United States District Court, S.D. Florida
JASON HILL, ROBERT SADLIER, ROLANDO CADIZ, ALEXIS LUIS, AND GUILLERMO VALDES, Plaintiffs,
BELLA MIA, INC. a Florida for-profit Corporation, d/b/a PINK PONY, TERI GALARDI, an individual, MICHAEL PORTER, an individual, and JOHN STEVEN ENNIS, an individual, Defendants.
DENYING PLAINTIFF'S MOTION FOR SUMMARY
LAWRENCE KING, UNITED STATE DISTICT JUDGE.
CAUSE comes before the Court upon Plaintiffs'
Motion for Summary Judgment (DE #71), filed on November 6,
2017. This is a Fair Labor Standards Act case in which
Plaintiffs claim they are owed unpaid overtime and minimum
wages. Plaintiffs purport to seek summary judgment on three
issues: (1) that the individually named defendants are
subject to employer liability under the FLSA; (2) liability
under the FLSA; and (3) that plaintiffs are entitled to
liquidated damages under the FLSA. Plaintiffs do not seek
summary judgment against the corporate defendant. This Motion
is fully briefed,  and the Court concludes that plaintiffs
have not carried their burden of showing the absence of
genuine issues of material facts that would entitle them to
judgment as a matter of law on any of the issues raised by
Court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A party asserting that a fact cannot be
or is genuinely disputed must support the assertion by
"citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers or other materials; or
showing that materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact."
Id. at 56(c)(1). "In determining whether
summary judgment is appropriate, the facts and inferences
from the facts are viewed in the light most favorable to the
non-moving party, and the burden is placed on the moving
party to establish both the absence of a genuine material
fact and that it is entitled to judgment as a matter of
law." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986).
made clear in Rule 56, plaintiffs, in moving for summary
judgment, must carry the burden of showing the absence of
disputed issues of material fact and entitlement to judgment
as a matter of law. And in doing so, plaintiffs are required
to support their assertions with evidence in the record. As
an initial matter, and in an apparent attempt to comply with
S.D. Fla. L.R. 56.1(a),  in support of their Motion for Summary
Judgment, plaintiffs submitted a scant six-paragraph section
entitled "Undisputed Facts." The facts recited
therein, however, are comprised largely of argument and legal
conclusions. For example, in paragraph 5, plaintiffs assert
as an undisputed fact that "Defendants clearly never
followed the time cards because they routinely paid employees
at a flat rate regardless of the time sheets and any
variation from week to week." For that "fact,
" Plaintiffs point generally to a "Hill
Affidavit." The Court notes that Plaintiffs filed four
one-page affidavits along with their Motion, each sworn out
by a different plaintiff, and one of which was sworn out by
plaintiff Jason Hill. Though not clearly cited in the Motion,
the Court presumes that this seven paragraph affidavit
without documentary evidence is the referenced "Hill
Affidavit." Hill's is the only affidavit cited for
the proposition that defendants "routinely paid
employees at a flat rate regardless of the time sheets."
The "Undisputed Facts" section continues with the
assertion that "many employees' pay-stubs
consistently showed payment for only twenty hours a week
regardless of how much work they actually performed, "
again citing only the Hill Affidavit for support.
facts that plaintiffs do attempt to assert that might go to
the issues of individual employer or FLSA liability-that
defendants Ennis, Porter, and Galardi handled day-to-day
operations or otherwise exercised sufficient control to be
held liable-are all either disputed or not as clear in the
single deposition cited in support as plaintiffs claim. For
example, plaintiffs assert that defendant Ennis "was a
manager and handled the day-to-day operations for [defendant]
Pink Pony." For this proposition plaintiffs point to
defendant Ennis's deposition (DE #71-5) at page 6.
However, nowhere does defendant Ennis testify that he handled
day-to-day operations for the corporate defendant, and his
testimony actually shows that he was a manager from the years
2000 to 2003, which are outside the 2013-2015 time period
relevant to this case. See Ennis Depo. at 5.
do not cite facts about how Ennis exercised sufficient
control to be held individually liable under the FLSA. And
defendant Ennis, in his Response in Opposition, disputes the
few assertions that plaintiffs do make. See, e.g.,
DE #75-1, Affidavit of John Stephan Ennis ("During [the
timeframe at issue in this case, 2013 - 2015] I was not
involved in the day-to-day operation of [defendant] Bella
Mia's business. I was not involved in the hiring and
firing of employees; the supervising and controlling of
employee work schedules or conditions of employment; nor did
I determine employees rates and methods of payment...").
And plaintiffs' factual assertions against the other
individual defendants, Porter and Galardi, are similarly
thinly supported and disputed by those defendants'
short, Plaintiffs have not carried their burden in moving for
summary judgment of showing, by properly supported record
evidence, the absence of any genuine issue of material fact
to entitle them to summary judgment on any of their claims.
it is ORDERED, ADJUDGED, and
DECREED that Plaintiffs Motion for Summary
Judgment (DE #71) be, and the same hereby is
AND ORDERED in Chambers at the James Lawrence King
Federal Justice Building and United States Courthouse, Miami,
Florida, this 4th day of Jaauary, 2018.
 The individual defendants have filed
their Response in Opposition (DE #75), and plaintiffs have
filed their Reply in Support of Summary Judgment (DE #77). To
the extent the individual defendants' Response contains a
section entitled "Summary Judgment Should Be Entered in
Favor of [defendant Teri] Galardi, " the Court declines
to treat that half-page section as a separate Motion for
Summary Judgment. A Motion must be separately, and timely,
filed, and Motions for Summary Judgment are governed by
Fed.R.Civ.P. 56 and S.D. Fla. L.R. 56.1; not only was this
section filed as part of a Response, and ...