United States District Court, S.D. Florida
ORDER ON PARTIES' MOTIONS FOR SUMMARY
N. Scola, Jr. United States District Judge.
matter is before the Court on Plaintiff's motion for
partial summary judgment (ECF No. 38) and the Defendants'
motion for summary judgment. (ECF No. 41.) Both motions are
fully briefed and ripe for the Court's review. Upon
review of the record, the parties' briefs, and the
relevant legal authorities, the Court denies
the Plaintiff's motion for summary judgment (ECF
No. 38) and grants in part and denies in
part the Defendant's motion for summary
judgment. (ECF No. 41.)
Everth Issac Angulo filed a complaint against his former
employer, Il Gabbiano, and the three owners of the
restaurant, Gino Masci, Fernando Masci, and Luigi Tullio, for
unpaid overtime wages under the FLSA. (ECF No. 1.) On July
29, 2019, Il Gabbiano filed a four-count counterclaim against
Angulo for conversion, fraud in the inducement, unjust
enrichment, and civil theft. (ECF No. 30.) The counterclaim
alleges that Defendants overpaid Angulo in the amount of $39,
on the facts in the record, the Plaintiff worked as an
appetizer and salad preparer from 2007 to 2019.
(Defendants' Statement of Facts (“Def.'s
SOF”) at ¶ 1.) According to the Defendants, the
going rate for a salad preparer in Miami is $9 to $13 per
hour. (Id. at ¶ 3.) Il Gabbiano paid
Angulo $1100 a week if he worked six days a week, which was
approximately $200 more than he would make if he worked 60
hours at $13 per hour with $19.50 per overtime hour.
(Id. at ¶¶ 3, 12.) The Defendants paid
Angulo more than the going market rate so that Angulo would
remain loyal to the restaurant and excel in his work.
(Id.) If he worked fewer than six days, his pay
would be reduced by the number of days he missed.
(Id.) Carmen Polluck, the Controller of Il Gabbiano,
testified that “instead of paying him $13 an hour plus
overtime, we would pay him a set amount so that he can come
and go.” (ECF No. 39-7 at 24:19-23.)
Sanango was Angulo's direct supervisor and responsible
for hiring him. (Id. at ¶ 4.) Carmen Polluck is
responsible for running the office, making the
restaurant's budget, managing the employee's
benefits, processing payroll, and reconciling time records.
(Id. at ¶5.) At least one of the owners is
always present at the restaurant. (Plaintiff's Statement
of Facts (“Pl.'s SOF”) at ¶ 2, ECF No.
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)).
The Plaintiff's Motion for Partial Summary
Plaintiff's motion for partial summary judgment asks the
Court to find that (A) the Plaintiff was an employee of the
individual Defendants and (B) that liability has been
established. (ECF No. 38 at 2.)
Defendants as Individual Employers
plaintiff may seek to sue an individual employer or multiple
employers in a FLSA case, as the statute contemplates that
there may be several simultaneous employers who are
responsible for compliance with the FLSA.” Ceant v.
Aventura Limousine & Transp. Service, Inc., 874
F.Supp.2d 1373, 1380 (S.D. Fla. 2012) (Scola, J.). The
statutory definition of “employer” is quite broad
and “encompasses both the employer for whom the
employee directly works as well as any person acting directly
or indirectly in the interests of an employer in relation to
an employee.” Josendis v. Wall to Wall Residence
Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011)
(citing 29 U.S.C. § 203(d)). An individual “must
either be involved in the day-to-day operation or have some
direct responsibility for the supervision of the
employee” in order to qualify as an FLSA employer.
Gonzalez v. Metropolitan Delivery Corp., 2012 WL
1442668, *8 (S.D. Fla. Apr. 26, 2012) (Scola, J.) (citing
Alvarez Perez v. Sanford-Orlando Kennel Club, Inc.,
515 F.3d 1150, 1160 (11th Cir. 2008)). “A party need
not have exclusive control of a corporation's ...