Solano v. A Navas Party Prod., Inc.

Decision Date26 July 2010
Docket NumberCase No. 09-22847-CIV
Citation728 F.Supp.2d 1334
PartiesNolman Antonio Barrera SOLANO, Plaintiff, v. A NAVAS PARTY PRODUCTION, INC., et al., Defendants.
CourtU.S. District Court — Southern District of Florida

Jamie H. Zidell, Daniel T. Feld, Isaac Jackie Mamane, J.H. Zidell, Miami Beach, FL, for Plaintiff.

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


CECILIA M. ALTONAGA, District Judge.

THIS CAUSE came before the Court upon the Motion for Final Summary Judgment ("Motion") [ECF No. 27] of Defendants, A Navas Party Production, Inc.; José E. Navarrete; and Francisco A. Navarrete (collectively "Defendants"), filed on April 27, 2010. The Court has carefully reviewed the parties' written submissions and applicable law.


This case originates from the employment relationship of employee Nolman Antonio Barrera Solano ("Plaintiff") and the employer Defendants. ( See Compl. [ECF No. 1] ). A Navas Party Production, Inc. ("Navas") is co-owned by José E. Navarrete ("J-Navarrete") and Francisco A. Navarrete ("F-Navarrete"), who are brothers. ( See F-Navarrete Dep. [ECF No. 37-6] 3:18-19). Navas is a party planning company that provides tents, chairs, and tables for events in and outside of Florida. ( See J-Navarrete Dep. [ECF No. 37-5] 14:5-12; 17:16-19). Navas' annual gross sales have exceeded $500,000 for every year since at least 2005. ( See id. 12:4-16).

The ownership and control of Navas are divided between F-Navarrete and J-Navarrete. F-Navarrete has been President of Navas since its founding and owns 52.5% of the company. ( See F-Navarrete Dep. 4:6-7; J-Navarrete Dep. 4:19-24). F-Navarrete and J-Navarrete are the individuals with the most financial authority over Navas; F-Navarrete is a signatory on Navas' business accounts, but he rarely signs the employees' checks. ( See id. 4:14-18, 7:12-13). J-Navarrete participates in the day-to-day operations of Navas, while F-Navarrete largely does not. ( See id. 5:22-24). However, F-Navarrete has an office at Navas where he spends anywhere between a half an hour to several hours at a time approximately three days a week. ( See id. 4:21-5:3). Additionally, F-Navarrete admits he had the authority to change Plaintiff's work schedule, raise Plaintiff's hourly wage, and hire or fire Plaintiff and any of Navas' other employees. ( See Defs.' Answer to Req. for Admis. [ECF No. 37-8] 8-10). However, F-Navarrete never acted on this authority while Plaintiff was employed by Defendants. ( See F-Navarrete Dep. 5:18-6:8).

From August 2005 to August 2009, Plaintiff was employed by Defendants and would assist in the set-up and removal of equipment at events. ( See J-Navarrete Dep. 9:10-22). Plaintiff maintains that he traveled in connection with work and that "[he] was sent on at least fifteen trips outside of the state of Florida for the business purposes of A Navas Party Production, to pitch tents and set up party supplies, during the last three years of ...employment." (Pl.'s Aff. [ECF No. 37-7] ¶ 5).1 Additionally, Plaintiff asserts three other employees accompanied him on these trips out of the state, and on at least five occasions these employees made out of state trips that Plaintiff did not participate in. ( See id.).2 However, Defendants contend Plaintiff traveled outside Florida on only two occasions and other employees traveled outside of Florida on only one other occasion between August 2005 to August 2009. ( See J-Navarrete Dep. 17:16-21:8). Plaintiff, who is in the United States illegally, has not paid any federal income taxes on the wages he earned while employed by Defendants. ( See Pl.'s Dep. [ECF No. 28-1] 7:4-8:24).

Plaintiff and Defendants agree that at least two employees were assigned to every party setup. ( See Resp. [ECF No. 36] 18; J-Navarrete Dep. 15:13-15). Plaintiff also maintains that the tents used in Defendants' business are made in Germany. ( See Pl.'s Aff. ¶ 4).3 J-Navarrete contends he does not know where the tents are made, but that most tents have a label saying "made in the USA." ( See J-Navarrete Dep. 14:16-22). Defendants also contend, however, that "[n]either Plaintiff nor the company ever purchased goods outside the State of Florida, and could not identify any goods or products that either [Plaintiff] or the company purchased from outside of Florida." (Defs.' Statement of Undisputed Facts [ECF No. 28] ¶ 16).

Plaintiff further maintains J-Navarrete would usually supervise him, but that "[w]hen Defendant Jose Navarette [sic] was not present or available, Francisco Navarette [sic] would give me orders. Francisco Navarette [sic] would give me orders approximately once a week. Additionally, when Jose Navarette [sic] was not present I would ask Francisco Navarette [sic] any questions or clarifications of my job or duties." (Pl.'s Aff. ¶ 6).4 Contraryto this, F-Navarrete contends he never gave Plaintiff orders or instructions on how to perform his job. ( See F-Navarrete Dep. 6:12-14).

In his complaint, Plaintiff alleges a claim for violation of the FLSA's overtime provision. To support his overtime claim Plaintiff submitted time cards maintained by the Defendants that show the number of hours Plaintiff worked on certain days and the total hours Plaintiff worked for certain weeks. ( See [ECF No. 37-3] ). However, the majority of the time cards are not labeled with a particular day or week, but simply show the hours Plaintiff worked for an unspecified day and the total hours worked for an unspecified week. ( See id.). Supplementing the time cards, Plaintiff also testified that on average he worked 70 hours a week during the time he was employed by Defendants. ( See Pl.'s Dep. 58:6-22). The Defendants dispute this average as inaccurate, but do concede there were weeks Plaintiff worked 70 hours. ( See J-Navarrete Dep. 22:6-13). Additionally, Defendants admit they never paid Plaintiff time and a half if he worked over 40 hours in a week. ( See id. 26:8-10). Also, when asked whether he knew if Defendants willfully failed to pay Plaintiff overtime, Plaintiff responded, "[t]o me they did it intentionally." (Pl.'s Dep. 67:22). However, moments later, when asked the same question, Plaintiff responded, "No, I don't know." ( Id. 68:21).

In his complaint, Plaintiff also alleges that for a period of time he was not paid at all in violation of the FLSA's minimum wage provision. ( See Compl. ¶¶ 7-10; Resp. 10). Plaintiff's deposition contains confusing statements regarding this period. At one point Plaintiff stated he does not have a minimum wage claim ( see Pl.'s Dep. 53:12-13, 67:14-15, 113:12-17), however, Plaintiff also stated there was a period of time where Defendants failed to pay him any wages ( see id. 47:11-51:9, 100:23-104:7). Additionally, Plaintiff affirmatively states in his Affidavit, "I have not abandoned any claims I may have for federal minimum wages." (Pl.'s Aff. ¶ 8).

In April 2010, Defendants moved for summary judgment on six grounds: (1) Plaintiff should not be heard because he comes to the Court with unclean hands due to his status as an illegal immigrant and his failure to pay taxes; (2) F-Navarrete is not liable under the FLSA because he does not qualify as Plaintiff's employer; (3) Plaintiff did not follow the correct procedure under the Florida Minimum Wage Act, Fla. Stat. § 448.110(2), and in any event, Plaintiff abandoned both his state and federal minimum wage claims; (4) Plaintiff will not be able to prove his damages; (5) Plaintiff conceded Defendants did not willfully fail to pay Plaintiff overtime; and (6) Plaintiff does not qualify for the FLSA's individual coverage, and Defendants do not qualify under the FLSA's enterprise coverage. ( See Mot. 1).


Summary judgment should be rendered "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 judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). The rendering court "must view all evidence and make allreasonable inferences in favor of the party opposing summary judgment." Chapman v. AI Trans., 229 F.3d 1012, 1023 (11th Cir.2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995)).

A. Defendants' In Pari Delicto Defense

Defendants assert the doctrine of in pari delicto bars Plaintiff's suit because (1) he is an illegal immigrant and (2) he has not paid federal income taxes on his earnings. ( See Mot. 2).5

In an earlier Order, the Court observed Patel v. Quality Inn South, 846 F.2d 700 (11th Cir.1988), remains binding Eleventh Circuit Court of Appeals precedent. ( See Order [ECF No. 30] 2). In Quality Inn South, the Eleventh Circuit held illegal immigrants can sue an employer under the FLSA. See 846 F.2d at 704-05. Therefore, the Court denied Defendants summary judgment on this ground. ( See Order 2). The Defendants, by maintaining in pari delicto bars an illegal immigrant from suing under the FLSA, are simply repackaging the same argument that the Court previously rejected. For reasons previously stated, the Court rejects Defendants' first in pari delicto argument. Therefore, the Court will address only Defendants' second in pari delicto argument.

Regarding in pari delicto, the Eleventh Circuit has explained that under the defense, " 'a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing.' " Liquidation Comm'n of Banco Intercontinental, S.A. v. Renta, 530 F.3d 1339, 1354 (11th Cir.2008) (quoting Official Comm. of Unsecured Creditors of PSA, Inc. v. Edwards, 437 F.3d 1145, 1152 (11th Cir.2006)). Defendants cite two cases in support of their contention that an employee who fails to pay federal income taxes is barred by in pari delicto from suing under the FLSA. See Neiman v. Provident Life & Accident Ins. Co., 217 F.Supp.2d 1281 (S.D.Fla.2002); Edwards, 437 F.3d 1145. However, neither is analogous to the instant case. In Nei...

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