United States District Court, S.D. Florida
ORDER ON THE PLAINTIFF’S MOTION FOR PARTIAL
N. SCOLA, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on the plaintiff Celso Acosta
Garcia’s motion for partial summary judgment. After
reviewing the parties’ written submissions and
exhibits, the record, and the applicable law, the Court
grants in part Garcia’s motion for
partial summary judgment (ECF No. 85).
filed this suit to recover overtime wages purportedly owed to
him, alleging violations of the Fair Labor Standards Act, 29
U.S.C. § 201, et.seq. against the Defendants
Pajeoly Corp. d/b/a La Ventana (“La Ventana”),
Paolo Maietta, and Jennifer Betancur.
worked at La Ventana, a restaurant on Miami Beach that serves
Latin American food, from May 16, 2016 to August 7, 2018.
(ECF No. 86 at ¶¶ 2, 7.) La Ventana sold beer and
food from other countries during this time. (Id. at
¶ 4.) Five to six employees, including Garcia, worked in
the restaurant at the same time. Garcia and at least two
others worked in the kitchen preparing food. (Id. at
¶¶ 2, 7.) Garcia was not required to have any
special skills or training to work there. (Id. at
¶ 14.) From May 16, 2016 through May 14, 2017, Garcia
earned $13.50 per hour, and from May 15, 2017 to August 7,
2018, Garcia earned $15.00 per hour. (ECF No. 86 at
¶¶ 16-17.) Garcia did not have an opportunity to
increase his own profit or income. (Id. at ¶
15.) Garcia regularly used equipment and tools that belonged
to the Defendants such as cooking utensils, pots, pans,
knives, stoves, food ingredients, and the refrigerator.
(Id. at ¶ 20.)
and Betancur ran the day-to-day operation of the business
between 2016 and 2018. (Id. at ¶ 21.) Betancur
was a manager of La Ventana, and her duties included
supervising workers in the kitchen. (ECF No. 92-1 at ¶
10.) Maietta is the sole corporate officer, the president,
and the owner of La Ventana. (Id. at
¶¶22.) Maietta and Betancur both signed the
employees’ checks, and each was a signator on La
Ventana’s bank account. (Id. at ¶ 24.)
Maietta and Betancur could hire and fire employees, and
Maietta set the employees’ wages. (Id. at
files this motion for partial summary judgment seeking
findings that (1) La Ventana is an enterprise covered by the
FLSA; (2) Garcia was La Ventana’s employee; (3)
Betancur and Maietta were Garcia’s individual
employers; and (4) liability as been established. (ECF No.
85.) The Defendants counter that Garcia is not owed any
overtime wages because he was an independent contractor and
not an employee. (ECF No. 92.)
judgment is proper if following discovery, the pleadings,
depositions, answers to interrogatories, affidavits and
admissions on file show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56.
“The purpose of summary judgment is to isolate and
dispose of factually unsupported claims or defenses.”
Santelices v. Cable Wiring, 147 F.Supp.2d 1313, 1316
(S.D. Fla. 2001) (Jordan, J.).
reviewing a motion for summary judgment, the Court must
“view the evidence and all factual inferences therefrom
in the light most favorable to the non-moving party, and
resolve all reasonable doubts about the facts in favor of the
non-movant.” Feliciano v. Miami Beach, 707
F.3d 1244, 1247 (11th Cir. 2013) (quoting Skop v. City of
Atlanta, Ga., 485 F.3d 1130, 1143 (11th Cir. 2007)). The
moving party bears the burden of proof to demonstrate the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. However, “the mere
existence of a scintilla of evidence in support” of the
non-moving party’s position is insufficient to deny
summary judgment. Santelices, 147 F.Supp.2d at 1317
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986)).
turning to Garcia’s FLSA arguments, the Court addresses
the Defendants’ argument that Garcia submitted a
declaration and an affidavit that fail to comply with 28
U.S.C. § 1746, and thus the Court should not consider
Garcia’s Declaration and Alvarado’s
Defendants argue that Garcia’s declaration is not
properly verified pursuant to 28 U.S.C. § 1746 because
the statement does not disclose whether it was executed
inside or outside of the United States. (ECF No. 92 at 8-9.)
This is insufficient grounds to disregard the declaration. An
unsworn declaration may be given the same force as an
affidavit if it is signed and dated and includes language
“in substantially” the following form: “I
declare (or certify, verify, or state) under penalty of
perjury that the foregoing is true and correct. Executed on
(date). (Signature).” 28 U.S.C. § 1746.
Garcia’s declaration conforms to these requirements.
See ECF No. 86-3.
Defendants also argue that the affidavit of Elbis Alvarado
does not comply with 28 U.S.C. § 1746. However, an
affidavit that has been notarized need not conform with the
statute. The Court will consider both Garcia’s
declaration and Alvarado’s affidavit.