Preview
Filing # 141145883 E-Filed 12/30/2021 02:04:01 PM
IN THE CIRCUIT COURT OF THE
TWENTIETH JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA
CASE NO.: 21000913CA
Percy McDuffy,
On behalf of himself and those
similarly situated,
Plaintiff,
v
Cutting Edge Pizza, Inc.; Paul Zdanowicz; Doe
Corporation 1-10; John Doe 1-10,
Defendants.
DEFENDANTS’ MOTION TO STAY DISCOVERY AND A POTENTIAL MOTION FOR
CLASS CERTIFICATION PENDING THE RESOLUTION OF
THEIR SUMMARY JUDGMENT MOTION
Defendants Cutting Edge Pizza, Inc. (“Cutting Edge”) and Paul Zdanowicz (collectively
“Defendants”), by and through their undersigned counsel, hereby file this motion to stay discovery
and a yet-to-be-filed motion for class certification pending the resolution of Defendants’ motion
for summary judgment. In support of this motion, Defendants state as follows:
1 On August 3, 2021, Plaintiff filed a Complaint against Defendants asserting claims
on behalf of himself and a putative class of similarly-situated delivery drivers for failure to pay
minimum wage under Florida law (Count 1) and unjust enrichment (Count 2).
2. After filing the Complaint, Plaintiff provided notice of minimum wages allegedly
owed pursuant Fla. Stat. § 448.110(6).
3 Shortly thereafter, Defendants tendered Plaintiff a check for the minimum wages
he alleged were owed. As a result, Plaintiff's claim for unpaid wages has been rendered moot, and
he cannot maintain a claim against Defendants pursuant to the Florida Minimum Wage Act
(“FMWA”).
3 On December 28, 2021, Defendants filed a motion for summary judgment
dismissing Plaintiff's Complaint in its entirety and asserting that: (1) Plaintiff lacks standing to
maintain a claim for unpaid minimum wages because Defendants tendered him a check for the
amount that he alleges to be owed pursuant to the FMWA, and correspondingly, he cannot serve
as a class representative; and (2) his unjust enrichment claim is duplicative of his unpaid minimum
wage claim and also must be dismissed. See Defendants’ Motion for Summary Judgment, Exhibit
A
4 Because this motion is potentially dispositive of the entire case, this Court should:
(1) stay discovery and (2) restrict Plaintiff from filing a motion for class certification pending
resolution of the summary judgment motion. A stay would promote the interests of judicial
efficiency and relieve the parties of the burden and expense of engaging in costly litigation in a
matter that may be dismissed, in part or in its entirety, within the near future.
5 Courts have long recognized their discretion to postpone discovery in light of a
potentially dispositive motion. Wright and Miller suggest that this is no more than a general
recognition of the principal of “judicial parsimony” whereby secondary issues are postponed
pending resolution of critical and dispositive issues. Charles A. Wright, Arthur R. Miller &
Richard L. Marcus, Wright, Miller, & Marcus, Federal Practice & Procedure: Civil 2d § 2040, p.
521 2d ed. 1994. See also Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir.
1997) (“[flacial challenges to the legal sufficiency of a claim or defense, such as a motion to
dismiss based on failure to state a claim for relief, should . . . be resolved before discovery begins”);
Patterson v. United States Postal Serv., 901 F.2d 927, 929 (11th Cir. 1990) (upholding district
court’s grant of a motion to stay discovery pending the outcome of a dispositive motion). To be
sure, it is an error of law for the Court to permit discovery which “might give rise to a potential
cause of action.” State Farm Mut. Auto. Ins. Co. v. Parrish, 800 So. 2d 706, 707 (Fla. Dist. Ct.
App. 2001); see also Feigin v. Hosp. Staffing Servs., Inc., 569 So. 2d 941, 942 (Fla. Dist. Ct. App.
1990) (appropriate for trial court to stay discovery pending the motion to dismiss hearing); Carrow
v. The Florida Bar, 848 So. 2d 1283, 1285 (Fla. Dist. Ct. App. 2003) (appropriate for the trial court
to prevent discovery until there was a valid, operable complaint).
6. Here, the pending motion for summary judgment may eliminate Plaintiff's claims
altogether or significantly reduce them and therefore, substantially alter the scope of discovery
itself. Consequently, it is in the interest of judicial economy that this Court enter an order staying
all discovery in this matter until it has ruled upon the motion for summary judgment. To do
otherwise would force the parties and the Court to incur significant expense in discovery on claims
and issues that may not exist once the motion has been heard. Therefore, Defendants submit that
it is more efficient to take a practical approach and stay discovery in this matter until such time as
the Court has ruled upon the motion for summary judgment.
7 Defendants also respectfully request that this Court enter an order restricting
Plaintiff from filing a motion for class certification until after the Court rules on Defendants’
motion for summary judgment. As noted above, in their motion for summary judgment,
Defendants assert that Plaintiff lacks standing to bring claims for unpaid minimum wages and
unjust enrichment on behalf of himself and the putative class that he seeks to represent. See
Defendants’ Motion for Summary Judgment, Exhibit A.
8 Accordingly, in the interest of judicial economy, the Court should decide whether
Plaintiff has standing and can serve as a class representative before permitting him to move for
conditional certification. Indeed, “[t]he standing of a plaintiff to bring an action is a threshold
inquiry that must be made before addressing whether the case is properly maintainable as a class
action.” Disc. Sleep of Ocala, LLC v. City of Ocala, 245 So. 3d 842, 849 (Fla. 5 DCA 2018)
(citing Ferreiro v. Phila. Indem. Ins. Co., 928 So.2d 374, 376 (Fla. 3d DCA 2006)). See also e.g.,
Sosa v. Safeway Premium Finance Co., 73 So.3d 91 (2011) (“A threshold injury in a motion for
class certification is whether the class representative has standing to represent the putative class
members.”); Taran v. Blue Cross Blue Shield of Florida, Inc., 685 So.2d 1004 (Fla. 3d DCA 1997)
(finding the trial court properly decided whether the plaintiffs had standing before proceeding with
class consideration).
9 No party will be prejudiced by the granting of this motion.
Dated: December 30, 2021.
Respectfully Submitted,
/s/ Brett P. Owens
Kathleen McLeod Caminiti, Esq
Florida Bar No.: 814628
kcaminiti@fisherphillips.com
Brett P. Owens, Esq.
bowens@fisherphillips.com
Florida Bar No.: 112677
FISHER & PHILLIPS LLP
101 E. Kennedy Blvd.
Suite 2350
Tampa, Florida 33602
Telephone: 813-769-7500
Facsimile: 813-769-7501
Counsel for Defendants
CERTIFICATE OF SERVICE
I hereby certify that on December 30, 2021, I caused a true and correct copy of the
foregoing to be served on the following counsel of record via transmission of Notice of Electronic
Filing generated by the Florida’s E-Filing Portal:
C. Ryan Morgan, Esq.
Morgan & Morgan, P.A.
20 N. Orange Avenue, 15'" Floor
P.O. Box 4979
Orlando, Florida 32802-4979
RMorgan@forthepeople.com
Andrew R. Biller, Esq.
Andrew P. Kimble, Esq.
Philip J. Krzeski, Esq.
Biller & Kimble, LLC
8044 Montgomery Road, Suite 515
Cincinnati, OH 45236
abiller@billerkimble.com
akimble@billerkimble.com
pkrzeski@billerkimble.com
Counsel for Plaintiff
/s/ Brett P. Owens
Brett P. Owens, Esq
Exhibit A
Filing # 141039091 E-Filed 12/28/2021 04:27:56 PM
IN THE CIRCUIT COURT OF THE
TWENTIETH JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA
CASE NO.: 21000913CA
Percy McDuffy,
On behalf of himself and those
similarly situated,
Plaintiff,
Vv.
Cutting Edge Pizza, Inc.; Paul Zdanowicz; Doe
Corporation 1-10; John Doe 1-10,
Defendants.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Defendants Cutting Edge Pizza, Inc. (“Cutting Edge”) and Paul Zdanowicz (collectively
“Defendants”), by and through their undersigned counsel, move for summary judgment on all
counts in the Complaint filed by the Plaintiff Percy McDuffy (“Plaintiff”), and in support thereof
states as follows:
I INTRODUCTION
The gravamen of the Complaint is that Defendants improperly reimbursed Plaintiff and
other pizza delivery drivers for delivery-related expenses which resulted in the drivers being paid
less than the minimum wage under Florida law. Plaintiff asserts that the drivers should have been
reimbursed at the IRS business mileage rate. According to Plaintiff, because the drivers were
reimbursed at a lower mileage rate, the drivers were paid less than the Florida minimum wage
when they incurred unreimbursed delivery-related expenses. Under this same theory, Plaintiff
asserts an unjust enrichment claim contending that the delivery drivers conferred a benefit on
Defendants because they did not receive proper reimbursement for delivery-related expenses.
Defendants deny Plaintiff's claims have any legal merit. Cutting Edge properly reimburses its
delivery drivers for their delivery-related costs and expenses in accordance with the reasonable
approximation standards recognized by caselaw more than a decade ago. (See infra at p. 14-15).
In turn, Plaintiffs allegations are wholly without merit.
As a matter of law, Plaintiff has no viable claims against Defendants, and therefore, the
Court must dismiss his Complaint in its entirety. In accordance with Florida minimum wage law,!
upon receiving notice from Plaintiff of alleged minimum wages owed, Defendants tendered
Plaintiff a check for the amount requested. As a result, pursuant to the express language in the
FMWA, Plaintiff cannot bring a minimum wage claim. Correspondingly, he lacks standing to
serve as a class representative. Moreover, Plaintiff's unjust enrichment claim is moot as
Defendants tendered him payment for the benefits he alleges to have conferred on Defendants.
Accordingly, Defendants request that this Court dismiss Plaintiff's Complaint with prejudice as a
matter of law.
After filing his Complaint, Plaintiff provided notice to Defendants of the minimum wages
that he alleged were owed and included a formula pursuant to which he calculated his unpaid
wages (basically calculating mileage reimbursement at the IRS mileage rate). Although disputing
that Plaintiff was not properly reimbursed for delivery-related expenses, Defendants tendered
Plaintiff the wages that he contends are owed, pursuant to the formula proffered by Plaintiff. As
aresult, the FMWA, which governs all Florida minimum wage claims, explicitly prohibits Plaintiff
' As explained infra in Section V(A)(i), Plaintiff's claim for unpaid minimum wages under the Florida Constitution,
Art. X, § 24, must be analyzed through the Florida Minimum Wage Act (“FMWA”), which provides the framework
for Florida unpaid minimum wage claims.
from maintaining a minimum wage claim, and correspondingly, he lacks standing to assert a claim
on behalf of a putative class. The Court thus must dismiss his unpaid minimum wage claim.
Plaintiff's claim for common law unjust enrichment should be dismissed as well. In his
Complaint, Plaintiff argues that Defendants have been unjustly enriched because Plaintiff and
other delivery drivers conferred a benefit on Defendants when they were not reimbursed for all
delivery-related expenses. Like his minimum wage claim, this claim became moot when
Defendants tendered Plaintiff a check for all expenses he claims are owed, and Plaintiff therefore
has no standing to serve as a class representative on this claim either.
For the reasons set forth herein, the Court should grant Defendants’ motion for summary
judgment dismissing Plaintiff's entire Complaint with prejudice and as a matter of law.
Il. STATEMENT OF UNDISPUTED FACTS
1 On August 3, 2021, Plaintiff filed a Complaint against Defendants asserting claims
on behalf of himself and a putative class of similarly-situated delivery drivers for failure to pay
minimum wage under Florida law (Count 1) and unjust enrichment (Count 2). See Complaint,
Exhibit 1 to the Affidavit of Kathleen McLeod Caminiti (“Caminiti Aff.”).
2 In a letter dated November 2, 2021, Plaintiffs counsel provided Defendants with
pre-suit notice, under Fla. Stat. § 448.110(6), of purported wages owed on behalf of Plaintiff and
the putative class, pursuant to a formula. See Plaintiffs November 2, 2021 Letter, Exhibit 2 to the
Caminiti Aff.
3 In particular, Plaintiff demanded:
((All miles driven by the Rule 23 class) x (IRS standard business
mileage rate for the Rule 23 Class)) — ((all miles driven by the Rule
23 Class) x (actual mileage rate paid by the Rule 23 Class)) +
Liquidated damages for the entire amount owed under the Florida
Constitution + all profits that Defendants were unjustly enriched by
under-paying drives [sic] + attorney’s fees and costs.
Td.
4 On November 11, 2021, Defendants responded by letter and tendered to Plaintiff a
check for the unpaid wages claimed pursuant to the formula in Plaintiffs November 2, 2021 letter.
See Defendants’ November 11, 2021 Letter, Exhibit 3 to the Caminiti Aff.
5 Pursuant to the formula in Plaintiff's November 2, 2021 letter -- adjusted for items
not properly included in Plaintiffs notice and without admission (see §6 and Ex. 3) -- Defendants
tendered Plaintiff a check for $2,000.00 as compensation for alleged unpaid wages (rounded up to
provide a buffer and account for any inadvertent mathematical issues). Jd. This amount represents
(all miles driven by Plaintiff) x (IRS standard business mileage rate) - (all miles driven by Plaintiff)
x (actual mileage rate paid to Plaintiff), Id?
6. In this letter, Defendants also noted several issues with Plaintiffs notice formula.
Specifically, contrary to Plaintiffs counsel’s assertions, Plaintiff cannot provide notice on behalf
of a putative class as he had not yet moved for certification and only Plaintiff has appeared in this
matter. /d. Moreover, it was improper for Plaintiff to include a request for liquidated damages,
attorney’s fees, and costs in his formula because Fla. Stat. § 448.110 and corresponding caselaw
clearly direct that an employer is not liable for these damages if it tenders wages allegedly owed
to an employee. Id.
7 Plaintiff's counsel received the letter and physical check on November 12, 2021.
See FedEx Proof
of Delivery, Exhibit 4 to the Caminiti Aff.
? Plaintiff reported driving 6,836.81 miles for Cutting Edge, and he was reimbursed $2,092.50 for delivery-related
expenses during his employment, representing a reasonable approximate of expenses that he incurred. See Affidavit
of Paul Zdanowicz (“Zdanowicz Aff.), §{ 6-7. The rate of reimbursement used by Cutting Edge is based on reports
from an industry-leading company, MOTUS, that accounts for numerous variables, including, but not limited to,
automobile cost and depreciation, locality, fuel costs, insurance premiums, licensing and registration costs. See
Zdanowicz Aff., | 4.
Til. FLORIDA ADOPTS FEDERAL COURT SUMMARY JUDGMENT STANDARD
Florida’s Supreme Court, in an order dated December 31, 2020, amended Florida’s civil
tule governing summary judgment, Florida Rule of Civil Procedure 1.510, to “align Florida’s
summary judgment standard with that of the federal courts and of the supermajority of states that
have already adopted the federal summary judgment standard.” Jn re Amends. To Fla. Rule of Civ.
Pro. 1.510, 309 So0.3d 192, 192 (FSC 2020). The Court adopted the federal summary judgment
standard by adding the following sentence to the text of existing rule 1.510(c): “The summary
judgment standard provided for in this rule shall be construed and applied in accordance with the
federal summary judgment standard articulated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986);
Anderson v Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec. Indus. Co, v. Zenith Radio
Corp., 475 U.S. 574 (1986). These cases are commonly referred to as the Celotex trilogy. The
Court gave the amended rule a prospective effective date of May 1, 2021. In anticipation of the
amendment’s effective date, the Court sought public comment and specifically invited responses
to three questions: (1) whether any ancillary changes were necessary to effectively implement the
amendment; (2) whether specific provisions of federal rule 56 should be added to rule 1.510 and;
(3) whether rule 1.510 should be replaced in its entirety with the text of federal rule 56. Id. at 194.
Based upon those public comments, the Court, on April 29, 2021, further amended rule 1.510 to
codify the rule change, ultimately determining, “[flor several reasons, we are persuaded that the
best way forward is to largely adopt the text of federal rule 56 as a replacement for rule 1.510. Id.
at 195. The effective date of the Amendment remained May 1, 2021. Henceforth, Florida courts
are able to, and indeed are now mandated to, apply the summary judgment standard under Fed. R.
Civ. P. 56 to circuit court claims.
Iv. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if there is no genuine dispute over a material fact and
the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317
(1986), cert. denied, 484 U.S. 1066 (1988). The summary judgment procedure should not be
regarded as a “disfavored procedural shortcut,” but as an integral part of the federal rules, which
are designed “to secure the just, speedy and inexpensive determination of every action.” Id. at
327. The purpose of Fed. R. Civ. P. 56 (and henceforth Fla. R. Civ. P. 1.520) is to eliminate the
needless delay and expense to the court and the parties occasioned by an unnecessary trial. See
Johnston v. Henderson, 144 F. Supp. 2d 1341, 1348 (S.D. Fla. 2001) (citing Celotex, 477 U.S. at
322-323).
On summary judgment, the moving party has no burden other than “pointing out to the
court that there is an absence of evidence to support [Plaintiff's] case.” Celotex, 477 USS. at 325;
see also Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (summary
judgment may be based solely on the absence of record evidence in support of the plaintiffs
claim). To survive a motion for summary judgment, Plaintiff must come forward with significant
probative evidence to demonstrate that a triable issue of fact does exist. See Baker v. McDonald's
Corp., 686 F. Supp. 1474 (S.D. Fla. 1987), aff'd, 865 F.2d 1272 (11th Cir. 1988). More than a
mere scintilla of evidence is necessary to survive a motion for summary judgment; “there must be
a substantial conflict in evidence to support a jury question.” Combs v. Plantation Patterns, 106
F.3d 1519, 1526 (11th Cir. 1997). Summary judgment is warranted if no genuine issue exists as
to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(c); see also Celotex, 477 U.S. at 322-323. 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 a party’s case, and on which the party will bear the burden of
proofat trial.” Zd. at 322-323.
Although the Court must consider the evidence in a light most favorable to the non-moving
party, the non-moving party cannot rest upon his bare assertions, conclusory allegations, surmises,
or conjectures, but instead must produce concrete evidence in the form of specific facts on which
the Court could reasonably find for the non-movant at trial. See Johnston, 144 F. Supp.2d at 1349
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Matsushita Electric Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986)). For the reasons set forth below, summary
judgment should be entered in favor of Defendants, and the case be dismissed with prejudice.
Vv. ARGUMENT
A The Court Must Dismiss Plaintiff’s Claim for Unpaid Minimum Wage As A
Matter of Law.
Pursuant to the FMWA, after receiving notice from Plaintiff, Defendants tendered Plaintiff
the minimum wages that he alleged were owed to him by Cutting Edge, and as a result, his claims
of failure to pay minimum wages and unjust enrichment are moot. Correspondingly, Plaintiff lacks
standing to assert these claims on behalf of a putative class because he does not have a case or
controversy against Defendants. Defendants, therefore, respectfully request that this Court grant
their motion for summary judgment dismissing Plaintiff's Complaint in its entirety with prejudice.
i. Florida Law Requires Notice of Alleged Minimum Wages Owed
and an Opportunity for the Employer to Cure.
An action for unpaid minimum wages under the Florida Constitution must be viewed
through the “lens of the FMWA because the Florida Constitution does not create an independent
constitutional right to bring suit to recover unpaid minimum wages.” Montes v. M & M Mgmt.
Co., No. 15-80142-CIV, 2015 WL 4077463, at *6 (S.D. Fla. July 6, 2015) (Marra, J.) (collecting
cases). Indeed, there are not separate causes of action under the Florida Constitution and the
FMWA for unpaid minimum wages as the FMWA “provide[s] measures appropriate for the
implementation of the [constitutional minimum wage guarantee], in accordance with the authority
granted to the Legislature” by Article X, section 24, of the Florida Constitution. See Fla. Stat. §
448.110(2); see also Resnick v. Oppenheimer & Co. Inc., No. 07-80609-CIV, 2008 WL 113665,
at *1 (S.D. Fla. Jan.8, 2008).
In 2004, Florida passed an amendment to the Florida Constitution, Article X, Section 24,
which provides that all Floridians are entitled to a minimum wage adjusted each year to account
for inflation and a variety of wage indexes. See Fla. Const. art. X, § 24(c). Subsection (e) permits
employees to bring a civil action to seek unpaid minimum wage. /d. at 24(e). The Constitution
further directs that the state legislature may “adopt any measures appropriate for the
implementation of this amendment.” /d. at 24(e). Accordingly, in December 2005, the Florida
legislature passed the FMWA “to provide measures appropriate for the implementation” of the
Florida Constitution.” See Fla. Stat. Ann. § 448.110(2). The Florida legislature declared that the
FMWA “shall constitute the exclusive remedy under state law for violations of § 24, Art. X of the
State Constitution.” Fla. Stat. Ann. § 448.110(10).
The FMWA requires that an aggrieved party must provide written pre-suit notice. Id. at §
448.110(6)(a). In particular, it requires that an individual alleging failure to pay minimum wages
provide pre-suit notice to the employer of the alleged minimum wages owed, the actual or
estimated work dates and hours for which payment is sought, and the total amount of unpaid wages
through the date of the notice. See Fla. Stat. Ann. § 448.110(6)(a). The employer then has fifteen
(15) calendar days to pay the total amount of unpaid wages. Jd. at § 448.110(6)(b). Only if the
employer fails to pay the alleged minimum wages owed can the individual proceed with a claim
for unpaid minimum wage. Jd.
This notice requirement is mandated whether a claim is purportedly brought under the
FMWA or the Florida Constitution, Art. X, § 21. See e.g., Resnick, 2008 WL 113665, at *2;
Dominguez v. Design by Nature Corp., No. 08-20858—Civ, 2008 WL 4426721 (S.D. Fla. Sept. 25,
2008); Garcia-Celestino v. Ruiz Harveseting, Inc., No. 2:10-CV-542-FTM-38, 2013 WL 3816730,
at *17 (M.D. Fla. July 22, 2013); Nichols v. Lab’y Corp. of Am., No. 2:13-CV-848-FTM-38, 2014
WL 820656, at *4 (M.D. Fla. Mar. 3, 2014); Smith v. Heritage Health Care Ctr., No. 4:17CV293-
MW/CAS, 2017 WL 10841212, at *4 (N.D. Fla. Aug. 2, 2017); Villarino v. Pacesetter Pers. Serv.,
Inc., 481 F. Supp. 3d 1252, 1257 (S.D. Fla. 2020); Montes, 2015 WL 4077463, at *1; Vitola v.
Paramount Automated Food Servs., Inc., No. 08-61849-CIV, 2009 WL 3242011, at *7 (S.D. Fla.
Oct. 6, 2009); Saucedo v. Phoenix Auto Sales, Inc., No. 08-21156-CIV, 2009 WL 10666878, at *8
(S.D. Fla. Jan. 5, 2009); Ramirez v. Martinez, No. 08-21863-CIV, 2009 WL 199786, at *5 (S.D.
Fla. Jan.23, 2009); Aquino v. BT's on the River, LLC, No. 20-20090-CIV, 2020 WL 7356372, at
*4 (S.D. Fla. Dec. 15, 2020); Est. of Roig v. United Parcel Serv., Inc., No. 20-CV-60811, 2020
WL 6875790, at *18 (S.D. Fla. Sept. 30, 2020), report and recommendation adopted, No. 20-CV-
60811, 2020 WL 6873892 (S.D. Fla. Nov. 22, 2020); Brown v. Lawn Enf't Agency, Inc., No.
1:17CV305-MW/GRJ, 2018 WL 11351307, at *8 (N.D. Fla. July 23, 2018).
ii. Defendants Tendered Plaintiff’s Request for Alleged Unpaid
Minimum Wages Thereby Mooting Plaintiff's Minimum Wage
Claim
Here, although he waited until after filing his Complaint and claimed that he was not
required to provide notice since he brought his minimum wage claim under the Florida
Constitution, Plaintiff ultimately acknowledged that notice is required and provided a formula to
calculate the minimum wages that he alleges are owed by Defendants. See Plaintiff's November
2, 2021 Letter, Exhibit 2. Defendants then tendered Plaintiff a check for his claim unpaid
minimum wages. Accordingly, Plaintiff has no standing to assert a claim for unpaid minimum
wages against Defendants, and the Court should dismiss this count of the Complaint as a matter of
law.
In his November 2, 2021 letter, Plaintiff demanded:
((All miles driven by the Rule 23 class) x (IRS standard business
mileage rate for the Rule 23 Class)) — (all miles driven by the Rule
23 Class) x (actual mileage rate paid by the Rule 23 Class)) +
Liquidated damages for the entire amount owed under the Florida
Constitution + all profits that Defendants were unjustly enriched by
under-paying drives [sic] + attorney’s fees and costs.
See Plaintiff's November 2, 2021 Letter, Exhibit 2.
Plaintiff's notice and formula impermissibly included severable components not
recoverable under the FMWA:
First, Plaintiff incorrectly includes a request for liquidated damages, attorney’s
fees, and costs. However, an individual is not entitled to these damages if the employer
remedies the alleged minimum wages owed prior to the end of the fifteen-day notice period
because these damages are only available “upon prevailing in an action brought pursuant
to [the FMWA]” and an action cannot be commenced if the pay discrepancy is resolved
within the grace period. Brown v. Lawn Enf’t Agency, Inc., No. 1:17CV305-MW/GRJ,
2018 WL 11351307, at *5 (N.D. Fla. July 23, 2018) (quoting Fla. Stat. § 448.110(6)(c));
see also Johnson v. Nobu Assocs. S. Beach, LP, No. 10-21691-CIV, 2011 WL 780028, at
*3 (S.D. Fla. Feb. 4, 2011), report and recommendation adopted, No. 10-21691-CV, 2011
WL 772874 (S.D. Fla. Feb. 28, 2011) (concluding “plaintiffs’ pre-suit notice violated the
terms of the pre-suit notice requirement by demanding more than the statute permits by
10
requesting a total sum inclusive of liquidated damages and attorneys’ fees.”). Indeed,
“Tt]he purpose of the notice requirement [under Fla. Stat. § 448.110(6)] is to allow an
employer to pay any unpaid wages before also becoming liable for attorney’s fees and
liquidated damages.” Villafana, 2013 WL 12085996. Accordingly, the formula proffered
by Plaintiff incorrectly includes a request for liquidated damages, attorneys’ fees, and costs.
Second, Plaintiff inappropriately demands “all profits that Defendants were
unjustly enriched by under-paying drives [sic].” The FMWA is clear. Notice solely must
“identify the minimum wage to which the person aggrieved claims entitlement, the actual
or estimated work dates and hours for which payment is sought, and the total amount of
alleged unpaid wages through the date of the notice.” Fla. Stat. § 448.110(6)(a). Plaintiff
cannot include his unjust enrichment claim to try to circumvent statutorily required notice.
Therefore, this portion of the formula must be disregarded as well.
Third, Plaintiff cannot seek to provide notice on behalf of the putative class. At
this juncture, only Plaintiff is a named party in this action, and he has not moved for class
certification. See Fla. R. Civ. P. 1.220. “A civil action does not become a ‘class action’
simply because the complaint bears the legend ‘class action complaint’ or, as required by
Florida Rule Civil Procedure 1.220, ‘class representation.”” Policastro v. Stelk, 780 So. 2d
989, 991 (Fla. 5th DCA 2001). Here, no other individuals have filed notices or sought to
join this action. Accordingly, it is improper for Plaintiff to attempt to provide notice on
behalf of the unrepresented putative class members.*
> Furthermore, Plaintiff's claim that he can provide notice on behalf
of a non-certified putative class would undermine
Fla. Stat. § 448.110’s notice requirement. Otherwise, plaintiffs could side-step this requirement and proceed to
litigation merely by including class allegations.
11
After adjusting Plaintiffs formula to remove these issues, within fifteen days of Plaintiffs
notice, Defendants rounded up and tendered a check for $2,000 to Plaintiff for alleged unpaid
wages owed, representing: (all miles driven by Plaintiff) x (IRS standard business mileage rate) -
(all miles driven by Plaintiff) x (actual mileage rate paid to Plaintiff). See Defendants’ November
11, 2021 Letter, Exhibit 3. Defendants thereby satisfied Plaintiff's claim for unpaid minimum
wages, and the Court, therefore, must dismiss this Count of the Complaint. See Brown, 2018
WL 11351307, at *6 (dismissing the plaintiffs claim for unpaid minimum wages because the
defendants remedied the pay discrepancy before the expiration of the grace period provided by the
FMWA); see also Fla. Stat. Ann. § 448.110(6)(b) (providing that an individual may bring a claim
for unpaid minimum wages only if the employer fails to pay the amount allegedly owed) (emphasis
added).
B Plaintiff’s Unjust Enrichment Claim Is Duplicative Of His Claim For Unpaid
Minimum Wages And Likewise Must Be Dismissed.
In Count 2 of his Complaint, Plaintiff claims that he and the putative class conferred a benefit
on Defendants by using their own vehicles to deliver food. See Complaint, Exhibit 1. According
to Plaintiff, “[i]t would be unjust for Defendants to be permitted to retain the benefit conferred on
them by the delivery drivers without commensurate compensation.” Jd. This claim must be
dismissed because: (1) the unjust enrichment claim is duplicative of Plaintiff's minimum wages
claim; (2) Plaintiffs unjust enrichment claim is also moot; and (3) it is entirely permissible for an
employer to require an employee to use their personal vehicle so long as the employee is paid at
least the minimum wage. For these reasons, the Court must also dismiss Plaintiff's unjust
enrichment claim.
An action for “unjust enrichment” exists to prevent the wrongful retention of a benefit, or the
retention of money or property of another, in violation of good conscience and fundamental
12
principles of justice or equity. 66 Am. Jur. 2d Restitution and Implied Contracts § 3 (1964). The
essential elements of an action for unjust enrichment are a benefit conferred upon the defendant by
the plaintiff, appreciation by the defendant of such benefit, and acceptance and retention of such
benefit by the defendant under such circumstances that it would be inequitable for him to retain it
without paying the value thereof. Malamud v. Syprett, 117 So. 3d 434, 440 (Fla. 2d DCA 2013);
Gomes v. Stevens, 548 So. 2d 1163 (Fla. 2d DCA 1989).
“[T]he theory of unjust enrichment is equitable in nature and is, therefore, not available
where there is an adequate legal remedy[.]” Bowleg v. Bowe, 502 So. 2d 71, 72 (Fla. 3d DCA 1987).
“Thus, to properly state a claim for unjust enrichment, a party must allege that no adequate legal
remedy exists.” American Honda Motor Co., Inc. v. Motorcycle Information Network, Inc., 390 F.
Supp. 2d 1170, 1178 (M.D. Fla. 2005); see also Mitsubishi Int’l Corp. v. Cardinal Textile Sales, Inc.,
14 F.3d 1507, 1518-19 (11th Cir. 1994) (“Unjust enrichment is based on equitable theory and is
only available where there is no adequate remedy at law.”) Consequently, if there is an adequate
remedy at law, an unjust enrichment claim must be dismissed. See e.g., Bule v. Garda CL Se., Inc.,
No. 14-21898-CIV, 2014 WL 3501546, at *3 (S.D. Fla. July 14, 2014) (dismissing the plaintiff's
claim for unjust enrichment because he had an adequate remedy for unpaid overtime under the
FLSA); Matthews v. Am. Honda Motor Co., No. 12-60630-CIV, 2012 WL 2520675, at *2 (S.D. Fla.
June 6, 2012) (dismissing the plaintiffs unjust enrichment claim because the plaintiff had an
adequate remedy at law); Prohias v. Pfizer, Inc., 490 F. Supp. 2d 1228, 1237 (S.D. Fla. 2007)
(dismissing an unjust enrichment claim where “in their unjust enrichment claim[ ] the plaintiffs seek
recovery for the exact same wrongful conduct as in their consumer fraud act claim.”); Alexander v.
Vesta Ins. Grp., Inc., 147 F.Supp.2d 1223, 1240-41 (N.D. Ala. 2001) (on summary judgment,
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holding that the FLSA preempted plaintiffs’ fraud claim, because plaintiffs were merely recasting
their FLSA claims as state law claims in order to obtain additional damages).
Here, Plaintiff has an adequate remedy at law for his claim that Defendants failed to
adequately reimburse him for delivery-related expenses at a proper mileage rate, namely his unpaid
minimum wages claim. Consequently, his unjust enrichment claim is merely duplicative of his
FMWA claim, and Plaintiff cannot seek double damages. See Bonich v. NAS Component Maint.,
Inc., No. 20-21582-CIV, 2020 WL 3000187, at *5 (S.D. Fla. June 4, 2020) (“It is well established
that a plaintiff cannot double recover unpaid wages.”). The Court, therefore, should dismiss this
claim.
Second, as with Plaintiff's minimum wage claim, Plaintiff lacks standing to maintain a claim
for unjust enrichment. Plaintiff asserts that he is “entitled to equitable restitution of all unreimbursed
expenses.” See Complaint, at § 113, Exhibit 1. According to Plaintiff, the IRS business mileage rate
is the proper reimbursement rate. See Plaintiff's November 2, 2021 Letter, Exhibit 2. While
Defendants disagree and maintain that the reasonable approximate standard is the correct rate of
reimbursement for delivery-related expenses, Defendants tendered Plaintiff a check at the IRS
business mileage rate, recognizing the significant costs of litigation. See Defendants’ November
11, 2021 Letter, Exhibit 3. Accordingly, Plaintiff received all monies that he contends were due
from Defendants and therefore, lacks a case or controversary against Defendants on this claim as
well. See e.g., Sosa, 73 So. 3d at 116.
Lastly, there simply is nothing inequitable or wrong about Cutting Edge reimbursing Plaintiff
and other delivery drivers at the reasonable approximate standard for delivery-related expenses. In
fact, the majority of courts across the nation have concluded that the reasonable approximation
standard is an appropriate manner for reimbursing delivery-related expenses and have rejected
14
Plaintiff's contention that delivery drivers must be reimbursed at the IRS business mileage rate. See
Blose v. Jarinc, Ltd, No. 1:18-CV-02184-RM-SKC, 2020 WL 5513383, at *2 (D. Colo. Sept. 14,
2020) (finding “the reasonable approximation standard has acquired traction in district courts around
the country.”); Bradford v. Team Pizza, Inc., Civ. No. 1:20-cv-00060 (S.D. Ohio Oct. 19, 2021);
Kennedy v. Mountainside Pizza, Inc., 2020 WL 5076756 (D. Colo. Aug. 26, 2020); Blose v. Jarinc,
Ltd., 2020 WL 5513383 (D. Colo. Sept. 14, 2020); Orth v. J & J & J Pizza, Inc., 2020 WL 1446735
(D. Mass March 25, 2020); Benton v. Deli Mgmt., Inc., 396 F. Supp.3d 1261 (N.D. Ga. 2019);
Sullivan v. PJ Untied, Inc., 362 F. Supp.3d 1139 (N.D. Ala. 2018); Tyler v. JP Operations, LLC,
342 F. Supp.3d 837 (S.D. Ind. 2018); Perrin v. Papa John’s Int'l, Inc., 114 F. Supp.3d 707 (E.D.
Mo. 2015); Smith v. Pizza Hut, Inc., 694 F. Supp.2d 1227 (D. Colo. 2010); Wass v. NPC Int'l, Inc.,
688 F. Supp.2d 1282 (D. Kan. 2010). Moreover, the U.S. Department of Labor, in a thorough
opinion letter, recently endorsed employers reimbursing delivery drivers at a reasonable
approximate of actual expenses incurred by the delivery drivers.4 See U.S. Dept. of Labor, Wage
& Hour Opinion Letter, FLSA 2020-12, Exhibit 5 to the Caminiti Aff. Therefore, Plaintiff's
allegations lack the wrongful conduct necessary for an unjust enrichment claim because as set forth
above and in the accompanying declarations, Defendants utilize the reasonable approximation
standard that has long been endorsed by the courts.>
In sum, Plaintiff impermissibly seeks a second bite of the proverbial apple with his unjust
enrichment claim, and this Count should be dismissed as a matter of law. Plaintiff cannot maintain
a parallel unjust enrichment claim when he has an adequate remedy at law. Plaintiff also lacks
4 “In Florida, the FMWA expressly adopts the statutory and regulatory provisions of the FLSA.” Kubiak v. S.W. Cowboy,
Inc.,2014 WL 2625181, *1 (M.D. Fla. June 12, 2014) (citing Fla. Const. Art. X, § 24).
5 Nevertheless, the Court does not need to decide the proper rate of reimbursement at this juncture as it can rely on
Defendants’ other arguments illustrating Plaintiffs lack of basis for an unjust enrichment claim.
15
standing in light of Defendants’ tendering his demand for delivery-related expenses at the IRS
business mileage rate. Moreover, there is no inherent wrongdoing by Defendants necessary to
maintain an unjust enrichment claim. As a result, the Court should dismiss Plaintiffs unjust
enrichment claim.
Cc. Plaintiff Lacks a Claim or Controversary Against Defendants Necessary to
Serve as a Class Representative.
Because Plaintiff cannot bring a claim for unpaid minimum wages or unjust enrichment
against Defendants, the Court must dismiss his class allegations for these claims. The Florida
Supreme Court, in Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 116 (Fla. 2011), set a bright-
line rule that before a class can be certified, the putative class representative must have standing.
See Ahearn v. Mayo Clinic, 180 So. 3d 165, 170 (Fla. 1st DCA 2015) (quoting Sosa, 73 So. 3d at
116). “To satisfy the standing requirement for a class action claim, the class representative must
illustrate that a case or controversy exists between him or her and the defendant, and that
this case or controversy will continue throughout the existence of the litigation.” Sosa, 73 So.
3d at 116 (emphasis added). In other words, if Plaintiffs putative class claim is rendered moot
before class certification, he cannot bring a claim on behalf of a class. See e.g., Taran v. Blue
Cross Blue Shield of Florida, Inc., 685 So.2d 1004 (Fla. 3d DCA 1997); Ahearn, 180 So. 3d at
170; Chinchilla v. Star Cas. Ins. Co., 833 So.2d 804 (Fla. 3d DCA 2002); Graham v. State Farm
Fire & Cas. Co., 813 So.2d 273 (Fla. Sth DCA 2002); Courtesy Auto Grp., Inc. v. Garcia, 778 So.
2d 1000, 1002 (Fla. 5th DCA 2000).
For example, in Ahearn, the plaintiff argued that he was entitled to assert a breach of
contract claim as a class representative, even though his individual breach of contract claim
became moot when the defendant waived the remainder of his bill and agreed to pay his attorneys”
fees and costs. 180 So. 3d at 169. In support, the plaintiff cited federal decisions holding that “a
16
defendant cannot ‘pick off a putative class representative by rendering moot the individual claim,
even if the class has not yet been certified.” /d. The court, however, rejected this argument, relying
on Sosa as well as other Florida state court decisions requiring that a case or controversy exist
between the named plaintiff and the defendant. Jd. at 171. The court ultimately granted summary
judgment dismissing the plaintiff's breach of contract claim. /d. at 177.
Likewise, in Taran, the plaintiffs, individually and as putative class representatives,
brought statutory claims against Blue Cross alleging that they were charged excessive health
insurance premiums. 685 So.2d at 1005. After the suit was filed, Blue Cross issued refunds to the
plaintiffs, thereby extinguishing their individual causes of action. /d. at 1007. The court affirmed
summary judgment against the plaintiffs, holding “if none of the named plaintiffs purporting to
represent a class establishes a requisite of a case or controversy with the defendant, none may seek
relief on behalf of himself or any other member of the class.” /d. at 1006 (citation omitted). The
court further concluded that it was permissible for Blue Cross to correct any billing errors prior to
class certification without negotiating a settlement on a class basis. Jd. at 1007. Other Florida
courts have reached similar conclusions. See Ramon, 769 So. 2d at 1056 (finding the plaintiff,
who had received full payment of insurance benefits, lacked standing to pursue class action claim);
Chinchilla, 833 So.2d at 805-06 (holding the plaintiff lacked standing to be class representative
when the defendant insurer reinstated her insurance policy so that coverage existed to pay medical
bills demanded by the plaintiff).
Similarly, here, Plaintiff lacks standing to pursue a class action. Like an insurer that
corrected alleged billing errors, after Defendants received notice of alleged unpaid minimum
wages, it promptly acted and tendered payment as requested by Plaintiff. Plaintiff, therefore, has
no case or controversary against Defendants. Accordingly, he cannot serve as a class
17
representative. Moreover, as asserted in Defendants’ accompanying motion for a stay of discovery
and a yet to-be-filed motion for conditional certification, whether or not Plaintiff has standing to
represent a class is a threshold issue that must be addressed before determining if this action can
be maintained as a class. See Ferreiro v. Philadelphia Indem. Ins. Co., 928 So. 2d 374, 377 (Fla.
3d DCA 2006).
Furthermore, this is not a situation in which a class representative was so-called “picked
off” because Defendants tendered payment to Plaintiff pursuant to the FMWA’s statutory scheme
and it occurred prior to certification. See State Farm Mut. Auto. Ins. Co. v. Kendrick, 780 So. 2d
231, 232 n.1 (Fla. 3d DCA 2001) (noting a plaintiff is not “picked off” if she was satisfied in full
before certification); see also Chinchilla, 833 So.2d at 805-06 (finding the plaintiff was not
“picked off’ because her claim was exhausted prior to certification). Moreover, the FMWA
expressly provides employers the opportunity to cure any alleged wages owed before an individual
can file a claim. See Fla. Stat. § 448.110(6). In fact, as noted above, the FMWA requires an
individual to provide pre-suit notice of unpaid minimum wages and permits the employer to satisfy
a claim before incurring potential attorney’s fees, costs, and liquidated damages. Accordingly,
Defendants cannot be said to have “pick off’ a class representative when they act in accordance
with the FMWA’s statutory scheme.
For the foregoing reasons, Plaintiff cannot serve as a class representative because he lacks
standing to assert a claim for unpaid minimum wages and unjust enrichment against Defendants.
The Court thus should dismiss Plaintiff's Complaint in its entirety.
VI. CONCLUSION
For the foregoing reasons, Defendants request summary judgment be entered in their favor
and Plaintiff's Complaint be dismissed in its entirety with prejudice as a matter of law.
18
Dated: December 28, 2021.
Respectfully Submitted,
/s/ Brett P. Owens
Kathleen McLeod Caminiti, Esq
Florida Bar No.: 814628
kcaminiti@fisherphilli
Preview
Filing # 141145883 E-Filed 12/30/2021 02:04:01 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO.: 21000913CA Percy McDuffy, On behalf of himself and those similarly situated, Plaintiff, v Cutting Edge Pizza, Inc.; Paul Zdanowicz; Doe Corporation 1-10; John Doe 1-10, Defendants. DEFENDANTS’ MOTION TO STAY DISCOVERY AND A POTENTIAL MOTION FOR CLASS CERTIFICATION PENDING THE RESOLUTION OF THEIR SUMMARY JUDGMENT MOTION Defendants Cutting Edge Pizza, Inc. (“Cutting Edge”) and Paul Zdanowicz (collectively “Defendants”), by and through their undersigned counsel, hereby file this motion to stay discovery and a yet-to-be-filed motion for class certification pending the resolution of Defendants’ motion for summary judgment. In support of this motion, Defendants state as follows: 1 On August 3, 2021, Plaintiff filed a Complaint against Defendants asserting claims on behalf of himself and a putative class of similarly-situated delivery drivers for failure to pay minimum wage under Florida law (Count 1) and unjust enrichment (Count 2). 2. After filing the Complaint, Plaintiff provided notice of minimum wages allegedly owed pursuant Fla. Stat. § 448.110(6). 3 Shortly thereafter, Defendants tendered Plaintiff a check for the minimum wages he alleged were owed. As a result, Plaintiff's claim for unpaid wages has been rendered moot, and he cannot maintain a claim against Defendants pursuant to the Florida Minimum Wage Act (“FMWA”). 3 On December 28, 2021, Defendants filed a motion for summary judgment dismissing Plaintiff's Complaint in its entirety and asserting that: (1) Plaintiff lacks standing to maintain a claim for unpaid minimum wages because Defendants tendered him a check for the amount that he alleges to be owed pursuant to the FMWA, and correspondingly, he cannot serve as a class representative; and (2) his unjust enrichment claim is duplicative of his unpaid minimum wage claim and also must be dismissed. See Defendants’ Motion for Summary Judgment, Exhibit A 4 Because this motion is potentially dispositive of the entire case, this Court should: (1) stay discovery and (2) restrict Plaintiff from filing a motion for class certification pending resolution of the summary judgment motion. A stay would promote the interests of judicial efficiency and relieve the parties of the burden and expense of engaging in costly litigation in a matter that may be dismissed, in part or in its entirety, within the near future. 5 Courts have long recognized their discretion to postpone discovery in light of a potentially dispositive motion. Wright and Miller suggest that this is no more than a general recognition of the principal of “judicial parsimony” whereby secondary issues are postponed pending resolution of critical and dispositive issues. Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Wright, Miller, & Marcus, Federal Practice & Procedure: Civil 2d § 2040, p. 521 2d ed. 1994. See also Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (“[flacial challenges to the legal sufficiency of a claim or defense, such as a motion to dismiss based on failure to state a claim for relief, should . . . be resolved before discovery begins”); Patterson v. United States Postal Serv., 901 F.2d 927, 929 (11th Cir. 1990) (upholding district court’s grant of a motion to stay discovery pending the outcome of a dispositive motion). To be sure, it is an error of law for the Court to permit discovery which “might give rise to a potential cause of action.” State Farm Mut. Auto. Ins. Co. v. Parrish, 800 So. 2d 706, 707 (Fla. Dist. Ct. App. 2001); see also Feigin v. Hosp. Staffing Servs., Inc., 569 So. 2d 941, 942 (Fla. Dist. Ct. App. 1990) (appropriate for trial court to stay discovery pending the motion to dismiss hearing); Carrow v. The Florida Bar, 848 So. 2d 1283, 1285 (Fla. Dist. Ct. App. 2003) (appropriate for the trial court to prevent discovery until there was a valid, operable complaint). 6. Here, the pending motion for summary judgment may eliminate Plaintiff's claims altogether or significantly reduce them and therefore, substantially alter the scope of discovery itself. Consequently, it is in the interest of judicial economy that this Court enter an order staying all discovery in this matter until it has ruled upon the motion for summary judgment. To do otherwise would force the parties and the Court to incur significant expense in discovery on claims and issues that may not exist once the motion has been heard. Therefore, Defendants submit that it is more efficient to take a practical approach and stay discovery in this matter until such time as the Court has ruled upon the motion for summary judgment. 7 Defendants also respectfully request that this Court enter an order restricting Plaintiff from filing a motion for class certification until after the Court rules on Defendants’ motion for summary judgment. As noted above, in their motion for summary judgment, Defendants assert that Plaintiff lacks standing to bring claims for unpaid minimum wages and unjust enrichment on behalf of himself and the putative class that he seeks to represent. See Defendants’ Motion for Summary Judgment, Exhibit A. 8 Accordingly, in the interest of judicial economy, the Court should decide whether Plaintiff has standing and can serve as a class representative before permitting him to move for conditional certification. Indeed, “[t]he standing of a plaintiff to bring an action is a threshold inquiry that must be made before addressing whether the case is properly maintainable as a class action.” Disc. Sleep of Ocala, LLC v. City of Ocala, 245 So. 3d 842, 849 (Fla. 5 DCA 2018) (citing Ferreiro v. Phila. Indem. Ins. Co., 928 So.2d 374, 376 (Fla. 3d DCA 2006)). See also e.g., Sosa v. Safeway Premium Finance Co., 73 So.3d 91 (2011) (“A threshold injury in a motion for class certification is whether the class representative has standing to represent the putative class members.”); Taran v. Blue Cross Blue Shield of Florida, Inc., 685 So.2d 1004 (Fla. 3d DCA 1997) (finding the trial court properly decided whether the plaintiffs had standing before proceeding with class consideration). 9 No party will be prejudiced by the granting of this motion. Dated: December 30, 2021. Respectfully Submitted, /s/ Brett P. Owens Kathleen McLeod Caminiti, Esq Florida Bar No.: 814628 kcaminiti@fisherphillips.com Brett P. Owens, Esq. bowens@fisherphillips.com Florida Bar No.: 112677 FISHER & PHILLIPS LLP 101 E. Kennedy Blvd. Suite 2350 Tampa, Florida 33602 Telephone: 813-769-7500 Facsimile: 813-769-7501 Counsel for Defendants CERTIFICATE OF SERVICE I hereby certify that on December 30, 2021, I caused a true and correct copy of the foregoing to be served on the following counsel of record via transmission of Notice of Electronic Filing generated by the Florida’s E-Filing Portal: C. Ryan Morgan, Esq. Morgan & Morgan, P.A. 20 N. Orange Avenue, 15'" Floor P.O. Box 4979 Orlando, Florida 32802-4979 RMorgan@forthepeople.com Andrew R. Biller, Esq. Andrew P. Kimble, Esq. Philip J. Krzeski, Esq. Biller & Kimble, LLC 8044 Montgomery Road, Suite 515 Cincinnati, OH 45236 abiller@billerkimble.com akimble@billerkimble.com pkrzeski@billerkimble.com Counsel for Plaintiff /s/ Brett P. Owens Brett P. Owens, Esq Exhibit A Filing # 141039091 E-Filed 12/28/2021 04:27:56 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO.: 21000913CA Percy McDuffy, On behalf of himself and those similarly situated, Plaintiff, Vv. Cutting Edge Pizza, Inc.; Paul Zdanowicz; Doe Corporation 1-10; John Doe 1-10, Defendants. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Defendants Cutting Edge Pizza, Inc. (“Cutting Edge”) and Paul Zdanowicz (collectively “Defendants”), by and through their undersigned counsel, move for summary judgment on all counts in the Complaint filed by the Plaintiff Percy McDuffy (“Plaintiff”), and in support thereof states as follows: I INTRODUCTION The gravamen of the Complaint is that Defendants improperly reimbursed Plaintiff and other pizza delivery drivers for delivery-related expenses which resulted in the drivers being paid less than the minimum wage under Florida law. Plaintiff asserts that the drivers should have been reimbursed at the IRS business mileage rate. According to Plaintiff, because the drivers were reimbursed at a lower mileage rate, the drivers were paid less than the Florida minimum wage when they incurred unreimbursed delivery-related expenses. Under this same theory, Plaintiff asserts an unjust enrichment claim contending that the delivery drivers conferred a benefit on Defendants because they did not receive proper reimbursement for delivery-related expenses. Defendants deny Plaintiff's claims have any legal merit. Cutting Edge properly reimburses its delivery drivers for their delivery-related costs and expenses in accordance with the reasonable approximation standards recognized by caselaw more than a decade ago. (See infra at p. 14-15). In turn, Plaintiffs allegations are wholly without merit. As a matter of law, Plaintiff has no viable claims against Defendants, and therefore, the Court must dismiss his Complaint in its entirety. In accordance with Florida minimum wage law,! upon receiving notice from Plaintiff of alleged minimum wages owed, Defendants tendered Plaintiff a check for the amount requested. As a result, pursuant to the express language in the FMWA, Plaintiff cannot bring a minimum wage claim. Correspondingly, he lacks standing to serve as a class representative. Moreover, Plaintiff's unjust enrichment claim is moot as Defendants tendered him payment for the benefits he alleges to have conferred on Defendants. Accordingly, Defendants request that this Court dismiss Plaintiff's Complaint with prejudice as a matter of law. After filing his Complaint, Plaintiff provided notice to Defendants of the minimum wages that he alleged were owed and included a formula pursuant to which he calculated his unpaid wages (basically calculating mileage reimbursement at the IRS mileage rate). Although disputing that Plaintiff was not properly reimbursed for delivery-related expenses, Defendants tendered Plaintiff the wages that he contends are owed, pursuant to the formula proffered by Plaintiff. As aresult, the FMWA, which governs all Florida minimum wage claims, explicitly prohibits Plaintiff ' As explained infra in Section V(A)(i), Plaintiff's claim for unpaid minimum wages under the Florida Constitution, Art. X, § 24, must be analyzed through the Florida Minimum Wage Act (“FMWA”), which provides the framework for Florida unpaid minimum wage claims. from maintaining a minimum wage claim, and correspondingly, he lacks standing to assert a claim on behalf of a putative class. The Court thus must dismiss his unpaid minimum wage claim. Plaintiff's claim for common law unjust enrichment should be dismissed as well. In his Complaint, Plaintiff argues that Defendants have been unjustly enriched because Plaintiff and other delivery drivers conferred a benefit on Defendants when they were not reimbursed for all delivery-related expenses. Like his minimum wage claim, this claim became moot when Defendants tendered Plaintiff a check for all expenses he claims are owed, and Plaintiff therefore has no standing to serve as a class representative on this claim either. For the reasons set forth herein, the Court should grant Defendants’ motion for summary judgment dismissing Plaintiff's entire Complaint with prejudice and as a matter of law. Il. STATEMENT OF UNDISPUTED FACTS 1 On August 3, 2021, Plaintiff filed a Complaint against Defendants asserting claims on behalf of himself and a putative class of similarly-situated delivery drivers for failure to pay minimum wage under Florida law (Count 1) and unjust enrichment (Count 2). See Complaint, Exhibit 1 to the Affidavit of Kathleen McLeod Caminiti (“Caminiti Aff.”). 2 In a letter dated November 2, 2021, Plaintiffs counsel provided Defendants with pre-suit notice, under Fla. Stat. § 448.110(6), of purported wages owed on behalf of Plaintiff and the putative class, pursuant to a formula. See Plaintiffs November 2, 2021 Letter, Exhibit 2 to the Caminiti Aff. 3 In particular, Plaintiff demanded: ((All miles driven by the Rule 23 class) x (IRS standard business mileage rate for the Rule 23 Class)) — ((all miles driven by the Rule 23 Class) x (actual mileage rate paid by the Rule 23 Class)) + Liquidated damages for the entire amount owed under the Florida Constitution + all profits that Defendants were unjustly enriched by under-paying drives [sic] + attorney’s fees and costs. Td. 4 On November 11, 2021, Defendants responded by letter and tendered to Plaintiff a check for the unpaid wages claimed pursuant to the formula in Plaintiffs November 2, 2021 letter. See Defendants’ November 11, 2021 Letter, Exhibit 3 to the Caminiti Aff. 5 Pursuant to the formula in Plaintiff's November 2, 2021 letter -- adjusted for items not properly included in Plaintiffs notice and without admission (see §6 and Ex. 3) -- Defendants tendered Plaintiff a check for $2,000.00 as compensation for alleged unpaid wages (rounded up to provide a buffer and account for any inadvertent mathematical issues). Jd. This amount represents (all miles driven by Plaintiff) x (IRS standard business mileage rate) - (all miles driven by Plaintiff) x (actual mileage rate paid to Plaintiff), Id? 6. In this letter, Defendants also noted several issues with Plaintiffs notice formula. Specifically, contrary to Plaintiffs counsel’s assertions, Plaintiff cannot provide notice on behalf of a putative class as he had not yet moved for certification and only Plaintiff has appeared in this matter. /d. Moreover, it was improper for Plaintiff to include a request for liquidated damages, attorney’s fees, and costs in his formula because Fla. Stat. § 448.110 and corresponding caselaw clearly direct that an employer is not liable for these damages if it tenders wages allegedly owed to an employee. Id. 7 Plaintiff's counsel received the letter and physical check on November 12, 2021. See FedEx Proof of Delivery, Exhibit 4 to the Caminiti Aff. ? Plaintiff reported driving 6,836.81 miles for Cutting Edge, and he was reimbursed $2,092.50 for delivery-related expenses during his employment, representing a reasonable approximate of expenses that he incurred. See Affidavit of Paul Zdanowicz (“Zdanowicz Aff.), §{ 6-7. The rate of reimbursement used by Cutting Edge is based on reports from an industry-leading company, MOTUS, that accounts for numerous variables, including, but not limited to, automobile cost and depreciation, locality, fuel costs, insurance premiums, licensing and registration costs. See Zdanowicz Aff., | 4. Til. FLORIDA ADOPTS FEDERAL COURT SUMMARY JUDGMENT STANDARD Florida’s Supreme Court, in an order dated December 31, 2020, amended Florida’s civil tule governing summary judgment, Florida Rule of Civil Procedure 1.510, to “align Florida’s summary judgment standard with that of the federal courts and of the supermajority of states that have already adopted the federal summary judgment standard.” Jn re Amends. To Fla. Rule of Civ. Pro. 1.510, 309 So0.3d 192, 192 (FSC 2020). The Court adopted the federal summary judgment standard by adding the following sentence to the text of existing rule 1.510(c): “The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard articulated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec. Indus. Co, v. Zenith Radio Corp., 475 U.S. 574 (1986). These cases are commonly referred to as the Celotex trilogy. The Court gave the amended rule a prospective effective date of May 1, 2021. In anticipation of the amendment’s effective date, the Court sought public comment and specifically invited responses to three questions: (1) whether any ancillary changes were necessary to effectively implement the amendment; (2) whether specific provisions of federal rule 56 should be added to rule 1.510 and; (3) whether rule 1.510 should be replaced in its entirety with the text of federal rule 56. Id. at 194. Based upon those public comments, the Court, on April 29, 2021, further amended rule 1.510 to codify the rule change, ultimately determining, “[flor several reasons, we are persuaded that the best way forward is to largely adopt the text of federal rule 56 as a replacement for rule 1.510. Id. at 195. The effective date of the Amendment remained May 1, 2021. Henceforth, Florida courts are able to, and indeed are now mandated to, apply the summary judgment standard under Fed. R. Civ. P. 56 to circuit court claims. Iv. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate if there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317 (1986), cert. denied, 484 U.S. 1066 (1988). The summary judgment procedure should not be regarded as a “disfavored procedural shortcut,” but as an integral part of the federal rules, which are designed “to secure the just, speedy and inexpensive determination of every action.” Id. at 327. The purpose of Fed. R. Civ. P. 56 (and henceforth Fla. R. Civ. P. 1.520) is to eliminate the needless delay and expense to the court and the parties occasioned by an unnecessary trial. See Johnston v. Henderson, 144 F. Supp. 2d 1341, 1348 (S.D. Fla. 2001) (citing Celotex, 477 U.S. at 322-323). On summary judgment, the moving party has no burden other than “pointing out to the court that there is an absence of evidence to support [Plaintiff's] case.” Celotex, 477 USS. at 325; see also Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (summary judgment may be based solely on the absence of record evidence in support of the plaintiffs claim). To survive a motion for summary judgment, Plaintiff must come forward with significant probative evidence to demonstrate that a triable issue of fact does exist. See Baker v. McDonald's Corp., 686 F. Supp. 1474 (S.D. Fla. 1987), aff'd, 865 F.2d 1272 (11th Cir. 1988). More than a mere scintilla of evidence is necessary to survive a motion for summary judgment; “there must be a substantial conflict in evidence to support a jury question.” Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir. 1997). Summary judgment is warranted if no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S. at 322-323. 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 a party’s case, and on which the party will bear the burden of proofat trial.” Zd. at 322-323. Although the Court must consider the evidence in a light most favorable to the non-moving party, the non-moving party cannot rest upon his bare assertions, conclusory allegations, surmises, or conjectures, but instead must produce concrete evidence in the form of specific facts on which the Court could reasonably find for the non-movant at trial. See Johnston, 144 F. Supp.2d at 1349 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986)). For the reasons set forth below, summary judgment should be entered in favor of Defendants, and the case be dismissed with prejudice. Vv. ARGUMENT A The Court Must Dismiss Plaintiff’s Claim for Unpaid Minimum Wage As A Matter of Law. Pursuant to the FMWA, after receiving notice from Plaintiff, Defendants tendered Plaintiff the minimum wages that he alleged were owed to him by Cutting Edge, and as a result, his claims of failure to pay minimum wages and unjust enrichment are moot. Correspondingly, Plaintiff lacks standing to assert these claims on behalf of a putative class because he does not have a case or controversy against Defendants. Defendants, therefore, respectfully request that this Court grant their motion for summary judgment dismissing Plaintiff's Complaint in its entirety with prejudice. i. Florida Law Requires Notice of Alleged Minimum Wages Owed and an Opportunity for the Employer to Cure. An action for unpaid minimum wages under the Florida Constitution must be viewed through the “lens of the FMWA because the Florida Constitution does not create an independent constitutional right to bring suit to recover unpaid minimum wages.” Montes v. M & M Mgmt. Co., No. 15-80142-CIV, 2015 WL 4077463, at *6 (S.D. Fla. July 6, 2015) (Marra, J.) (collecting cases). Indeed, there are not separate causes of action under the Florida Constitution and the FMWA for unpaid minimum wages as the FMWA “provide[s] measures appropriate for the implementation of the [constitutional minimum wage guarantee], in accordance with the authority granted to the Legislature” by Article X, section 24, of the Florida Constitution. See Fla. Stat. § 448.110(2); see also Resnick v. Oppenheimer & Co. Inc., No. 07-80609-CIV, 2008 WL 113665, at *1 (S.D. Fla. Jan.8, 2008). In 2004, Florida passed an amendment to the Florida Constitution, Article X, Section 24, which provides that all Floridians are entitled to a minimum wage adjusted each year to account for inflation and a variety of wage indexes. See Fla. Const. art. X, § 24(c). Subsection (e) permits employees to bring a civil action to seek unpaid minimum wage. /d. at 24(e). The Constitution further directs that the state legislature may “adopt any measures appropriate for the implementation of this amendment.” /d. at 24(e). Accordingly, in December 2005, the Florida legislature passed the FMWA “to provide measures appropriate for the implementation” of the Florida Constitution.” See Fla. Stat. Ann. § 448.110(2). The Florida legislature declared that the FMWA “shall constitute the exclusive remedy under state law for violations of § 24, Art. X of the State Constitution.” Fla. Stat. Ann. § 448.110(10). The FMWA requires that an aggrieved party must provide written pre-suit notice. Id. at § 448.110(6)(a). In particular, it requires that an individual alleging failure to pay minimum wages provide pre-suit notice to the employer of the alleged minimum wages owed, the actual or estimated work dates and hours for which payment is sought, and the total amount of unpaid wages through the date of the notice. See Fla. Stat. Ann. § 448.110(6)(a). The employer then has fifteen (15) calendar days to pay the total amount of unpaid wages. Jd. at § 448.110(6)(b). Only if the employer fails to pay the alleged minimum wages owed can the individual proceed with a claim for unpaid minimum wage. Jd. This notice requirement is mandated whether a claim is purportedly brought under the FMWA or the Florida Constitution, Art. X, § 21. See e.g., Resnick, 2008 WL 113665, at *2; Dominguez v. Design by Nature Corp., No. 08-20858—Civ, 2008 WL 4426721 (S.D. Fla. Sept. 25, 2008); Garcia-Celestino v. Ruiz Harveseting, Inc., No. 2:10-CV-542-FTM-38, 2013 WL 3816730, at *17 (M.D. Fla. July 22, 2013); Nichols v. Lab’y Corp. of Am., No. 2:13-CV-848-FTM-38, 2014 WL 820656, at *4 (M.D. Fla. Mar. 3, 2014); Smith v. Heritage Health Care Ctr., No. 4:17CV293- MW/CAS, 2017 WL 10841212, at *4 (N.D. Fla. Aug. 2, 2017); Villarino v. Pacesetter Pers. Serv., Inc., 481 F. Supp. 3d 1252, 1257 (S.D. Fla. 2020); Montes, 2015 WL 4077463, at *1; Vitola v. Paramount Automated Food Servs., Inc., No. 08-61849-CIV, 2009 WL 3242011, at *7 (S.D. Fla. Oct. 6, 2009); Saucedo v. Phoenix Auto Sales, Inc., No. 08-21156-CIV, 2009 WL 10666878, at *8 (S.D. Fla. Jan. 5, 2009); Ramirez v. Martinez, No. 08-21863-CIV, 2009 WL 199786, at *5 (S.D. Fla. Jan.23, 2009); Aquino v. BT's on the River, LLC, No. 20-20090-CIV, 2020 WL 7356372, at *4 (S.D. Fla. Dec. 15, 2020); Est. of Roig v. United Parcel Serv., Inc., No. 20-CV-60811, 2020 WL 6875790, at *18 (S.D. Fla. Sept. 30, 2020), report and recommendation adopted, No. 20-CV- 60811, 2020 WL 6873892 (S.D. Fla. Nov. 22, 2020); Brown v. Lawn Enf't Agency, Inc., No. 1:17CV305-MW/GRJ, 2018 WL 11351307, at *8 (N.D. Fla. July 23, 2018). ii. Defendants Tendered Plaintiff’s Request for Alleged Unpaid Minimum Wages Thereby Mooting Plaintiff's Minimum Wage Claim Here, although he waited until after filing his Complaint and claimed that he was not required to provide notice since he brought his minimum wage claim under the Florida Constitution, Plaintiff ultimately acknowledged that notice is required and provided a formula to calculate the minimum wages that he alleges are owed by Defendants. See Plaintiff's November 2, 2021 Letter, Exhibit 2. Defendants then tendered Plaintiff a check for his claim unpaid minimum wages. Accordingly, Plaintiff has no standing to assert a claim for unpaid minimum wages against Defendants, and the Court should dismiss this count of the Complaint as a matter of law. In his November 2, 2021 letter, Plaintiff demanded: ((All miles driven by the Rule 23 class) x (IRS standard business mileage rate for the Rule 23 Class)) — (all miles driven by the Rule 23 Class) x (actual mileage rate paid by the Rule 23 Class)) + Liquidated damages for the entire amount owed under the Florida Constitution + all profits that Defendants were unjustly enriched by under-paying drives [sic] + attorney’s fees and costs. See Plaintiff's November 2, 2021 Letter, Exhibit 2. Plaintiff's notice and formula impermissibly included severable components not recoverable under the FMWA: First, Plaintiff incorrectly includes a request for liquidated damages, attorney’s fees, and costs. However, an individual is not entitled to these damages if the employer remedies the alleged minimum wages owed prior to the end of the fifteen-day notice period because these damages are only available “upon prevailing in an action brought pursuant to [the FMWA]” and an action cannot be commenced if the pay discrepancy is resolved within the grace period. Brown v. Lawn Enf’t Agency, Inc., No. 1:17CV305-MW/GRJ, 2018 WL 11351307, at *5 (N.D. Fla. July 23, 2018) (quoting Fla. Stat. § 448.110(6)(c)); see also Johnson v. Nobu Assocs. S. Beach, LP, No. 10-21691-CIV, 2011 WL 780028, at *3 (S.D. Fla. Feb. 4, 2011), report and recommendation adopted, No. 10-21691-CV, 2011 WL 772874 (S.D. Fla. Feb. 28, 2011) (concluding “plaintiffs’ pre-suit notice violated the terms of the pre-suit notice requirement by demanding more than the statute permits by 10 requesting a total sum inclusive of liquidated damages and attorneys’ fees.”). Indeed, “Tt]he purpose of the notice requirement [under Fla. Stat. § 448.110(6)] is to allow an employer to pay any unpaid wages before also becoming liable for attorney’s fees and liquidated damages.” Villafana, 2013 WL 12085996. Accordingly, the formula proffered by Plaintiff incorrectly includes a request for liquidated damages, attorneys’ fees, and costs. Second, Plaintiff inappropriately demands “all profits that Defendants were unjustly enriched by under-paying drives [sic].” The FMWA is clear. Notice solely must “identify the minimum wage to which the person aggrieved claims entitlement, the actual or estimated work dates and hours for which payment is sought, and the total amount of alleged unpaid wages through the date of the notice.” Fla. Stat. § 448.110(6)(a). Plaintiff cannot include his unjust enrichment claim to try to circumvent statutorily required notice. Therefore, this portion of the formula must be disregarded as well. Third, Plaintiff cannot seek to provide notice on behalf of the putative class. At this juncture, only Plaintiff is a named party in this action, and he has not moved for class certification. See Fla. R. Civ. P. 1.220. “A civil action does not become a ‘class action’ simply because the complaint bears the legend ‘class action complaint’ or, as required by Florida Rule Civil Procedure 1.220, ‘class representation.”” Policastro v. Stelk, 780 So. 2d 989, 991 (Fla. 5th DCA 2001). Here, no other individuals have filed notices or sought to join this action. Accordingly, it is improper for Plaintiff to attempt to provide notice on behalf of the unrepresented putative class members.* > Furthermore, Plaintiff's claim that he can provide notice on behalf of a non-certified putative class would undermine Fla. Stat. § 448.110’s notice requirement. Otherwise, plaintiffs could side-step this requirement and proceed to litigation merely by including class allegations. 11 After adjusting Plaintiffs formula to remove these issues, within fifteen days of Plaintiffs notice, Defendants rounded up and tendered a check for $2,000 to Plaintiff for alleged unpaid wages owed, representing: (all miles driven by Plaintiff) x (IRS standard business mileage rate) - (all miles driven by Plaintiff) x (actual mileage rate paid to Plaintiff). See Defendants’ November 11, 2021 Letter, Exhibit 3. Defendants thereby satisfied Plaintiff's claim for unpaid minimum wages, and the Court, therefore, must dismiss this Count of the Complaint. See Brown, 2018 WL 11351307, at *6 (dismissing the plaintiffs claim for unpaid minimum wages because the defendants remedied the pay discrepancy before the expiration of the grace period provided by the FMWA); see also Fla. Stat. Ann. § 448.110(6)(b) (providing that an individual may bring a claim for unpaid minimum wages only if the employer fails to pay the amount allegedly owed) (emphasis added). B Plaintiff’s Unjust Enrichment Claim Is Duplicative Of His Claim For Unpaid Minimum Wages And Likewise Must Be Dismissed. In Count 2 of his Complaint, Plaintiff claims that he and the putative class conferred a benefit on Defendants by using their own vehicles to deliver food. See Complaint, Exhibit 1. According to Plaintiff, “[i]t would be unjust for Defendants to be permitted to retain the benefit conferred on them by the delivery drivers without commensurate compensation.” Jd. This claim must be dismissed because: (1) the unjust enrichment claim is duplicative of Plaintiff's minimum wages claim; (2) Plaintiffs unjust enrichment claim is also moot; and (3) it is entirely permissible for an employer to require an employee to use their personal vehicle so long as the employee is paid at least the minimum wage. For these reasons, the Court must also dismiss Plaintiff's unjust enrichment claim. An action for “unjust enrichment” exists to prevent the wrongful retention of a benefit, or the retention of money or property of another, in violation of good conscience and fundamental 12 principles of justice or equity. 66 Am. Jur. 2d Restitution and Implied Contracts § 3 (1964). The essential elements of an action for unjust enrichment are a benefit conferred upon the defendant by the plaintiff, appreciation by the defendant of such benefit, and acceptance and retention of such benefit by the defendant under such circumstances that it would be inequitable for him to retain it without paying the value thereof. Malamud v. Syprett, 117 So. 3d 434, 440 (Fla. 2d DCA 2013); Gomes v. Stevens, 548 So. 2d 1163 (Fla. 2d DCA 1989). “[T]he theory of unjust enrichment is equitable in nature and is, therefore, not available where there is an adequate legal remedy[.]” Bowleg v. Bowe, 502 So. 2d 71, 72 (Fla. 3d DCA 1987). “Thus, to properly state a claim for unjust enrichment, a party must allege that no adequate legal remedy exists.” American Honda Motor Co., Inc. v. Motorcycle Information Network, Inc., 390 F. Supp. 2d 1170, 1178 (M.D. Fla. 2005); see also Mitsubishi Int’l Corp. v. Cardinal Textile Sales, Inc., 14 F.3d 1507, 1518-19 (11th Cir. 1994) (“Unjust enrichment is based on equitable theory and is only available where there is no adequate remedy at law.”) Consequently, if there is an adequate remedy at law, an unjust enrichment claim must be dismissed. See e.g., Bule v. Garda CL Se., Inc., No. 14-21898-CIV, 2014 WL 3501546, at *3 (S.D. Fla. July 14, 2014) (dismissing the plaintiff's claim for unjust enrichment because he had an adequate remedy for unpaid overtime under the FLSA); Matthews v. Am. Honda Motor Co., No. 12-60630-CIV, 2012 WL 2520675, at *2 (S.D. Fla. June 6, 2012) (dismissing the plaintiffs unjust enrichment claim because the plaintiff had an adequate remedy at law); Prohias v. Pfizer, Inc., 490 F. Supp. 2d 1228, 1237 (S.D. Fla. 2007) (dismissing an unjust enrichment claim where “in their unjust enrichment claim[ ] the plaintiffs seek recovery for the exact same wrongful conduct as in their consumer fraud act claim.”); Alexander v. Vesta Ins. Grp., Inc., 147 F.Supp.2d 1223, 1240-41 (N.D. Ala. 2001) (on summary judgment, 13 holding that the FLSA preempted plaintiffs’ fraud claim, because plaintiffs were merely recasting their FLSA claims as state law claims in order to obtain additional damages). Here, Plaintiff has an adequate remedy at law for his claim that Defendants failed to adequately reimburse him for delivery-related expenses at a proper mileage rate, namely his unpaid minimum wages claim. Consequently, his unjust enrichment claim is merely duplicative of his FMWA claim, and Plaintiff cannot seek double damages. See Bonich v. NAS Component Maint., Inc., No. 20-21582-CIV, 2020 WL 3000187, at *5 (S.D. Fla. June 4, 2020) (“It is well established that a plaintiff cannot double recover unpaid wages.”). The Court, therefore, should dismiss this claim. Second, as with Plaintiff's minimum wage claim, Plaintiff lacks standing to maintain a claim for unjust enrichment. Plaintiff asserts that he is “entitled to equitable restitution of all unreimbursed expenses.” See Complaint, at § 113, Exhibit 1. According to Plaintiff, the IRS business mileage rate is the proper reimbursement rate. See Plaintiff's November 2, 2021 Letter, Exhibit 2. While Defendants disagree and maintain that the reasonable approximate standard is the correct rate of reimbursement for delivery-related expenses, Defendants tendered Plaintiff a check at the IRS business mileage rate, recognizing the significant costs of litigation. See Defendants’ November 11, 2021 Letter, Exhibit 3. Accordingly, Plaintiff received all monies that he contends were due from Defendants and therefore, lacks a case or controversary against Defendants on this claim as well. See e.g., Sosa, 73 So. 3d at 116. Lastly, there simply is nothing inequitable or wrong about Cutting Edge reimbursing Plaintiff and other delivery drivers at the reasonable approximate standard for delivery-related expenses. In fact, the majority of courts across the nation have concluded that the reasonable approximation standard is an appropriate manner for reimbursing delivery-related expenses and have rejected 14 Plaintiff's contention that delivery drivers must be reimbursed at the IRS business mileage rate. See Blose v. Jarinc, Ltd, No. 1:18-CV-02184-RM-SKC, 2020 WL 5513383, at *2 (D. Colo. Sept. 14, 2020) (finding “the reasonable approximation standard has acquired traction in district courts around the country.”); Bradford v. Team Pizza, Inc., Civ. No. 1:20-cv-00060 (S.D. Ohio Oct. 19, 2021); Kennedy v. Mountainside Pizza, Inc., 2020 WL 5076756 (D. Colo. Aug. 26, 2020); Blose v. Jarinc, Ltd., 2020 WL 5513383 (D. Colo. Sept. 14, 2020); Orth v. J & J & J Pizza, Inc., 2020 WL 1446735 (D. Mass March 25, 2020); Benton v. Deli Mgmt., Inc., 396 F. Supp.3d 1261 (N.D. Ga. 2019); Sullivan v. PJ Untied, Inc., 362 F. Supp.3d 1139 (N.D. Ala. 2018); Tyler v. JP Operations, LLC, 342 F. Supp.3d 837 (S.D. Ind. 2018); Perrin v. Papa John’s Int'l, Inc., 114 F. Supp.3d 707 (E.D. Mo. 2015); Smith v. Pizza Hut, Inc., 694 F. Supp.2d 1227 (D. Colo. 2010); Wass v. NPC Int'l, Inc., 688 F. Supp.2d 1282 (D. Kan. 2010). Moreover, the U.S. Department of Labor, in a thorough opinion letter, recently endorsed employers reimbursing delivery drivers at a reasonable approximate of actual expenses incurred by the delivery drivers.4 See U.S. Dept. of Labor, Wage & Hour Opinion Letter, FLSA 2020-12, Exhibit 5 to the Caminiti Aff. Therefore, Plaintiff's allegations lack the wrongful conduct necessary for an unjust enrichment claim because as set forth above and in the accompanying declarations, Defendants utilize the reasonable approximation standard that has long been endorsed by the courts.> In sum, Plaintiff impermissibly seeks a second bite of the proverbial apple with his unjust enrichment claim, and this Count should be dismissed as a matter of law. Plaintiff cannot maintain a parallel unjust enrichment claim when he has an adequate remedy at law. Plaintiff also lacks 4 “In Florida, the FMWA expressly adopts the statutory and regulatory provisions of the FLSA.” Kubiak v. S.W. Cowboy, Inc.,2014 WL 2625181, *1 (M.D. Fla. June 12, 2014) (citing Fla. Const. Art. X, § 24). 5 Nevertheless, the Court does not need to decide the proper rate of reimbursement at this juncture as it can rely on Defendants’ other arguments illustrating Plaintiffs lack of basis for an unjust enrichment claim. 15 standing in light of Defendants’ tendering his demand for delivery-related expenses at the IRS business mileage rate. Moreover, there is no inherent wrongdoing by Defendants necessary to maintain an unjust enrichment claim. As a result, the Court should dismiss Plaintiffs unjust enrichment claim. Cc. Plaintiff Lacks a Claim or Controversary Against Defendants Necessary to Serve as a Class Representative. Because Plaintiff cannot bring a claim for unpaid minimum wages or unjust enrichment against Defendants, the Court must dismiss his class allegations for these claims. The Florida Supreme Court, in Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 116 (Fla. 2011), set a bright- line rule that before a class can be certified, the putative class representative must have standing. See Ahearn v. Mayo Clinic, 180 So. 3d 165, 170 (Fla. 1st DCA 2015) (quoting Sosa, 73 So. 3d at 116). “To satisfy the standing requirement for a class action claim, the class representative must illustrate that a case or controversy exists between him or her and the defendant, and that this case or controversy will continue throughout the existence of the litigation.” Sosa, 73 So. 3d at 116 (emphasis added). In other words, if Plaintiffs putative class claim is rendered moot before class certification, he cannot bring a claim on behalf of a class. See e.g., Taran v. Blue Cross Blue Shield of Florida, Inc., 685 So.2d 1004 (Fla. 3d DCA 1997); Ahearn, 180 So. 3d at 170; Chinchilla v. Star Cas. Ins. Co., 833 So.2d 804 (Fla. 3d DCA 2002); Graham v. State Farm Fire & Cas. Co., 813 So.2d 273 (Fla. Sth DCA 2002); Courtesy Auto Grp., Inc. v. Garcia, 778 So. 2d 1000, 1002 (Fla. 5th DCA 2000). For example, in Ahearn, the plaintiff argued that he was entitled to assert a breach of contract claim as a class representative, even though his individual breach of contract claim became moot when the defendant waived the remainder of his bill and agreed to pay his attorneys” fees and costs. 180 So. 3d at 169. In support, the plaintiff cited federal decisions holding that “a 16 defendant cannot ‘pick off a putative class representative by rendering moot the individual claim, even if the class has not yet been certified.” /d. The court, however, rejected this argument, relying on Sosa as well as other Florida state court decisions requiring that a case or controversy exist between the named plaintiff and the defendant. Jd. at 171. The court ultimately granted summary judgment dismissing the plaintiff's breach of contract claim. /d. at 177. Likewise, in Taran, the plaintiffs, individually and as putative class representatives, brought statutory claims against Blue Cross alleging that they were charged excessive health insurance premiums. 685 So.2d at 1005. After the suit was filed, Blue Cross issued refunds to the plaintiffs, thereby extinguishing their individual causes of action. /d. at 1007. The court affirmed summary judgment against the plaintiffs, holding “if none of the named plaintiffs purporting to represent a class establishes a requisite of a case or controversy with the defendant, none may seek relief on behalf of himself or any other member of the class.” /d. at 1006 (citation omitted). The court further concluded that it was permissible for Blue Cross to correct any billing errors prior to class certification without negotiating a settlement on a class basis. Jd. at 1007. Other Florida courts have reached similar conclusions. See Ramon, 769 So. 2d at 1056 (finding the plaintiff, who had received full payment of insurance benefits, lacked standing to pursue class action claim); Chinchilla, 833 So.2d at 805-06 (holding the plaintiff lacked standing to be class representative when the defendant insurer reinstated her insurance policy so that coverage existed to pay medical bills demanded by the plaintiff). Similarly, here, Plaintiff lacks standing to pursue a class action. Like an insurer that corrected alleged billing errors, after Defendants received notice of alleged unpaid minimum wages, it promptly acted and tendered payment as requested by Plaintiff. Plaintiff, therefore, has no case or controversary against Defendants. Accordingly, he cannot serve as a class 17 representative. Moreover, as asserted in Defendants’ accompanying motion for a stay of discovery and a yet to-be-filed motion for conditional certification, whether or not Plaintiff has standing to represent a class is a threshold issue that must be addressed before determining if this action can be maintained as a class. See Ferreiro v. Philadelphia Indem. Ins. Co., 928 So. 2d 374, 377 (Fla. 3d DCA 2006). Furthermore, this is not a situation in which a class representative was so-called “picked off” because Defendants tendered payment to Plaintiff pursuant to the FMWA’s statutory scheme and it occurred prior to certification. See State Farm Mut. Auto. Ins. Co. v. Kendrick, 780 So. 2d 231, 232 n.1 (Fla. 3d DCA 2001) (noting a plaintiff is not “picked off” if she was satisfied in full before certification); see also Chinchilla, 833 So.2d at 805-06 (finding the plaintiff was not “picked off’ because her claim was exhausted prior to certification). Moreover, the FMWA expressly provides employers the opportunity to cure any alleged wages owed before an individual can file a claim. See Fla. Stat. § 448.110(6). In fact, as noted above, the FMWA requires an individual to provide pre-suit notice of unpaid minimum wages and permits the employer to satisfy a claim before incurring potential attorney’s fees, costs, and liquidated damages. Accordingly, Defendants cannot be said to have “pick off’ a class representative when they act in accordance with the FMWA’s statutory scheme. For the foregoing reasons, Plaintiff cannot serve as a class representative because he lacks standing to assert a claim for unpaid minimum wages and unjust enrichment against Defendants. The Court thus should dismiss Plaintiff's Complaint in its entirety. VI. CONCLUSION For the foregoing reasons, Defendants request summary judgment be entered in their favor and Plaintiff's Complaint be dismissed in its entirety with prejudice as a matter of law. 18 Dated: December 28, 2021. Respectfully Submitted, /s/ Brett P. Owens Kathleen McLeod Caminiti, Esq Florida Bar No.: 814628 kcaminiti@fisherphilli