Orellana v. Tecta America South Florida, Inc., 2011 WL 6030108 (S.D. Fla., Nov. 29, 2011)

The firm represented the defendant-employer from the plaintiff' claims that he was entitled to overtime and that he worked it without being properly paid for it.  Concerning some of the plaintiff' co-workers, a jury had previously found that the workers were properly paid their overtime.  Barrera v. Tecta America South Florida, Inc., f/k/a Weiss & Woolrich Southern Enterprises, Inc., Case No. 09-21841-CIV-DLG (S.D. Fla.).  After 208 docket entries, the plaintiff, who was an illegal alien, was apparently deported as he could not appear for trial.  Accordingly, the defendants moved for involuntary dismissal, and that motion was granted.

Josendis v. Wall to Wall Residence Repairs, Inc., et al., 662 F.3d 1292 (11th Cir. 2011)

This was a Fair Labor Standards Act case.  The firm represented the defendants.  The trial court granted summary judgment in favor of the defendants on the ground that the plaintiff could not prove that the corporate defendant was an enterprise engaged in interstate commerce for purposes of the FLSA or that the plaintiff could prove that he could establish individual coverage.  The trial court further held that 29 C.F.R. § 776.23, which states that any construction worker working at a hospital is entitled to bring a FLSA claim, was arbitrary and capricious.  The corporate defendant had less than $500,000 in gross annual sales volume, and thus was not subject to the Act.  The plaintiff unsuccessfully argued that the corporate defendant had certain expenses that suggested that the gross sales volume exceeded $500,000.

Further, the firm argued that the trial court should grant summary judgment on the ground that the plaintiff was an illegal alien.  The court did not address that issue. 

On appeal, the defendants argued that the trial court' order should be affirmed on the grounds provided for by the trial court, and, if not, that affirmance was required because the plaintiff was an illegal alien.  The Eleventh Circuit held oral argument on January 18, 2010, and in late May, 2010, requested that the Solicitor General of the United States (Elena Kagan) give the Obama Administration' position concerning whether an illegal alien could recover under the FLSA.  The federal government thereafter submitted a brief on the issue.  The Eleventh Circuit ultimately did not determine that issue, but on November 17, 2011, issued this opinion, which is a watershed opinion concerning the legal standards that a plaintiff must show to prove both enterprise coverage and individual coverage under the Fair Labor Standards Act, and the opinion upheld the finding that 29 C.F.R. § 776.23 is arbitrary and capricious.

Brown v. Jenne, -- So. 3d --, 2011 WL 5375045 (Fla. 4th DCA, Nov. 9, 2011)

The firm represented one of approximately ten (10) Defendants (Lt. Kenneth Swan) in a civil rights case brought under 42 U.S.C. §§ 1983 and 1985 for wrongful death. The basic facts of the case were that the decedent neglected to take his anti-seizure medication, had a seizure while driving, and crashed, which resulted in a roll-over of the SUV. The police and fire rescue arrived at the scene to assist the decedent, and have became violent, and refused all attempts to communicate his medical condition. The decedent was restrained, not for any law enforcement purpose, but to render medical aid. The decedent was placed in an ambulance for transport to an area hospital. Shortly after the decedent arrived at the hospital, he passed. The decedent sued all of the police and fire rescue personnel who were at the scene. Lt. Swan, our client, was the highest ranking officer at the scene of the accident, but he did not ride in the ambulance with the decedent to the hospital, as other Defendants did that.

Judge Bowman of the Circuit Court of Broward County granted Lt. Swan' motion for summary judgment on the ground of qualified immunity. Brown v. Jenne, 2009 WL 3253820 (Fla. Cir. Ct. 2009). The Plaintiffs appealed, but the Plaintiffs lost that appeal, because the Fourth District Court of Appeal affirmed the grant of summary judgment. Brown v. Jenne, -- So. 3d --, 2011 WL 5375045 (Fla. 4th DCA, Nov. 9, 2011). The court held that there was no Fourth Amendment search or seizure, because the decedent was not restrained for a law enforcement purpose, but rather was restrained for fire rescue personnel to administer first aid.

Aguirre, et al., v. Safe Hurricane Shutters, Inc., et al., Case No. 07-22913-CIV-SIMONTON (S.D. Fla.)

In this case, on November 4, 2011, after a 7-day jury trial in federal court, the firm received a jury verdict in its defense clients' favor as to all four (4) plaintiffs' Fair Labor Standards Act claims (for alleged $200,000 in overtime that was not paid and thousands of dollars in alleged minimum wages that were not paid). The jury found that there were no overtime or minimum wage violations and that the corporate Defendant was not an enterprise engaged in interstate commerce as defined by 29 U.S.C. § 203(s)(1) of the FLSA, and thus even if the Plaintiffs had proven wage and hour violations the Defendants would have prevailed. Previously, three Plaintiffs were involuntarily dismissed from the lawsuit under Federal Rule of Civil Procedure 41(b) for failure to prosecute. The Defendants prevailed and received a final judgment in their favor against the Plaintiffs.

Obando v. M & E Investment Properties, Inc., Case No. 11-20318-CIV-MOORE (S.D. Fla.)

In this case, on November 2, 2011, the firm received a verdict in its defense client' favor after a 3-day jury trial in federal court in a case alleging failure to pay overtime under the Fair Labor Standards Act. The two main issues that were tried were (1) whether the Plaintiff could prove that she was individually engaged in interstate commerce while she worked for the Defendant (i.e., that she regularly and recurrently participated in the actual movement of persons or things across state lines); and (2) whether Plaintiff worked overtime in any workweek. The court ruled at the summary judgment stage that the corporate Defendant was as a matter of law not an enterprise engaged in interstate commerce for purposes of 29 U.S.C. § 203(s)(1) of the FLSA. The jury found in favor of the Defendant as to both issues that were tried, and consequently a final judgment was issued in favor of the Defendant and against the Plaintiff.

Palma v. Safe Hurricane Shutters, Inc., 2011 WL 6029968 (S.D. Fla., Oct. 24, 2011)

The firm represented a defendant-employer in a Fair Labor Standards Act case.  Because it was revealed during discovery that some of the plaintiffs were illegal aliens, and because it became clear as the case neared trial that several of the plaintiffs would not appear because they had been deported or were otherwise not in the country, the defendant moved for involuntary dismissal as to all such plaintiffs.  In this opinion, the court involuntarily dismissed three (3) plaintiffs who could not appear.  Thereafter, the firm won the jury trial as to the remaining plaintiffs.

Campbell v. Moon Palace, Inc., 2011 WL 4389894 (S.D. Fla., Sept. 21, 2011)

In this case, the Defendant is a Chinese restaurant that has been in business for approximately twenty-five (25) years and had never been sued before. The Plaintiff had brought many lawsuits under Title III of the ADA, and thus appeared to be a serial plaintiff. During his deposition, it was established that with respect to many of the suits the Plaintiff brought he could not say that he patronized the businesses, but also he readily admitted that he had never even heard of many of the businesses. In particular, with respect to the Defendant, the Plaintiff admitted that he had only been to the restaurant on one previous occasion, that he liked other restaurnats better and in particular other Chinese restaurants, and that he seldom travels near the Defendant, and thus could not say that he was going to patronize the restaurant in the future. Consequently, the firm moved for summary judgment on several grounds, including that the Plaintiff cannot prove that he has standing to sue, because he cannot say that he will patronize the restaurant in the future. The court granted summary judgment, finding that the Plaintiff lacked standing to bring the suit. Accordingly, final judgment was entered in favor of the Defendant against the Plaintiff. Unfortunately, many of these Title III suits, like this one, are being brought by individuals and lawyers even though they are aware that the Plaintiff has not been a regular patron of the business, and does not intend to be a patron in the future.  This opinion was reconsidered.

Peter Franceshina, Scott Rothstein’s Ex-Law Partner Goes from Las Olas Firm to Disability Lawsuits, 1A (Sun-Sentinel, Aug. 5, 2011)

In this newspaper article, concerning the infamous Scott Rothstein’s ex-law partner who has recently started filing cases for plaintiff Charles Bado, partner Chris Kleppin was mentioned concerning his defense of various lawsuits brought against local businesses under Title III of the Americans with Disabilities Act. Mr. Kleppin defended three cases brought by Charles Bado. The article notes that Mr. Kleppin was able to get the three cases dismissed (Bado v. Alster Trading, L.L.C., d/b/a The Old Heidelberg Deli, Case No. 10-61774-PCH (S.D. Fla.); Bado v. German Specialty, Inc., d/b/a The Old Heidelberg, Case No. 10-61775-PCH (S.D. Fla.); and Bado v. The Hut Lounge, Inc., Case No. 10-62285-JEM (S.D. Fla.)), and had written in court documents that "It is clear that plaintiff’s [Charles Bado’s] lawsuits are a scheme or artifice to use the court system to defraud and extort businesses" and that Mr. Bado "wants to sue as many [local businesses] as he can, as fast as he can."

Rodriguez v. Marble Care Int’l, Inc., Case No. 10-23223-CIV-GRAHAM (S.D. Fla.)

The firm represented the Defendant who is a local floor finisher. The plaintiffs were laborers who worked at the company. The Plaintiffs filed a claim alleging overtime violations under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., seeking back wages, liquidated damages, interest, attorney’s fees and costs. The court granted the Defendant’s motion for summary judgment finding that Plaintiffs would not be able to meet the burden of proof that Defendant was subject to the FLSA under either the enterprise or individual coverage analyses. The firm filed on behalf of the Defendants a motion for attorneys’ fees and costs against Plaintiffs’ counsel, as they believe that the case was completely frivolous, and that Motion was recently granted in part, assessing sanctions against Plaintiffs’ counsel in the amount of $7,480.00.

Barrera, et al., v. Weiss & Woolrich Southern Enterprises, Inc., Case No. 09-21841-CIV-GRAHAM (S.D. Fla.)

In this case, on May 10, 2011, after a 10-day jury trial in federal court, the firm received a jury verdict in its defense clients’ favor as to fourteen (14) plaintiffs’ Fair Labor Standards Act claims (for alleged overtime that was not paid and missing hours). The jury found that there were no overtime or minimum wage violations and that the firm’s clients did not employ the Plaintiffs pre-August 27, 2007.

Portales v. Another Beautiful Corporation, 2011 WL 1043663 (Fla. Cir. Ct. 2011)

The firm represented Defendant Another Beautiful Corporation in a case alleging pregnancy discrimination and whistleblower retaliation (for allegedly being fired after complaining about the employer wrongly recording telephone calls between sales associates and potential customers, pursuant to the Florida Civil Rights Act, Florida Statutes § 760.01 et seq., and Florida’s Whistleblower Act, Florida Statutes § 448.101 et seq. The Defendant runs a successful modeling school and agency. The Plaintiff sued for compensatory damages, punitive damages, back pay, front pay, attorney’s fees, and costs.

The firm defended the charge of discrimination filed with the EEOC, and obtained a "no-cause" determination (that is, a legal ruling from the administrative agency that there was no discrimination that occurred) from the agency investigating the plaintiff’s allegations. This served to bar the plaintiff from litigating her pregnancy discrimination claim in court. Discovery revealed that while represented by counsel, the plaintiff told the EEOC that the sole reason for her termination was the fact that she was pregnant, and that she never even filed a charge of discrimination with the Florida Commission on Human Relations which is a prerequisite to bringing a claim under FCRA.

Discovery also revealed that there was nothing unlawful about the recording of the telephone calls (they contained the admonition that "this telephone call may be recorded . . . "), and the plaintiff did not even complain about any telephone calls being recorded until February, 2009, but she learned that she was going to be replaced in November, 2008.
The court granted summary judgment in favor of the defendant for all of the reasons listed and others. The defendant is deciding whether to seek attorneys’ fees from plaintiff’s counsel for the filing of a frivolous lawsuit.

Gomez v. Vicky Bakery VIII, Inc., 2011 WL 1346887 (S.D. Fla. 2011)

The firm represented the Defendant which operates a local bakery. The Plaintiff was a cake decorator who worked at the company. The Plaintiff filed a claim alleging overtime violations under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., seeking back wages, liquidated damages, interest, attorney’s fees and costs. The court granted the Defendant’s motion for summary judgment finding that Plaintiff would not be able to meet the burden of proof that Defendant was subject to the FLSA under either the enterprise or individual coverage analyses, which the Plaintiff eventually conceded.

Rodriguez v. Marble Care Int’l, Inc., 2011 WL 918634 (S.D. Fla. 2011)

The firm represented the Defendant who is a local floor finisher. The plaintiffs were laborers who worked at the company. The Plaintiffs filed a claim alleging overtime violations under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., seeking back wages, liquidated damages, interest, attorney’s fees and costs. The court granted the Defendant’s motion for summary judgment finding that Plaintiffs would not be able to meet the burden of proof that Defendant was subject to the FLSA under either the enterprise or individual coverage analyses. The Defendants are filing a motion for attorneys’ fees and costs against Plaintiffs’ counsel, as they believe that the case was completely frivolous.

Rakip v. Paradise Awnings Corp., Case No. 10-20004-CIV-COOKE (S.D. Fla.)

In this case, on December 3, 2010, after a 10-day jury trial in federal court, the firm received a jury verdict in its defense clients’ favor in an FLSA case and also successfully prosecuted a counterclaim against one of the plaintiffs for $1,360.00 for breach of contract. The court granted summary judgment as to Plaintiff Rakip’s wage and hour claims during an evidentiary hearing that occurred the first day of trial, and as to Plaintiff Jeronimo, the jury found that he was a manager and therefore exempt, meaning that he was not entitled to any overtime, and it also found that Jeronimo was not owed any overtime.

Lira v. Matthew’s Marine Air Conditioner, Inc., Case No. 09-61178-CIV-ZLOCH (S.D. Fla.)

In this case, on October 27, 2010, after a 3-day jury trial in federal court, the firm received a jury verdict in its defense clients’ favor in a FLSA (alleged overtime violations) case. The jury found that the FLSA did not apply to the small local business, which is a repairer and installer of air conditioning systems on yachts.

Maria Gomez v. Vicky Bakery, VIII, MDCCHR No. 11 1026 010; EEOC Charge No. 15C 2011 00018

The charging party filed her Charge of Discrimination on October 26, 2010. The investigating agency was Miami-Dade County Office of Human Rights and Fair Employment Practices. The charge indicated (in the "Cause of Discrimination Based on" section) that the employment discrimination at issue in this matter involved sex and retaliation, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and the Florida Civil Rights Act of 1992, Florida Statutes § 760.01 et seq., and Miami-Dade County’s Ordinance. The charge included only legal conclusions, and conspicuously absent from the charge were any factual allegations that support those legal conclusions. The legal conclusions stated in the charge were as follows: 1) a hostile work environment harassment claim based on sex; 2) a disparate treatment claim for her termination, based on and sex, and 3) that she was subject to retaliation because of her alleged complaints of discrimination. The Charge of Discrimination was woefully deficient concerning any allegations of sexual harassment, because such harassment has to be repeated, prolonged, and not rectified upon complaint, and the couple instances that she mentions (even if they occurred, and they did not), are not sufficient to rise to the level of sexual harassment.

Concerning the alleged violations of Title VII and FCRA, the Office issued a "no-cause" finding in light of the fact that the employer did not employ the requisite fifteen (15) employees in order to be subject to those statutes.

Martinez-Pinillos v. Air Flow Filters, Inc., Case No. 09-22453-CIV-MARTINEZ (S.D. Fla.)

In this case, on September 9, 2010, the firm received a jury verdict in its defense clients’ favor following a 4-day federal court jury trial. It was a case brought under the Fair Labor Standards Act allegedly for failure to pay overtime and for breach of contract. The jury found that the Plaintiff never even worked for the Defendants, and that there was no contract entered into.