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Garcia v. Pajeoly Corp.

United States District Court, S.D. Florida

September 19, 2019

Celso Acosta Garcia, et al., Plaintiff,
v.
Pajeoly Corp., Paolo Maietta, and Jennifer Betancur, Defendants.

          ORDER ON THE PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

          ROBERT N. SCOLA, JR. UNITED STATES DISTRICT JUDGE

         This 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).

         1. Background

         Garcia 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.

         Garcia 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.)

         Maietta 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 ¶¶ 24-25.)

         Garcia 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.)

         2. Legal Standard

         Summary 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.).

         In 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)).

         3. Analysis

         Before 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 them.

         A. Garcia’s Declaration and Alvarado’s Affidavit

         The 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.

         The 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.

         B. FLSA ...


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