Fuentes v. CAI Intern., Inc.

• Decision Date: 26 July 2010
• Docket Number: Case No. 09-21931-CIV
• Citation: 728 F.Supp.2d 1347
• Parties: Yudarmi FUENTES, and all others similarly situated, Plaintiffs, v. CAI INTERNATIONAL, INC., a Florida corporation, and Avelino A. Vega, individually, Defendant.
• Court: U.S. District Court — Southern District of Florida

728 F.Supp.2d 1347

Yudarmi FUENTES, and all others similarly situated, Plaintiffs,

v.CAI INTERNATIONAL, INC., a Florida corporation, and Avelino A. Vega, individually, Defendant.

Case No. 09-21931-CIV.

United States District Court,

S.D. Florida.

July 26, 2010.

Edilberto O. Marban, Miami, FL, for Plaintiffs.

Manuel Felix Fente, Rene Felipe Ruiz, III, Ford & Harrison LLP, Miami, FL, for Defendant.

ORDER

JOHN J. O'SULLIVAN, United States Magistrate Judge.

THIS MATTER is before the Court on the Plaintiff's Motion for Partial Summary Judgment (DE# 24, 4/1/10) and the Defendant's Motion for Partial Summary Judgment on the Issue of the Employer's Good Faith (DE# 27, 4/15/10). These motions were referred to the undersigned by the Honorable Patricia A. Seitz (DE# 13, 10/19/09) pursuant to the parties' Consent to Jurisdiction by a United States Magistrate Judge for Final Disposition (DE# 11-2, 10/1/09). Having reviewed the motions, the responses and the replies as well as the evidence in the record and the applicable law, it is

ORDERED AND ADJUDGED that the Plaintiff's Motion for Partial Summary Judgment (DE# 24, 4/1/10) is GRANTED and the Defendant's Motion for Partial Summary Judgment on the Issue of the Employer's Good Faith (DE# 27, 4/15/10) is DENIED for the reasons set forth below.

INTRODUCTION

The plaintiff, Yudarmi Fuentes, filed this lawsuit against the defendants, CAI International, Inc. and Avelino A. Vega, individually, alleging that the defendants violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219, and the Florida Constitution Art. 10 § 24, under 28 U.S.C. 1343, by failing to pay her for the hours that she worked overtime. The defendants contend that they did not violate the FLSA because the plaintiff agreed to be paid more than the federal minimum wage, plus commissions earned on salesmade by her and the other store employees. The defendants maintain that she was paid more under her compensation election than she would have received had she earned overtime.

FACTS

The plaintiff was an in-store sales clerk at the defendant's cellular telephone store from November 1996 through May 2009. See Payroll and time records (DE# 24-1 through 24-4, 4/1/10); R. Gonzalez Depo. pp. 4, 8-10, 20 (DE # 25-2, 4/1/10); A. Vega Depo. pp. 13-14) (DE# 25-1, 4/1 /10). The individual defendant, Avelino A. Vega: 1) had the power to hire and fire employees, 2) had the power to supervise employees such as the plaintiff; 3) determined the plaintiff's rate of pay; 4) maintained employee records; and 5) was responsible for ensuring that there were sufficient funds to pay employee salaries. See Answers to Interrogatories (DE# 24-6, 4/1/10). The individual defendant, Mr. Vega, is the sole owner and principal officer of the corporate defendant. See Defs.' Undisputed Facts in its Motion (DE# 27, 4/15/10).

The plaintiff signed an employment agreement labeled "Release and Waiver of Overtime Compensation." See Exhibit A to the Defendant's Answer and Affirmative Defenses attached as Exhibit 1 to the Deposition of Avelino A. Vega (DE# 25-1, Ex. 1-A; 4/1/10) The Release and Waiver of Overtime Agreement provides in pertinent part:

The undersigned hereby specifically releases, remises and waives the rights to be paid hourly overtime in consideration for being offered the opportunity to earn commission in additional [sic] to [her] employment upon the following conditions.

...

2. Releasor acknowledges he/she is paid at a rate of $7.50 which is in excess of the present federally guaranteed minimum wage, and he/she would be entitled to receive one and a half times that amount at least, for any hours worked above forty (40) hours per week.

3. Releasor has been offered the opportunity to earn commissions in addition to his/her hourly wage and said opportunity at their discretion may include his/her election to work more than forty (40) hours per week in order to take advantage of earning additional compensation, in the form of commission for sales.

...

5. ... Release specifically waives and releases employer ... from any and all liability, claim causes of actions or rights of any nature under the [FLSA] and any other Federal or State Laws which may have guaranteed onto them the right to be paid overtime wages, or any form of compensation above what is set forth herein ....

Id. Defendants' counsel, Manuel F. Fente, Esq., and his brother-in-law, Mr. Vega, jointly prepared the Release and Waiver of Overtime Compensation. Deposition of Manuel Fente p. 17 (DE# 28-1.4/15/10)

The plaintiff filed the following exhibits: 2006 time and payroll records (DE # 24-1, 4/1/10); 2007 time and payroll records (DE# 24-2, 4/1/10); 2008 time and payroll records (DE# 24-3, 4/1/10); 2009 time and payroll records (DE# 24-4, 4/1/10); Commission record (DE# 24-5, 4/1/10); the defendant Vega's Answers to Interrogatories (DE# 24-6, 4/1/10); the transcript of the Deposition of Avelino Vega and Exhibits (DE# 25-1, 4/1 /10); the transcript of the Deposition of Ricardo Gonzalez and Exhibits(DE# 25-2, 4/1 /10); the transcript of the Deposition of Yodiosmay Gonzalez and Exhibits (DE# 25-3, 4/1/10); and the Subpoena to Testify at a Deposition in a Civil Action directed to Manuel F. Fente, Esq. (DE# 34-1, 5/10/10). The only exhibit filed by the defendant is the transcript of the Deposition of Manuel F. Fente, Esq. (DE# 28-1, 4/15/10). Neither party filed any affidavits. The cross-motions for partial summary judgment are ripe for disposition.

LEGAL ANALYSIS

I. STANDARD OF REVIEW

The court, in reviewing a motion for summary judgment, is guided by the standard set forth in Federal Rule of Civil Procedure 56(c), which states, in relevant part, as follows:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, 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.

The moving party bears the burden of meeting this exacting standard. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). That is, "[t]he moving party bears 'the initial responsibility of informing the ... court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.' " U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir.1991) (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548). In assessing whether the moving party has satisfied this burden, the court is required to view the evidence and all factual inferences arising therefrom in the light most favorable to the non-moving party. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir.1994); Sheckells v. AGV-USA Corp., 987 F.2d 1532, 1534 (11th Cir.1993); Browning v. Peyton, 918 F.2d 1516, 1520 (11th Cir.1990); Clemons v. Dougherty County, Ga., 684 F.2d 1365, 1368 (11th Cir.1982); Augusta Iron & Steel Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856 (11th Cir.1988) (per curiam). Summary judgment is appropriate when there is no dispute as to any material fact and only questions of law remain. Reich v. John Alden Life Ins. Co., 126 F.3d 1 (1st Cir.1997). If the record presents factual issues, the court must deny the motion and proceed to trial. Adickes, 398 U.S. at 157, 90 S.Ct. 1598; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Despite these presumptions in favor of the non-moving party, the court must be mindful of the purpose of Rule 56 which is to eliminate the needless delay and expense to the parties and to the court occasioned by an unnecessary trial. Celotex, 477 U.S. at 322-323, 106 S.Ct. 2548. Consequently, the non-moving party cannot merely rest upon his bare assertions, conclusory allegations, surmises or conjectures. Id. As the Supreme Court noted in Celotex,

[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... against the party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which the party willbear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Id. at 322-323, 106 S.Ct. 2548. Thus, the mere existence of a scintilla of evidence in support of the non-moving party's position is insufficient. There must be evidence on which the jury could reasonably find for the non-movant. Anderson, 477 U.S. at 251, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The non-moving party is not required to respond to the motion for summary judgment with evidence unless the movant has properly supported the motion with sufficient evidence. Adickes, 398 U.S. at 160, 90 S.Ct. 1598. " 'Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidence is presented.' " Id. (quoting the Advisory Committee's note on the amendment to Rule 56) (footnote omitted). The standard of review for a summary judgment requires the court to resolve all ambiguities and draw all justifiable inferences in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Where the moving party properly supports the motion for summary judgment, "the nonmoving party may not rest upon the mere allegations or denials of its pleadings, but must, through affidavits or as otherwise provided in Fed.R.Civ.P. 56, designate 'specific facts...