX”), 

alleging that the Defendants misclassified them as independent contractors. 

(Compl. ¶ 3, ECF No. 1.) Accordingly, the Plaintiffs assert, the Defendants 

underpaid them for overtime work relating to Covid-19 testing and treatment. (Id.

¶¶ 3, 5.) The Plaintiffs now bring two claims under the Fair Labor Standards Act 

(“FLSA,” 29 U.S.C. §§ 201 et seq.). (Id. ¶¶ 1, 3, 4.) 

There are currently fifty-eight named Plaintiffs in this case: forty Plaintiffs 

originally joined the complaint, and eighteen Plaintiffs have since opted-in to join 

these proceedings. (Id. at 1-2; Nots. of Consent to Join, ECF Nos. 6, 11-13, 22.) 

Those fifty-eight Plaintiffs comprise a variety of medical professions, including 

registered nurses, licensed practical nurses, certified nursing assistants, medical 

assistants, paramedics, operations leads, emergency medical technicians, drivers, 

and data entry personnel. (Compl. ¶ 3.) 

The Defendants argue in both of their motions to compel or dismiss that 

the majority of the Plaintiffs (fifty-six of fifty-eight) are subject to arbitration 

agreements contained in their employment contracts with MedX. (First Mot. at 2 

Case 1:22-cv-23938-RNS Document 31 Entered on FLSD Docket 02/10/2023 Page 1 of 6
n.2, 4; Second Mot. at 1-2.)1 The Defendants support their contentions with 

declarations from Sariah Tuisaula, who worked as MedX’s Human Resources 

Manager from November 2020 to August 2022. (First Decl. of S. Tuisaula ¶ 2, 

ECF No. 15-1; Second Decl. of S. Tuisaula ¶ 2, ECF No. 27-1.) The Defendants 

also attach the employment contracts for the fifty-six Plaintiffs subject to the 

arbitration agreement (the “Arbitration Plaintiffs”) to the declarations. (First Decl. 

of S. Tuisaula ¶ 6, Exs. 1-54; Second Decl. of S. Tuisaula ¶ 6, Exs. 1-2.) 

The Defendants assert that the Arbitration Plaintiffs must be compelled to 

bring their claims in arbitration under the Federal Arbitration Act (“FAA”) because 

the Arbitration Plaintiffs either signed employment contracts that contained 

arbitration agreements or accepted the terms of their employment contracts, 

which contain arbitration agreements, by working after receiving the contracts. 

(First Mot. at 3-6; Second Mot. at 3-4.) As for the remaining two Plaintiffs, (or any 

Plaintiffs the Court finds are not subject to arbitration agreements),2 the 

Defendants argue that the complaint is a shotgun pleading and the Plaintiffs fail 

to plead essential elements of their FLSA claims. (First Mot. at 10-15; Second 

Mot. at 9-14.) 

In response, the Plaintiffs assert that their claims should not be subject to 

arbitration because the Defendants waived their right to arbitration and because 

compelling arbitration would be at odds with the purpose of the FLSA. (First 

Resp. at 2-6; Second Resp. at 1.) The Plaintiffs also argue that the complaint 

alleges sufficient facts to state claims for FLSA violations. (First Resp. at 6-9; 

Second Resp. at 6-9.) The Plaintiffs do not respond to the Defendants’ argument 

that the complaint is a shotgun pleading. (See generally First Resp.; Second 

Resp.) 

2. Legal Standard 

The Federal Arbitration Act (“FAA,” 9 U.S.C. §§ 1 et seq.) “places an 

agreement to arbitration on equal footing with all other contracts and reflects a 

‘liberal federal policy favoring arbitration.’” Cheshire v. Fitness & Sports Clubs, 

LLC, 382 F. Supp. 3d 1329, 1332 (S.D. Fla. 2019) (Dimitrouleas, J.) (citing 

CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98 (2012)). “Section 2 of the FAA 

provides that written arbitration agreements in a contract ‘shall be valid, 

irrevocable, and enforceable, save upon such grounds as exist at law or in equity 

for the revocation of any contract.’” Id. (citing 9 U.S.C. § 2). Accordingly, courts 

1 The Defendants filed the second motion after two additional opt-in Plaintiffs (Jorge Guillerme 

and Shareka Humphrey-Pace) joined these proceedings. (Not. of Consent to Join, ECF No. 22.) 

Other than addressing the two additional opt-in Plaintiffs, the arguments in the second motion 

present the same issues as the first motion. (First Mot. at 1-2; Second Mot. at 1-2.) 

2 The two Plaintiffs not subject to an arbitration agreement are Samantha Mondesir and Kimberly 

Harvey-Drake. (First Mot. at 10 n.5.) 

Case 1:22-cv-23938-RNS Document 31 Entered on FLSD Docket 02/10/2023 Page 2 of 6
must compel arbitration if (1) the “plaintiff entered into a written arbitration 

agreement that is enforceable ‘under ordinary state-law’ contract principles” and 

(2) the “claims before the court fall within the scope of that agreement.” See 

Lambert v. Austin Ind., 544 F.3d 1192, 1195 (11th Cir. 2008) (quoting 9 U.S.C. 

§§ 2–4). Any party resisting arbitration must establish that “the claims at issue 

are unsuitable for arbitration.” Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 91 

(2000). And any “‘questions of arbitration must be addressed with a healthy 

regard for the federal policy favoring arbitration.’” Gilmer, 500 U.S. at 26 (quoting 

Moses, 460 U.S. at 24). Ultimately, “the party resisting arbitration bears the 

burden of showing that the arbitration provision is invalid or does not encompass 

the claims at issue.” Id. 

The standard by which courts are to review motions to compel arbitration is 

similar to the standard for summary judgment. Bazemore v. Jefferson Cap. Sys., 

LLC, 827 F.3d 1325, 1333 (11th Cir. 2016). “[A] district court may conclude as a 

matter of law that parties did or did not enter into an arbitration agreement only if 

“there is no genuine dispute as to any material fact” concerning the formation of 

such an agreement. Id. (citing Fed. R. Civ. P. 56(a)).] Importantly, “conclusory 

allegations without specific supporting facts have no probative value for a party 

resisting summary judgment.” Id. 

Federal Rule of Civil Procedure 8(a) requires “a short and plain statement of 

the claims” that “will give the defendant fair notice of what the plaintiff's claim is 

and the ground upon which it rests.” Fed. R. Civ. P. 8(a). The Supreme Court has 

held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does 

not need detailed factual allegations, a plaintiff's obligation to provide the 

‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, 

and a formulaic recitation of the elements of a cause of action will not do. Factual 

allegations must be enough to raise a right to relief above the speculative level.” 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up). 

“To survive a motion to dismiss, a complaint must contain sufficient factual 

matter, accepted as true, to state a claim to relief that is plausible on its face.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). “A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged.” 

Id. Thus, “only a complaint that states a plausible claim for relief survives a 

motion to dismiss.” Id. at 679. When considering a motion to dismiss, the Court 

must accept all of the plaintiff’s allegations as true in determining whether a 

plaintiff has stated a claim for which relief could be granted. Hishon v. King & 

Spalding, 467 U.S. 69, 73 (1984). 

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3. Analysis

A. The Majority of the Plaintiffs’ Claims Must Be Compelled to 

Arbitration

The Court finds that the Arbitration Plaintiffs’ claims must be compelled to 

arbitration. First, the Arbitration Plaintiffs are subject to valid arbitration 

agreements that they each accepted by signing the agreements or by commencing 

work after being provided with the agreements. Second, FLSA claims are subject 

to arbitration—nothing in the FLSA overcomes the FAA’s policy of favoring valid 

arbitration agreements. The Defendants have provided sufficient evidence to meet 

their burden of demonstrating that arbitration must be compelled for the 

Arbitration Plaintiffs. Bazemore, 827 F.3d at 1333; (First Decl. of S. Tuisaula ¶ 6, 

Exs. 1-54; Second Decl. of S. Tuisaula ¶ 6, Exs. 1-2). The Plaintiffs provide no 

evidence in rebuttal, so the Court finds that there is no genuine dispute of 

material fact as to the applicability of the arbitration agreements at issue. (First 

Resp. at 2-6; Second Resp. at 2-6.)

To determine whether a dispute must be arbitrated under the FAA, courts 

consider two prongs: “(1) whether the parties agreed to arbitrate the dispute, and 

(2) whether legal constraints external to the parties’ agreement foreclosed 

arbitration.” Cheshire, 382 F. Supp. 3d at 1332 (citing Klay v. All Defendants, 389 

F.3d 1191, 1200 (11th Cir. 2004)) (cleaned up). 

1. The Arbitration Plaintiffs Signed or Otherwise Accepted the Terms 

of Arbitration Agreements

The first prong of this requirement is simple to satisfy for most of the 

Arbitration Plaintiffs: the Defendants have provided signed contracts, which 

contain an arbitration agreement. (First Decl. of S. Tuisaula ¶ 6, Exs. 1-54; 

Second Decl. of S. Tuisaula ¶ 6, Exs. 1-2.) The Plaintiffs do not challenge the 

validity of these agreements or the arbitration provisions contained within them. 

(First Resp. at 2-6; Second Resp. at 2-6.) Accordingly, every Arbitration Plaintiff 

that signed the arbitration agreement agreed to arbitrate any disputes with the 

Defendants. Cheshire, 382 F. Supp. 3d at 1332. 

Some of the Arbitration Plaintiffs, however, did not sign the contracts that 

the Defendants provided them. Nevertheless, each of the Arbitration Plaintiffs

received a copy of the arbitration agreement and performed work for the 

Defendants after receiving those agreements. (First Decl. of S. Tuisaula ¶ 6; 

Compl. ¶¶ 73-75.) Because the Arbitration Plaintiffs commenced working for the 

Defendants after receiving the arbitration agreements, the Arbitration Plaintiffs 

accepted the terms of those agreements by performance. Sundial Partners, Inc. v. 

Atl. St. Cap. Mgmt. LLC, No. 8:15-CV-861-T-23JSS, 2016 WL 943981, at *4 (M.D. 

Fla. Jan. 8, 2016), report and recommendation adopted, No. 8:15-CV-861-TCase 1:22-cv-23938-RNS Document 31 Entered on FLSD Docket 02/10/2023 Page 4 of 6
23JSS, 2016 WL 931135 (M.D. Fla. Mar. 11, 2016) (“Under Florida law, assent 

can be manifested in several ways, including by the acts, conduct, words, or 

performance of the party.”) (citations omitted). Accordingly, each of the 

Arbitration Plaintiffs agreed to arbitrate their current employment disputes. 

2. No Legal Constraints Prevent the Enforcement of the Arbitration 

Agreements 

 The second prong of the Court’s analysis is also satisfied—there are no legal 

constraints to the enforcement of the arbitration agreements at issue. The 

Plaintiffs raise two arguments against enforceability: first, they argue the 

Defendants waived their right to arbitrate by litigating other employment disputes 

with other plaintiffs in other cases, and second, the Plaintiffs argue that the 

FLSA’s purpose would be at odds with arbitration. Neither point is supported by 

Eleventh Circuit law. 

 First, a litigant’s decision to enforce or waive an arbitration agreement with 

other parties has no bearing on the Court’s analysis of waiver here. See Gutierrez 

v. Wells Fargo Bank, NA, 889 F.3d 1230, 1238-39 (11th Cir. 2018) (reversing 

district court’s order that would have required the defendant to either “move to 

arbitrate claims not yet brought or else waive” those claims because the 

defendant could not move to arbitrate claims that were not yet present in the case 

and had reserved its right to later assert them); see also Grigsby & Assocs., Inc. v. 

M Sec. Inv., 635 F. App'x 728, 732 (11th Cir. 2015) (holding that “the fact that 

[the apellee] filed a malpractice suit against its former counsel [a third party] for 

failing to diligently prosecute its claims does not demonstrate that it waived its 

right to arbitration.”).3 The Defendants’ conduct in other cases, with other 

parties, to other arbitration agreements, is not relevant to a determination of 

whether the Defendants have waived the right to arbitrate these claims. Because 

the Plaintiffs present no other argument for waiver, the Court finds the 

Defendants have not waived their right to arbitrate under the agreements. 

 Second, FLSA’s purpose and right of collective action does not override the 

Defendants’ rights to arbitrate consistent with the terms of the arbitration 

agreements. In fact, the Eleventh Circuit has held “that the text of FLSA § 16(b) 

does not set forth a non-waivable substantive right to a collective action.” 

Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326, 1335 (11th Cir. 2014). 

Because FLSA’s collective action right is waivable, the FLSA “does not contain the 

3 The Supreme Court has since abrogated Grigsby by holding that prejudice to the party against 

whom an arbitration agreement is to be enforced is not a valid consideration in determining 

whether the enforcing party has waived the right to arbitrate. Morgan v. Sundance, Inc., 142 S. Ct. 

1708, 1712-13 (2022). In other words, prejudice to the Plaintiffs here is irrelevant. All that matters 

is whether the Defendants have waived their rights to arbitrate these specific claims. They have 

not. 

Case 1:22-cv-23938-RNS Document 31 Entered on FLSD Docket 02/10/2023 Page 5 of 6
requisite contrary congressional command sufficient to override the FAA.” Id.

Accordingly, the Arbitration Plaintiffs’ claims here are still subject to the terms of 

the arbitration agreements they accepted. The Court therefore finds that there is 

no genuine dispute of material fact or legal constraints preventing the Arbitration 

Plaintiffs from being compelled to arbitrate their claims here. 

B. The Complaint Is a Shotgun Pleading 

Additionally, the Court finds that the complaint is a prototypical shotgun 

pleading, as the Eleventh Circuit identified in Weiland v. Palm Beach County 

Sheriff’s Office. 792 F.3d 1313, 1323 (11th Cir. 2015) (“The most common type [of 

shotgun pleading]—by a long shot—is a complaint containing multiple counts 

where each count adopts the allegations of all preceding counts, causing each 

successive count to carry all that came before and the last count to be a 

combination of the entire complaint.”). The complaint commits this fatal error, 

incorporating “each of the paragraphs above” in Count II, thereby incorporating 

Count I into Count II. (Compl. ¶ 92.) As such, the Court must dismiss the 

complaint with regards to those Plaintiffs (namely, Plaintiffs Mondesir and 

Harvey-Drake) who did not have arbitration agreements with the Defendants. 

4. Conclusion

For the reasons stated above, the Court grants the Defendants’ motions to 

compel arbitration with regards to the Arbitration Plaintiffs. (ECF Nos. 15, 27.)

The parties are compelled to submit the claims at issue to arbitration. The 

Arbitration Plaintiffs’ claims are therefore dismissed with prejudice. With 

regards to Plaintiffs Mondesir and Harvey-Drake, the Court grants the 

Defendants’ motions to dismiss (ECF No. 15) and dismisses those Plaintiffs’ 

claims without prejudice. The Clerk is directed to close this case. Any pending 

motions are denied as moot.

Done and ordered in Miami, Florida, on February 10, 2023.

________________________________

Robert N. Scola, Jr.

United States District Judge

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