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’ CORRECTED 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.

CERTIFICATE OF GOOD FAITH

Defendants hereby certify that their counsel conferred with Plaintiff’s counsel regarding

the relief sought in this Motion on April 27, 2023 via email. Plaintiff’s counsel has advised that 

Plaintiff does object to the relief sought.

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/ Roman Sarangoulis

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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