UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

CASE NO. 1:22-CV-23074-BLOOM/Torres 

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’ MOTION FOR SANCTIONS PURSUANT TO 28 U.S.C. § 1927 

AND THE COURT’S INHERENT POWER AGAINST BRIAN POLLOCK, ESQ., 

AND FAIRLAW FIRM WITH SUPPORTING MEMORANDUM OF LAW 

Defendants, 450 North River Drive, LLC, d/b/a Kiki on the River (“Kiki”), RJ River LLC 

(RJ), and Roman Jones (“Mr. Jones”) (collectively “Defendants”), by and through their respective 

undersigned counsel, and pursuant to 28 U.S.C. § 1927 and the Court’s inherent power, hereby file 

this Motion for Sanctions against FairLaw Firm (“the Firm”) and Brian Pollock, Esq., (“Mr. 

Pollock”) (collectively “Plaintiff’s Counsel”), and state as follows in support thereof: 

PRELIMINARY STATEMENT 

Plaintiff’s Counsel has acted in bad faith throughout this litigation. Plaintiff’s Counsel has 

filed multiple complaints with frivolous claims that have multiplied the proceedings in this case 

and required Defendants to incur unnecessary attorneys’ fees and costs exceeding $300,000. 

Plaintiff’s Counsel knew, or should have known, that he was engaging in vexatious litigation 

because Plaintiff’s sworn testimony and/or interrogatory answers confirm that (1) Plaintiff 

received all cash tips that were left by Kiki’s customers, (2) he was paid all credit card tips that 

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Kiki processed through its point of sale (POS) system, (3) he was paid minimum wage during the 

applicable statutory period of his employment with Kiki, (4) he has no knowledge of Kiki’s POS 

system being manipulated as it relates to tips, and (5) he did not understand the difference between 

a service charge and a tip until his deposition. 

Plaintiff’s Counsel should have been able to determine from the outset of this case that 

Plaintiff did not have any viable claims. A simple conversation with Plaintiff would have revealed 

the information that Plaintiff provided in his interrogatory answers and testified to at his deposition 

on December 12, 2023. However, Plaintiff’s Counsel tried to orchestrate a “hit and run” by 

frivolously demanding nearly $19,000,000 in his Florida Minimum Wage Act (FMWA) pre-suit 

written communication and then moving to withdraw from the case approximately one month after 

discovery contradicted the meritless allegations. Further, Plaintiff’s Counsel stonewalled 

Defendants from obtaining the written discovery they requested for months, which is the only 

reason a Rule 11 motion was not served prior to December 20, 2023. 

Accordingly, Defendants respectfully request that the Court enter an Order granting their 

motion for sanctions pursuant to 28 U.S.C. § 1927 (“Section 1927”) and/or the Court’s inherent 

power in the form of directing the Firm and Mr. Pollock to pay all the reasonable attorneys’ fees 

and expenses Defendants incurred litigating the frivolous claims. 

FACTUAL AND PROCEDURAL HISTORY 

1. Plaintiff’s Counsel filed a one count Complaint on September 23, 2022, claiming a 

violation of the Fair Labor Standards Act (FLSA) based on Defendants allegedly unlawfully 

retaining and/or distributing tips. [ECF No. 1]. Defendants filed an answer denying the allegations 

of unlawful conduct and liability. [ECF No. 27]. 

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2. Plaintiff’s Counsel then filed a Statement of Claim on October 13, 2022, alleging 

Plaintiff was entitled to $174,000.00 in unpaid tips, and opt-in plaintiffs Yordan Acosta was owed 

$86,000.00 and Francis Taylor $45,000.00, which equaled a total of $305,000.00 in alleged unpaid 

tips. [ECF No. 10]. Thereafter, Plaintiff’s Counsel served Defendants with the FMWA required 

pre-suit written communication on November 10, 2022, claiming that the putative class was owed 

$18,928,000.00 in alleged unpaid tips. [See Plaintiff’s Minimum Wage Demand dated November 

10, 2022 (“the Demand”), attached as “Exhibit A”]. 

3. Plaintiff’s Counsel subsequently filed an Amended Complaint on December 7, 

2022, which attempted to allege FLSA claims to recover tips and federal minimum wages (Count 

I), FMWA claims that sought to recover Florida minimum wages and/or tips (Count II), and a 

Florida common law claim to recover tips (Count III). [ECF No. 40]. Defendants filed motions 

to dismiss the Amended Complaint asserting, among other arguments, that Count I and II failed to 

allege that Plaintiff was paid below the applicable federal and Florida minimum wage and that the 

FMWA does not create a cause of action to recover tips. [ECF No. 55 and 56]. 

4. Plaintiff’s Counsel did not contest Defendants’ motion to dismiss the Amended 

Complaint and instead opted to file a Second Amended Complaint that Defendants did not oppose. 

[ECF No. 57]. The Second Amended Complaint was filed on January 11, 2023, and again 

attempted to allege FLSA claims to recover tips and federal minimum wages (Count I), FMWA 

claims that sought to recover Florida minimum wages and/or tips (Count II), and a Florida common 

law claim to recover tips (Count III). [ECF No. 59]. 

5. Defendants filed a motion to dismiss the Second Amended Complaint and again 

asserted, among other arguments, that Count I and II failed to allege that Plaintiff was paid below 

the applicable federal and Florida minimum wage and that the FMWA does not provide a cause of 

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action to recover tips. [ECF No. 63]. The Court granted Defendant’s motion, in part, and 

dismissed the Second Amended Complaint without prejudice. [ECF No. 112]. Thereafter, on 

April 7, 2023, Plaintiff’s Counsel filed the Third Amended Complaint. [ECF No. 122]. 

6. Plaintiff’s Counsel alleged for the fourth time in the Third Amended Complaint 

that Defendants violated the FLSA by improperly retaining or failing to distribute tips. [ECF No. 

122]. Plaintiff’s Counsel also alleged for the third time in the Third Amended Complaint that 

Defendants violated the FMWA and Florida common law by improperly retaining or failing to 

distribute tips. [Id.]. 

7. The Third Amended Complaint falsely claimed that Plaintiff was paid a tip credit 

wage to support the FMWA claim. [Id.]. Specifically, Plaintiff’s Counsel alleged in the 

“Background Facts” section of the Third Amended Complaint that Defendants “either retained a 

portion of the tips and overtips collected (by failing to distribute all tips and overtips collected) 

and/or distributed portions of the tips and overtips to traditionally non-tipped employees (such as 

owners, officers, directors, partners, managers, or supervisors).” [Id. at ¶ 34]. Plaintiff’s Counsel 

goes on to allege in his FMWA claim that Defendants failed to pay minimum wage and violated 

the FMWA by paying a “tip credit” wage and “retaining a portion of the tips and/or overtips 

patrons left for their tipped employees and/or distributing such tips and/or overtips to traditionally 

non-tipped employees[.]” [Id. at ¶¶ 102, 111, 123]. It is important to note that Plaintiff’s Counsel 

claimed Plaintiff was paid a tip credit wage for the first time in the Third Amended Complaint 

because that was the only way he was able to establish an FMWA violation without expressly 

stating Plaintiff was paid less than the appliable minimum wage. 

8. Defendants worked diligently to obtain discovery from Plaintiff and the Opt-in 

Plaintiffs to rebut the allegations in the Third Amended Complaint. Specifically, Kiki served 

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Plaintiff and the Opt-in Plaintiffs with its first set of Discovery Requests on June 16, 2023. 

Plaintiff’s Counsel responded to these requests via email claiming he intended to seek a protective 

order to limit the amount of discovery Defendants could seek. In response, Defendants reduced 

the number of interrogatories to five substantive questions and the request to produce to ten. 

Nevertheless, Plaintiff’s Counsel continued to object even after the interrogatories and request to 

produce were significantly reduced. 

9. On September 6, 2023, the Parties attended a discovery hearing in which Magistrate 

Judge Otazo-Reyes required Plaintiff and the Opt-in Plaintiff’s to answer specific Interrogatories 

identified in her Order. [ECF No. 203]. Magistrate Judge Otazo-Reyes also ordered the Parties to 

work together to identify specific Request for Production that Plaintiff and the Opt-in Plaintiff’s 

would answer. [Id.]. 

10. Plaintiff’s Counsel appealed the September 6, 2023, Discovery Order and refused 

to work with Defendant’s Counsel to determine if any Request for Production could be answered 

claiming that they were waiting for the ruling on the appeal. [ECF No. 213]. The Court denied 

Plaintiff’s Counsel’s Appeal of the September 6, 2023, Discovery Order on November 20, 2023. 

[ECF No. 227]. 

11. Shortly thereafter, on November 27, 2023, the Parties attended another discovery 

hearing before Magistrate Judge Otazo-Reyes. [ECF No. 231]. There, Magistrate Judge OtazoReyes required Plaintiff to attend two deposition sessions for seven hours each. [Id.]. She further 

confirmed that Plaintiff’s testimony would be binding on him and all the Opt-in Plaintiffs on the 

specific topics Defendants identified. [Id.]. Moreover, Magistrate Judge Otazo-Reyes required 

Plaintiff and each Opt-in Plaintiff to respond to the specific Interrogatories and Request for 

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Production in the same manner she did through her September 6, 2023 Discovery Order. [Id.]. 

Plaintiff and the Opt-in Plaintiff’s responses were due on or before December 8, 2023. [Id.]. 

12. Magistrate Judge Otazo-Reyes expressed her displeasure with Plaintiff’s Counsel 

for taking no action on her September 6, 2023, Discovery Order because he filed an appeal by 

stating: 

The Court: I mean, I’m wondering, Mr. Pollock, why hasn’t the written discovery that 

was the subject of my order back in September been produced? 

Mr. Pollock: Your Honor, we received an order from Judge Bloom denying the appeal 

just a couple of days ago. 

The Court: So you were just sitting on it? 

Mr. Pollock: I mean, we have been working on it for Mr. Collado, but as far as the 

remainder, we were waiting for an order from Judge Bloom, which we just 

received. I can look at the date of when that came in, but I want to say that 

it was within the past couple of days. So as with any order, once the appeal 

is final, the order becomes final. So I can take a look, but I want to say that 

the paperless order came in on Monday of last week. So it's been like three 

working days since that order came in. 

The Court: All right. But you said you were working on it on the off-chance that Judge 

Bloom might think that I was correct? 

Mr. Pollock: I was working on it with respect to Mr. Collado, but we were waiting for 

the rest because I didn't want to go ahead and unnecessarily expend time or 

effort on other people, plus we don't have an agreement as to who those 

other representative people are going to be, which was the beginning of this 

hearing. So without a formula for determining who was going to be 

representative, I couldn't go ahead and do that. That's the other subject of this 

hearing, which is how we go ahead and who the people are that are going to 

respond to it. 

Mr. Velazquez: Your Honor -- 

The Court: And you are facing a discovery deadline of February when practically 

nothing has been done yet? 

Mr. Velazquez: Your Honor, if I may. Starting on October 11th, we sent our first request 

to confer about depositions and the requests for production. October 13th, 

we followed up. October -- 

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The Court: I'm sorry. It sounds like Mr. Pollock was just sitting waiting to see if Judge 

Bloom would give him a pass. 

[See Discovery Hearing Transcript dated November 27, 2023 (“Hrg. Tr.”) attached hereto 

as “Exhibit B” at 29:2-30:14]. 

13. On December 12, 2023, Defendants deposed Plaintiff for the first time. In the 

presence of Mr. Pollock and in the face of four complaints filed by his attorneys, Plaintiff testified 

in a representative capacity that cash tips were handled by the employee(s) who directly received 

the cash from the patron(s). [See Collado’s Deposition Transcript dated December 12, 2023 

(“Collado Dep.”) attached hereto as composite “Exhibit C” at 38:1-42:8, 46:11-47:21, 52:1-54:11, 

56:13-5, 59:2-22, 61:17-64:6, 66:9-67:16, 72:4-73:7, 74:14-76:9, 77:20-79:7]. Plaintiff also 

explained in a representative capacity that no employees ever gave cash tips to any employees who 

were prohibited from receiving tips, including Mr. Jones, Kiki’s owners or managers, or anyone 

employed with RJ. [Id.]. Since only tipped employees received and handled cash tips and Plaintiff 

admitted that none of the tipped employees gave their cash tips to anyone prohibited from receiving 

tips, Plaintiff’s Counsel’s claims in the Third Amended Complaint alleging Defendants improperly 

retained and/or distributed cash tips is entirely devoid of merit and frivolous. 

14. Similarly, Plaintiff testified that he received all the credit card tips that were left by 

Kiki’s customers. [Collado Dep. at 229: 8-14]. Specifically, Plaintiff testified as follows: 

Question: I’m not talking about service charges; I’m talking about discretionary credit 

card tips that were left by customers. Is it true, based on your testimony 

today [and] record exhibits that Kiki paid you all the credit card tips that 

were left by customers; is that true? 

Answer: Yes. Are we done here today? 

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[Id.]. Further, Plaintiff testified that all credit card tips were entered and processed through Kiki’s 

POS system and that he was unaware of Mr. Jones or anyone else manipulating the POS to 

unlawfully retain and/or distribute credit tips: 

Question: Did you ever see anyone from Kiki’s changing the customer tips that were 

inserted or inputted into Kiki’s POS? 

Answer: No. 

Question: Did you know of anybody in the class that ever witnessed anyone 

changing the customer tips that were inserted into Kiki’s POS? 

Answer: No. 

[Id. at 206:14-07:8]. Accordingly, Plaintiff’s Counsel’s claims in the Third Amended Complaint 

alleging Defendants improperly retained and/or distributed credit tips are also meritless and 

frivolous. 

15. Moreover, Plaintiff Counsel’s minimum wage claim under the FMWA is similarly 

devoid of merit and frivolous. Like the FLSA and Florida common law claims, the FMWA claim 

is negated entirely by Plaintiff’s testimony acknowledging receipt of all tips left by Kiki’s 

customers. Plaintiff’s acknowledgement confirmed that there was no tip credit violation to support 

the purported FMWA minimum wage claim as alleged in the Third Amended Complaint. As if 

that was not enough, Plaintiff provided a sworn interrogatory answer conveying that he was always 

paid an hourly rate that was above the Florida and federal minimum wage. Specifically, Plaintiff 

responded as follows to this interrogatory: 

Question: For each [week] of your employment during the 5 years prior to the filing 

of the initial Complaint through the present, do you contend that the 

combination of your hourly wage and the percentage of the service charge 

you were paid fell below the Florida or federal minimum wage? If the 

answer is yes, please state the week(s) at issue and the amount you contend 

fell below the Florida or federal minimum wage. 

Answer: No. 

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[See Plaintiff’s Responses to Defendant’s Request for Interrogatories (“Collado Interrogatory 

Answers”) attached hereto as “Exhibit D” at No. 6]. 

16. Finally, Plaintiff testified that throughout this entire litigation he did not understand 

the difference between a tip and service charge, which apparently resulted in him being confused 

about what money he alleged was unlawfully retained and/or distributed. Specifically, Plaintiff 

stated the following: 

Question: When did it occur to you that Ciro was referring to service charges as it 

relates to the $900,000 instead of credit card tips that were left by 

customers? When did that first come to you? 

Answer: I didn’t know – I didn’t understand that it was separate. I thought it was just 

one – one thing. Service charges, tips. It was all – it’s still one thing. I 

understand that service charges can be – the management can do whatever 

they want with it. I’m learning. I just learned that. 

Question: And when did you learn that management can do whatever they want with 

service charges? 

Answer: Today. 

[Collado Dep. at 223:22-24:10]. 

17. It is apparent from Plaintiff’s deposition testimony and interrogatory answer that 

he knew Defendants did not improperly retain or distribute tips and paid above the Florida 

minimum wage. It is also apparent that Plaintiff’s Counsel failed to properly investigate this case 

prior to filing the initial complaint and before filing the three amended complaints alleging facts 

that his client refuted during his sworn deposition and in his interrogatory answers. Plaintiff’s 

Counsel’s failure to inquire about this case with his client resulted in approximately fifteen months 

of unnecessary litigation and the expenditure of legal fees and costs that are in the six-figure range. 

18. When it became apparent that the record evidence did not support any of the claims 

Plaintiff’s Counsel presented in the Third Amended Complaint, or any prior complaint, Plaintiff’s 

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Counsel attempted to avoid responsibility for his vexatious litigation by withdrawing from the case 

claiming that he was discharged by Plaintiff. [ECF Nos. 233 and 235]. 

19. As sanctions for Plaintiff’s Counsel’s actions as previously described, Defendants 

respectfully request that the Court award Defendants the attorneys’ fees and other expenses for 

having to defend themselves against these objectively frivolous and bad faith claims. These fees 

and expenses should be awarded against the Firm and Mr. Pollock for litigating this case in bad 

faith from the outset. 

MEMORANDUM OF LAW 

I. Legal Standards 

A. Section 1927 

Section 1927 provides that “[a]ny attorney or other person admitted to conduct cases in 

any court of the United States or any Territory thereof who so multiplies the proceedings in any 

case unreasonably and vexatiously may be required by the court to satisfy personally the excess 

costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 

1927. Unlike Rule 11, Section 1927 does not have a safe harbor provision to allow an attorney to 

correct his or her frivolous filing before sanctions may be awarded. See id. Also, unlike Rule 11, 

Section 1927 is not primarily focused on frivolous pleadings. See Byrne v. Nezhat, 261 F.3d 1075, 

1106 (11th Cir. 2001). Instead, under Section 1927 attorneys are required “to avoid dilatory tactics 

throughout the entire litigation.” Id. 

An attorney violates Section 1927 when he or she acts in bad faith and multiplies a 

proceeding unreasonably. Dukes v. LVNV Funding, LLC, No. 6:21-cv-1342-GAP-DAB, 2023 

U.S. Dist. LEXIS 32680, *14 (M.D. Fla. Feb. 27, 2023), report and recommendations adopted at 

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2023 U.S. Dist. LEXIS 46453, *1 (M.D. Fla. March 20, 2023).1 Under Section 1927, “[b]ad faith 

is an objective standard that is satisfied when an attorney knowingly or recklessly pursues a 

frivolous claim.” Peer v. Lewis, 606 F.3d 1306, 1314 (11th Cir. 2010). Generally, courts have 

explained that the authority of the court to sanction attorneys under Section 1927 “is either broader 

than or equally as broad as the district court’s authority to issue a sanctions order under its inherent 

powers.” Amlong & Amlong, P.A. v. Denny’s Inc., 500 F.3d 1230, 1239 (11th Cir. 2006). 

B. The Court’s Inherent Power to Sanction 

“A district court has inherent powers to manage its affairs in order to achieve the orderly 

and expeditious disposition of cases.” Obukwelu v. Bd. of Trs. Fla. State. Univ., 837 Fed. Appx. 

686, 687 (11th Cir. 2020) (per curiam). Also, a district court may “impose sanctions for litigation 

misconduct under its inherent power.” Id. 

The inherent power of the court to sanction an attorney “is both broader and narrower than 

other means of imposing sanctions.” Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991). “The 

key to unlocking a court’s inherent power is a finding of bad faith.” Barnes v. Dalton, 158 F.3d 

1212, 1214 (11th Cir. 1998). Critically, “the inherent-powers standard is a subjective bad-faith 

standard.” Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1223 (11th Cir. 

2017). Generally, a “finding of bad faith is warranted where an attorney knowingly or recklessly 

raises a frivolous argument or argues a meritorious claim for the purpose of harassing an 

1

 Defendants note that “Section 1927 only applies to unnecessary filings after the lawsuit 

has begun and does not apply to initial pleadings.” Dukes, at 2023 U.S. Dist. LEXIS 32680, *14. 

Therefore, to the extent the Court grants Defendant’s Motion pursuant to Section 1927, Defendants 

are only seeking fees for Plaintiff’s Counsel’s conduct from December 7, 2022, through present as 

that is when the First Amended Complaint was filed. However, if the Court grants this Motion 

pursuant to its inherent power, Defendants request a complete recovery of its fees associated with 

defending itself against the meritless claims filed by Plaintiff’s Counsel, which includes the initial 

Complaint. 

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opponent.” Id. (quoting Primus Automotive Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th 

Cir. 1997). 

Critically, the court’s inherent powers are not limited by the Federal Rules of Civil 

Procedure, and they exist to fill interstices. Peer, 606 F.3d at 1314. For example, the Eleventh 

Circuit has stated that in situations such as this one, where an attorney files frivolous claims and 

withdraws from the case before discovery reveals the improper conduct, sanctions under the 

court’s inherent power are appropriate. Id. at 1315. Specifically, the Eleventh Circuit explained 

that “Rule 11 does not allow parties to protect themselves from ‘hit and run’ abuse of the judicial 

process[,]” which is exactly what has occurred in this case. Id. 

II. Argument 

As a preliminary matter, it is important to note that Plaintiff’s Counsel’s withdrawal from 

the case does not shield him from responsibility for the bad faith in which he initiated and litigated 

this case. Specifically, the Eleventh Circuit has authorized the imposition of sanctions against an 

attorney in a scenario where the motion for sanctions under Section 1927 and the Court’s inherent 

power was filed after the attorney withdrew from the case. See Peer v. Lewis, 606 F.3d 1306, 

1309-10 (11th Cir. 2010) (attorney subject to sanctions pursuant to Section 1927 and the Court’s 

inherent power where he withdrew from the case on or about June 19, 2006, and the motion for 

sanctions was filed more than one year later, on July 9, 2007). 

A. Plaintiff’s Counsel has Acted in Bad Faith by Multiplying the Litigation 

and Harassing Defendants by Unreasonably and Recklessly Pursuing 

Meritless Tip Claims that are Contradicted by Plaintiff’s Sworn 

Testimony and Interrogatory Answer 

Plaintiff’s Counsel acted in bad faith pertaining to the alleged tip claims under the objective 

test applicable to Section 1927 and the subjective test under the Court’s inherent powers analysis. 

Plaintiff admitted during his deposition that tipped employees received all the tips (cash and credit 

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card) that were left for them by Kiki’s customers. This is critical because the entire Third Amended 

Complaint is premised on the allegations that Defendants improperly retained and/or distributed 

the tips of front-of-the-house tipped employees. [ECF No. 122 at Count I, Count II, and Count 

III]. In fact, the Third Amended Complaint claims that Plaintiff and the FLSA conditional class 

are entitled to damages in the form of “tips and overtips earned” because Defendants improperly 

retained/received/distributed tips. [Id. at ¶¶ 79 and 128]. 

However, Plaintiff testified that Defendants did not improperly retain or distribute any tips 

from him or the Opt-in Plaintiffs. Plaintiff was asked multiple times if Defendants unlawfully 

retained or distributed cash tips. [Collado Dep. at 38:1-42:8, 46:11-47:21, 52:1-54:11, 56:13-5, 

59:2-22, 61:17-64:6, 66:9-67:16, 72:4-73:7, 74:14-76:9, 77:20-79:7]. In each instance, Plaintiff 

confirmed that Defendants did not unlawfully retain or distribute any cash tips. [Collado Dep. at 

Id.]. In fact, Plaintiff testified that employees who received cash tips were permitted to distribute 

them among the other tipped employees as he or she felt was appropriate, and that Defendants 

were not involved in that process. [Collado Dep. at Id.]. Put differently, Plaintiff conceded that 

Defendants never had any possession of cash tips that the front-of-the-house tipped employees 

received and distributed. Thus, Plaintiff admitted that Defendants could not and did not 

improperly retain or distribute cash tips because Defendants never had the money. 

Additionally, Plaintiff’s testimony pertaining to credit card tips establishes without doubt 

that Defendants never improperly retained or distributed credit-card tips. [Collado Dep. at 229:8-

14]. Specifically, Plaintiff testified that he received all the credit card tips that were left by Kiki’s 

customers as reflected by the following: 

Question: I’m not talking about service charges; I’m talking about discretionary credit 

card tips that were left by customers. Is it true, based on your testimony 

today [and] record exhibits that Kiki paid you all the credit card tips that 

were left by customers; is that true? 

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Answer: Yes. Are we done here today? 

[Id.]. Moreover, Plaintiff testified that all credit card tips were entered and processed through 

Kiki’s POS system and that he was unaware of Mr. Jones or anyone else manipulating the POS to 

unlawfully retain and/or distribute credit tips: 

Question: Did you ever see anyone from Kiki’s changing the customer tips that were 

inserted or inputted into Kiki’s POS? 

Answer: No. 

Question: Did you know of anybody in the class that ever witnessed anyone 

changing the customer tips that were inserted into Kiki’s POS? 

Answer: No. 

[Id. at 206:14-07:8]. 

Significantly, the bad faith pursuit of this case was also facilitated by Plaintiff’s Counsel’s 

failure to explain to Plaintiff the difference between a tip and service charge. Plaintiff’s Counsel 

knows the difference between a tip and service charge, as reflected by the four complaints that 

were filed in this case and his extensive FLSA and FMWA experience, yet he seemingly failed to 

explain the distinction to his client through more than a year of litigation. Specifically, Plaintiff 

testified as follows when asked about service charges and tips: 

Question: When did it occur to you that Ciro was referring to service charges as it 

relates to the $900,000 instead of credit card tips that were left by 

customers? When did that first come to you? 

Answer: I didn’t know – I didn’t understand that it was separate. I thought it was just 

one – one thing. Service charges, tips. It was all – it’s still one thing. I 

understand that service charges can be – the management can do whatever 

they want with it. I’m learning. I just learned that. 

Question: And when did you learn that management can do whatever they want with 

service charges? 

Answer: Today. 

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[Collado Dep. at 223:22-24:10]. That is another example of why the facts uncovered during 

Plaintiff’s deposition establish objective and subjective bad faith on the part of Plaintiff’s Counsel. 

In addition to the above deposition testimony, Plaintiff admitted in response to an 

interrogatory that his hourly rate never “fell below the Florida or federal minimum wage.” [See

Collado Interrogatory Answers at No. 6]. 

Plaintiff’s sworn deposition and interrogatory admissions that Defendants did not 

unlawfully retain and/or distribute tips and that he was always paid above the Florida and federal 

minimum wages, are a complete bar to the claims in the Third Amended Complaint. In sum, 

Defendants cannot be liable for unlawful tip retention and/or distribution under the FLSA or 

Florida common law, or for a tip credit violation under the FMWA, since they did not take any 

tips from Plaintiff or the FLSA conditional class. Similarly, Defendants cannot be liable under the 

FMWA because Plaintiff was paid above the Florida minimum wage at all relevant times during 

his employment with Kiki. Thus, the Third Amended Complaint is frivolous and was pursed in 

bad faith, objectively and subjectively, because it has no reasonable factual basis pertaining to the 

allegations claiming Defendants unlawfully retained and/or distributed tips and/or failed to pay 

Plaintiff the Florida minimum wage. 

B. The FMWA Claim in the Third Amended Complaint is Frivolous 

Because it was Filed in Bad Faith for Improper Motive. 

Plaintiff’s Counsel acted in bad faith pertaining to the alleged FMWA claim under the 

objective test applicable to Section 1927 and the subjective test under the Court’s inherent powers 

analysis. Plaintiff’s Counsel signed and filed the Third Amended Complaint, which includes 

factually inaccurate representations. Specifically, Plaintiff’s Counsel filed three prior complaints 

asserting Defendants paid their front-of-the-house tipped employees an hourly rate that was 

supplemented by a service charge. On April 7, 2023, the Court entered an Order granting 

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Defendants Motion to Dismiss the Second Amended Complaint, and it explained at the hearing 

that the FMWA claim could not be maintained unless Plaintiff was either paid on a tip credit basis 

or earned below the applicable minimum wage. In response to the Court’s Order, Plaintiff’s 

Counsel signed and filed the Third Amended Complaint, which was the first time any reference to 

the service charge was omitted and claimed Defendants paid Plaintiff a “tip credit” wage. It was 

clear then, as it is now, that Kiki never paid Plaintiff or any other class employee on a tip credit 

basis. Therefore, the Third Amended Complaint was frivolously filed in bad faith to circumvent 

the Court’s prior order dismissing the Second Amended Complaint. 

C. A Reasonable Inquiry of the Claims Contained in the Third Amended 

Complaint and the Prior Complaints would have Revealed that they 

were Frivolous.

Plaintiff’s Counsel’s apparent failure to conduct a reasonable inquiry before and after filing 

the Third Amended Complaint constitutes bad faith under the objective test applicable to Section 

1927 and the subjective test under the Court’s inherent powers analysis. Plaintiff’s sworn 

deposition testimony and interrogatory answer definitively establish that Defendants did not 

violate the FLSA, FMWA, or Florida common law and that the claims contained in the Third 

Amended Complaint and prior complaints are objectively frivolous. Defendants respectfully 

submit the following as determinative facts establishing Plaintiff’s Counsel had sufficient time 

prior to filing all of the complaints, including the Third Amended Complaint, to investigate the 

claims. Accordingly, the Third Amended Complaint as well as the prior complaints were not based 

on a plausible view of the law or facts when considering the Plaintiff’s sworn deposition testimony 

and interrogatory answer. 

First, it is undisputed the original Complaint in the case was filed on September 23, 2022, 

[ECF No. 1]. The Third Amended Complaint was subsequently filed on April 7, 2023. [ECF No. 

Case 1:22-cv-23074-BB Document 243 Entered on FLSD Docket 01/12/2024 Page 16 of 20
CASE NO.: 1:22-CV-23074-BLOOM/Torres 

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122]. That is a period of approximately six months to investigate the claims presented in the Third 

Amended Complaint without considering the time Plaintiff’s Counsel had prior to filing the 

original Complaint. 

Second, any alleged reliance by Plaintiff’s Counsel on what he claims he was told by 

Plaintiff is misplaced and cannot absolve the Firm and Mr. Pollock of their failure to properly 

investigate the claims in the Third Amended Complaint and the prior complaints. See Worldwide 

Primates Inc. v. McGreal, 87 F.3d 1252, 1255 (11th Cir. 1996) (counsel is obligated to “make a 

reasonable inquiry into both the legal and factual basis of a claim prior to filing suit [and] . . . 

[a]bsent certain extenuating circumstances, an attorney cannot simply rely on the conclusory 

representations of a client . . ..”); Estrada v. FTS USA, LLC, No. 14-23388-CIVMOORE/MCALILEY, 2018 WL 3697491 at *5 (S.D. Fla. July 20, 2018) (“Plaintiffs counsel’s 

singular reliance on what their client evidently told them was not a reasonable inquiry.”). 

As an initial matter, in the six months between the filing of the original Complaint and 

Third Amended Complaint, Plaintiff’s Counsel filed two amended complaints that resulted in 

Defendants filing two motions to dismiss addressing the claims that reappeared in the Third 

Amended Complaint. [ECF No. 40, 55, 56 59, and 63]. Defendants’ motion to dismiss the 

Amended Complaint resulted in Plaintiff’s Counsel seeking leave to file the Second Amended 

Complaint. [ECF No. 57]. Defendants’ motion to dismiss the Second Amended Complaint 

resulted in a Court order dismissing in part said complaint without prejudice. [ECF No. 112]. 

Additionally, Plaintiff’s Counsel received during discovery approximately 40,000 documents, 

which included payroll records showing the tips and gross pay Plaintiff and class members were 

paid. The forgoing establishes Plaintiff’s Counsel was presented with more than enough time and 

information to question whatever he may have been told by Plaintiff and rely on other evidence 

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CASE NO.: 1:22-CV-23074-BLOOM/Torres 

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and information. Instead, Plaintiff’s Counsel continued litigating the case for approximately 

fifteen months leading up to his client’s deposition. 

Additionally, Plaintiff’s Counsel took no responsibility for his actions after the record 

evidence established that he pursed this case in bad faith. Instead, Plaintiff’s Counsel withdrew 

from this case and is trying to orchestrate a “hit and run” against Defendants. Plaintiff’s Counsel’s 

conduct should not be permitted and is precisely the type of behavior that the Court’s inherent 

power is intended to prevent via sanctions. See Peer, 606 F.3d at 1315. 

Finally, Plaintiff’s Counsel’s Third Amended Complaint or the prior complaints cannot be 

viewed as being based on a plausible view of the FLSA, FMWA, or Florida common law. 

Specifically, Plaintiff’s sworn testimony regarding receiving all cash and credit card tips and 

interrogatory answer confirming he was paid above the applicable Florida minimum wage during 

his employment with Kiki, undermine any suggestion that the Third Amended Complaint and the 

prior complaints were based on a plausible view of any of the facts and laws at issue. 

III. Conclusion 

Based upon the foregoing, Defendants respectfully request that this Honorable Court grant 

Defendants’ Motion for Sanctions pursuant to Section 1927 and/or its inherent powers, and award 

Defendants’ their reasonable attorneys’ fees and costs incurred in having to defend against 

Plaintiff’s Counsel’s frivolous claims and award any other and further relief as the Court deems 

just and proper. 

CERTIFICATE OF GOOD FAITH 

Defendants hereby certify that movant conferred with Plaintiff’s Counsel regarding the 

matters set forth in this Motion via email and telephone on January 12, 2024. Plaintiff’s Counsel 

opposes the relief sought in this motion. 

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CASE NO.: 1:22-CV-23074-BLOOM/Torres 

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Dated: January 12, 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 

January 12, 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 243 Entered on FLSD Docket 01/12/2024 Page 19 of 20
CASE NO.: 1:22-CV-23074-BLOOM/Torres 

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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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