UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 1:22-cv-23938-SCOLA/GOODMAN 

BARBARA ALEXIS et al., 

Plaintiffs, 

v. 

NOMI HEALTH, INC, a Delaware 

Corporation, and MEDX STAFFING INC., a 

Utah Corporation, 

Defendants. 

DEFENDANTS NOMI HEALTH, INC. AND MEDX STAFFING, INC.’S MOTION TO 

COMPEL ARBITRATION OF SHAREKA HUMPHERY-PACE’S AND JORGE 

GUILLERME’S CLAIMS OR, IN THE ALTERNATIVE TO DISMISS THEM UNDER 

RULE 12(B)(6) 

I. INTRODUCTION 

Opt-in Plaintiffs Shareka Humphery-Pace and Jorge Guillerme entered into Independent 

Contractor Agreements (“ICAs”) that contain independently enforceable and binding arbitration 

provisions precluding their participation in this action. Much like the fifty-four Arbitration 

Plaintiffs discussed in Defendants’ prior motion to compel (Dkt. 15), Humphery-Pace and 

Guillerme have joined this lawsuit in breach of those agreements. Like those prior individuals, 

Humphery-Pace and Guillerme must be held to their agreements and be required to litigate their 

claims, if at all, in individual arbitrations. And like those prior individuals, even were they 

somehow able to avoid their binding arbitration agreements (they are not), their claims still must 

be dismissed because the operative Complaint in this action fails to plead facts plausibly showing 

that they were employees or that either Defendant was their employer. For those reasons, which 

will be discussed in greater detail below, Humphery-Pace and Guillerme must be compelled to 

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individually arbitrate their claims or, alternatively, their claims must be dismissed under Rule 

12(b)(6). 

II. HUMPHERY-PACE AND GUILLERME MUST INDIVIDUALLY ARBITRATE 

THEIR CLAIMS 

A. Standard of Review for Motions to Compel Arbitration 

Motions to compel arbitration are reviewed under “a summary judgment-like standard.” 

Bazemore v. Jefferson Cap. Sys., LLC, 827 F.3d 1325, 1333 (11th Cir. 2016). Once a defendant 

presents evidence that a plaintiff entered into an agreement to arbitrate, the plaintiff must 

demonstrate a “genuine dispute . . . concerning the formation of such an agreement” if intending 

to challenge enforceability. Id. A dispute is not genuine “if it is unsupported by the evidence or is 

created by evidence that is ‘merely colorable’ or ‘not significantly probative.’” Id. (quoting Baloco 

v. Drummond Co., 767 F.3d 1229, 1246 (11th Cir. 2014)). “[C]onclusory allegations without 

specific supporting facts have no probative value” in resisting a motion to compel arbitration. Id.

(quoting Leigh v. Warner Bros., 212 F.3d 1210, 1217 (11th Cir. 2000)). “As a result of the wellestablished federal policy favoring arbitration, the burden is on the party opposing arbitration to 

prove to the court that arbitration is improper.” Kozma v. Hunter Scott Fin., L.L.C., No. 09-cv80502-KAM-LRJ, 2010 WL 724498, at *2 (S.D. Fla. Feb. 25, 2010). 

B. Humphery-Pace and Guillerme Must Be Held to Their Binding, Enforceable 

Arbitration Agreements. 

Humphery-Pace and Guillerme currently assert claims against MedX and Nomi on the 

theory that they were “joint employers.” (Dkt. 1 ¶ 67.) MedX contracted with each individual 

through an ICA. (Second Declaration of Sariah Tuisaula (“Second Tuisaula Decl.”) ¶¶ 5–6 & Exs. 

A-1 & A-2.) Under the ICA, MedX engaged each individual to perform the respective services 

that now allegedly give rise to their claims. (Id.; see also Dkt. 1 ¶ 3.) The ICA also includes an 

arbitration provision, which states: 

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Any controversies arising out of the terms of this Agreement or its interpretation shall be 

settled in an arbitration venue chosen by both parties in accordance with the rules of the 

American Arbitration Association, and the judgment upon award may be entered in any 

court having jurisdiction. 

(ICA at 6.) 

Both the Federal Arbitration Act1 and the Florida Arbitration Act2 embody a strong policy 

favoring the enforcement of arbitration agreements. Walthour v. Chipio Windshield Repair, LLC, 

745 F.3d 1326, 1329 (11th Cir. 2014) (Federal Arbitration Act); 13 Parcels LLC v. Laquer, 104 

So. 3d 377, 380 (Fla. 3d DCA 2012) (Florida Arbitration Act). When reviewing a motion to compel 

arbitration, courts consider three factors, “1) [w]hether there is a valid, written agreement to 

arbitrate; 2) [w]hether there is an arbitrable issue; and 3) [w]hether the right to arbitrate was 

waived.” Booth v. S. Wine & Spirits of Am., Inc., No. 14-22357-CIV, 2014 WL 5523123, at *2 

(S.D. Fla. Oct. 31, 2014). Each of these considerations, which will be discussed below, requires 

that the Humphery-Pace’s and Guillerme’s claims be sent to individual arbitration. 

1. Humphery-Pace and Guillerme Entered into Valid Arbitration Agreements. 

To start, Humphery-Pace and Guillerme entered into valid, written agreements to arbitrate. 

Courts generally apply ordinary state law principles that govern contract formation when 

determining whether a valid agreement to arbitrate exists. De Pombo v. IRINOX N. Am., Inc., 

No. 20-CV-20533, 2020 WL 2526499, at *5 (S.D. Fla. May 18, 2020). Here, and HumpheryPace’s and Guillerme’s agreements provide that they are governed by Florida law. (ICA at 6 

[“Choice of Law”].) 

1

 It cannot be disputed that activities aimed at preventing the spread of the COVID-19 disease 

“affect” interstate commerce, such that the Federal Arbitration Act applies. In fact, Plaintiffs admit 

that “Nomi Health, Inc. and Med[X] Staffing Inc. are engaged in activities that relate to and involve 

interstate commerce.” (Dkt. 1 ¶ 70.) 

2

 The Court need only address enforceability under the Florida Arbitration Act if arbitration is not 

compelled under the Federal Arbitration Act. However, arbitration is required under both statutes. 

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“In Florida, a valid contract requires offer, acceptance, consideration and sufficient 

specification of essential terms.” De Pombo, 2020 WL 2526499, at *5. Assent can be manifested 

in several ways, including by the acts, conduct, words, or performance of the party. Fi–Evergreen 

Woods, LLC v. Robinson, 135 So.3d 331, 336 (Fla. 5th DCA 2013); Consol. Res. Healthcare Fund 

I, Ltd. v. Fenelus, 853 So.2d 500 (Fla. 4th DCA 2003). 

In the case of arbitration provisions, they are to be treated as separate contracts as a matter 

of law—even when contained in a broader agreement (such as an ICA). See John B. Goodman LP 

v. THF Constr., Inc., 321 F.3d 1094, 1097–98 (11th Cir. 2003) (holding that, because “arbitration 

clauses [are] separable from the contracts in which they [are] included,” the court must confine its 

validity analysis to the arbitration agreement itself). That is true under both the Federal Arbitration 

Act and the Florida Arbitration Code. Id. And it means that even if a plaintiff raises a challenge to 

the validity or enforceability of an ICA as a whole, that challenge is immaterial, as this Court is 

permitted only to consider challenges to the agreement to arbitrate specifically. See, e.g., Rent-aCenter W., Inc. v. Jackson, 561 U.S. 63, 70 (2010) (“[A] party’s challenge to another provision of 

the contract, or to the contract as a whole, does not prevent a court from enforcing a specific 

agreement to arbitrate.”); see also Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445 

(2006) (“[A]s a matter of substantive federal arbitration law, an arbitration provision is severable 

from the remainder of the contract.”). In other words, the ultimate question is simply: is there a 

valid agreement to arbitrate. 

MedX offered both Humphery-Pace and Guillerme the arbitration provisions by providing 

them for signature. (ICA at 7.) Both Humphery-Pace and Guillerme accepted their respective 

offers—and demonstrated their assent and intent to be bound—by affixing their signatures to each 

documents and by working after receiving the same. (Second Tuisaula Decl. ¶ 6 Exs. A1 & A-2; 

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see also, e.g., De Pombo, 2020 WL 2526499, at *6 (holding that a plaintiff’s signature after an 

agreement was provided by the defendant established acceptance); Sundial Partners, Inc. v. A. St. 

Capital Mgt. LLC, 8:15-CV-861-T-JSS, 2016 WL 943981, at *3–4 (M.D. Fla. Jan. 8, 2016) 

(collecting cases finding acceptance of an agreement through performance, and determining that 

plaintiff's continued performance after receipt of the agreement demonstrated assent to the 

arbitration provision in that agreement).) Moreover, the agreements to arbitrate are supported by 

sufficient consideration in that (1) the arbitration obligations were mutual and (2) both HumpheryPace and Guillerme were permitted to, and did, work for MedX after entering into the agreements. 

See, e.g., Bhim v. Rent-A-Ctr., Inc., 655 F. Supp. 2d 1307, 1312–13 (S.D. Fla. 2009) (“Mutually 

binding promises to arbitrate provide consideration for one another, and give rise to an enforceable 

arbitration agreement. . . . [Plaintiff’s] continued employment . . . provided further consideration 

in support of the Arbitration Agreement.”). 

Finally, with respect to the element of “sufficient specification of essential terms,” and 

noting that the arbitration provision within the ICA is the proper focus, see John B. Goodman 

Limited Partnership, 321 F.3d at 1098, there can be no doubt that the Humphery-Pace’s and 

Guillerme’s agreements contain all of the elements necessary to form a binding agreement to 

arbitrate. 

Consequently, Humphery-Pace and Guillerme entered into enforceable arbitration 

agreements under Florida law. 

2. Humphrey-Pace’s and Guillerme’s Claims Are Arbitrable. 

Further, Humphery-Pace’s and Guillerme’s claims are arbitrable because (1) their claims 

all fall within the scope of the arbitration agreement, and any event, issues pertaining to scope 

must be resolved by an arbitrator, and (2) Defendants are entitled to enforce the agreements. 

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a. Issues of Scope Were Delegated to the Arbitrator for Determination, 

and in Any Event, the Claims Fall Within the Scope of the 

Agreements. 

To the extent there is any dispute as to whether the claims at issue fall within the scope of 

the arbitration provisions, the parties expressly delegated such issues to an arbitrator by 

incorporating the “rules of the American Arbitration Association.” (ICA at 6.) “[I]nitial 

determinations regarding an arbitration provision’s scope, existence, and validity are delegated to 

an arbitrator if the AAA rules are invoked . . . .” Alvarado v. Robo Enters., Inc., No. 6:15-cv-1420-

Orl-40KRS, 2016 WL 11566331, at *3 (M.D. Fla. June 2, 2016) (citing Terminix Int’l Co. v. 

Palmer Ranch Ltd. P’ship, 432 F.3d 1327, 1332 (11th Cir. 2005)). Thus, any disputes regarding 

the scope of the agreements must be resolved by arbitrators. 

Regardless, even if the Court had the power resolve the issue (and it does not), HumpheryPace’s and Guillerme’s claims are covered by their arbitration agreements. Specifically, the 

agreements provide that each agreed to arbitrate “[a]ny controversies arising out of the terms of 

this Agreement.” (ICA at 6.) Each ICA explicitly provides that it is the document under which 

MedX engaged each individual for services as an independent contractor—the classification 

Humphery-Pace and Guillerme now challenge and the services they now contend entitle them to 

overtime compensation under the FLSA. Such claims are plainly within the scope of the arbitration 

provision. 

b. Defendants are Entitled to Enforce the Agreements. 

Second, Defendants are entitled to enforce the agreements. Because the arbitration 

provisions cover “any controversies arising out of the terms of the [ICAs]” (ICA at 7), MedX, as 

a party to the Agreement (i.e., the offeror), may compel the claims against all Defendants to 

arbitration. See, e.g., Altenhofen v. S. Star Central Gas Pipeline, Inc., No. 4:20-cv-00030-JHM, 

2020 WL 6877575, at *5–8 (W.D. Ky. Nov. 23, 2020) (granting signatory’s motion to compel 

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claims against nonsignatory to arbitration when agreement was “broad enough to cover [the 

plaintiff’s] claim against [a nonsignatory]”); Snow v. Silver Creek Midstream Holdings, LLC, 467 

F. Supp. 3d 1168 (D. Wyo. Apr. 14, 2020) (similar). 

Further, even were MedX not able to compel the claims against Nomi to arbitration, Nomi 

is entitled to compel the claims to arbitration as a third party under Florida’s doctrine of equitable 

estoppel. Under that doctrine, third-party enforcement of an arbitration agreement is authorized in 

two circumstances: “First, equitable estoppel applies when the signatory to the contract relies on 

the terms of the contract to assert his or her claims against the non-signatory. . . . Second, equitable 

estoppel applies when the signatory raises allegations of concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.” Gunson v. BMO Harris Bank, N.A., 

43 F. Supp. 3d 1396, 1401 (S.D. Fla. 2014). 

Courts regularly apply the doctrine of equitable estoppel when a plaintiff has alleged FLSA 

claims against the “Defendants,” which included entities that were parties and nonparties to the 

agreement. Maldonado v. Mattress Firm, Inc., No. 8:13-CV-292-T-33AEP, 2013 WL 2407086, at 

*4 (M.D. Fla. June 3, 2013). Because such allegations “fail[] to distinguish between the actions of 

the Defendants in [plaintiff’s] FLSA Complaint,” they plainly require a conclusion of concerted 

misconduct warranting the application of equitable estoppel. Id. at *5, 7; see also Citi Cars, Inc. 

v. Cox Enters., Inc., No. 1:17-cv-22190-KMM, 2018 WL 1521770, at *11 (S.D. Fla. Jan. 22, 2018) 

(applying equitable estoppel when “each claim is lodged against all four Defendants without 

differentiation”).

Here, Humphery-Pace’s and Guillerme’s only basis for imputing liability to Nomi is 

through arguing that Nomi was her “joint employer[]” with MedX, and by imputing MedX’s 

alleged conduct (including the legal sufficiency of its classification and pay decisions) to Nomi. 

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(See Dkt. 1 ¶ 67.) In fact, Humphery-Pace’s and Guillerne’s argument, by necessary implication, 

is that MedX’s conduct—its alleged classification of them as independent contractors and failure 

to pay them overtime wages—is Nomi’s conduct. (See, e.g., Dkt. 1 at ¶¶ 4, 5, 79, 80, 86 (all 

referencing “Defendants” as a combined entity with a singular set of policies, pay practices, etc.).) 

Because Humphery-Pace’s and Guillerme’s claims against Nomi, if true, would plainly rest on 

“substantially interdependent and concerted misconduct” with MedX, Nomi is entitled to compel 

those claims to arbitration under the doctrine of equitable estoppel. See, e.g., Green v. Mission 

Health Communities, LLC, No. 3:20-cv-00439, 2020 WL 6702866, at *8 (M.D. Tenn. Nov. 13, 

2020) (holding that it would be “especially inequitable” to permit a plaintiff to avoid arbitration 

against a non-party to an agreement “when the plaintiff alleges joint employment” with a party to 

the agreement). Thus, each Defendant is entitled to compel the claims of Humphery-Pace and 

Guillerme to arbitration. 

3. Defendants Have Not Waived the Right to Arbitrate. 

Further, Defendants have not waived the right to arbitrate. The “heavy burden” of proving 

waiver lies with the Humphery-Pace and Guillerme, Krinsk v. SunTrust Banks, Inc., 654 F.3d 1194, 

1200 n.17 (11th Cir. 2011), and they have not asserted—and cannot assert—any plausible waiver 

argument whatsoever. That is particularly true where, as here, Defendants have moved to compel 

arbitration promptly after Humphery-Pace and Guillerme opted into this action. 

4. Arbitration Must Be Compelled on an Individual Basis, and HumpheryPace’s and Guillerme’s Claims Should Be Stayed. 

Finally, Defendants observe that Humphery-Pace and Guillerme must be separately

compelled to arbitrate their claims on an individual (not a joint or collective) basis. The agreements 

do not expressly permit multi-plaintiff, class, or collective arbitrations, which means that they are 

not allowed. See Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U. S. 662 (2010). “[C]ourts 

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may not confer consent to participate in class arbitration absent an affirmative ‘contractual basis 

for concluding that the party agreed to do so.’” Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1419 

(2019). Here, because no such agreement to a multi-plaintiff arbitration exists, Humphery-Pace 

and Guillerme must be compelled to arbitrate their claims individually. 

Further, after determining that a matter must be referred to arbitration a court “shall on 

application of one of the parties stay the trial of the action until such arbitration has been held in 

accordance with the terms of the agreement.” See, e.g., 9 U.S.C. § 3. Thus, this Court should stay 

this matter pending the resolution of the Humphery-Pace’s and Guillerme’s individual arbitrations. 

III. ALTERNATIVELY, SHAREKA-HUMPHERY’S AND GUILLERME’S CLAIMS 

SHOULD BE DISMISSED UNDER RULE 12(B)(6). 

To the extent either of Shareka-Humphery’s and Guillerme’s claims is not subject to 

arbitration, those claims must still be dismissed because they failed to plead any plausible FLSA 

claim under Rule 12(b)(6). Defendants have already detailed the pleading deficiencies of the 

Complaint in prior briefing. (Dkts. 15, 26.) Nevertheless, for the sake of completeness, Defendants 

restate the arguments below. 

A. Standard of Review for 12(b)(6) Motions 

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint 

must allege sufficient facts to state a claim for relief that is “plausible on its face.” That is, the 

“[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). This “requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555; 

accord Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (“Threadbare recitals of the elements of a cause 

of action, supported by mere conclusory statements, do not suffice.”). Mere “legal conclusions” 

are “not entitled to the assumption of truth.” Iqbal, 556 U.S. at 680. 

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B. The Complaint Failed to Plead Adequate Facts Establishing that HumpheryPace or Guillerme Were an “Employee” of Either Defendant Under the FLSA. 

As a threshold matter, a plaintiff can only assert a claim under the FLSA if she qualifies as 

an “employee” under the statute, and if her claims are asserted against an “employer.” See, e.g., 

Nieman v. National Claims Adjusters, Inc., 775 Fed. Appx. 622, 624 (11th Cir. 2019) (“The 

protections of the FLSA extend only to ‘employees.’ . . . The FLSA does not cover ‘independent 

contractors.’”); 29 U.S.C. 203(d)–(e) (defining “employer” and “employee”). The Complaint’s 

allegations fail on both fronts. First, it failed to include facts supporting a plausible inference that 

either Humphery-Pace or Guillerme an employee under the FLSA, as a matter of law. Second, it 

failed to include facts permitting a plausible inference that either Defendant was a joint employer 

of Humphery-Pace or Guillerme under the FLSA. 

1. The Complaint Failed to Include Facts Permitting an Inference that 

Humphery-Pace or Guillerme Were “Employees” Under the FLSA. 

As an initial matter, the Complaint failed to state plausible claims under the FLSA because 

it did not include allegations sufficient to permit an inference that Humphery-Pace and Guillerme 

were employees within the meaning of the FLSA. Historically, courts in the Eleventh Circuit have 

applied a six-factor economic-realities test to assess whether an individual is an employee or an 

independent contractor under the FLSA. Herrera v. Mattress Firm, Inc., No. 17-22048-CIV, 2017 

WL 4270619, at *7 (S.D. Fla. Sept. 26, 2017). That test looks to: 

(1) the nature and degree of the alleged employer’s control as to the manner in which 

the work is to be performed; 

(2) the alleged employee’s opportunity for profit or loss depending upon his managerial 

skill; 

(3) the alleged employee’s investment in equipment or materials required for his task, 

or his employment of workers; 

(4) whether the service rendered requires a special skill; 

(5) the degree of permanency and duration of the working relationship; [and] 

(6) the extent to which the service rendered is an integral part of the alleged employer’s 

business. 

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Id.

More recently, however, the U.S. Department of Labor—after a notice-and-comment 

period—enacted a rule defining independent contractor status under the FLSA.3See Independent 

Contractor Status Under the Fair Labor Standards Act, 86 Fed. Reg. 1168 (Jan. 7, 2021). Under 

the rule, courts first look to two core factors: “(i) [t]he nature and degree of control over the work” 

and “(ii) [t]he individual’s opportunity for profit or loss.” Id. at 1246–47. When those factors tilt 

toward the same classification that is generally the correct classification for the worker. Id. at 1246. 

When the factors tilt in opposite directions, a court should then look to “(i) [t]he amount of skill 

required for the work[;] . . . (ii) [t]he degree of permanence of the working relationship between 

the individual and the potential employer[; and] . . . (iii) [w]hether the work is part of an integrated 

unit of production.” Id. at 1247. 

For present purposes, the Court need not decide which standard governs the analysis 

because the Complaint failed to plead sufficient facts under either test. The Complaint repeatedly 

includes the conclusory assertion that “all employees [who] were misclassified as independent 

contractors by Defendants,” along with similarly unadorned assertions of “employment” (Dkt. 1 

¶¶ 1, 3, 6, 7, 22, 31, 38, 48, 51, 54, 58, 61, 73–74, 76, 78, 84, 94–95). But a bald claim that one is 

an employee—without facts plausibly supporting that legal conclusion under the applicable 

standard—is inadequate to survive a motion to dismiss. See, e.g., Davison v. Dos Amigos Taqueria 

LLC, No. 12-62515-CIV-DIMITROULEAS, 2013 WL 12131317, at *2 (S.D. Fla. June 20, 2013) 

(granting a motion to dismiss and holding that “Plaintiffs’ legal conclusion that [the defendant] 

was an employer of Plaintiffs under the FLSA and thus liable for the alleged FLSA violations” 

3

 Although the DOL subsequently attempted to withdraw the rule, that attempt was invalidated by 

a federal court, and the rule was thus effective as of March 8, 2021. See Coalition for Workforce 

Innovation v. Walsh, No. 1:21-CV-1302022-MAC, 2022 WL 1073346 (E.D. Tex. Mar. 14, 2022). 

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was “too vague and unsupported” to establish liability because it was “a mere recitation of the 

statutory language”); Derolf v. Risinger Bros. Transfer, Inc., 259 F. Supp. 3d 876, 879 (C.D. Ill. 

2017) (“It is not sufficient to simply say one is an employee; indeed, mere labels and formulaic 

language are not enough to satisfy the pleading requirements of Federal Rule of Civil Procedure 

8(a).”). 

Despite that an adequate Complaint requires facts plausibly showing that Humphery-Pace 

and Guillerme were employees under one of the multi-factor tests outlined previously, the 

Complaint failed to address any of those factors.4 The Complaint included no allegations as to 

control, opportunities for profit or loss, permanence, investment in equipment or materials, skill, 

or integrality for Humphery-Pace or Gullerme. It thus did not plead facts that permit a plausible 

conclusion that either was an employee, as a matter of law. Because the Complaint did not include 

any facts regarding these independent elements, it failed to state a plausible FLSA claim, and those 

claims must be dismissed. See, e.g., Luxama v. Ironbound Express, Inc., No. 11-2224 (ES), 2013 

WL 3286081, at *3–8 (D.N.J. June 27, 2013) (granting a motion to dismiss when Plaintiff failed 

to plead adequate facts to suggest employment under the economic reality factors); Derolf, 259 F. 

Supp. 3d at 879–84 (same). 

2. The Complaint Is a Shotgun Pleading that Failed to Plead Adequate Facts 

to Suggest that Nomi Was a Joint Employer Under the FLSA. 

The Complaint also does not include facts supporting that either Defendant qualifies as a 

joint employer of Humphery-Pace or Guillerme, as a matter of law. As an initial matter, the 

Complaint is an impermissible shotgun pleading in at least two respects. First, it committed the 

4

 For the named plaintiffs, the Complaint does provide dates of supposed “employment,” which 

bears on the permanence factor (albeit not, in all instances, as indicative of employment, as 

alleged). (Dkt. 1 ¶ 76.) However, the Complaint contains no such allegations as to Humphery-Pace 

or Guillerme. 

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“mortal sin” of including “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.” Weiland v. Palm Bach Cty. Sheriff’s Office, 792 F.3d 1313, 

1323 (11th Cir. 2015); see also Dkt. 1 ¶¶ 82, 92 (“repeat[ing] and re-alleg[ing] each of the 

paragraphs above” in each count). Second, it committed the “sin of asserting multiple claims 

against multiple defendants without specifying which of the defendants are responsible for which 

act or omissions.” Weiland, 792 F.3d at 1323. Indeed, although the Complaint purported to assert 

counts against each Defendant separately, every factual allegation in each count referred to 

“Defendants” collectively, without specifying what each Defendant allegedly did individually. 

Based on that pleading deficiency alone, which would preclude any individualized assessment of 

joint employment as to each Defendant at the pleading stage, all claims must be dismissed. 

But even were the shotgun-pleading problem ignored (and it should not be), the Complaint 

remains deficient because the facts that have been alleged—albeit in shotgun fashion—still fail to 

support the conclusion that Nomi was Humphery-Pace’s or Guillerme’s joint employer. In 

determining whether a defendant qualifies as a joint employer as a matter of law, courts look to 

the alleged joint employer’s (1) nature and degree of control over the plaintiff; (2) supervision, 

direct or indirect, of the plaintiff’s work; (3) right, directly or indirectly, to hire, fire, or modify 

employment conditions; (4) power to set pay rates or methods; (5) preparation of payroll and 

payment of the plaintiff’s wages; (6) ownership of the facilities where the work occurred; (7) 

nature of the business, including whether the plaintiff’s work is integral to it; and (8) relative 

investment in equipment and facilities. Layton v. DHL Express (USA), Inc., 686 F.3d 1172, 1178–

81 (11th Cir. 2012). 

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Apart from the allegation that “Defendants” paid Plaintiffs, the Complaint addressed not 

one of the other factors outlined above. Thus, the claim against Nomi is inadequately pled and 

must be dismissed. See e.g., Lesnik v. Eisenmann SE, 374 F. Supp. 3d 923, 945–46 (N.D. Cal. 

2019) (dismissing FLSA claims in part due to the lack of allegations in support of joint 

employment factors); Steier v. Highland Operating Co., No. 4:16-CV-3184-RGK, 2017 WL 

384295 (D. Neb. 2017) (dismissing FLSA claims where plaintiffs complaint did not “include facts 

describing the ‘economic reality’ of the plaintiff’s employment”); Attanasio v. Community Health 

Sys., Inc., 863 F. Supp. 2d 417, 425 (M.D. Penn. 2012) (dismissing FLSA claims where plaintiffs 

pleadings were “boilerplate” and “omit[ed] particularized assertions explaining the specific role” 

an alleged parent corporation played in regard to the plaintiffs); Al-Quraan v. 4115 8th St. NW, 

LLC, 113 F. Supp. 3d 367, 370 (D.D.C. 2015) (dismissing FLSA claims where there were no 

allegations related to purported employer’s involvement in managing employee work schedules or 

conditions of employment, maintaining employment records, or firing/hiring power); Jones v. Am. 

Airlines, Inc., No. 5:08-CV-236-BR, 2008 WL 9411160 (E.D.N.C. 2008) (dismissing FLSA 

claims where plaintiffs failed to sufficiently allege that entity was their joint employer). 

IV. CONCLUSION 

For the reasons articulated above, Defendants MedX and Nomi respectfully request that 

the Court compel Humphery-Pace and Guillerme to individual arbitrations and stay their claims, 

pending resolution of the same. Alternatively, the Court should dismiss the action pursuant to Rule 

12(b)(6) due to it shotgun nature and inadequate allegations concerning statutory “employment.” 

CERTIFICATION OF PRE-FILING CONFERENCE 

In accordance with Local Rule 7.1(a)(3), Defendants’ counsel certifies that it emailed all 

counsel for Plaintiffs on January 19, 2023, who subsequently confirmed their opposition to the 

motion to compel arbitration. Defendants note that their alternative motion to dismiss for failure 

Case 1:22-cv-23938-RNS Document 27 Entered on FLSD Docket 01/23/2023 Page 14 of 15
15 

to state a claim is expressly exempted from the pre-filing conference requirement of Local Rule 

7.1(a)(3). 

Respectfully submitted this 23rd day of January 2023. 

By: /s/ Andrew M. McKinley 

Andrew M. McKinley

Florida Bar No. 122069 

SEYFARTH SHAW LLP

1075 Peachtree Street, N.E.

Suite 2500

Atlanta, GA 30309-3958 

Telephone: (404) 885-1500 

Facsimile: (404) 892-7056 

amckinley@seyfarth.com

Attorney for Defendant Nomi Health, Inc. and 

MedX Staffing, Inc.

Case 1:22-cv-23938-RNS Document 27 Entered on FLSD Docket 01/23/2023 Page 15 of 15