Josendis v. Wall to Wall Residence Repairs, Inc.

• Decision Date: 30 March 2009
• Docket Number: Case No. 08-61175-CIV.
• Citation: 606 F.Supp.2d 1376
• Parties: Luis Carlos JOSENDIS, Plaintiff, v. WALL TO WALL RESIDENCE REPAIRS, INC., Jorge Acosta, and Eloisa Lim, Defendants.
• Court: U.S. District Court — Southern District of Florida

606 F.Supp.2d 1376

Luis Carlos JOSENDIS, Plaintiff, v. WALL TO WALL RESIDENCE REPAIRS, INC., Jorge Acosta, and Eloisa Lim, Defendants.

Case No. 08-61175-CIV.

United States District Court, S.D. Florida.

March 30, 2009.

Gary Andrew Costales, Gary A. Costales, Miami, FL, for Plaintiff.

Chris Kleppin, Glasser, Boreth & Kleppin, P.A., Plantation, FL, for Defendants.

ORDER

WILLIAM J. ZLOCH, District Judge.

THIS MATTER is before the Court upon Defendants' Motion For Summary Judgment (DE 21). The Court has carefully reviewed said Motion and the entire court file and is otherwise fully advised in the premises.

Plaintiff brought this action to recover unpaid overtime wages under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (2006) (hereinafter "the FLSA" or "Act"), and Florida state law. After an Amended Complaint (DE 12) was filed, Defendant filed the instant Motion (DE 21), which presents matters outside the pleadings. Thus, it must be treated as one for summary judgment. Fed.R.Civ.P. 12(d). By prior Order (DE 27), the Court ruled that pursuant to Federal Rule of Civil Procedure 12(d) Plaintiff should have additional time to marshal evidence necessary to respond to the instant Motion and file a supplemental Response if he wished to do so. After the limited discovery period, Plaintiff filed his Supplemental Response (DE 37). The Motion is now ripe for disposition.

I. Background

Defendant Wall to Wall Residence Repairs, Inc. (hereinafter "Wall to Wall") is a residential remodeling company located in Margate, Florida and is family-owned by the individual Defendants.¹ Plaintiff was hired as a laborer and was so employed by Wall to Wall for all material times. Plaintiff had no interaction with any credit card transactions, never received any payments from customers, and never ordered or purchased food or supplies for Wall to Wall. During the relevant time, Plaintiff labored on residential remodeling projects and also did work at the Miami Jewish Home and Hospital. Wall to Wall's gross annual revenue never reached $500,000.00 for the relevant time period. Plaintiff quit his job with Wall to Wall in February of 2008 and thereafter initiated this action pursuant seeking to recover his unpaid wages.

II. Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate

if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c); see also Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990). The party seeking summary judgment "always bears the initial responsibility of informing the district 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." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quotation omitted). Indeed,

the moving party bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.

Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991); Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir.1991).

The moving party is entitled to "judgment as a matter of law" when the non-moving party fails to make a sufficient showing of an essential element of the case to which the non-moving party has the burden of proof. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). Further, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. Analysis

Defendants' instant Motion For Summary Judgment (DE 21) seeks judgment as to Plaintiff's federal claim for unpaid wages on the basis that Plaintiff is not covered by the FLSA. Employees are covered under the FLSA in one of two instances: individual coverage or enterprise coverage. Individual coverage lies where the employee is engaged in commerce or the production of goods for commerce. 29 U.S.C. § 207(a)(1). Enterprise coverage lies where the employee works for an enterprise engaged in commerce or in the production of goods for commerce. Id. An "enterprise engaged in commerce or in the production of goods for commerce" is defined, in relevant part, as an enterprise that

(A)(i) has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and

(ii) is an enterprise whose annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated); [or]

(B) is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises of such institution....

29 U.S.C. § 203(s)(1).² Defendants contend that neither branch of enterprise coverage is applicable and also that individual coverage is inapplicable.

In support for his position opposing the entry of summary judgment, Plaintiff relies in part on his Amended Complaint as evidence of the facts alleged therein because it is verified. The Amended Complaint states, in relevant part, as follows: "Pursuant to 28 U.S.C. § 1746, I LUIS CARLOS JOSENDIS declare, under penalty of perjury that the factual allegations contained in paragraphs 13 through 46 are true and correct, to the best of my knowledge and belief." DE 12, p. 10. It is then signed by Plaintiff. Id.

At the summary judgment stage, a verified pleading may serve as an affidavit if it conforms to the requirements of Federal Rule of Civil Procedure 56(e). United States v. Four Parcels of Real Property, 941 F.2d 1428, 1444 n. 35 (11th Cir.1991). The Amended Complaint filed herein cannot be considered at summary judgment because it does not satisfy Rule 56(e). The law in this Circuit is clear that "Rule 56(e)'s personal knowledge requirement prevents statements in affidavits that are based, in part, `upon information and belief'—instead of only knowledge." Pace v. Capobianco, 283 F.3d 1275, 1278 (11th Cir.2002); see also Stewart v. Booker T. Washington Ins., 232 F.3d 844, 851 (11th Cir.2000) ("upon information and belief" insufficient"); Fowler v. S. Bell Tel. & Tel. Co., 343 F.2d 150, 154 (5th Cir.1965) ("knowledge, information and belief" insufficient)³. Thus, because the Amended Complaint does not satisfy Rule 56(e), its allegations cannot be considered at this stage.

Plaintiff has filed his Response (DE 23) and Supplemental Response (DE 37) challenging Defendants' instant Motion. Local Rule 7.5 states that papers opposing a summary judgment motion "shall include a memorandum of law, necessary affidavits, and a single concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried." S.D. Fla. L.R. 7.5.B. The statement of material facts submitted in opposition to a motion for summary judgment must correspond with the order and paragraph numbering scheme used by the movant. Id. 7.5.C. This opposition statement of facts must, where appropriate, controvert the movant's statement of facts. Failure to controvert a fact alleged by the movant and supported by the record results in the same being deemed admitted. Id. 7.5.D. The Eleventh Circuit has upheld this Rule. Digioia v. H. Koch & Sons, 944 F.2d 809, 811 n. 6 (11th Cir.1991) (upholding operation of former Local Rule 10.J.2, the predecessor to 7.5.D.); Calmaquip Eng'g W. Hemisphere Corp. v. W. Coast Carriers, Ltd., 650 F.2d 633, 636 (5th Cir. Unit B Jul.1981) (same).

Defendants asserted in their Statement Of Undisputed Facts that Wall to Wall has never grossed at least $500,000.00 annually during the limitations period. DE 21, p. 6, ¶ 7; Declaration of Jorge Acosta, DE 21, Ex. 1, ¶ 4. In Plaintiff's Concise Statement Of Material Facts he asserts only the following in response to that fact:

It is believed, based on the number of workers that worked for Defendants in 2007-08, the number and nature of the construction jobs that Defendants had in 2007-08, the average cost to the customer of the average construction or remodeling job, the number of workers employed or contacted by Defendant, the number of vehicles operated by Defendants, the number of remodeling or construction jobs worked by Plaintiff, and Acosta and Lim's proclivity to divert funds away from the corporate Defendant, Wall to Wall, for worked [sic] performed by Defendant's workers, that the corporate Defendant had gross sales of more than five hundred thousand dollars ($500,000) in both 2007 and 2008.

DE 37, pp. 3-4. As support for these allegations Plaintiff cites his Amended Compliant (DE 12, ¶¶ 17, 18-45), and two Affidavits filed by former employees of Wall to Wall (DE 37, Exs. D-F). As stated earlier, Plaintiff's Amended Complaint can offer no support for his position at the summary judgment stage because it is not properly verified. Capobianco, 283 F.3d at 1278. The Affidavits cited do not, without conjecture, demonstrate that Wall to Wall grossed at least $500,000.00 annually. Moreover, the material fact quoted above fails to controvert Defendants' assertion. In its essence, it reads: "It is believed ... that the corporate Defendant had gross sales of more than five hundred thousand dollars ($500,000) in both 2007 and 2008." DE 37, pp....