Proposed Final Judgment Submitted

The below final judgment was submitted after a recent trial. The below Order has not been grated by the Court, it is a proposed Order which may or may not later be granted.  Should this be granted, Plaintiff will file another motion like this one to obtain fees.

PROPOSED FINAL JUDGMENT

THIS MATTER came before the Court on July 18, 2016 via a bench trial. Plaintiff sued Defendant for unpaid commissions. After conducting the trial, weighing the evidence, evaluating the credibility and demeanor of the witnesses and testimony, reviewing the exhibits, and hearing argument from counsel, the Court finds by a preponderance of the evidence that Defendant did not pay Plaintiff all sums due under written commission agreements. The Court also finds that Defendant did not prove any of its affirmative defenses. Accordingly, IT IS ORDERED AND ADJUDGED:

FINDINGS OF FACT

1. Plaintiff, Deverson Ronald, seeks unpaid commissions from his prior employer, SUPERBILL4, Inc. per two written agreements. The first is dated November 5, 2012 (referred to herein as the “Lead Technician Agreement”). See Plaintiff’s Trial Exhibit 1.[1]

2. Prior to the entry of the Lead Technician Agreement, Plaintiff worked as an hourly employee for Defendant. See Exhibit 53. In conjunction with the execution of the Lead Technician Agreement, Defendant ceased paying Plaintiff hourly and instead put him on a commission salary. See Id. At the same time, Plaintiff was promoted. Id. (at the end of 2012 “the lead technicians were promoted to crew chief and commission with hopefully more concern about the total performance of the company.”). At the end of his employment and for a very short period of time, Defendant demoted Plaintiff and changed his compensation back to an hourly employee. Id. (“He was written up numerous times and in April of 2014 we demoted Deverson back to a lead technician with hourly compensation” . . . “After his demotion Deverson was making $12 per hour”).

3. The Lead Technician Agreement provided for a commission structure which can generally be described as the following: 30% for “direct work” (carpet cleaning, etc.), 15% for “add-ons/up sales” for direct work and 25% for water, fire, mold, bio-hazard, crime scene. See Exhibit 1. After the application of the above percentages, certain deductions were taken. Id.

4. Per the Lead Technician Agreement, Plaintiff’s duties required filing paperwork, customer service, managing the use of operating supplies, ensuring National Account paperwork is completed and deadlines are met, monitoring jobs daily, handling “all communication with [the] customer and insurance adjuster[s]”, and other work relative to remediating floods, mold and other disasters. Id. Plaintiff was docked 1% of his commission or $100 for incomplete paperwork, missing quality of work or customer service issues. Id. Plaintiff’s work as Lead Technician involved training. Id. Various expenses were at Plaintiff’s personal expense, such as travel time, food, fuel and lodging associated with jobs. Id. If the job had to be re-serviced, such as lack of customer satisfaction, Plaintiff would have to cover those costs. Id.

5. On January 9, 2013, an addendum to the Lead Technician Agreement was executed (hereinafter referred to as the “Addendum”). See Exhibit 2. The Addendum modified the deductions for the cost of operating supplies. Id. Instead of deducting the costs of those supplies (such as tape, filters, towels and bags), a basic percentage deducted for jobs such as fire, mold and water (5%, 6% and 4%). Id. Thus, the commissions earned were changed to the following: 30% for “direct work” (carpet cleaning, etc.), 15% for “add-ons/up sales” for direct work, 21% for water, 20% for fire, 19% for mold and 25% for bio-hazard and crime scene.

6. Defendant attempted to modify the commission agreement again on March 19, 2014. Exhibit 61. However, the parties agreed via a stipulation between counsel at trial that this amendment is moot as the jobs performed by Plaintiff began before the attempted modification. Moreover, Plaintiff did not assent to this attempted modification.

7. At trial, Plaintiff introduced substantial proof of the work he performed for Defendant, the jobs he worked on and the customers he serviced. This included many invoices, job records, handwritten documents, and a spreadsheet summarizing his unpaid commissions in the amount of $23,271.23. See Exhibit’s 3-49. He also testified about the jobs and work he performed for Defendant and its customers.

8. Defendant’s witnesses testified that Defendant had to wait until it was paid by its customers before it could pay Plaintiff his commissions; this stipulation was also expressly written into the Lead Technician Agreement. See Exhibit 1 (Lead Technicians “are paid on cash collected when the job is paid in full, however the timing of commission payout is TOTALLY at the discretion of the company”, emphasis in original). However, Defendant failed to introduce any evidence as to when it was paid by its customers for any of the jobs in dispute. It failed to introduce any evidence to prove the date when Plaintiff should have first been paid commissions for any of the jobs in dispute.

9. After it realized Plaintiff was due a significant amount under the commission agreements, and to increase its own profits, Defendant refused to pay Plaintiff the commission percentages it previously promised in the Lead Technician Agreement and Addendum.

10. Plaintiff complained on many occasions that he was not being paid proper commissions by Defendant. He also asked for proof of Defendant’s claimed deductions from his commissions due. Defendant offered no documentary evidence at trial to prove any of its claimed deductions, and introduced no documentary evidence of its own.

ANALYSIS

11. Defendant and Plaintiff agreed that he would perform work and be compensated per two written commission agreements (one which was simply an addendum to the other, thus they could fairly be characterized as one agreement which was amended). After the work had been performed under those commission agreements, Defendant attempted to verbally and retroactively change the amounts due Plaintiff to increase its own profits.

12. When the compensation agreements are compared to the documents introduced at trial and testimony received, Plaintiff proved his damages by a preponderance of the evidence. Those damages, which are calculated precisely in Exhibit 3, equal at least $23,271.23.

13. Defendant did not prove any of the deductions it claimed should be deducted from amounts owed Plaintiff. It introduced no documentary evidence of any deductions, although testimony at trial indicated it had such documents within its possession or control.

14. Defendant also failed to prove by a preponderance of the evidence its statute of limitations affirmative defense. In Broward Builders Exch., Inc. v. Goehring, 231 So.2d 513, 514 (Fla. 1970) the supreme court stated that the term “wages” typically refers to “`compensation for services by the day or week.'” The Court in Gohring noted that wages per section 95.11(4)(c) are often defined in the context of compensation for services pay given for labor at “short, stated intervals as distinguished from salaries or fees.” Id. The court went on to note that there are special problems in preserving evidence with respect to hourly wage claims, problems which do not generally exist in salary actions, making the distinction a logical one. Id. at 515. Two cases from the First District have cited Goehring in the context of actions for unpaid commissions and found that such actions are not wages as contemplated by section 95.11(4)(c). See Richey v. Modular Designs, Inc., 879 So. 2d 665, 666 (Fla. 1st DCA 2004) (claims for unpaid commission are subject to a four-year statute of limitations); Moneyhun v. Vital Indus., Inc., 611 So. 2d 1316, 1321 (Fla. 1st DCA 1993) (finding a suit by a sales manager/consultant for unpaid compensation based on a percentage of sales is not an action for wages under section 95.11(4)(c) because the term ‘wages’ typically refers to “`compensation for services by the day or week’” for purposes of the statute of limitations).[2]

15. In the instant case, the compensation agreement between Plaintiff and Defendant was that of a commissioned employee. See Exhibits 1 and 2. Thus, it is not barred by a 2-year statute of limitations under the First District’s decisions in Richey and Moneyhun.

16. Additionally, Plaintiff did not work for Defendant in “short, stated intervals;” he worked for it over at least a 4-year period. He received a promotion when he entered into the Lead Technician Agreement and went from an hourly position to strictly commissions. The work he did was not simple manual labor and he was not paid hourly as a Lead Technician. He was required to perform many types of services such as customer interactions, dealing with insurance adjusters, filing paperwork, managing supplies and account deadlines are satisfied. Plaintiff has both a college education and specialized training. Plaintiff had unreimbursed expenses for jobs that had to be re-serviced and other unreimbursed expenses relative to his work. There is nothing in the commission agreements that indicates Plaintiff should be barred by the 2 year limitations period per section 95.11(4)(c).

17. Finally, Defendant did not bear its burden to prove when its alleged statute of limitations defense should begin running for each of the jobs at issue; it failed to prove the limitations ran before Plaintiff filed this lawsuit for any of the jobs. Defendant and its employees testified at trial that the commissions could be paid at any time, and claimed it had to receive payment itself from the customer before it paid Plaintiff. See also Exhibit 1. However, Defendant introduced no evidence as to when it received payment from its customers for each job at issue in this lawsuit. As referenced in Joseph v. Okeelanta Corp., 656 So.2d 1316, 1319 (Fla. 4th DCA 1995), the statute of limitations does not simply run from the last date of the employee’s service:

We find merit, however, in appellants’ argument that the trial court erroneously determined that the applicable limitations period began to run on the date of termination of each employee’s service. Although appellants’ entitlement to the wage guarantee may have arisen as of the dates of their respective terminations, the critical date upon which the running of the statute of limitations commenced was the date on which the contractual breach occurred. Thus, we agree with appellants that their claims against appellees did not ripen until appellees failed to honor their obligations under the wage guarantee provision.

(citations omitted). Here, even if the limitations period was 2 years, it would not begin run until at least Defendant was paid for each commissioned job. Defendant had the burden to prove this timing as to each job at issue in this case, but did not. See also Leon County v. Smith, 397 So.2d 362, 364 (Fla. 1st DCA 1981) (affirming a trial court’s ruling that the defendant failed to prove the statute of limitations defense and that defendant did “not demonstrate[] that the cause of action accrued earlier so as to give rise to the statute of limitations.”)

18. Regarding attorney’s fees and costs, Florida Stat. Sec. 448.08 authorizes an award to the prevailing party the costs of the action and a reasonable attorney’s fee. “Unpaid commissions are considered wages for purposes of section 448.08.” Langford v. Paravant, Inc., 48 So. 3d 75, 77 (Fla. 5th DCA 2010). Plaintiff is due attorney’s fees even if he recovers less than the amount claimed in the attached. See Higson v. MMI of Fla. Inc., 8 So. 3d 398, 401 (Fla. 2nd DCA 2009) (“Although she recovered less than the amount that she claimed, she established, and the trial court found, that the Employers breached the employment agreement and that she was entitled to damages and her statutorily authorized attorney’s fees as a result of that breach.”). Here, the Court finds that an award of attorney’s fees and costs are proper in favor of Plaintiff pursuant to section 448.08.

AWARD

19. IT IS HEREBY ORDERED AND ADJUDGED that judgment is entered in favor of Plaintiff, Deverson Ronald, and against Defendant, SUPERBILL4, Inc. in the sum of $23,271.23 which shall bear interest at the rate prescribed by Florida Statute § 55.03 from the date of entry of this judgment, for which sum let execution issue. Moreover, the Court finds that Plaintiff is entitled to an award of attorney’s fees and costs per Fla. Stat. Section 448.08. Plaintiff is also entitled to taxable costs as the prevailing party in this lawsuit. The Court expressly reserves jurisdiction to determine the amount of the attorneys’ fees and costs due Plaintiff, to award the same, and to determine any and all other issues regarding attorney’s fees and costs due Plaintiff in this case from anyone (including but not limited to entitlement to Plaintiff’s for fees and costs via any other statutory and common law authority).

20. IT IS HEREBY FURTHER ORDERED AND ADJUDGED that SUPERBILL4, Inc., as judgment debtor, through its owners and/or managers complete under oath Florida Rule of Civil Procedure Form 1.977 (Fact Information Sheet), including all required attachments, and serve it on the Plaintiff’s attorney at the address provided herein, within 30 days from the date of this judgment, unless this judgment is satisfied or post-judgment discovery is stayed, and deliver the same to counsel for the Plaintiff. This Court expressly reserves jurisdiction to enter further orders that are proper to compel the judgment debtor and/or its officers/managers to complete Form 1.977, including all required attachments, and serve it on the Plaintiff’s attorney and to consider an additional award of attorneys’ fees and costs necessary for the collection of this Final Judgment.

DONE AND ORDERED in chambers at Gainesville, Alachua County, Florida on this ______ day of _________, 2017.

  1. From here on, all the Plaintiff’s Trial Exhibits will simply be referenced at an “Exhibit.”
  2. This is the conclusion reached in other Districts as well, not just the First District. See Iamaio v. Kite, 531 So. 2d 400, 401 (Fla. 2d DCA 1988) (compensation in the form of commission does not fall within the category of wages in the context of Fla. Stat. 95.11(4)(c)); Newmeyer v. Se. Mortg. Co., 581 So. 2d 963, 964 (Fla. 3d DCA 1991) (holding a regional manager’s breach of contract action for the recovery of incentive compensation is not governed by section 95.11(4)(c)); Barnes Surgical Specialties, Inc. v. Bradshaw, 549 So. 2d 1189, 1191 (Fla. 2d DCA 1989) (concluding that a salesman’s suit for unpaid commissions does not fall within the category of wages for purposes of section 95.11(4)(c))

Federal Court Summary Judgment Response Filed

 

 

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW

Plaintiff Justin McClain responds to Defendants,’ Ultimate Towing of Gainesville, Inc. and Stephen J. O’Grady (collectively “Defendants”), Motion for Summary Judgment [Doc. 23] as follows:

I. SUMMARY OF THE CASE

The Motor Carrier Act exemption does not apply. That exemption, which must be narrowly construed against employers, applies only if Plaintiff was driving a vehicle that weighed over 10,000 pounds. The tow trucks Plaintiff drove for Defendants weigh less than 10,000 pounds. Moreover, Plaintiff never worked outside Florida for Defendants and had no reasonable expectation that he would. Defendants’ themselves admit they have no knowledge of him working outside Florida and have no records of any work any of their employees have done outside Florida. The remaining arguments Defendants make are also without merit.

II. STATEMENT OF FACTS

1. Defendant O’Grady is the sole owner and President of Defendant Ultimate Towing. See Notice of Exhibits[1], Exhibit 5, Answer to Interrogatory Number 14.[2] He is also responsible for many duties directly relating to the operation of the business, such as budgeting, negotiating and entering into contracts, maintaining financial statements, paying taxes, driving tow trucks, dispatching, building maintenance, client development, and complying with necessary certifications. Id.

2. Defendants operate a “trespass towing” and “roam towing” business in Alachua County. See Notice of Exhibits, Exhibit 3, ¶1 (prohibiting Mr. and Mrs. Forron from competing against Defendants’ “trespass towing or roam towing business within Alachua County”).

3. Defendants are contractually prohibited from “Consent Towing,” which is defined as “calls initiated or referred though AAA or other auto clubs and any direct calls from vehicle drivers or owners” within Gainesville, FL. Notice of Exhibits, Exhibit 4, Page 1, ¶1. Defendants are also contractually prohibited from “advertis[ing] or assist[ing] in the advertisement of any business engaged in Consent Towing” within Gainesville. Notice of Exhibits, Exhibit 4, Page 2, ¶1.

4. Plaintiff drove several single cab light duty trucks for Defendants. Notice of Exhibits, Exhibit 1, ¶3. See also Notice of Exhibits, Exhibit 10. When adding in the weight of the towing mechanism attached to the light duty truck, their weight is less than 10,000 pounds. Notice of Exhibits, Exhibit 3, ¶3-6.

5. Plaintiff never left the state of Florida for Defendants. Exhibit 3, ¶7. Defendants never told Plaintiff he was at risk of leaving the state of Florida. Notice of Exhibits, Exhibit 3, ¶7. He was never asked to leave the state of Florida by Defendants or their employees. Notice of Exhibits, Exhibit 3, ¶7. He never saw anyone working as an employee for Defendants tow a car either to outside Florida or from outside Florida. Notice of Exhibits, Exhibit 3, ¶9. There are no records of any out of state tows and Defendants admit that they are “not aware that Plaintiff performed any work outside the state of Florida.” Notice of Exhibits, Exhibit 5, Defendant’s Answer Plaintiff’s Interrogatory Number 9. Defendants readily admit there are no records of any out of state tows. See Paragraphs 13 and 26 of O’Grady’s Affidavit [Doc. 22-1] and Paragraph 6 of Flake’s Affidavit [Doc. 22-2].

6. The local nature of Defendants’ business is also evident from Mr. O’Grady’s public Facebook posts. Notice of Exhibits, Exhibit 11.[3] For example, this one from Mary 27th is a clear example of Defendants’ “roam towing” activities and how he “prey[s]” on people in Gainesville:

Stephen O’Grady We prey upon the ignorant and selfish, and do this city a great service lest it be preyed upon by immoral deviants like you–Stephen O’Grady, Ultimate Towing

7. The tow truck drivers for Defendants, such as Plaintiff, were responsible for finding cars to tow. Notice of Exhibits, Exhibit 3, ¶12. When Defendants claim that it “assigned schedules,” it is likely referring to the times Plaintiff worked (such as the day or night shift), not the jobs performed. Notice of Exhibits, Exhibit 3, ¶12.

8. Mr. Flake’s duties while Plaintiff worked for Defendants was primarily driving a tow truck. Notice of Exhibits, Exhibit 3, ¶11. He typically worked day shifts, while Plaintiff worked typically nights. Id. To the best of Plaintiff’s knowledge, Mr. Flake did not become a manager until after Plaintiff left Defendants’ employment. Notice of Exhibits, Exhibit 3, ¶10. On its initial disclosures, Defendants identify him as a “Senior Driver.” Notice of Exhibits, Exhibit 7, Page 2. Moreover, Mr. Flake’s term of employment was interrupted and not continual. Id.

III. MEMORANDUM OF LAW

As discussed below, Plaintiff is not exempt from overtime under the FLSA pursuant to the Motor Carrier Act Exemption because: 1) the tow trucks Defendants operate weigh less than 10,000 pounds and 2) Defendants did not have an interstate business. Also, Defendants’ claim that estoppel precludes Plaintiff’s claims is completely without merit. Finally, Defendants’ arguments regarding willfulness and a good faith defense are unavailing.

A. Plaintiff is Not Exempt from Overtime Under the FLSA Per the Motor Carrier Act Exemption.

Any FLSA exemptions, such as the Motor Carrier Act and 49 U.S.C. § 31502, must “be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960). The burden of proving an exception rests upon the employer. Id. at 394. The party asserting an exemption, usually the employer, bears the burden of showing the applicability of the exemption, and that the employer is “clearly and unmistakably within the spirit and the letter of [the exemption’s] terms.” Pugh v. Lindsay, 206 F.2d 43, 46 (4th Cir. 1953).

1. Defendants’ Vehicles do not Weigh over 10,000 Pounds

The motor carrier exemption is waived for employees who, in whole or in part, drive vehicles weighing less than 10,000 pounds. Defendants’ recognize this legal requirement in their Motion for Summary Judgment at Page 12:

Specifically, Section 31132 of Title 49 defines a commercial motor vehicle as a “self-propelled or towed vehicle used on the highways in interstate commerce to transport passengers or property, if the vehicle – (A) has a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater.” 49 U.S.C. § 31132(1)(A).

[Doc. 23], (e.s.).

As fully explained in Plaintiff’s Declaration and the 3 exhibits thereto, the tow trucks he drove weighed less than 10,000 pounds – including the tow attachment modification to the light truck. See Notice of Exhibits, Exhibit 1, ¶3-6. Even though Defendants have the burden to prove the exemption, the only “evidence” submitted that its trucks weigh more than 10,000 pounds is Mr. O’Grady’s self-serving and generalized statement in his Affidavit at Paragraph 24 which states Plaintiff and other drivers “drove tow trucks weighing 10,001 pounds or more.”

In stark contrast to Defendant O’Grady’s unsupported and generalized assertion about the weight of the tow trucks, Plaintiff’s Declaration includes 3 exhibits: Exhibit A, a picture of Defendant’s tow truck[4], Exhibit B a copy of part of Ford’s website showing the weight of the truck without the towing mechanism[5], and Exhibit C: a website shot of the towing mechanism attached to the truck and its weight[6]. As described in his Declaration, when the weight of the light duty truck is added to the weight of the attached after-market towing mechanism, the weight is well under 10,000.00 pounds.

Defendants make no such analysis or showing, even though they have the duty to prove the Motor Carrier affirmative defense. They do not describe the basis for their assertion that the trucks weigh more than 10,000 pounds, cite any manuals or vehicle handbooks, offer an expert mechanical opinion or anything. To the contrary, all the available evidence shows that the tow trucks weighed well below the required 10,000 pounds.

The recent decision in Crookston v. Doctor’s Inc., No. 16-2071-JTM (D. Kan. June 6, 2017)[7] highlights the employer’s high burden of proof regarding the 10,000-pound rule. There, the plaintiff normally drove a 2007 Ford F-150 truck weighing 8,900 pounds during his employment.[8] However, he also sometimes drove the F-150 hooked to a trailer with a combined weight that likely exceeded 10,000 pounds. Moreover, plaintiff sometimes drove the F-150 without the trailer within the course of his duties. The defendant argued that this trailer added to the 10,000-pound requirement; however, the court held that because the plaintiff drove without the trailer more at least half of the time the Motor Carrier Act did not apply. The court concluded that:

[t]he burden lies with the employer to establish that the [Motor Carrier Act] exemption applies and that the [Technical Corrections Act] does not. The court finds that defendants have not met their burden as they acknowledge that plaintiff drove a noncommercial vehicle (the F-150 without a trailer) more than half the time he was employed with Doctor’s.

citing Moore v. Performance Pressure Pumping Servs., LLC, No. 5:15-CV-346-RCL, 2017 WL 1501436, at *10 (W.D. Tex. Apr. 26, 2017) (e.s.). (“[A]t the summary judgment stage, an employer must provide evidence that its employees exclusively drove vehicles greater than 10,000 pounds during a relevant workweek, or that any work with small vehicles was merely de minimis work.”)

Similar to Crooston, Defendants have not met their burden to prove that Plaintiff drove a noncommercial vehicle more than half the time he was employed with them. Even assuming Defendants where to argue that the weight of a car in tow should be added to reach the 10,000-pound limit, the fact that the truck would be without a car in tow for at least half of the time defeats that argument per Crooston.[9] See also McMaster v. Eastern Armored Services, Inc., 780 F.3d 167 (3d Cir. 2015) (holding that a driver/guard who drove half of her trips on vehicles weighing less than 10,000 pounds worked “in part” on smaller vehicles and therefore was a “covered employee” under the TCA).

Additionally, unlike a trailer which has a constant weight, a car in tow is not similarly attached and the car’s weight would vary based on the type of car. Thus, the weight of a car in tow would never be included in a 10,000-pound calculation, just like the weight of items in a pulled trailer. By way of example, if a trailer was hauling rocks the vehicle weight for purposes of the Motor Carrier Act is only the weight of the truck and trailer – not the rocks it sometimes carries. See DOL Field Assistance Bulletin No. 2010-2[10] (“’Weighing 10,000 pounds’ – WHD will continue to use the gross vehicle weight rating (GVWR) or gross combined vehicle weight rating if the vehicle is pulling a trailer. The GVWR is found on the vehicle, usually on a plate on the door jamb.”) Similarly, any cars towed by the trucks in the instant case cannot be added to exceed the 10,000-pound limit, only the truck and tow mechanism attached thereto.

Defendants have the burden to prove the truck’s weight is greater than 10,000 pounds sans any potential car in tow, but failed to do so – especially when all facts are viewed in a light most favorable to Plaintiff. Thus, summary judgment should be denied.

2. Defendants were Not Engaged in Interstate Commerce

“Where the employee’s continuing job duties have no substantial direct effect on the safety of operation of motor vehicles in interstate commerce, or where such activities are so trivial, casual, and insignificant as to be de minimis, the exemption does not apply.” Major v. Chons Bros., Inc., 53 P.3d 781, 784 (Colo.App. 2002). In Major, the plaintiff’s interstate commerce activity as a tow truck driver involved nine out-of-state tows during three years of work. The court found that the plaintiff’s job activities were “overwhelmingly” conducted intrastate, and that the nine out-of-state tows, which constituted interstate commerce activity, merely rose to the level of being de minimis interstate commerce activity, therefore precluding the application of the exemption. Id. at 784.

In this case, Plaintiff performed no out of state work for Defendants and had no expectation that he would; not even a de minimis amount. He never heard of any employee of Defendants having performed out of state work for Defendants. There are no records of any out of state work performed by Defendants for any employees, let alone Plaintiff.

Moreover, the non-compete agreements Defendants produced in discovery also only relate to Alachua County, and specifically prohibit Defendants from taking AAA or direct call jobs. See Notice of Exhibits, Exhibit 3. Those non-competes state that Defendants’ are in the roam towing and trespass business. The definitions of “roam towing” and “trespass towing,” to which Defendants’ business is limited, make the intrastate nature of its business crystal clear. The non-compete attached as Exhibit 3 references Gainesville Code 14.5 for the definitions of those terms. The nature of that work is indisputably intrastate:

Roam towing means towing or removal of a vehicle that is parked on private real property, without the consent of the vehicle’s registered owner or other legally authorized person in control of the vehicle, when the tow was not specifically requested by the private property owner or designee, but was done pursuant to an agreement on the form approved by the towing administrator with a tow company for the tow company to monitor non-permitted parking on said private real property.

Trespass towing means towing or removal of a vehicle that is parked on private real property, without the consent of the vehicle’s registered owner or other legally authorized person in control of the vehicle. “Trespass towing” includes roam towing and call in towing.

See Gainesville City Code, Section 14.5-25. Those non-competes also specifically prohibit Defendants from engaging in “Consent Towing” – aka towing for auto clubs such as AAA or “any direct calls from vehicles drivers or owners.” See Notice of Exhibits, Exhibit 4. Thus, the only cars Defendants are towing are those improperly parked on private property – a purely local type of towing business. This is also evidenced by Defendant O’Grady’s Facebook posts, which show him publically bragging about “preying” on the citizens of Gainesville – at least some of whom Defendants perceive as ignorant, selfish and immorally deviant. See Notice of Exhibits, Exhibit 11

Defendants are being untruthful in the Affidavits submitted when they claim they had an interstate business. The non-competes attached as Exhibits 3 and 4 to the Notice of Exhibits make it clear they are engaged in the roam towing and trespass towing – obviously a local endeavor per the definitions of those terms in Code 14.5. Defendants are contractually prohibited from both direct calls and motor clubs (such as the AAA). This is the reason Defendants fought so hard to prevent Plaintiff from receiving copies of the non-competes and had to be Ordered to produce them – they disprove their affirmative defense that they ran an interstate towing operation. See Doc. 20, Order on Motion to Compel. Instead of withdrawing that defense, Defendants have doubled down and moved for summary judgment based on the false notion that their activities are interstate. There is not a single document that even tends to prove that claim, and Exhibits 3 and 4 clearly prove it to be false.

Defendants have not proved they engaged in interstate activities and this is a burden it must carry to prove its affirmative defense. Thus, there is at least a genuine issue of material fact regarding the Motor Carrier Act’s exemptions.

B. Plaintiff is Not Estopped

Defendants never pled estoppel as an affirmative defense. See Doc. 5. Thus, their estoppel argument should be denied.

Even if estoppel was pled, Federal Courts have repeatedly rejected estoppel as an affirmative defense to an FSLA action. See e.g. Caserta v. Home Lines Agency, Inc., 273 F.2d 943, 946 (2d Cir. 1959), Burry v. Nat’l Trailer Convoy, Inc., 338 F.2d 422, 426-27 (6th Cir. 1964), Handler v. Thrasher, 191 F.2d 120, 123 (10th Cir. 1951). Specifically, in Caserta, Judge Friendly addressed the availability of an estoppel defense in FLSA actions and concluded that allowing such a defense would be “inconsistent with both the language and the policy of the Fair Labor Standards Act.” Caserta, 273 F.2d at 427. To hold otherwise, Judge Friendly continued, would be to “ignore[] that this case lies in an area where agreements and other acts that would normally have controlling legal significance are overcome by Congressional policy.” Id.

Even if estoppel was a legitimate defense and even if Defendants pled it, their argument that Plaintiff lied on his criminal indigency form is pure nonsense. Noticeably absent from Defendants’ Motion is the actual indigency form it claims Plaintiff lied on, so Plaintiff has filed both it and the application made for his appeal as Exhibits to this Response. See Notice of Exhibits, Exhibits 2 and 6. Notably, the indigency form attached as Exhibit 2 was signed while Plaintiffs still worked for Defendants, before he made a claim for overtime, before he filed this lawsuit, and before Plaintiff even hired counsel to advise him of his FLSA rights (on November 18, 2016, as per Paragraph 13 of his Declaration filed as Exhibit 1). Exhibit 2 asks for “take home income” and “other income”; thus, Plaintiff properly disclosed his $450 per week paid by Defendants as “Driver Commission”. There is no place on the form to fill out perceived future litigation, nor should there be for the purposes of that form: to determine if Plaintiff can currently afford either a criminal attorney or pay the appellate filing fees. The appeal motion filed by his criminal attorney attached as Exhibit 6 is also not misleading as it relates back to the form originally signed (i.e. Exhibit 2). Exhibit 6 states that Plaintiff was previously adjudged as indigent and remains insolvent; that is accurate. Id.

Defendants have not even come close to carrying their burden to prove that Plaintiff “calculated to make a mockery of the judicial system” as required by the 11th Circuit in Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir. 2002). The notion that Plaintiff would perceive Defendant’s nonpayment to him of overtime as an “asset” on a indigency form used to waive the filing fees for a criminal appeal defies any common sense. Exhibit 2 does not even ask about future litigation (as might as bankruptcy form, which Defendants’ admit is the law applied to judicial estoppel). See Defendants’ Motion at page 23 (“Although the application of judicial estoppel is most commonly used where an individual has failed to disclose a claim in litigation as an asset in the individual’s separate bankruptcy proceeding. . ..”).[11]

Further proving the utter frivolousness of Defendants’ claims is the Defendant Steven O’Grady’s own bankruptcy petition dated January 3, 2017. See Notice of Exhibits, Exhibits 5. That petition does not list Plaintiff’s claims as a liability although it lists other potential lawsuits (such as the one on Page 18 regarding Monica Cook and another on Page 15 regarding Catherine Fleming). Moreover, the Court Docket to Defendant O’Grady’s bankruptcy does not show that Plaintiff was added as a creditor (for example on April 11, 2017, well after this lawsuit was filed, American InfoSoure LP was added as a creditor). See Notice of Exhibits, Exhibit 8. Incredibly, Defendants claim Plaintiff should have put on his indigency form (filed before this lawsuit began) a notice about this lawsuit but Defendant O’Grady himself did not list this lawsuit as a potential liability on his own bankruptcy petition.

C. There is a Genuine Issue of Fact Regarding Willfulness

Defendants claim that Plaintiff should only be entitled to 2 years of compensation because: “the classification of the tow truck drivers was based on a prior Department of Labor determination finding that such drivers were exempt under the MCA.” See Defendants’ Motion at Page 25. However, Defendants never filed this Department of Labor determination as record evidence in support of their Motion – nor was it produced in discovery to Plaintiff. It was also not listed on Defendants’ initial disclosures. Notice of Exhibits, Exhibit 7.

To the contrary, Defendants’ lack of records and failure to even disclose the Department of Labor determination it now seeks to rely on are evidence of willfulness. An employer that fails to adhere to the Act’s record keeping requirements cannot later complain that its employees’ evidence of damages is inexact or imprecise. For example, in Elwell v. University Hospitals Home Care Serv., 276 F.3d 832, 844 (6th Cir. 2002), the Sixth Circuit held that a district court should properly have instructed a jury that evidence of recordkeeping violations can be an element of recklessness or willfulness. A finding of willfulness would have operated to extend the normal two-year statute of limitations to three years. Id. at 842. The evidence at trial revealed the University failed to keep records of time worked. Recordkeeping violations can corroborate an employee’s claims that the employer acted willfully in failing to compensate for overtime. Id. at 844; see also, Harold Levinson Assoc., Inc. v. Chao, 2002 U.S. App. LEXIS 9796 (2d Cir. May 22, 2002) (stating that the “defendants’ utter failure to implement proper recordkeeping even after the investigation giving rise to a FLSA settlement, supports the finding that the defendants’ violations were willful). In this case, not only did Defendants not keep proper records such as Plaintiff’s hours worked they failed to disclose and produce the Department of Labor determination it now seeks to rely on. Its belies common sense that Defendants relied so heavily on this supposed DOL determination but failed to preserve it or obtain it themselves from the DOL during the course of this litigation.

Moreover, Defendants’ admitted knowledge of the Department of Labor’s previous inquiry imposed the obligation to further inquire as to Plaintiff’s exempt status. An employer willfully violates the FLSA if he should inquire as to whether his actions violate it, but fails to do so. The Supreme Court held in McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108 S. Ct. 1677 (1988), that a willful violation of the Act occurs when an employer either knows that his conduct is prohibited by or “show[s] reckless disregard for” the FLSA, id. at 133, 108 S. Ct. at 1681. Here, Defendants did nothing to determine the exempt status of Plaintiff even though their predecessor had been cited by the Department of Labor. That also creates a genuine issue of material fact as to the willfulness issue and whether the Defendants showed a “reckless disregard” for the FLSA.

Finally, whether a party acted willfully under the FSLA is a factual inquiry more properly reserved for the factfinder as recognized by the Pattern Jury Instructions and the following Middle District decision:

Defendant responds that summary judgment on this issue is not appropriate, because the notes to the Eleventh Circuit Pattern Jury Instructions state that whether a defendant committed a willful violation is a jury question. See Notes to Pattern Jury Instruction 1.7.1, Eleventh Circuit Pattern Jury Instructions (Civil), 2005 edition. The Court agrees with Defendant and denies Plaintiffs’ motion on this issue.

McGuire v. Hillsborough County, Fla., 511 F.Supp.2d 1211, 1216-17 (M.D. Fla. 2007). The notes to the 11th Circuit’s Pattern Jury Instructions state that “The willfulness or good faith question is answered first by the jury to determine the period of limitations. . ..” Thus, the issue of willfulness should be reserved for a determination by the factfinder than at summary judgment.

D. Defendants did not Prove a Good Faith Defense

The good faith affirmative defense to liquidated damages requires “an employer [to] show that it acted with both objective and subjective good faith. ” Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1272 (11th Cir. 2008). The determination of whether an employer acted in good faith and had reasonable grounds for believing its act or omission was not a violation of the FLSA has both a subjective and objective component. Dybach v. Florida Dep’t of Corrections, 942 F.2d 1562, 1566 (11th Cir. 1991). Subjective good faith means the employer has an honest intention to ascertain what the FLSA requires and to act in accordance with it. Id. Objective good faith means the employer had reasonable grounds for believing its conduct comported with the FLSA. Id.

In addition, “[g]ood faith requires some duty to investigate potential liability under FLSA.” Barcellona v. Tiffany English Pub, Inc., 597 F.2d 464, 469 (5th Cir. 1979). An employer who knew or had reason to know that the FLSA applied cannot establish good faith as a defense. Reeves v. International Tel. & Tel. Corp., 616 F.2d 1342, 1352-53 (5th Cir.1980). See also Friedman v. S. Fla. Psychiatric Assocs., 2005 WL 1540129 (11th Cir. 2005) (no good faith where employer read FLSA 20 years prior and thought employee was exempt under prior legislation) (unpublished decision); Spires v. Ben Hill County, 980 F.2d 683, 689 (11th Cir. 1993) (“[L]iquidated damages are mandatory absent a showing of good faith.”); Joiner v. Macon, 814 F.2d 1537, 1539 (11th Cir.1987) (same).

Defendants simply did not prove this defense, and never even produced and/or obtained the Department of Labor determination it claims it relied on as mentioned in the previous section. Defendants have not carried their burden to prove they acted with both an objective and subjective good faith belief as to whether Plaintiff was being properly paid under the FLSA. Even if it had relied on a supposed DOL determination, Defendants presented no evidence about what the exact DOL findings were, how they applied to Plaintiff’s, that Defendants’ researched the FSLA themselves, or that Defendants’ made any other attempt to actually comply with the FLSA as to Plaintiff. See Friedman v. S. Fla. Psychiatric Assocs., Inc., 139 F. App’x 183, 185-86 (11th Cir. 2005) (employer’s testimony that it researched the FLSA in the past was insufficient because it did not update its research); Spires, 980 F.2d at 690 (employer failed to demonstrate good faith because “it took no action whatsoever to investigate its compliance with the [FLSA] until it was contacted by the plaintiff’s counsel”); McGuire, 511 F.Supp.2d 1216-17 (M.D. Fla. 2007) (employer failed to show good faith because it relied on non-binding case law from the outside the Eleventh Circuit and failed to adequately consider Department of Labor regulations). For these reasons, and for those stated in the previous sub-section C as to willfulness, Defendants’ have not carried their burden to prove their good faith defense when all the facts are construed in a light most favorable to Plaintiff.

IV. CONCLUSION.

For all the reasons stated herein, Plaintiff Justin McClain, respectfully requests that Defendants’ Motion for Summary Judgment be denied.

 

  1. At or about the time of the filing of this Response, Plaintiff filed a Notice of Exhibits with attached Exhibits like that filed by Defendants.
  2. This is also publically available on www.sunbiz.org.
  3. Publically available online here: https://www.facebook.com/pg/Ultimate-Towing-of-Gainesville-130636090309240/reviews/
  4. Also available online here: https://www.yelp.com/biz_photos/ultimate-towing-gainesville?select=QxKR6Eof0rKBx0zjXDyiog
  5. Also available online here: http://www.ford.com/trucks/super-duty/2017/models/f350-xlt/
  6. Also available online here: http://www.wreckerequip.com/2011_Store/index.php?main_page=product_info&cPath=1_3_5&products_id=47
  7. Available online from the U.S. Government’s Publishing office here: https://www.gpo.gov/fdsys/pkg/USCOURTS-ksd-2_16-cv-02071/content-detail.html
  8. The weight of the F-150 in Crookston (8,900) likely differs from the trucks Plaintiff drove because of differences in single cab, extended cab and double cab vehicles and other mechanical differences and/or after-market attachments unique to the truck in Crookston. In the instant case, Plaintiff drove a single cab as reflected in the photo of the truck Defendants posted on Yelp. See Exhibit 1, Attachment A. Alternatively, the Crookston vehicle might also have an after-market attachment, such as the towing mechanism attached to the trucks in the instant case. Notably, the combined weight of the tow truck in the instant case plus the towing mechanism attached to it weighs about what the F-150 in Crookston weighs.
  9. The tow truck would not have anything in tow on its way to picking up the vehicle in question, only on the way back. Thus, it would not have anything in tow at least half of the time.
  10. Available online from the DOL’s website here: https://www.dol.gov/whd/FieldBulletins/fab2010_2.htm
  11. Moreover, according to Defendants, Plaintiff has no “asset” in this lawsuit – they claim to owe him nothing. See Notice of Exhibits, Exhibits 5, Defendant’s Answer to Interrogatory Number 6.

Motion for Sanctions and/or Contempt of Court Filed

Plaintiff moves for sanctions against Defendant and its counsel for refusal to abide by Paragraph 6 this Court’s Oder Scheduling Pretrial Conference and Non-Jury Trial dated April 1, 2012 and states as follows:

1. This is an action for unpaid commission. Both Plaintiff and Defendant reside in Gainesville, FL. There is no connection with this case to any other city but Gainesville.

2. The Pretrial Conference is set for this case on June 15, 2012.

3. Paragraph 6 of this Court’s Oder Scheduling Pretrial Conference and Non-Jury Trial dated April 1, 2012 states as follows:

Not later than five (5) days before the Pretrial Conference, the parties shall meet personally and exhibit to each other all documentary and tangible evidence, exhibits, and visual aids, and shall specifically designate all portions of depositions, intended to be offered or used at trial, and shall make a good faith effort to stipulate in writing as to the admissibility and use thereof. The parties shall mark all exhibits before trial.

4. On June 6, 2012, the undersigned emailed opposing counsel to arrange the meeting required by the Court’s Order. In response, Defendant’s counsel (with offices in Orlando) stated that he was not amenable to meeting in Gainesville and instead required the meeting to be closer to her offices in Orlando.

5. On June 6, 2012, the undersigned against emailed opposing counsel to arrange for the meeting stating that this was a Gainesville case and the Court’s Order required an in-person meeting. In response, Defendant’s counsel stated that he was only willing to meet halfway between her offices in Orlando and Gainesville. A third email from the undersigned to opposing counsel also failed to secure her compliance with the Order.

6. This lawsuit has no connection with Orlando. All witnesses listed by Plaintiff and Defendant are either from Gainesville or High Springs. Defendant itself is based and operates out of Gainesville. Plaintiff lives in Gainesville. The mediation of this matter occurred in Gainesville.

7. Defendant’s refusal to meet as required by the Court’s Order in Gainesville is patently unreasonable and in violation of the Court’s Order. The same would hold true if Defendant’s counsel’s offices were in Miami or from out of the State. When Defendant’s counsel accepted this case, she knew its location was Gainesville. Thus, Defendant’s counsel is not complying with the Paragraph 6 of the Court’s Order.

WHEREFORE, Plaintiff respectfully requests an Order to Show Cause Why Defendant and its counsel should not be held in Contempt and/or for an award of sanctions including attorneys’ fees and/or striking of pleadings for their refusal to comply with the Court’s Order.

 

 

New Florida Law regarding Uber/Lyft Drivers

This has great significance to TNCs and their drivers, because a number of state and local employment laws in Florida apply only to employees, and not to independent contractors, including the Florida Civil Rights Act of 1992 and Florida’s Workers’ Compensation Law. The new statute will establish a legal framework for TNCs in Florida and preempt the regulation of TNCs by local governments.

New Florida Statues regarding “Ride-Sharing Companies”, also known as “transportation network companies” (TNCs).  More commonly known by their trade names as Uber, Lyft, Sidecar, as well as smaller companies that have started up across the state.

The new rules, which go went into effect January 1st, 2017, create protections for TNCs in Florida, as long as they meet certain criteria.  These protections allow TNCs to classify their employees as “independent contractors” if they meet all of the following four criteria:

  1. Ride-sharing companies or TNCs cannot mandate specific hours in which drivers must be on-call or logged into the TNC network.
  2. Ride-sharing companies or TNCs cannot require non-compete agreements or otherwise hinder a driver from working with different TNCs.
  3. Ride-sharing companies or TNCs cannot restrict or hinder the ability for drivers to engage in other occupations or business, regardless of whether it is part of the transportation industry or not; and
  4. Ride-sharing companies or TNCs and the driver must agree, in writing, that the driver is an independent contractor of the TNC.

If a driver meets all of the above criteria to be classified as an independent contractor, than all Florida law will treat them in that respect, this includes the Florida Civil Rights Act of 1992 and Florida’s Workers’ Compensation Law. This new legislation supersedes all local laws and regulations and past Florida Statutes regarding independent contractors.  It does not, however, supersede any federal laws or past federal court decisions regarding employment status.

Due to the Supremacy Clause of the us Constitution, rights under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act of 1993 (FMLA), and the employment tax provisions of the Internal Revenue Code (IRC) will remain unaffected. In fact, the new state law may create a situation where a TNC driver may be classified as an “independent contractor” under state law, but would still be classified as an employee under federal law.

Florida Statute 627.748 also includes new requirements for disclosure of fares, background checks and substance abuse screenings for new drivers. It will also require minimum insurance coverage for operations in the state.

As technology continues to evolve, the ride-sharing companies will be on track to continue to update their policies and procedures.  While this state law seems to clarify some of the murky relationships between TNCs and their drivers, it will do so only in state court.  Drivers will still likely engage in litigation at the federal level to determine fair practices and compensation.  If you believe your rights have been violated under Florida state law or under federal law, you will need an experienced and knowledgeable employment attorney to navigate these new laws and research the current case law.  Our attorneys have over 17 years of experience and will offer a FREE CONSULTATION to evaluate your case. Please call (352) 505-8900 to schedule an appointment in our Gainesville Office.

Motion for Summary Judgment Filed by a Plaintiff in Federal Court

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION

PETER SASSANO, CASE NO.: 1:17-cv-20-MW-GRJ

Plaintiff,

v.

DANIELA MYLOT

and THE SANDWICH DEPOT

CAFÉ, LLC,

Defendants.

____________________________________/

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

AND MEMORANDUM OF LAW

Plaintiff, Peter Sassano, moves for Summary Judgment against both Defendants, Daniela Mylot and The Sandwich Depot Café, LLC and states as follows[1]:

STATEMENT OF FACTS

1. Plaintiff filed this action under the Fair Labor Standards Act alleging that Defendants failed to provide him with proper overtime pay and failed to pay him the Federal minimum wage. See Doc. 10, Frist Amended Complaint; Doc. 13, Defendants’ Amended Answer Paragraph 1.

2. Defendants admit that Plaintiff was a non-exempt cook employed by Defendants in Alachua County, Florida. See Doc. 13, Defendants’ Amended Answer Paragraph 2.

3. Daniela Mylot exercised managerial control over of The Sandwich Depot Café, LLC and ran its day-to-day operations. Alternatively, or in addition thereto, she directly participated in hiring, firing, employee compensation decisions, and other work issues of Plaintiff. See Doc. 13, Defendants’ Amended Answer Paragraph 2.

4. Defendants are within the jurisdiction of this Court. See 
 Doc. 13, Defendants’ Amended Answer Paragraph 4.

5. This Court has jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. §1337 and the FLSA and the authority to grant declaratory relief under the FLSA pursuant to 28 U.S.C. § 2201et seq. See Doc. 13, Defendants’ Amended Answer Paragraph 7.

6. Defendants regularly employed two or more employees for the relevant time period that handled goods or materials that travelled through interstate commerce, or used instrumentalities of interstate commerce, thus making Defendants’ business an enterprise covered under the Fair Labor Standards Act. See Doc. 13, Defendants’ Amended Answer Paragraph 8.

7. Defendants have been, at all times material, an enterprise engaged in interstate commerce in the course of their marketing, preparation, cooking, service, and sale of foodstuffs, produce, meats, beverages, and products that have moved through interstate commerce. Defendants cooked, prepared, and stored perishables and beverages while using machinery, appliances, electronic payment processing services and equipment, vehicles, ovens, stoves, fuels, cooking oils, refrigeration, goods and materials that also have moved through interstate commerce. See Doc. 13, Defendants’ Amended Answer Paragraph 9.

8. Furthermore, Defendants obtain, exchange, and send/receive funds to and from outside of the State of Florida, use telephonic transmissions going outside of the State of Florida to conduct business, and transmit electronic information through computers, the internet, via email, and otherwise outside of the State of Florida. See Doc. 13, Defendants’ Amended Answer Paragraph 10.

9. Plaintiff’s work for Defendants was actually in or so closely related to the movement of commerce while he worked for Defendants that the Fair Labor Standards Act applies to Plaintiff’s work for Defendants in the course of his handling and preparing food, produce, spices, oils, poultry, and meats that traveled through interstate commerce while also utilizing ovens, cooking utensils, cooking supplies, knives, equipment, and equipment that also traveled through interstate commerce. See Doc. 13, Defendants’ Amended Answer Paragraph 10.

10. Plaintiff was entitled to overtime pay under the Fair Labor Standards Act. See Doc. 13, Defendants’ Answer Paragraph 18.

11. Towards the end of his employment for the pay period of October 31, 2016 to November 13, 2016, Defendants deducted from Plaintiff’s wages charges such as ones for shirts, a drug screen, and a “chicken case” that caused his hourly rate to be less than $7.25 for that pay period. See Doc. 13, Defendants’ Amended Answer Paragraph 24.

12. Defendants violated the FLSA by not paying Plaintiff at least the federal minimum wages. See Doc. 13, Defendants’ Amended Answer Paragraph 27.

13. Defendants owe to Plaintiff the following, sans attorneys’ fees, declaratory relief, costs and liquidated damages: $19.48 in overtime wages (re-calculated 7.64 hours of overtime, based on the different between a regular rate of $9.75 rather than $8.05); and

$142.38 in minimum wages (based on deductions of $40 drug screening, $80 uniform, and $22.38 case of chicken). See Exhibit A, Defendants’ Responses to Plaintiff’s Interrogatories, Page 3, Answer to Interrogatory Number 6.

ARGUMENT

The FLSA requires an employer to pay an employee at least one-and-one-half times the employee’s “regular rate” for time worked over 40 hours in a workweek. Put another way, if an employee works more than 40 hours in one workweek, the employer must pay the employee the overtime rate of 1.5 times the regular rate for all time worked after the first 40 hours. This is commonly known as time-and-a-half pay for overtime work. 11th Circuit Jury Instructions, 4.14. The FLSA also requires payment of a Federal minimum wages which is $7.25 per hour effective July 24, 2009. See www.dol.gov/whd/minimumwage.htm.

In this case, Defendants’ Amended Answer at Doc. 13 denied a substantial amount of Plaintiff’s allegations – including Paragraphs 11, 15, 16, 17, 19, 20, 21, 22, 28, 29 and 30. At page 3 of their Amended Answer, Defendants twice pled that they “deny that Plaintiff is entitled to any of the relief requested in the Complaint’s ‘wherefore’ paragraph” – once for Count I and once for Count II. They also pled 3 affirmative defenses. The Wherefore clause of the Amended Answer requests judgment for Defendants, that the Amended Complaint be dismissed with prejudice, and that they be awarded their attorneys’ fees.

Despite the allegations in the Answer, discovery has revealed that Defendant’s denial of these allegations was without factual support. In response to Interrogatory #6, Defendant Mylot (the owner of The Sandwich Depot Café, LLC) swore as follows:

6. How much overtime and back wages do you admit that the Plaintiff is owed?

$19.48 in overtime wages (re-calculated 7.64 hours of overtime, based on the different between a regular rate of $9.75 rather than $8.05); and $142.38 in minimum wages (based on deductions of $40 drug screening, $80 uniform, and $22.38 case of chicken).

Doc. 18-1, Page 3. Thus, the actual facts in this case support judgment be entered against Defendants.

REQUEST FOR RELIEF

Defendants never pled a good faith defense, thus liquidated damages are proper. See 29 U.S.C. § 260. According to Defendant’s answer to Interrogatory Number 6, Plaintiff is due $19.48 in overtime wages and $142.38 in minimum wages. With liquidated damages, this amounts to $323.72 ($19.48 + $142.38, multiplied by 2).

Plaintiff also pled declaratory relief. Doc. 10, Page 7, the Wherefore Clause. As such, he respectfully requests a declaration that he was a nonexempt FLSA employee of Defendants and that it required the payment to him of wages thereunder. Such relief has been found proper by other courts such as Barrows v. City of Chattanooga, 944 F.Supp.2d 596 (E.D. Tenn. 2013) and American Fed’n of State, Cnty. & Mun. Emples., AFL-CIO v. Casey, 626 A.2d 683 (Pa. Commw. Ct. 1993). In Barrows, Fire Captain Barrows sued the City of Chattanooga under the FLSA regarding his employee classification and for past unpaid overtime. Following a bench trial, the district court held that the City had been improperly classifying Barrows as an FLSA-exempt employee and that a declaration that Barrows was a non-exempt FLSA employee was appropriate. In Council 13, employees of the State of Pennsylvania sought inter alia a declaration that the FLSA required Pennsylvania to pay wages and salaries that were coming due, despite an anticipated exhaustion of appropriated funds. See id. at 684. The court held that the employees were entitled to the declaration they sought, and that the FLSA required payment of wages. See id. at 686.

In suits to recover unpaid overtime wages, the FLSA mandates that the Court “shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b). This provision has been interpreted to mean that “fee awards [are] mandatory for prevailing plaintiffs.” Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1542 (11th Cir. 1985); see also Shelton v. Ervin, 830 F.2d 182, 184 (11th Cir. 1987) (“Section 216 provides for an award of attorney’s fees, as opposed to granting the court discretion in awarding such fees, to the prevailing plaintiff in FLSA cases.”).

As such, Plaintiff also respectfully requests an award of attorneys’ fees and that the Court reserve jurisdiction to determine the amount of both attorneys’ fees and costs. This is particularly appropriate in a case such as this one where the Defendants’ Amended Answer was not pled with reasonable investigation of the facts when compared to the discovery answers of Defendant Mylot. Moreover, the issue of attorneys’ fees regarding Plaintiff’s Motion to Compel heard on May 19, 2017 were reserved and jurisdiction on that issue should also be retained with all other relief the Court deems necessary and proper.

Dated: May 22, 2017

/s/ Michael Massey

Michael Massey

Fla. Bar No. 153680

CERTIFICATE OF LENGTH AND FONT

I HEREBY CERTIFY that this document contains 1572 Words and is in 14 point font.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I served a true and correct copy of the foregoing on this May 22, 2017 by filing a copy of the same with the Court’s electronic filing system which will send an email to the following:

Eric Lindstrom

FL Bar No. 104778

EGAN, LEV, LINDSTROM & SIWICA, P.A.

Post Office Box 2231 Orlando, Florida 32802

Telephone: (407) 422-1400 Facsimile: (407) 422-3658

/s/ Michael Massey

Michael Massey

Fla. Bar No. 153680

Massey & Duffy, P LLC

855 E. University Ave.

Gainesville, FL 32601

352-505-8900

  1. The Exhibits were filed via Doc. 18.

Notice of Appeal to the 11th Circuit

Are you looking for a sample notice of appeal to the 11th Circuit? Here’s one from an actual case from a multimillion dollar verdict!:

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION

RICHARD ALEXANDER WILLIAMS,

Plaintiff,

v.

Case No. 1:13-cv-00222-MW-GRJ

FIRST ADVANTAGE LNS SCREENING SOLUTIONS, INC. f/k/a LEXISNEXIS SCREENING SOLUTIONS, INC.,

Defendant.

/

NOTICE OF APPEAL

Notice is hereby given that Defendant FIRST ADVANTAGE BACKGROUND SERVICES CORP. hereby appeals to the United States Court of Appeals for the Eleventh Circuit from: (1) the jury’s verdict, as returned on October 28, 2016 (ECF No. 188); (2) the District Court’s Orders denying Defendant’s motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50, as entered on October 26, 2016 and October 31, 2016 (See ECF No. 191); (3) the Judgment in this action, as amended, entered on November 2, 2016 (ECF No. 196); and (4) the District Court’s Order Denying Motion for Judgment as a Matter of Law or New Trial, made pursuant to Federal Rules of Civil Procedure 50 and 59, as entered on March 2, 2017 (ECF No. 217). Case 1:13-cv-00222-MW-GRJ Document 220 Filed 03/31/17

Respectfully submitted,

FIRST ADVANTAGE BACKGROUND SERVICES CORP.

By /s/ Joseph Turner Joseph Turner Illinois Bar No. 6195834 jturner@seyfarth.com Jason M. Torres Illinois Bar No. 6278611 jtorres@seyfarth.com SEYFARTH SHAW LLP 131 South Dearborn Street, Suite 2400 Chicago, Illinois 60603 Telephone: (312) 460-5000 Facsimile: (312) 460-7000

Lead Counsel for First Advantage Background Services Corp.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION

RICHARD ALEXANDER WILLIAMS,

Plaintiff,

v.

Case No. 1:13-cv-00222-MW-GRJ

FIRST ADVANTAGE LNS SCREENING SOLUTIONS, INC. f/k/a LEXISNEXIS SCREENING SOLUTIONS, INC.,

Defendant.

/

CERTIFICATE OF SERVICE

I certify that on March 31, 2017, I electronically filed DEFENDANT’S

NOTICE OF APPEAL with the Clerk of Court using the CM/ECF system, which

will automatically send e-mail notification of such filing to the following attorneys

of record:

Barry S. Balmuth Barry S. Balmuth, B.C.S.

2505 Burns Road Palm Beach Gardens, Florida 33410

Michael Massey Massey & Duffy, PLLC 855 E. University Avenue Gainesville, Florida 32601

/s/ Joseph Turner

Counsel for Defendant

JOINT MOTION TO SEAL EVIDENCE

JOINT MOTION TO SEAL EVIDENCE

The Plaintiff, Richard Alexander Williams, and Defendant, First Advantage LNS Screening Solutions, Inc., pursuant to Rule 5.2(d) and (f) of the Federal Rules of Civil Procedure, jointly move for an Order placing evidence under seal, and, as grounds therefore, state as follows:

  1. Rule 5.2(a)(1) and (2) of the Federal Rules of Civil Procedure, requires that any filings contain only the last four digits of social security numbers and only the year of an individual’s birth.

  2. As the use of identifiers was a central issue in the case, evidence was introduced at trial that included Plaintiff’s Social Security Numbers. In particular, the following:

  • Plaintiff’s Exhibit 2: Partial SSN; Partial DOB; Contact Info.

  • Plaintiff’s Exhibit 3- Partial SSN

  • Plaintiff’s Exhibit 5 – Partial SSN

  • Plaintiff’s Exhibit 6 – Partial SSN; Contact Information

  • Plaintiff’s Exhibit 10 – Partial SSN; Partial DOB

  • Plaintiff’s Exhibit 11 – Partial SSN; Partial DOB

  • Plaintiff’s Exhibit 12 – Full SSN; Full DOB

  • Plaintiff’s Exhibit 32 – Partial SSN; Partial DOB

  • Plaintiff’s Exhibit 35 – Partial SSN; Full DOB; Full Driver’s License No.

  • Plaintiff’s Exhibit 36 – Partial SSN; Partial DOB

  • Plaintiff’s Exhibit 38 – Full SSN; Full DOB

  • Plaintiff’s Exhibit 55 – Full SSN

  1. Moreover, sensitive and highly confidential financial information of Defendant and its holding company, STG-Fairway Holdings, LLC, was introduced into evidence as Plaintiff’s Exhibit 51. Exhibit 51 consists of highly confidential audited consolidated financial statements and financial analyses of STG-Fairway Holdings, LLC and its related entities (including Defendant), including: Statements of Operations, Statements of Comprehensive Loss, Statements of Cash Flows, Statements of Changes in Members’ Equity, and related notes to the above-referenced consolidated statements. Exhibit 51 also contains a confidential Independent Auditors’ Report.
  2. Pursuant to the Court’s Protective Order (ECF No. 37), Defendant’s financial information and information regarding Defendant’s business plans and strategies may be considered “Confidential Materials” and are properly placed under seal.
  3. In addition, Defendant respectfully asserts that its and STG Fairway Holdings, LLC’s legitimate privacy interests will be harmed if Exhibit 51 is not sealed. Defendant and STG Fairway Holdings, LLC have a right to keep its financial statements, financial analysis, and its other related financial data confidential. See Reid v. Viacom, 2016 WL 4157208 (N.D. Ga. Jan. 25, 2016) (private financial data permitted under seal); Graphic Packaging International, Inc. v. C.W. Zumbiel Co., 2010 WL 6790538, at *2 (M.D. Fla. Oct. 28, 2010) (“Courts have found that a company’s privacy interest in its financial records . . . often outweigh[s] the public right of access.”). Moreover, given the voluminous nature of the confidential information contained within Exhibit 51, redaction is not feasible. See L.R. 5.5(D)(2).

WHEREFORE, the parties respectfully request that the Court enter an Order sealing the above-listed exhibits. However, should Defendant and/or Plaintiff appeal this matter, the parties jointly request that the Eleventh Circuit and/or the Supreme Court of the United States be permitted to view full versions of any sealed documents.

How to file a charge with the EEOC

Filing a charge of discrimination with the EEOC (Equal Employment Opportunity Commission) is more complex that it seems. The following video describes the process, but recommends that you seek an attorney to assist you. Pitfalls often occur when claimants try to do these themselves, or have the EEOC or FCHR do it for them. As further explained in the video, even simple thing such as whether you have been “terminated” can be legally complex.

Employment law is a complex matter. If you are thinking of filing with the EEOC and/or FCHR, please first call us for a free consultation. You will be going against, most likely, extremely well financed and large law firms – why not have an experienced attorney on your side? Often, we take cases on contingency. Here’s a sample charge – but, again, don’t try to do this yourself: EEOC Form 5

Am I Eligible for FMLA Leave?

Am I Eligible for FMLA Leave? – Gainesville Employment Attorney Explains

Michael Massey explains the different factors that are involved in determining whether an employee is covered by the Federal Medical Leave Act. Michael Massey has represented employees in Alachua County, Lake County, Marion County, Columbia County, Levy County and Sumter County. Michael Massey is an employment attorney with more than 17 years of experience in both state and federal district court. If you believe you have been wrongfully terminated, harassed, or received adverse action from your employer due to an issue with FMLA, please call our office at (352) 505-8900 or submit a contact request form here.

Medical Marijuana in Florida – How does this affect Employees?

Medical Marijuana in Florida – How does this affect Employees?

January 3rd, 2017 is the date in which Florida became the 26th state to legalize marijuana for medicinal use. Although it will likely be months before the first wave of patients has access to the drug, it has many employers and potential patients searching for answers on its effects on employment.

Federal Employees and Contractors

If you are a federal employee or federal contractor, the answer is simple. Under federal regulations, the drug is still illegal and any employee or contractor of the federal government is prohibited from utilizing the drug, even if they reside or are employed in a state where medical or recreational use is legal.

Florida State Employees and Contractors

The State of Florida has not yet released any proposed plan or policy regarding medicinal use of marijuana by their employees and contractors.

Private Employees and Independent Contractors

It is unclear how much legal protection employees will have under the new Florida law. The language of the statute seems intentionally vague regarding patient protections and/or discrimination in the workplace regarding on-going use of medicinal marijuana. Marijuana is still deemed illegal under the federal Controlled Substances Act. The new Florida law does mention that employers do not have to make accommodations for “on-site use of medical marijuana”, meaning that even if employers give exemption to legal users of the drug, they do not have to allow smoking, ingesting, or “vaping” of the drug on their premises.

Other States’ Approach

Since no Floridian has had any legal standing to challenge an employee’s right to treat their disability or illness with medicinal marijuana, the Florida Supreme Court has yet to rule on this matter. However, several other state courts, including Oregon, Colorado and New Mexico, have ruled that employers are not required to provide accommodations for a substance, being used medicinally or otherwise, that remains illegal under federal law.

Massey & Duffy, PLLC is a civil law firm dedicated to protecting the rights and interested of employees in the Gainesville, Ocala and Lake City communities. Attorneys of Massey & Duffy have represented hundreds of clients in employment related cases such as FLSA, FLMA, Unpaid Overtime, Unpaid Wages, Employment Discrimination and the Fair Credit and Reporting Act. For a Free Consultation regarding your unique employment situation, please call our office at (352) 505-8900 or submit a contact request here.

Gainesville Law Firm – Complaint Results in $3.5 Million

Gainesville Law Firm – Complaint Results in $3.5 Million for Plaintiff – Multi-Million Dollar Jury Verdict

Attorney Michael Massey, who represented a Cheifland, Florida man in a Fair Credit and Reporting Act lawsuit. The complaint can be found here:  Amended Complaint.

Mr. Massey explains the components of a civil complaint. This particular complaint was filed in the Northern District of Florida US Federal Court. The Law Firm of Massey & Duffy, PLLC has represented hundreds of clients in federal employment cases. This particular case resulted in the Defendant, First Advantage being found in violation of federal law and resulted in a jury award of over $3.5 million.

Due to Defendant’s willful negligence in conducting background checks for potential employers. This Levy County resident was denied employment by multiple employers based on an erroneous match that mistakenly identified him as a criminal. The Plaintiff was denied multiple employment opportunities due to this egregious error and suffered damages due to their neglect. Click here to read the story published by the Gainesville Sun.

If you or a loved one has suffered from negligent practices in connection to an error in a criminal or financial background investigation, you may be entitled to a monetary award, please call our office at (352) 505-8900 or submit a contact request form here. Your initial consultation is free.

Gainesville Employment Lawyer – Filing a Witness List

Gainesville Employment Lawyer – Filing a Witness List

Employment attorney, Michael Massey, Founding Partner of Massey & Dufy, PLLC explains the importance of filing a witness list in the 8th Judicial Circuit of Florida. You can watch the video here:

Michael Massey is an employment attorney and has represented employees in cases involving racial discrimination, Family Medical Leave Act (FMLA), Fair Labor Standards Act (FLSA), overtime and unpaid wages disputes and the Americans with Disabilities Act (ADA).

Massey & Duffy is a civil law firm dedicated to compassionate service and aggressive representation for our clients.  To schedule a Free Consultation, call our office at (352) 505-8900 or you can submit a request to be contacted by one of our legal professionals here.