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. 

____________________________________/ 

JOINT RESPONSE BY DEFENDANTS 450 NORTH RIVER 

DRIVE, LLC, D/B/A KIKI ON THE RIVER, ROMAN JONES, AND 

RJ RIVER, LLC, IN OPPOSITION TO PLAINTIFF’S MOTION FOR 

CLASS CERTIFICATION PURSUANT TO RULE 23(b)(3) 

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

(“Jones”), and RJ RIVER, LLC, (“RJ”) (collectively “Defendants”), by and through their 

respective undersigned counsel, hereby file their Response in opposition to Plaintiff’s Motion for 

Class Certification Pursuant to Rule 23(b)(3), [ECF No. 164], filed by Plaintiff Octavio Collado 

(“Collado” or “Plaintiff”), and state as follows in opposition: 

PRELIMINARY STATEMENT 

Plaintiff has not established that Counts II and III of the Third Amended Complaint 

should be certified as a class action under Rule 23. As a general matter, Plaintiff’s Motion for 

Certification of a Class Action Pursuant to Rule 23(b)(3) (the “Motion”) attempts to oversimplify 

the issues that this Court must analyze when ruling on such a motion. For example, the Motion 

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requests class certification of Counts II and III of the Third Amended Complaint, but those 

claims are separate causes of action that cannot be analyzed jointly. Counts II and III cannot be 

analyzed together because Count II is a minimum wage claim under the Florida Minimum Wage 

Act (“FMWA”) and Count III is a breach of contract claim to recover tips as unpaid wages under 

Florida Common law. As these are distinct claims, analyzing Rule 23 requirements such as the 

commonality, typicality, and adequacy of representation cannot be accomplished with the 

blanket arguments encompassing both counts as presented in the Motion. 

Similarly, Plaintiff attempts to oversimplify the scope of his proposed putative class for 

Counts II and III. Plaintiff proposes a class of “All front-of-the-house tipped employees who 

worked at Kiki on the River from November 17, 2017, and up through the rendition of a 

judgment in this matter.” [ECF No. 164 at p. 6]. However, Plaintiff’s proposed class is overly 

broad, vague, and indefinite as applied to Counts II and III. Specifically, Count II is a claim for 

minimum wage violations relating to an alleged “tip credit” wage. Accordingly, any class 

associated with Count II must be limited to front-of-the-house tipped employees who were paid 

on a tip credit basis at a direct rate below the Florida minimum wage after adding the 

percentage of the service charge they were paid (“commission payments”) to the direct rate. 

Similarly, Count III alleges a breach of contract claim to recover tips as unpaid wages. Thus, 

any class associated with Count III must be limited to front-of-the-house tipped employees who 

had contracts for employment with Kiki. 

Further, Plaintiff mentions in passing that Fair Labor Standards Act (FLSA) minimum 

wage claims and FMWA claims “often proceed harmoniously” as hybrid class actions under 

Rules 23. [ECF No. 164 at p. 7]. However, Plaintiff is not asserting two minimum wage claims. 

The Court conditionally certified Plaintiff’s alleged FLSA tip retention claim (not an FLSA 

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minimum wage claim) pursuant to 29 U.S.C. § 216(b). Plaintiff is now requesting class 

certification under Rule 23 for a minimum wage claim and a breach of contract claim for 

unpaid wages. Accordingly, the FLSA claim is not analogous to the FMWA claim (Count II) or 

the Florida common law claim (Count III) as Plaintiff implies, and these actions cannot proceed 

harmoniously as a single class. 

Moreover, Plaintiff fails to establish that Counts II and III meet the requirements of Rule 

23(a) or (b). Specifically, Plaintiff did not establish that Counts II and III are proper for class 

certification under Rule 23(a) because he fails to show (1) that there is any commonality of fact 

or law, and/or (2) that he is an adequate representative for the class. Plaintiff also fails to satisfy 

Rule 23(b) because (1) there is no common question that predominates the claims and/or (2) 

class certification is not a superior method to resolve the claims asserted. 

Defendants respectfully submit that Plaintiff’s Motion must be denied based on the 

forgoing and as addressed in greater detail below. 

FACTUAL AND PROCEDURAL HISTORY 

Plaintiff filed his initial Complaint on September 23, 2022, asserting a single cause of 

action that alleged unlawfully retained tips under the FLSA. [ECF No. 1]. On December 7, 

2022, Plaintiff filed an Amended Complaint, which added Counts II and III. [ECF No. 40]. In 

Count II of the Amended Complaint, Plaintiff alleged Defendants violated the FMWA. [Id.] 

However, he did not allege (because he cannot) that he earned less than minimum wage on an 

hourly basis after adding his commission payments and direct wages or that he was paid a tip 

credit wage below the Florida minimum wage. [Id.] Plaintiff asserted in Count III of the 

Amended Complaint that Defendant’s violated Florida common law by unlawfully retaining his 

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wages. [Id.] On January 5 and 6, 2023, Defendants filed their Motions to Dismiss the Amended 

Complaint. [ECF Nos. 55 and 56]. 

Plaintiff did not file a Response to Defendants Motions to Dismiss the Amended 

Complaint. Instead, he filed a Second Amended Complaint essentially asserting the same causes 

of action. [ECF No. 59]. On January 25, 2023, Defendants filed a Motion to Dismiss the 

Second Amended Complaint. [ECF No. 63]. In the Motion to Dismiss the Second Amended 

Complaint, Defendants argued, in relevant part, that Count II failed to state a cause under the 

FMWA because the Florida law does not create a cause of action to recover tips, and Plaintiff did 

not allege that he was paid less than minimum wage after adding his commission payments to the 

direct wage he was paid. Plaintiff also failed to allege that he was paid on a tip credit basis 

below the Florida minimum wage to establish that the purported unlawfully retaining tips 

resulted in an FMWA minimum wage violation. [Id.] In relation to Count III, Defendants 

argued that it must be dismissed because tips are not wages under Florida law and there was no 

contractual agreement alleged between Plaintiff and Defendants. [Id.] The court held a hearing 

on the Motion to Dismiss the Second Amended Complaint and granted the motion in part by 

dismissing the complaint without prejudice and allowing Plaintiff leave to amend. [ECF No. 

112]. 

On April 7, 2023, Plaintiff filed the Third Amended Complaint. [ECF No. 122]. In the 

Third Amended Complaint Plaintiff alleges a violation of the FMWA at Count II and a violation 

of Florida common law at Count III. [Id.] Notably, Plaintiff omitted all references to the 

commission payments he was paid from Count II so that he could allege that he was paid a tip 

credit wage below the Florida minimum wage, and that Defendants violated the FMWA when 

they purportedly retained his tips. [Id. at ¶¶ 101-02, 110-11, and 122-23]. In relation to Count 

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III, Plaintiff brought the claim only against Kiki and alleged that the restaurant breached a 

contractual agreement between the parties by not paying him his wages in the form of tips. [Id.

at ¶ 143]. Defendants ultimately filed an Answer and Affirmative Defenses to the Third 

Amended Complaint. [ECF No. 156]. 

While the Parties engaged in motion practice regarding the sufficiency of the complaints, 

Plaintiff filed several Motions for Conditional Certification of a Collective Action of Count I 

pursuant to 29 U.S.C. § 216(b). [ECF Nos. 44, 65, 127]. As noted above, Count I is a claim for 

alleged unlawfully retained tips under the FLSA (not a violation of the FLSA for failure to pay 

minimum wage). [ECF No. 122]. The Court eventually granted Plaintiff’s Motion for 

Conditional Certification of Count I, and it defined the collective as “All front-of-the-house 

tipped employees who worked at Kiki on the River after June 7, 2020.” [ECF No. 155]. 

As discussed in detail below, the claims pending before this Court in Plaintiff’s Motion 

for Rule 23 Class Certification (i.e., Counts II and III) are significantly different than the claims 

asserted in Count I. Therefore, contrary to Plaintiff’s implications, the Court should not give the 

conditional certification of Count I any merit when ruling on the pending Motion. In this Motion 

Plaintiff must establish the requirements of Rule 23(a) and (b), and he fails to do that for the 

following reasons. 

MEMORANDUM OF LAW

 

I. Legal Standard for Class Certification 

Before certifying a claim as a class action, the court must conduct a “rigorous analysis” to 

determine whether all the requirements of Rule 23 are met. See Gen. Tel. Co. of the Sw. v. 

Falcon, 457 U.S. 147, 161 (1982). Additionally, prior to certifying a class, the court must find 

that “the proposed class is adequately defined and clearly ascertainable.” Balassiano v. Fogo De 

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Chao Churrascaria Orlando LLC, No. 6:19-cv-2140-Orl-78EJK, 2020 U.S. Dist. LEXIS 

236593, *4 (M.D. Fla. Dec. 15, 2020). If a class is appropriately defined, “[t]he party moving 

for class certification under Rule 23 carries the burden of establishing the propriety of the class 

certification.” Id. (citing Busby v. JRHBW, Realty, Inc., 513 F.3d 1314, 1322 (11th Cir. 2008). 

If the class is adequately defined and clearly ascertainable, the plaintiff must establish the 

following four requirements under Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, 

and (4) adequacy of representation. Bennett v. Hayes Robertson Group, Inc., 880 F. Supp. 2d 

1270, 1279 (S.D. Fla. 2012). If a plaintiff establishes the above requirements of Rule 23(a), he 

must then satisfy two additional requirements under Rule 23(b)(3). Balassiano, 2020 U.S. Dist. 

LEXIS 236593 at *4. Under rule 23(b)(3), the plaintiff must “show that the questions of law or 

fact common to the class members predominate over any questions affecting individual 

members[,]” and that “a class action is superior to other available methods for fairly and 

efficiently adjudicating the controversy.” Id. 

Here, Plaintiff has not established the requirements of Rule 23(a) because he has not 

shown commonality, typicality, or that he will be an adequate representative for the proposed 

class. Further, Plaintiff has not established the requirements of Rule 23(b)(3) because the 

common questions he is presenting do not predominate over the individual questions, and a class 

action is not the superior mechanism for resolving the claims asserted in Counts II and III of the 

Third Amended Complaint. 

II. Plaintiff Improperly Requests Class Certification for Separate Causes of 

Action through a Single Motion Without Distinguishing What Arguments 

Relate to Each Claim 

When the court is determining if the requirements for class certification are met, it must 

do so as to each claim that the plaintiff is attempting to certify. See e.g. Nuwer v. FCA United 

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States LLC, 343 F.R.D. 638 (S.D. Fla. 2022) (analyzing plaintiff’s New York state Fraudulent 

Concealment claim, Florida Deceptive and Unfair Trade Practices Act claim, and Unjust 

Enrichment claim separately when ruling on a motion to certify a class action under Rule 23). 

In this case, the Motion does not distinguish what facts and arguments support the class 

certification of Counts II and III individually. Instead, Plaintiff claims in conclusory fashion that 

“[l]ike in Count I, the crux of Mr. Collado’s claims at Counts II and III is that Defendant’s frontof-the-house tipped employees suffered the same injury – not receiving all tips earned – due to 

Defendants’ unlawful pay practices.” However, that is not the case. Count I of the Third 

Amended Complaint is a claim for alleged unlawful tip confiscation under the FLSA, Count II is 

a claim for a minimum wage violation pursuant to the FMWA, and Count III is a claim for 

unpaid wages under Florida Common law based on a purported breach of contract. 

As a result, Plaintiff must establish in Count I only that he did not receive all his tips, 

while in Count II Plaintiff must prove he was paid below the Florida minimum wage and in 

Count III that he had a contract that was breached by Kiki (the only defendant implicated in 

Count III). As each of these claims have their own elements and respective defenses, they 

cannot all be lumped together as Plaintiff does in the Motion. By lumping these claims together, 

the Motion fails to establish the requirements of Rule 23(a) and (b) as to each separate claim 

(Counts II and III) and must be denied. See Nuwer, 343 F.R.D. at 638. 

III. The Proposed Class is Not Clearly Defined Based on the Claims Asserted in 

the Third Amended Complaint 

A proposed class must not be vague, indefinite, overly broad, or difficult to apply. 

Bennett, 880 F. Supp. 2d at 1278-79. Further, the proposed class definition must adequately 

reflect the group of persons affected by the allegations in the complaint. See id. The court may 

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deny class certification if the definition of the proposed class does not meet the requirements of 

Rule 23. Id. 

In Bennett, the plaintiff attempted to assert a “hybrid” class action. Id. at 1275. The 

plaintiff sought to prosecute Count I of his complaint as a Rule 23(b)(3) class action for 

violations of the FMWA and Count II as a 29 U.S.C. § 216(b) opt-in conditional collective 

action for a failure to pay overtime under the FLSA. In that case, the plaintiff proposed a class 

for Count I as follows: 

All hourly-paid employees of the Defendants, who were employed 

by Defendants from June 15, 2007 through March 11, 2011, and 

who the Defendants purported to pay wages through the use of a 

“tip credit,” by paying a reduced wage and taking a tip credit of 

$3.02 per hour, and whose wages were reduced by the cost of 

uniforms, a $3.00-per-shift deduction; who were required to share 

tips with employees who did not work in the presence of customers 

and who were paid a rate of $4.19 per hour after July 24, 2009, 

when the Federal minimum wages increased. 

Id. at 1278. The court held that the proposed class did not satisfy the requirements of Rule 

23(b)(3) because it was “vague, indefinite, and overbroad.” Id. According to the court, the 

proposed class did not satisfy Rule 23, in part, because the crux of the claim was that the 

defendant employed a policy of deducting $3.00 per shift from its tipped employees’ pay that 

brought them below minimum wage, and the proposed class was not sufficiently tailored to only 

include the employees affected by the claims. Id. 

In this case, Plaintiff defines the proposed class even more broadly than the plaintiff in 

Bennett, and does not connect the class to the separate claims alleged in Counts II and III. 

Instead, Plaintiff inadequately defines the proposed class for Counts II and IIII as follows: 

All front-of-the-house tipped employees who worked at Kiki on 

the River from November 17, 2017, and up through the rendition 

of a judgment in this matter. 

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[ECF No. 164 at p. 6]. As drafted, the proposed class is not tailored to the actual claims 

pertaining to Counts II and III. Specifically, Count II of the Third Amended Complaint alleges 

that Plaintiff, and other front-of-the-house employees were paid a tip credit wage below the 

Florida minimum wage, and that Defendants improperly retained their tips resulting in a 

minimum wage violation under the FMWA. [ECF No. 122 at ¶¶ 101-02, 110-11, 122-23]. As 

such, assuming arguendo that a class is certified, any class definition for Count II must be 

limited to front-of-the-house tipped employees who were paid a tip credit rate below the Florida 

minimum wage after adding the commission payments they were paid. Similarly, Count III 

alleges that Kiki failed to pay Plaintiff wages after he and Kiki entered a contract regarding his 

employment. [Id. at ¶ 143]. As such, assuming arguendo that a class is certified, any class 

definition for Count III must be limited to employees who had employment contracts with Kiki. 

Without the above limitations on the class definitions, they are overly broad, vague, and 

indefinite and will include individuals who cannot recover alleged damages because they were 

not paid a tip credit rate below the Florida minimum wage or employed in the same manner that 

Plaintiff claims (under contract) in his Third Amended Complaint. 

IV. Plaintiff has Not Asserted Analogous State and Federal Minimum Wage 

Claims that May be Certified Harmoniously 

Plaintiff claims in his Motion that this Court should allow Counts II and III to be certified 

as class actions because “unpaid minimum wage [claims] under the FMWA are analogous to 

minimum wage claims under the FLSA.” [ECF No. 164 at p. 7]. Notably, it is true that courts 

have permitted minimum wage claims brought under the FMWA and FLSA to proceed as hybrid 

class actions; but that is not what is alleged in Plaintiff’s Third Amended Complaint. Contrary to 

Plaintiff’s implications, Count I of the Third Amended Complaint alleges a tip confiscation

claim under the FLSA - not a minimum wage violation. [ECF No. 122 at Count I]. Conversely, 

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Count II is a FMWA claim asserting state minimum wage violations and Count III is a Florida 

common law claim alleging breach of contract for unpaid wages. [Id. at Count II and III]. 

Accordingly, Count I-III of the Third Amended Complaint are very different claims that are not 

analogous and incapable of proceeding harmoniously as a hybrid class action. 

V. Plaintiff Has Not Established that the Proposed Class has Commonality 

under Rule 23(a)(2) or 23(b)(3) 

Pursuant to Rule 23(a)(2), the plaintiff is required to demonstrate the existence of a 

common question of fact or law to the class. Balassiano, 2020 U.S. Dist. LEXIS 236593 at *11-

12. Additionally, if the plaintiff is seeking class certification pursuant to Rule 23(b)(3), as in this 

case, he must establish that the common issues predominate over the individual ones. Amchem 

Prods. v. Windsor, 521 U.S. 591, 609 (1997). Notably, when a plaintiff moves for class 

certification pursuant to Rule 23(b)(3), the commonality requirement in Rule 23(a)(2) is 

“subsumed under, or superseded by, the more stringent Rule 23(b)(3) requirements.” Id.; see 

also, Aranaz v. Catalyst Pharm. Partners Inc., 302 F.R.D. 657, 665 (S.D. Fla. 2014). 

Generally, the commonality element requires the plaintiff to show that there is a common 

question of fact or law for the class, and the plaintiff bears the burden of demonstrating that the 

class members have suffered the same injury. Bennett, 880 F. Supp. 2d 1279 (citing Wal-Mart 

Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550-51 (2011). “[I]t is insufficient for plaintiffs to 

merely assert a string of common questions without demonstrating how resolution of these 

questions evidences common injury.” Id. 

Plaintiff must also establish the class action mechanism will “resolve an issue that is 

central to the validity of each one of the claims in a single stroke.” Muzuco v. Re$ubmitIt, LLC, 

297 F.R.D. 504, 515 (S.D. Fla. 2013). Additionally, individual damages assessments can be a 

bar to certification when the plaintiff fails to identify a “formula, statistical analysis, or other 

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easy or essentially mechanical method” to calculate the damages of each individual plaintiff. See 

Klay v. Humana, Inc., 382 F.3d 1241, 1259-60 (11th Cir. 2004). Courts generally deny class 

certification where there is no easy formulaic means of calculating damages because it would 

result in “a series of mini-trials.” See Cardiovascular Care of Sarasota, P.A. v. Cardinal Health, 

Inc., No. 8:08-cv-1931-T-30TBM, 2009 U.S. Dist. LEXIS 61751, *15-17 (M.D. Fla. Apr. 3, 

2009). 

A. Plaintiff Has Not Established Any Common Issues of Fact or Law 

In this case, Plaintiff has not established a common question of fact or law. Instead, 

Plaintiff does nothing more than identify a string of ten (10) questions that he claims are 

common issues of fact or law without any evidence demonstrating how the questions are 

common. [ECF No. 164 p. 10-11]. 

Plaintiff’s first alleged question claims there is a common issue of law regarding 

“[w]hether Defendants are subject to the provisions of the FMWA.” [ECF No. 164 p. 10]. 

However, Defendants do not dispute that they are subject to the FMWA as currently alleged in 

Count II of the Third Amended Complaint, which is a minimum wage violation. Thus, there is 

no issue of law as presented by Plaintiff pertaining to the first alleged “common issue.” 

Moreover, simply determining that the FMWA applies would not resolve any issues because 

Plaintiff is required to establish that the FMWA was violated—not just applicable. See e.g. 

Haight v. Bluestem Brands, Inc., No. 6:13-cv-1400-Orl-28KRS, 2015 U.S. Dist. LEXIS 107010, 

*15-19 (M.D. Fla. May 14, 2015) (explaining that the common contentions must be issues that 

are capable of class wide resolution with common answers apt to drive the resolution of the 

litigation). Thus, there is no “common issue” pertaining to Defendants being subject to the 

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provisions of the FMWA, and simply finding that Defendants are subject to the law does not 

drive the resolution of this litigation. 

The second alleged common question pertains to “[w]hether the FMWA provides a claim 

for tips improperly retained or distributed[.]” Id. However, Plaintiff did not allege a claim for 

unpaid tips in Count II of the Third Amended Complaint.1 Count II alleges that Defendants 

failed to pay minimum wage in violation of the FMWA. Thus, Plaintiff’s second “common 

issue” no longer exists as it relates to Count II of the Third Amended Complaint and cannot 

establish commonality under Rule 23. Moreover, Plaintiff’s suggestion of commonality 

pertaining to the remedy for a FMWA violation is incorrect and not supported by the law. 

Specifically, the remedy for an FMWA violation is the difference between the hourly rate 

Plaintiff was paid and the applicable Florida minimum wage as opposed to the recovery of 

unlimited tips. 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-cv-372-Oc30PRL, 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). 

1

 Plaintiff previously alleged in Count II of the Second Amended Complaint that the FMWA 

provides a cause of action to recover tips and Defendants disputed that claim. As stated above, 

however, such a claim is not alleged in Count II of the Third Amended Complaint.

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The remaining eight (8) alleged “common issues” presented by Plaintiff do not or 

insufficiently relate to the claims in Count II or III. Each of the questions presented in the 

Motion at page 11, numbered 3-10, only relate to Defendants allegedly improperly retaining tips 

under Count I. Those purported “common issues” are inapplicable to Count II and III because 

they disregard the separate and distinct minimum wage claim in Count II and breach of contract 

claim in Count III, and the different issues relevant to those specific claims. 

Therefore, Plaintiff fails to establish the required element of common issues of fact or 

law as it relates to Count II and III. 

B. Plaintiff Cannot Establish Counts II and III Can Be Resolved in a 

Single Stroke 

The alleged common questions of fact and law cannot be resolved in a single stroke 

because the substance and quantity of the evidence necessary to prove the class claims and 

related damages will vary significantly from one plaintiff to another. In fact, Plaintiff concedes 

in the Motion that each member of the putative class will have different damages. [See ECF No. 

164 at p. 11] (“Resolving the foregoing issues for Mr. Collado will resolve them for each 

member of the Class leaving only the issue of damages to be resolved individually.”). 

Accordingly, any proposed class under Counts II and III will ultimately devolve into a series of 

mini-trials. 

In order to determine if each class member was paid below the Florida minimum wage as 

alleged in Count II and their corresponding damages, the court or a jury will be required to 

review each employees payroll records, timesheets, and the applicable commission payments and 

policies for the entire five (5) year period to assess if the hourly sum of the particular class 

member’s pay exceeded the applicable Florida minimum wage, and if not, what is the difference 

between the class member’s hourly pay and the Florida minimum wage. This task would need to 

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be done individually for every employee in the class because there are numerous factors that 

impact how much each front-of-the-house tipped employee was paid. For example, Kiki paid its 

tipped-front-of-the-house employees commission payments from the service charge collected 

and a direct wage. The amount that each class member earned from the commission payments 

varied based on the amount of the bill, the position that each separate class member held, and 

how many days the class member worked and the number of tables they served. Accordingly, 

every class member’s hourly rate changed each pay period depending on the amount the class 

member earned from the commission payments when added to the direct wage. 

In order to determine if each class member failed to receive all their tips as alleged in 

Count III and their corresponding damages, it will require an individualized analysis of every tip 

they were allegedly supposed to receive, how much tips they actually received, and the amount 

of tips, if any, that are missing. To make such a determination, the court or jury must analyze 

every payroll record and sales report for a four (4) year period to determine the amount of credit 

card tips Kiki received, the amount of such tips distributed, the percentage of tips each class 

member was supposed to receive, and then breakdown how much tips each individual class 

member would be owed, if any, from the unaccounted amount of credit card tips based on the 

different pooling and point systems Kiki had in place at the relevant time. Such a calculation of 

alleged unpaid wages in the form of tips cannot be done through a single analysis or formula 

since the point system Kiki used to distribute the pooled credit card tips was tied to the class 

members’ position and the number of hours worked. Therefore, Plaintiff’s Florida common law 

claim (Count III), which is based on a breach of contract cannot be certified as a class action. 

See Cardiovascular Care of Sarasota, P.A., 2009 U.S. Dist. LEXIS 61751 at *15-17 (“Courts 

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have repeatedly held that breach of contract claims are inappropriate for class certification 

where, as here, they involve individualized inquires to determine liability and damages.”). 

In sum, there is no such thing as “class proof” in this case because it will take an 

individualized assessment of each class member’s commission payments and tips received to 

determine whether there was a violation of law relating to Count II and/or III. Thereafter, 

another individualized assessment is necessary to determine the amount of minimum wages 

owed as a remedy for Count II and the amount of tips owed as a remedy for Count III. 

Therefore, the individualized and varying substance and quantity of the evidence necessary to 

prove the class claims in Count II and III as well as their related damages if Plaintiff prevails, 

prevents the Court from certifying a collective action under Rule 23(a)(2) or (b)(3). 

VI. Plaintiff Has Not Established He is an Adequate Representative of the 

Proposed Class 

The “adequacy of representation encompasses two separate inquires: (1) whether any 

substantial conflicts of interest exist between the representative and the class; and (2) whether the 

representative will adequately prosecute the action.” Balassiano, 2020 U.S. Dist. LEXIS 236593 

at *14 (quoting Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) 

(internal quotation marks omitted). 

Plaintiff’s Motion undermines his claim of being an adequate representative as it relates 

to Count II because it suggests incorrectly that the remedy for a FMWA violation is “an award of 

restitution in the form of tips they earned but did not receive from defendants.” [ECF No. 164 at 

pp. 12-13]. As previously stated, the correct remedy for a violation of the FMWA is the 

difference between the hourly rate amount Plaintiff was paid and the applicable Florida 

minimum wage. See Rosell, 2021 U.S. Dist. LEXIS 116663, at 4; Dalley, 2018 U.S. Dist. 

LEXIS 150696, at 4; see e.g., Frank, 2021 U.S. Dist. LEXIS 178426, at 5. Thus, Plaintiff is 

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seeking a Rule 23 class pertaining to a minimum wage violation as alleged in Count II while 

proposing a remedy for which the class is not entitled under the FMWA. 

Based on the above, a substantial conflict of interest exists between Plaintiff and the 

proposed class pertaining to Count II. 

VII. Class Certification is Not a Superior Mechanism for Resolving the Claims in 

Counts II and III 

Plaintiff must also establish that “a class action is superior to other available methods for 

fairly and efficiently adjudicating the controversy.” Haines v. Fid. Nat’l Title of Fla., No. 8:19-

cv-2995-KKM-AEP, 2022 U.S. Dist. LEXIS 28843, *62 (M.D. Fla. Feb. 17, 2022). “[I]n 

determining the superiority of the class action the court may consider (1) the class members’ 

interest in individually controlling the prosecution or defenses of separate actions; (2) the extent 

and nature of any litigation concerning the controversy already begun by or against class 

members; (3) the desirability or undesirability of concentrating the litigation of the claims in the 

particular forum; and (4) the likely difficulties in managing a class action.” Id. at 63. 

There will be difficulties in managing the requested class action. Specifically, Plaintiff 

alleges in Count III that his claim for unpaid wages is premised on a breach of contract between 

the parties. As such, Plaintiff will be required to establish that every front-of-the-house tipped 

employee from September 23, 2018, through the present had an employment contract with Kiki. 

Based on the allegations in the Third Amended Complaint, it appears Plaintiff is alleging that his 

contract for employment was an oral agreement. [ECF No. 122 at Count III]. Thus, over 400 

potential class members will need to be deposed to testify as to the existence and validity of their 

specifically alleged oral (or written) contractual agreement with Kiki because Plaintiff cannot 

speak credibly as to any purported contractual arrangements outside of his own. 

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Similarly, as discussed in detail above, to establish a claim for a minimum wage violation 

under Count II or unpaid wages relating to tips under Count III, Plaintiff will need to show that 

each individual class member did not earn at least the applicable Florida minimum wage during 

his or her employment and failed to receive all their tips. This will require the review of each 

class member’s payroll and time records to determine if the applicable Florida minimum wage 

was paid on an hourly basis and they received all their tips, and if not, how much the individual 

is owed in minimum wages and/or tips. As a result, there are too many individual questions to 

manage Counts II and III as a class action. 

Lastly, there is no evidence supporting Plaintiff’s suggestion that potential class member 

will fear retaliation if they pursue an individual claim. [See ECF No. 164. P. 15]. In fact, there 

are almost forty existing opt-in plaintiffs and there have been no complaints of retaliation. 

Therefore, Plaintiff’s claim that individual class members will fear filing their own lawsuits due 

to concerns of retaliation is meritless. 

Accordingly, a class action is not the superior mechanism for resolving Counts II and III 

of the Third Amended Complaint. 

CONCLUSION 

WHEREFORE, Defendants respectfully requests that the Court enter an Order: (a) 

denying the Motion entirely; or in the alternative, (b) limiting the scope of the proposed putative 

class as set forth above so that each class is tailored to the claim it is tied too, and (c) granting 

such further relief as the Court deems appropriate. 

Dated: August 9, 2023 

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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. 

Florida Bar No. 1011944 Counsel for RJ River, LLC

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 

August 9, 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 

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 

Counsel for 450 North River Drive, LLC, d/b/a 

Kiki on the River, and Roman Jones

Case 1:22-cv-23074-BB Document 185 Entered on FLSD Docket 08/09/2023 Page 18 of 19
CASE NO.: 1:22-CV-23074-BLOOM/OTAZO-REYES 

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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 

Attorneys for RJ River, LLC

Case 1:22-cv-23074-BB Document 185 Entered on FLSD Docket 08/09/2023 Page 19 of 19