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 REQUEST 

FOR RELIEF IN COUNT I OF THE THIRD AMENDED COMPLAINT 

SEEKING DECLARATION THAT DEFENDANTS WILLFULLY VIOLATED 

THE FLSA’S MINIMUM WAGE PROVISION AND REQUEST FOR RELIEF IN 

COUNT II SEEKING RECOVERY OF ALL TIPS 

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 I of the Third Amended Complaint alleges a violation of the Fair Labor 

Standard Act’s (FLSA) section prohibiting employers from unlawfully retaining tips. (See ECF 

No. 122, ¶¶ 37-79). 

3. 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). 

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4. Counts I and II of the Third Amended Complaint contain claims for relief and 

allegations that are immaterial to the causes of action alleged. 

5. The “Wherefore” clause of Count I seeks a declaration that Defendants are in 

“willful violation of the minimum wage provision of the FLSA[.]” That claim for relief is 

immaterial because a tip confiscation claim, and minimum wage claim are different causes of 

action under the FLSA. Additionally, the claim for relief at issue is immaterial because Count I 

does not allege a violation of the FLSA’s minimum wage provision. 

6. 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 

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,” 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. 

7. Based on 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). 

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A. Subparagraph (i) of Count I’s “Wherefore” Clause Must be Stricken 

Count I of the Third Amended Complaint is a “Tip Confiscation” claim brought pursuant 

to the FLSA. (ECF No. 122 ¶¶ 37-79). A “tip confiscation” claim is a distinct and separate cause 

of action from a minimum wage claim under the FLSA. See 29 U.S.C. 216(b); see also Rodriguez 

v. City Buffet Mongolian Barbeque Inc., No. 8:18-cv-2745-T-60CPT, 2020 U.S. Dist. LEXIS 

84823, at *11–12 (M.D. Fla. Apr. 22, 2020) report and recommendations adopted, 2020 U.S. Dist. 

LEXIS 34187, at *1–2 (M.D. Fla. May 13, 2020) (analyzing plaintiff’s minimum wage claim as a 

separate cause of action from his anti-tip retention claim under 29 U.S.C. § 203(m)(2)(B)). The 

cause of action for an alleged FLSA “tip confiscation” claim is stated as follows: 

Any employer who violates section 203(m)(2)(B) of this title shall 

be liable to the employee or the employees affected in the amount 

of the sum of any tip credit taken by the employer and all such 

tips unlawfully kept by the employer, and in an additional equal 

amount as liquidated damages. 

29 U.S.C. § 216(b) (emphasis added). The cause of action for an alleged FLSA minimum wage 

violation is separately stated as follows: 

Any employer who violates the provisions of section 206 or section 

207 of this title shall be liable to the employee or employees affected 

in the amount of their unpaid minimum wages, or their unpaid 

overtime compensation, as the case may be, and in an additional 

equal amount as liquidated damages. 

29 U.S.C. § 216(b) (emphasis added). Moreover, none of the allegations in Count I allege that 

Defendants violated the FLSA’s minimum wage provision or otherwise claim that Plaintiff was 

paid less than the applicable federal minimum wage. (Id.). As a result, Plaintiff’s request for a 

declaration finding Defendants in “willful violation of the minimum wage provision of the FLSA” 

is immaterial to Count I and must be stricken. 

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B. 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 

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 

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“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 

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) subparagraph “i” of Count I’s “Wherefore” clause; (ii) 

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

“Wherefore” clause; (iii) 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;” (iv) awarding Defendants their reasonable attorney fees and costs for having to litigate 

this issue; and (v) granting Defendants any other relief this Court deems just and proper. 

Dated: April 26, 2023 

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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

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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