Cardenas v. Performance Auto Wholesalers LLC et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:24-cv-23654-RAR
MISAEL CARDENAS,
Plaintiff,
v.
PERFORMANCE AUTO
WHOLESALERS LLC, et al.,
Defendants.
__________________________________/
REPORT AND RECOMMENDATIONS
THIS MATTER comes before the Court on Plaintiff Misael Cardenas’s Motion for
Summary Judgment (ECF No. 44). This matter was referred to the undersigned United States
Magistrate Judge by 	the Honorable Rodolfo A. Ruiz, II, United States District Judge to issue a
Report and Recommendations. (ECF No. 	52). Upon consideration of the briefing, materials
submitted by the Parties in conjunction therewith, and the record as a whole, and being
otherwise fully advised in the premises, the undersigned 	respectfully RECOMMENDS that
Plaintiff’s Motion for Summary Judgment, (ECF No. 44), be GRANTED to the extent it is
unopposed and otherwise DENIED.
I. 	BACKGROUND
Unless otherwise noted, the following facts are undisputed.
Plaintiff, Mr. Misael Cardenas Rico, commenced his employment at Performance Auto
Wholesalers, LLC (“Performance Auto”), a car dealership located in Miami, Florida, around late
2012. Performance Auto was run by three individuals during Plaintiff’s tenure: Fernando Ivan
Prado, an owner of the dealership, his son, Mateo Prado, (collectively, with Performance Auto,
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“Defendants”), and Plaintiff himself. Performance Auto obtained cars primarily on consignment
as well as via purchase. Upon receipt of a given car, Performance Auto would clean the car, make
minor repairs as necessary, and would thereafter locate buyers and coordinate the car’s transfer to
its buyer via a broker. Performance Auto did not receive cars, via purchase or consignment, with
a designated buyer already in mind. The Parties dispute the regularity with which cars received by
Performance Auto would be sold to somebody in the state of Florida.
Plaintiff’s regular job responsibilities at Performance Auto consisted of detailing the cars
obtained by the company. He would, for example, clean the inside of the cars. (ECF No. 56-1 at
25:19–22); see also (ECF No. 41 at 11:1–3) (testifying that Plaintiff “was in charge of getting the
cars, prepared, clean, detail[ed] . . . changing little thing[s], you know, wipers, stuff like that”).
When Plaintiff required materials with which to detail cars, he would notify Mateo Prado, who
would order those materials to be shipped to Performance Auto. The Parties dispute whether
Plaintiff would on occasion perform light cosmetic repairs where needed. (ECF No. 44-1 ¶ 22).
During busy stretches, Defendants would direct Plaintiff regarding what work to prioritize.
Plaintiff never left the state of Florida pursuant to his employment. (ECF No. 56-1 at 33:15–34:3).
Plaintiff was initially compensated at a rate below $3,000.00 per month. At some point, he
requested a raise from Fernando Ivan Prado, and his salary was increased to $3,000.00 per month
and, thereafter, to $3,500.00 per month. (ECF Nos. 40 at 28:16–24, 39 at 38:14–17). Plaintiff was
scheduled to work from 10:00 A.M. to 6:00 P.M. each weekday, with one hour allotted for a daily
lunch break. The Parties dispute Plaintiff’s real working hours during the workweek. For an
indeterminate period of his employment, Plaintiff also worked approximately three hours, every
other Saturday: “one on, one off.” (ECF No. 39 at 16:4–5). He began working Saturdays at the
Performance Auto dealership itself, when Mateo would leave the dealership to meet with
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customers “and there was nobody to stay at the business.” (ECF No. 56-1 at 43:18–25). Over time,
Plaintiff would either work at the dealership or perform generalized tasks, “whatever it may be,”
at Fernando Ivan Prado’s residence. (ECF No. 41 at 40:22–41:2); (ECF No. 56-1 at 43:18–44:1)
(“[S]ometimes on the Saturdays, they would tell me, ‘don’t come to the dealer. Just go to my home
and clean there.’ I would clean the pool, the roof. I also cleaned the house.”). Before the “one on,
one off” weekend schedule, there was a period of time during which Plaintiff indicates, but the
Parties dispute, that he worked every Saturday. See (ECF No. 40 at 33:3–10). And in the six months
preceding the end of his employment, Plaintiff indicated that he worked “one Saturday per month”
rather than every other Saturday. (ECF No. 56-1 at 39:15–42:17).
Plaintiff claims that he worked “44 hours a week, or 4 hours of overtime a week” on average
over the full course of his employment. (Cardenas Decl., ECF No. 44-2 ¶ 28). Neither Defendants
nor Plaintiff maintained documentation recording the number of hours Plaintiff worked. (Id. ¶ 25).
While Performance Auto maintained on-site cameras that would monitor the times at which
Plaintiff began and ended his workdays at Performance Auto, the cameras overwrote their recorded
footage every six months, eliminating their footage. (ECF No. 39 at 14:8–25).
Plaintiff’s employment was terminated on August 6, 2024, less than two months after he
suffered a workplace injury. (ECF Nos. 44-3, 44 ¶ 32). Plaintiff filed a petition for workers’
compensation benefits with the Florida Division of Administrative Hearings on October 15, 2024,
in case number 24-024988ERA. (ECF No. 44-1 ¶ 1). Plaintiff then brought this lawsuit in federal
court on September 23, 2024. (ECF No. 1). Plaintiff filed the operative Amended Complaint on
January 16, 2025, asserting one Count of failure to pay overtime wages under the FLSA. (ECF
No. 28). Defendants denied in their Answer, (ECF No. 28), that they employed two or more
employees, that Plaintiff was entitled to individual coverage under the FLSA, that Plaintiff is owed
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overtime wages for working more than 40 hours a week for them, and that Defendants intentionally
or recklessly failed to pay Plaintiff overtime wages. (ECF No. 44 at 3).
On July 22, 2025, Plaintiff filed the present Motion for Summary Judgment pursuant to
Federal Rule of Civil Procedure 56 and Rule 56.1 of the Local Rules for the Southern District of
Florida. (ECF No. 44). Defendant filed a Response, (ECF No. 57), to which Plaintiff filed a Reply,
(ECF No. 63). Plaintiff moves for summary judgment on multiple issues: (1) whether Plaintiff was
a non-exempt employee of Defendants under the FLSA; (2) whether Defendants were Plaintiff’s
employers under the FLSA; (3) whether the FLSA applies to the Parties’ employer-employee
relationship, via either individual coverage or enterprise coverage; (4) whether Plaintiff worked in
excess of 40 hours per week; (5) whether Defendants willfully violated the FLSA such that the
applicable statute of limitations is three rather than two years; and (6) whether Plaintiff is entitled
to liquidated damages as a consequence of Defendants’ alleged FLSA violation.
II. 	LEGAL STANDARD
Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
movant bears “the stringent burden of establishing the absence of a genuine issue of material
fact.” Suave v. Lamberti, 597 F. Supp. 2d 1312, 1315 (S.D. Fla. 2008) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986)).
The movant “bears the initial responsibility of informing the district court of the basis
for its motion” and “ identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. To discharge
this burden, the movant must identify an absence of evidence to support the nonmoving party’s
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case. Id. at 325. After the movant has met his burden under Rule 56(c), the burden of production
shifts; the nonmoving party then “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 	(1986). The non-moving party must come forward with “specific facts
showing a genuine issue for trial.” Id. at 587.
An issue of fact “is material for the purposes of summary judgment only if it might affect
the outcome of the suit under the governing law.” Kerr v. McDonald’s Corp., 427 F.3d 947, 951
(11th Cir. 2005) (internal quotations omitted). Furthermore, “[a]n issue [of material fact] is not
‘genuine’ if it is unsupported by the evidence or is created by evidence that is ‘merely colorable’
or ‘not significantly probative.’” Flamingo S. Beach I Condo. Ass’n, Inc. v. Selective Ins. Co. of
Southeast, 492 F. App’x 16, 26 (11th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249–50 (1986)). “A mere scintilla of evidence in support of the nonmoving party’s
position is insufficient to defeat a motion for summary judgment; there must be evidence from
which a jury could reasonably find for the non-moving party.” Id. at 26–27 (citing Anderson, 477
U.S. at 252). Accordingly, if the moving party shows “that, on all the essential elements of its
case on which it bears the burden of proof at trial no reasonable jury could find for the nonmoving
party,” then “it is entitled to summary judgment unless the nonmoving party, in response,
comes forward with significant, probative evidence demonstrating the existence of a 	triable
issue of fact.” Rich v. Sec’y, Fla. Dept. of Corr., 716 F.3d 525, 530 (11th Cir. 2013) (citation
omitted).
III. 	DISCUSSION
A. 	Employer and Employee Status
Plaintiff moves for summary judgment on two issues that Defendants do not dispute. First,
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that Plaintiff was a non-exempt employee of Defendants, (ECF No. 44 at 5); and second, that the
individual Defendants, Fernando Ivan Prado and Mateo Prado, were Plaintiff’s “employers” under
the FLSA, (id.at 9). Defendants concede both that Plaintiff was a non-exempt employee of
Defendants, (ECF No. 57 at 3–4), and that Defendants were Plaintiff’s employers within the
meaning of the FLSA, (id. at 11). Defendants note that they admitted these allegations in their
Answer and Affirmative Defenses, see (ECF No. 29), and that they are effectively non-issues at
the summary judgment stage.
“All material facts set forth in the movant’s statement filed and supported as required []
will be deemed admitted unless controverted by the opposing party’s statement.” S.D. Fla. L.R.
56.1(b). Here, Defendants’ joint employer status, and Plaintiff’s status as a non-exempt employer,
are uncontroverted. In view of Defendants’ concession, the undersigned recommends that
summary judgment be GRANTED as to (a) Plaintiff’s status as a non-exempt employee and (b)
Defendants’ status as joint employers of Plaintiff.
B. 	Whether the FLSA Applies
Employees covered by the FLSA are entitled to receive overtime pay for each hour worked
over forty (40) in a week. 29 U.S.C. § 207. An individual must demonstrate both coverage and
entitlement to overtime pay. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1298
(11th Cir. 2011). Thus, to establish a claim for overtime compensation under the FLSA, Mr.
Cardenas must show either that he was entitled to individual coverage, as an employee engaged in
commerce or in the production of goods for commerce, or that Performance Auto is subject to
enterprise coverage, as an enterprise engaged in commerce or in the production of commerce. See
29 U.S.C. § 207(a)(1); see also Thorne v. All Restoration Serv., Inc., 448 F.3d 1264, 1266 (11th
Cir. 2006).
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i. 	Whether Plaintiff is Entitled to Individual Coverage
When undertaking an individual coverage analysis, the Court analyzes the activities of the
employee only and not the business of the employer. See Overstreet v. N. Shore Corp., 318 U.S.
125, 132 (1943) (“The nature of the employer’s business is not determinative, because, as we have
repeatedly said, the application of the Act depends upon the character of the employees’
activities.”); Jones v. Safeway Muffler Serv. Cntr., Inc., No. 18-CV-10208, 2019 WL 670073, at
*3–4 (E.D. Mich. Feb. 19, 2019).
Plaintiff’s Motion seeks to establish individual coverage on the theories that he was
“engaged in commerce” and “engaged in the production of goods for commerce.” As a preliminary
matter, Defendants dispute Plaintiff’s entitlement even to proceed on the theory that he was
engaged in the production of goods for commerce: because Plaintiff never alleged facts in his
Amended Complaint supporting that he engaged in the production of goods for commerce, his
claim to individual coverage must proceed, if at all, under the “engaged in commerce” theory that
the Amended Complaint does allege. (ECF No. 57 at 5) (citing Chavez v. Arancedo, No. 17-cv-
20003, ECF No. 96, at *13 (S.D. Fla. Sept. 24, 2018)). Plaintiff’s Reply does not deny that the
Amended Complaint failed to allege any facts in support of his second theory of individual
coverage but argues only that “[t]he ‘notice pleading standard’ did not require [him] to establish
every basis upon which the Court could have jurisdiction – only that it has jurisdiction on one or
more bases.” (ECF No. 63 at 3) (citing Roe v. Aware Woman Ctr. For Choice, 253 F.3d 678, 683
(11th Cir. 2001)).
FLSA coverage is not jurisdictional in nature; rather, it is an element of the plaintiff’s
claim. See Juares v. Two Good Friends, Inc., No. 14-cv-21013, 2014 WL 12600807, at *2 (S.D.
Fla. May 6, 2014) (collecting cases). The notice pleading standard “does not afford plaintiffs with
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an opportunity to raise new claims at the summary judgment stage.” Gilmour v. Gates, McDonald
& Co., 382 F.3d 1312, 1314 (11th Cir. 2004). “At the summary judgment stage, the proper
procedure for plaintiffs to assert a new claim is to amend the complaint” in accordance with Federal
Rule of Civil Procedure 15(a). Id at 1315; see also Poer v. Jefferson Cnty. Comm’n, 100 F.4th
1325, 1337–38 (11th Cir. 2024); Renia v. Curtis Protective Servs., Inc, No. 19-cv-1724, 2022 WL
1619242, at *4 (M.D. Fla. Mar. 7, 2022) (denying plaintiff’s motion for summary judgment on
unpled overtime claim).
Defendants correctly argue that the allegations of the Amended Complaint claim only
Plaintiff’s entitlement to individual coverage under an “engaged in commerce” theory. (ECF No.
28 ¶ 23) (alleging that “Plaintiff’s work for Defendants,” consisting of “using chemicals, cleaning
agents, materials, and supplies to clean and detail vehicles,” was “actually in or [] closely related
to the movement of commerce” such that the FLSA applies). Accordingly, the Court considers
whether Plaintiff’s Motion and supporting materials support a finding that Plaintiff engaged in
commerce in the ordinary course for purposes of rendering summary judgment. See Poer, 100
F.4th at 1337–38; Gilmour, 382 F.3d at 1314.
The phrase “engaged in commerce” reflects Congress’s intent to regulate “only activities
constituting interstate commerce, not activities merely affecting commerce.” See Thorne, 448 F.3d
at 1266 (citing McLeod v. Threlkeld, 319 U.S. 491, 497 (1943)); Navarro v. Broney Auto. Repairs,
Inc., 533 F. Supp. 2d 1223, 1226 (S.D. Fla. 2008). The employee has the burden of proof to
establish that he was engaged in interstate commerce. Joseph v. Nichell’s Caribbean Cuisine, Inc.,
862 F. Supp. 2d 1309, 1312 (S.D. Fla. 2012) (citing D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 121
(1946)). To establish individual coverage under the FLSA, Plaintiff must show that he directly
participated in “the actual movement of persons or things in interstate commerce.” Id.; Thorne,
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448 F.3d at 1266. To do so, Plaintiff must show that his “activities are actually in or so closely
related to the movement of commerce as to be a part of it.” McLeod, 319 U.S. at 497. “Indirect or
sporadic involvement in commerce is insufficient.” Perez v. New Auto Image Mktg., Inc., No. 15-
cv-21893, 2016 WL 7540272, at *5 (S.D. Fla. May 20, 2016) (citing Josendis, 662 F.3d at 1315).
Plaintiff claims that he was “engaged in commerce” and is entitled to individual coverage
under the FLSA “based on his work in repairing [and] reconditioning classic cars” intended to
travel in interstate commerce, and based upon his collection of packages sent to Performance Auto
from outside of Florida. (ECF No. 44 at 5–6). Plaintiff argues that “Mr. Cardenas’s reconditioning
work enabled Defendants to market and sell the renewed cars to buyers and ship the cars outside
of Florida.” (ECF No. 44 at 7); (ECF No. 44-1 ¶¶ 18–30). Plaintiff’s Statement of Material Facts
relies upon Fernando Ivan Prado’s deposition testimony that Defendants could not sell a vehicle
and deliver it to a buyer until after Plaintiff had completed his work upon it. (ECF No. 44-1 ¶ 27)
(citation omitted).
Defendants concede that Performance Auto did not market its vehicles until after Plaintiff
had completed his work. Defendants maintain that “using supplies that have previously been used
in interstate commerce is insufficient to establish ‘individual coverage’ under the FLSA.” (ECF
No. 57 at 7). The Parties further dispute whether Plaintiff’s regular responsibilities included
“collect[ing] the packages left outside” of the dealership, “which contained [] car parts” that Mateo
Prado had ordered for delivery. (ECF No. 44-2 ¶¶ 11–13).
The Parties do not dispute that Plaintiff detailed, washed, polished, and made occasional
cosmetic adjustments to cars obtained by Performance Auto. (ECF No. 56-1 at 25:19–22); (ECF
No. 41 at 11:1–3). On occasion, Plaintiff would perform what he terms light mechanical work,
such as replacing car batteries, brake pads, and fluids. (ECF No. 44-2 ¶¶ 6–8); (ECF No. 41 at
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11:1–3). Where more demanding work was necessary, such as detailed polishing or any substantial
mechanical or repair work, Defendants would bring a given vehicle to an outside body shop. (ECF
No. 39 at 11:2–7); (ECF No. 41 at 24:8–16). Additionally, Plaintiff would clean Mateo Prado’s
office upon arriving to work and would collect packages that had been delivered to Performance
Auto.
The Parties dispute whether certain of the above duties were regular and recurrent features
of Plaintiff’s work. Defendants rely upon their deposition testimony that, regardless of whether the
cars were procured by consignment or by purchase, Performance Auto did not designate
purchasers of cars before they had been obtained and “prepared” for marketing and sale via, among
other things, the completion of Plaintiff’s detailing work. (ECF No. 40 at 43:9–25); (ECF No. 39
at 25:18–22). Defendants also testified that the heavy majority of Performance Auto’s car sales
went to in-state purchasers. (ECF No. 40 at 29:7–10). The Parties further dispute whether Plaintiff
indeed performed mechanical work or made repairs to vehicles in Performance Auto’s possession.
Relatedly, the Parties appear to dispute whether Defendants solicited buyers for its vehicles, and
therefore contemplated purchase, during the time Plaintiff was performing his undisputedly regular
and recurrent job duties—i.e., detailing the cars and preparing them for purchase. Compare (ECF
No. 44-1 ¶ 27) (“Defendants could not sell a vehicle and deliver it to its new buyer until after
[Plaintiff] completed his work[.]”) with (ECF No. 57-1 ¶ 29) (“There is zero knowledge of where
any vehicle is destined when Plaintiff works on it because the buyer is not known at that time.”).
The undersigned submits that none of the above disputes of fact are material; whether
contested or not, Plaintiff is not entitled to summary judgment on the issue of individual coverage
under the “engaged in commerce” prong.
The undersigned finds instructive the district court’s analysis in Navarro v. Broney
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Automotive Repairs, Inc., where the court concluded that individual coverage was lacking where
the plaintiff, an employee at an automobile repair shop, failed to produce “any evidence that he
used the instrumentalities of interstate commerce in his work.” 533 F. Supp. 2d at 1226 (“On the
contrary, the evidence of record shows that [the plaintiff’s] duties are all intra state . . . . [T]he fact
that a number of the auto parts ‘have crossed state lines at a previous time does not in itself
implicate interstate commerce.’”) (quoting Thorne, 448 F.3d at 1267).
That Plaintiff used items shipped to Florida from out of state in his regular responsibilities
does not render Plaintiff’s use of those items, on his employer’s behalf, interstate in nature. Id. The
Court in Navarro reasoned:
[w]hen the auto parts are shipped to Florida, the out-of-state shippers do not intend
to reach any individual car owner. Rather, the out-of-state shippers send the parts
to the local dealer, where they are kept until they are purchased in the local market.
Therefore, the interstate journey stops when the parts reached the local dealer.
Id. (citation omitted). Navarro relies upon the Eleventh Circuit’s decision in Thorne, where the
Court held that “when goods reach the customer for whom they were intended, the interstate
journey ends and employees engaged in any further intra state movement of the goods are not
covered under the [FLSA].” Thorne, 448 F.3d at 1267.
Plaintiff’s Motion, and the evidence advanced therewith, sets forth an analogous set of
facts: Performance Auto ordered materials to be used in preparing cars to be marketed; some of
those materials were received from out of state; the out-of-state shippers sent the parts to
Performance Auto; and Plaintiff used the materials in his regular work. Plaintiff performed
detailing work on the cars procured by Performance Auto. He did not engage in those cars’
procurement, their resale, or their transportation to and from Performance Auto. See (ECF No. 56-
1 at 4–20); (ECF No. 41 at 6:6–10); (ECF No. 40 at 17:9–18:25). Indeed, Plaintiff did not even
place orders for the shipment of the materials he used in his work; Mateo Prado did. (ECF No. 56-
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1 at 33:5–9).
Plaintiff maintains that among his regular responsibilities at Performance Auto was the
collection of packages shipped to Performance Auto, and that this suffices to establish individual
coverage. (ECF No. 44-1 ¶ 25); (ECF No. 44 at 6). Plaintiff characterizes his job as performing
the “last leg” of the delivery of packages that arrived from out of state, and subsequently
incorporating the parts contained therein into vehicles that had or would thereafter travel in
interstate commerce. (ECF No. 44 at 6). Defendants admit that Plaintiff collected packages
delivered to Performance Auto but argue that “merely receiving packages from out of State is
insufficient to establish individual coverage.” (ECF No. 57 at 7) (citation omitted); see (ECF No.
57-1 ¶ 25). Defendants are right. As discussed above, Plaintiff has not demonstrated that his receipt
of the packages and use of those contents in his detailing work constituted engagement in
commerce under the FLSA.
Plaintiff relies upon two cases for the proposition that his collection of packages delivered
to Performance Auto constituted the “handling” of goods or materials that moved in interstate
commerce. See White v. Move4all, Inc., No. 18-cv-2120, 2021 WL 8201491, at *14 (M.D. Fla.
June 23, 2021); Mendoza v. Disc. C.V. Joint Rack & Pinion Rebuilding, Inc., 101 F. Supp. 3d
1282, 1288 (S.D. Fla. 2015) (Discount C.V.).
Plaintiff’s cited cases are distinguishable from the present facts. In White, the district court
ruled on the plaintiff’s motion for default judgment, in which posture the court assumed the
allegations in the plaintiff’s complaint as true. See White, 2021 WL 8201491, at *2. The plaintiff
employee worked for a company that provided moving and delivery services to commercial and
residential customers. Id. at *3. The court assumed as true, for purposes of ruling on the motion,
that his duties as an employee involved “loading goods or materials for interstate transportation,
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unloading goods or materials at the conclusion of their interstate transportation, and handling
records of interstate transactions.” Id. at *5. The court found these allegations sufficient to establish
individual coverage. The court emphasized, in reaching this conclusion, that the plaintiff had
alleged that he kept records relative to interstate transactions. Id. Here, Plaintiff never left the state
of Florida pursuant to his employment at Performance Auto; the furthest he traveled from Miami
for work was to Jacksonville. (ECF No. 57-1 at 32:11–22). Plaintiff nowhere asserts he maintained
records relative to interstate transactions. And, while the plaintiff in White loaded and unloaded
materials to assist in the provision of moving and delivery services, Plaintiff here claims only to
have collected packages delivered to Performance Auto. (ECF No. 44-1 ¶ 25).
So too is Discount C.V. premised on a distinguishable set of facts. There, the district court
noted that Plaintiff’s responsibilities included (1) making calls out of state to order auto parts
necessary for his employer’s work, (2) speaking by telephone with out-of-state customers on a
weekly basis, (3) processing the interstate purchase of automobile parts, (4) assembling constant
velocity axles using components shipped to the defendant from out of state and installing them on
cars that “often had out-of-state license plates” or were “shipped elsewhere,” (5) assisting in off-
loading trucks that had arrived from out of state, and (6) “regularly and daily” handling
components “shipped to and from” out-of-state businesses. See 101 F. Supp. 3d at 1287. Based
upon this record evidence, and absent any opposition brief from the defense, the court found
“ample grounds for individual FLSA coverage.” Id. at 1288. Plaintiff has simply not demonstrated,
for purposes of summary judgment, that his work at Performance Auto encompassed such direct,
regular and recurrent out-of-state contact as did the plaintiff’s work in Discount C.V.
Plaintiff argues that he regularly engaged in commerce because some of the vehicles he
worked on were sold in interstate commerce. On this front, Plaintiff’s case resembles Perez v. New
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Auto Image Marketing, Inc., where the district court rejected the argument of a plaintiff automobile
repairman that his repair work was “an essential part of the channel of commerce” in that its
completion was necessary to enable post-repair interstate transport. See 2016 WL 7540272, at *6.
The court reasoned that such work bore only an indirect relationship to interstate commerce: “[t]his
argument confuses tangential involvement with interstate commerce with direct involvement, and
it has been rejected by other district courts under similar circumstances.” Id.; see also Mendoza v.
Detail Sols., LLC, 911 F. Supp. 433, 440 (N.D. Tex. 2012) (“[I]t is not enough for an employee’s
work to be ‘integral’ to interstate commerce . . . . Here, the mere washing of cars that have once
moved in commerce is not closely related to the movement of those cars in commerce[.]”).
Accordingly, Plaintiff’s regular work, even if integral to Performance Auto’s business, bore only
a tangential nexus to Performance Auto’s ultimate sale of vehicles in interstate commerce.
The fact that some of Performance Auto’s car sales went to out-of-state purchasers does
not render Plaintiff’s detailing work an “engage[ment] in commerce” for purposes of the FLSA.
Indeed, Navarro featured the same factual circumstances as those underlying the present case. See
Navarro v. Broney Auto. Repairs, Inc., 314 F. App’x 179, 180 (11th Cir. 2008), cert. denied, 555
U.S. 996 (2008); see also Pino v. Painted to Perfection Corp., 563 F. App’x 764, 767 (11th Cir.
2014). The crux of the Court’s analysis in Navarro, as here, was the work of the employee rather
than the employer or enterprise for which the employee worked. Based upon the undisputed
evidence of Plaintiff’s regular job responsibilities at Performance Auto, Plaintiff has not shown
that his fulfillment of his duties bore a sufficiently direct relationship to the movement of the
vehicles he detailed in interstate commerce. See Perez, 2016 WL 7540272, at *6.
Plaintiff has failed to demonstrate entitlement to summary judgment on the issue of
individual coverage. See Navarro, 533 F. Supp. 2d at 1226; Perez, 2016 WL 7540272, at *6; see
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also Ledbetter v. S.T.A.R. Sec. Corp., No. 19-14018-CIV, 2021 WL 1246013, at *5–6 (S.D. Fla.
Mar. 26, 2021) (collecting and discussing cases). Based upon the foregoing analysis, the
undersigned recommends that summary judgment be DENIED on the issue of whether Plaintiff is
entitled to individual coverage under the FLSA.
ii. 	Whether Defendant is Subject to Enterprise Coverage
Where individual coverage has not been established, an enterprise may nevertheless be
subject to the FLSA’s overtime wage provisions. Enterprise coverage exists where an enterprise
“(1) has at least two employees engaged in interstate commerce or the production of goods for
interstate commerce, or who handle, sell, or otherwise work on goods or materials that had once
moved or been produced for in interstate commerce, and (2) has gross sales of at least $500,000 in
sales annually.” Josendis, 662 F.3d at 1317. It is Plaintiff’s burden to establish enterprise coverage.
See Mejia v. Fornos Corp., No. 19-cv-20683, 2019 WL 13241558, at *2 (S.D. Fla. Sept. 6, 2019)
(citing Solano v. A Navas Party Prod., Inc., No. 09-22847-CIV, 2011 WL 98819, at *6 (S.D. Fla.
Jan. 12, 2011)).
The “two or more employees” requirement referenced above derives from the text of 29
U.S.C. § 203(s)(1): all other conditions being met, enterprise coverage under the FLSA applies
only to enterprises employing “employees,” plural. 29 U.S.C. § 203(s)(1); Diaz v. Jaguar Rest.
Grp., LLC, 649 F. Supp. 2d 1343, 1347 (S.D. Fla. 2009); see also 29 C.F.R. § 779.238.
Determining an individual’s employment status within the meaning of the FLSA is a question of
law; “however, the historical facts that form the basis to make that determination are questions of
fact.” Solano v. A Navas Party Prod., Inc., 728 F. Supp. 2d 1334, 1340 (S.D. Fla. 2010) (citing
Patel v. Wargo, 803 F.2d 632, 634 (11th Cir. 1986)).
Plaintiff claims, and Defendants admit, that Performance Auto grossed more than
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$500,000.00 in annual revenues. However, the Parties dispute whether Performance Auto
employed “two or more employees” during the relevant period. Plaintiff claims that Mateo Prado
was an “employee” of Performance Auto because he “received a W-2 from it” and due to “his job
duties such as replacing interior and exterior parts . . . and detailing cars.” (ECF No. 44 at 8).
Plaintiff’s Statement of Facts relays Mateo Prado’s deposition testimony that he “received a W-2
from Performance Auto,” and “was, and remains, an employee of Performance Auto.” (ECF No.
44-1 ¶¶ 12–14).
Defendants counter that the record evidence is clear that Plaintiff was the sole employee
other than Fernando Ivan Prado or Mateo Prado during the relevant period. (ECF No. 57-1 at ¶ 16)
(citations omitted).1 Defendants rely on Mateo Prado’s deposition testimony to show that Plaintiff
was Performance Auto’s lone employee, and that Fernando Ivan Prado and Mateo Prado were
Plaintiff’s employers. (ECF No. 57-1 ¶ 16). Plaintiff acknowledges the existence of the Parties’
factual dispute but argues that Defendants’ position is illegitimate. (ECF No. 44 at 8).
Upon review of the Parties’ positions, and as explained below, the undersigned concludes
that a legitimate issue of material fact exists as to whether Mateo Prado was an employee or an
employer at Performance Auto. While Mateo Prado indeed described himself and his father as
“employees” of Performance Auto, the limited record evidence and circumstances of this case
paint an ambiguous and sparse picture of Mateo Prado’s role. The evidence advanced by the Parties
is ill-suited for application of the applicable “economic reality” test or for disposition on a motion
1 Plaintiff, in Reply, frames Defendants’ argument as traveling under the distinct “family business” exemption to
FLSA coverage, under 29 U.S.C. § 203(s)(2). (ECF No. 63 at 2). Defendants do indeed conflate the two FLSA
provisions in the Response brief. (ECF No. 57 at 10–11) (citing Chappell v. Boss Rain Forest Pet Resort, Inc., No.
16-62779-CIV, 2018 WL 7365237, at *11 (S.D. Fla. Mar. 15, 2018)). Yet, Plaintiff’s Motion explicitly claims that
“Performance Auto employed two employees . . . thereby satisfying the ‘two or more employees’ prong of the
interstate commerce requirement.’” (ECF No. 44 at 8). The Parties thus agree that the “two or more employees” prong
must be met. Satisfaction of the “two or more employees” requirement remains essential for purposes of establishing
enterprise coverage and remains in dispute.
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for summary judgment. Romero v. Razzle Dazzle Barbershop, Inc., 793 F. App’x 853, 857 n.2
(11th Cir. 2019) (citing cases).
The FLSA defines an “employee” as “any individual employed by an employer,” and an
“employer” as “any person acting directly or indirectly in the interest of an employer in relation to
an employee.” Schumann v. Collier Anesthesia, P.A., 803 F.3d 1199, 1207 (11th Cir. 2015)
(quoting 29 U.S.C. §§ 203(d) and (e)(1)). The term “employ” means “to suffer or permit to work.”
Id. (citation omitted). The “suffer or permit to work” standard is broadly construed to effectuate
the FLSA’s broad remedial provisions. See Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d
1276, 1287 (11th Cir. 2016). To determine an individual’s employment status under the FLSA, a
court must apply the “economic reality” test. “[A]n entity is deemed to employ a worker,” and a
worker thus attains employee status, “where, as a matter of ‘economic reality’ and under all the
circumstances, the worker is ‘economically dependent’ on the hiring entity.” Id. Courts similarly
apply the “economic reality” test to determine employer status, considering factors such as whether
the putative employer (1) had the power to hire and fire the employees; (2) supervised and
controlled employee work schedules or conditions of employment; (3) determined the rate and
method of payment; and (4) maintained employment records. Id. The overarching inquiry is
whether the alleged employer is “involved in the day-to-day operation or [has] some direct
responsibility for the supervision of the employee.” Patel, 803 F.2d at 638.
Mateo Prado’s role and relationship with Plaintiff are unclear based on the materials
advanced on summary judgment. Plaintiff’s Statement of Facts does little to recount Mateo Prado’s
day-to-day responsibilities at Performance Auto but proffers that “[t]he Defendants, Performance
Auto, Fernando Ivan Prado, and Mateo Prado, employed [Plaintiff], as the term ‘employer’ is
defined by 29 U.S.C. § 203(d).” (ECF No. 44-1 ¶ 17) (citing (ECF Nos. 28 ¶ 13, 29 ¶ 13)). Indeed,
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the Amended Complaint describes Mateo Prado as an “owner/officer/director/manager of the
corporate Defendant for the time period relevant to this lawsuit,” alleging he “ran [Performance
Auto’s] day-to-day operations, was responsible for all operational decisions, and was partially or
totally responsible for paying Plaintiff’s wages.” (ECF No. 28 ¶ 7). The undersigned notes that
Plaintiff’s position on the question of enterprise jurisdiction is squarely at odds with his claim,
conceded by Defendants above, that Mateo Prado was his employer under the FLSA.2
The Parties’ deposition testimony sheds little light on Mateo Prado’s job responsibilities
or working relationship with Plaintiff. See Patel, 803 F.2d at 637–38. Mateo Prado testified that
his day-to-day responsibilities included answering emails, tending to clients, advertising cars and
removing cars from advertising, ensuring that the cars were ready to be advertised, and taking cars
to mechanics. (ECF No. 41 at 6:4–10). This much of his testimony appears undisputed. On the
other hand, Mateo Prado also testified that he dictated what work Plaintiff should prioritize for
Performance Auto during busy periods, (ECF No. 40 at 14:20–24), and prepared the checks by
which Plaintiff received his compensation. ((ECF No. 41 at 39:9–12). Plaintiff himself testified
that it was Mateo Prado who first directed him to work on Saturdays—first at Performance Auto
and later at Fernando Ivan Prado’s residence. (ECF No. 56-1 at 43:18–25). Plaintiff cleaned Mateo
Prado’s office upon arriving to work every morning. (Id. at 31:4–7). This testimony corroborates
the allegations of Plaintiff’s Amended Complaint and gives rise to a genuine issue of material fact.
2 Plaintiff has provided the Court with no authority finding that an individual can qualify as both an employer and an
employee under the FLSA or the circumstances presented here. The balance of courts has found that employees may
attain employer status, at which point their status as employees under the FLSA is extinguished. See, e.g., Howard v.
Second Chance Jai Ali LLC, No. 15-cv-200, 2016 WL 7180243, at *20 (M.D. Fla. Dec. 9, 2016) (citing Gionfriddo
v. Jason Link, LLC, 769 F. Supp. 2d 880, 893–94 (D. Md. 2011); Ayres v. 127 Rest. Corp., 12 F. Supp. 2d 305, 308–
09 (S.D.N.Y. 1998)); Whited v. New Café at Greystone Gardens, No. 13-1811, 2020 WL 1271681, at *4 (M.D. Pa.
Mar. 17, 2020) (citing Chung v. New Silver Palace Rest., Inc., 246 F. Supp. 2d 220, 229 (S.D.N.Y. 2002)) (additional
citation omitted); see also Whited, 2020 WL 1271681, at *5 (concluding that “an employer or manager may not receive
a portion of tips received by employees”). In other words, Mateo Prado can either have been an employer or an
employee for purposes of Plaintiff’s suit, but cannot have been both.
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Plaintiff also relies on the fact that Mateo Prado received W-2 forms. Plaintiff has not
advanced authority supporting the proposition that an individual’s status as an employer or
employee may be determined by their receipt of a W-2 form. As a general matter, the economic
reality test rejects the elevation of form over substance in determining individuals’ status as
employers, employees, and independent contractors. See Schumann, No. 12-cv-347, 2016 WL
6276846, at *16. Thus, in Kalloo v. Unlimited Mechanical Co. of NY, Inc., the district court
inquired into the totality of the circumstances to find that a plaintiff was an employee, rather than
an independent contractor, for purposes of their FLSA claim. See 977 F. Supp. 2d 187, 202
(E.D.N.Y. 2013). In doing so, the Court gave little weight to the fact that the plaintiff had received
1099 forms ordinarily issued to independent contractors. See id. (concluding that the fact “[t]hat
[the plaintiff] received a 1099 form does not outweigh the other, more substantial aspects of his
relationship with defendants” and that “the totality of the circumstances demonstrates that [the]
defendants employed [the plaintiff] under the FLSA[.]”).
An analysis of the “more substantial aspects” of Mateo Prado’s role at Performance Auto
cannot be undertaken without resolving genuine disagreements on an ambiguous and sparse
evidentiary proffer. Such questions are properly resolved by the finder of fact at trial. Accordingly,
summary judgment as to whether Defendants are subject to enterprise coverage under the FLSA
is due to be DENIED.
C. 	Whether Plaintiff is Entitled to Overtime Compensation
Plaintiff claims that he worked overtime without compensation under the FLSA. In sole
reliance upon his own Declaration, Plaintiff avers that he worked, on average, “approximately 44
hours each week he worked for the Defendants.” (ECF No. 44-1 ¶ 50) (citing (ECF No. 44-2 ¶
28)). Plaintiff’s hours estimate is premised on two contentions: that he took an abbreviated lunch
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break each weekday and that, during the relevant period in this litigation, he worked approximately
four hours every other Saturday. Defendants argue that a genuine issue of material fact exists as to
whether Plaintiff worked overtime, citing the deposition of Mateo Prado, wherein Mateo Prado
“testified a number of times that Plaintiff worked between 35 to 38 hours per week, even if
Saturdays are considered.” (ECF No. 57 at 11) (citing (ECF Nos. 40 at 32:17–33:12, 41 at 17:21–
18:7)). Defendants further complain that the evidence advanced in support of Plaintiff’s position
consists merely “of [Plaintiff’s] own testimony and estimate” of how many hours Plaintiff worked
per week, on average.
As discussed in greater detail below, Plaintiff’s entitlement to overtime compensation is
replete with genuine disputes of material fact. The Parties dispute the number of hours Plaintiff
worked on an average weekly basis, the amount of time Plaintiff took on his daily lunch break, the
frequency of Plaintiff’s weekend work over a period of years, and the nature of Plaintiff’s weekend
work, i.e., whether it was labor within the scope of Plaintiff’s employment.
The FLSA places upon an employee plaintiff “the burden of proving that he performed
work for which he was not properly compensated.” Lamonica v. Safe Hurricane Shutters, Inc.,
711 F.3d 1299, 1315 (11th Cir. 2013) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S.
680, 686–87 (1946)). This burden is relaxed, however, where the employer failed to keep time
records. In such cases:
an employee has carried out his burden if he proves that he has in fact performed
work for which he was improperly compensated and if he produces sufficient
evidence to show the amount and extent of that work as a matter of just and
reasonable inference. The burden then shifts to the employer to come forward with
evidence of the precise amount of work performed or with evidence to negative the
reasonableness of the inference to be drawn from the employee's evidence. If the
employer fails to produce such evidence, the court may then award damages to the
employee, even though the result be only approximate.
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Anderson, 328 U.S. at 687–88.3
Where Anderson applies, “an employee has carried out his burden if he proves that he has
in fact performed work for which he was improperly compensated and if he produces sufficient
evidence to show the amount and extent of that work as a matter of just and reasonable inference.”
Bautista Hernandez v. Tadala’s Nursery, Inc., 34 F. Supp. 3d 1229, 1243 (quoting Hodgson v.
Ricky Fashions, Inc., 434 F.2d 1261, 1263–64 (5th Cir. 1970)); Brock v. Norman’s Country Mkt.,
Inc., 835 F.2d 823, 828 (11th Cir. 1988) (“[W]here an employer has not kept adequate records of
their employee’s wages and hours as required by the FLSA, the employees will not be denied a
recovery of back wages on the ground that their uncompensated work cannot be precisely
determined.”).
3 The Anderson standard operates as a shield against summary judgment disposition: an FLSA defendant may not
benefit from their failure to adequately maintain and preserve records of the number of hours an FLSA plaintiff
worked. Anderson, 328 U.S. at 687 (reasoning that the solution in such cases “is not to penalize the employee by
denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work”); Allen
v. Bd. Of Public Educ. For Bibb Cnty., 495 F.3d 1306, 1317 (11th Cir. 2007) (“We believe Anderson demonstrates
that Plaintiffs may ultimately be permitted to show the amount and extent of their unpaid overtime as a matter of just
and reasonable inference[.]”); see also Brock, 835 F.2d at 828. Because the standard applies where a defendant lacks
records of the hours a plaintiff employee worked, the plaintiff is permitted to rely upon “deposition testimony,
affidavit, or declaration” to show the fact, amount, and extent of his overtime work, demonstrate the existence of a
genuine issue of material fact, and defeat summary judgment. See Gelber v. Akal Sec., Inc., No. 16-cv-23170, 2017
WL 6949274, at *3 (S.D. Fla. Aug. 8, 2017) (quoting Jarmon v. Vinson Guard Servs., Inc., No. 08-CV-2106, 2010
WL 11507029, at *8 (N.D. Ala. Jul. 13, 2010)). At that point, the employer must produce evidence of the “precise
amount of work performed” or that negates the reasonableness of the plaintiff’s proffer.
Whether Anderson’s adjustment of the Parties’ evidentiary burdens applies with equal force as a sword, where the
plaintiff is the movant—and thus heightens the non-movant defendant’s burden to demonstrate a genuine dispute of
material fact—is less clear. On the one hand, the FLSA is a broad remedial statute to be construed in favor of
undercompensated plaintiffs. See Rafferty v. Denny’s, Inc., 13 F.4th 1166, 1190 (11th Cir. 2021). But see Tyson Foods,
Inc. v. Bouaphakeo, 577 U.S. 442, 474–75 (2016) (Thomas, J., dissenting) (noting Anderson’s “shaky foundations”
and that the Supreme Court has sparingly, if at all, relied on Anderson to decide FLSA cases); Encino Motorcars, LLC
v. Navarro, 584 U.S. 79, 89 (2018) (rejecting the principle that “the FLSA pursues its remedial purpose at all costs”)
(cleaned up) (quotations omitted). Courts do apply the Anderson standard to plaintiffs’ summary judgment motions.
See, e.g., Ramos v. Hoyle, No. 08-21809-CIV, 2009 WL 2151305, at *4–5 (S.D. Fla. Jul. 16, 2009); Panico v. YGSL
Holdings LLC, No. 12-61269-CIV, 2013 WL 28376, at *4 (S.D. Fla. Jan. 2, 2013).
On the undersigned’s reading, Anderson and its progeny serve to enable the finder of fact to determine issues as to the
number of hours an employee worked. See, e.g., Torres v. Rock & River Food Inc., 244 F. Supp. 3d 1320, 1333 (S.D.
Fla. 2016) (“[W]hether sixty hours a week is a reasonable inference to draw from the evidence is not a determination
for the Court, rather ‘it is the duty of the trier of facts to draw whatever reasonable inferences can be drawn from the
employees’ evidence . . . .’”) (quoting Anderson, 328 U.S. at 693).
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Plaintiff “may fulfill his duty to present the necessary evidence under the [Anderson]
formulation through his own testimony recollecting the number of hours of overtime he worked,
‘although the court need not accept every element of the plaintiff’s case simply because the
employer fails to produce records.’” Bozeman v. Port-O-Tech Corp., No. 07-60569, 2008 WL
4371313, at *14 (S.D. Fla. Sept. 19, 2008) (quoting Leonard v. Carmichael Props. & Mgmt. Co.,
Inc., 614 F. Supp. 1182, 1186 (S.D. Fla. 1985)). While Anderson “anticipate[s] that an employee
can estimate to a certain extent, it does not allow pure speculation.” Byrne v. Goodwill S. Fla. TEP,
LLC, No. 24-61276-CIV, 2025 WL 1872021, at *13 (S.D. Fla. May 29, 2025) (denying summary
judgment where the plaintiff’s “speculative and unsupported (and, frankly, not credible) estimates”
had “no rational basis in the record”); see also Ihegword v. Harris Cnty. Hosp. Dist., 555 F. App’x
372, 375 (5th Cir. 2014) (“[A]n unsubstantiated and speculative estimate of uncompensated
overtime does not constitute evidence sufficient to show the amount and extent of that work as a
matter of just and reasonable inference”).
Here, Defendants concede that they failed to maintain records indicating the hours Plaintiff
worked. See (ECF No. 39 at 13–14). Accordingly, the relaxed evidentiary standard under Anderson
would apply. See Daniley v. Fla.’s Green Thumb Lawn & Pest, LLC, No. 24-cv-02023, 2025 WL
360855, at *3–4 (M.D. Fla. Jan. 16, 2025), report and recommendation adopted, 2025 WL 359250
(M.D. Fla. Jan. 31, 2025); 29 U.S.C. § 211(c).4 The question is whether Plaintiff’s submissions
suffice to demonstrate the absence of any disputed material fact, entitling him to summary
judgment on this issue.
4 The Court’s analysis of whether summary judgment is warranted on the issue of Plaintiff’s entitlement to overtime
compensation follows the analysis above, where the undersigned concluded that Plaintiff is not entitled to summary
judgment on the antecedent issue of FLSA coverage. Anderson’s holding is implicated if the FLSA applies; whether
the FLSA applies remains here in doubt. See, e.g., Garay v. B&G Volker Corp., No. 99-1873-CIV, 2000 WL 1717632,
at *5 (S.D. Fla. Aug. 4, 2000) (applying Anderson to address whether defendant violated the FLSA’s minimum wage
and overtime wage provisions, “[a]ssuming, arguendo that [the plaintiff] was covered by the FLSA”).
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The first dispute of material fact underlying Plaintiff’s hours estimate concerns the amount
of time Plaintiff spent on his lunch break each day of the workweek. Defendants testified that
Plaintiff took an hour of lunch, as allotted, each weekday, supporting their conclusion that,
assuming Plaintiff worked three hours every other Saturday,5 Plaintiff would have worked only 35
hours twice a month and 38 twice a month. See (ECF No. 40 at 33:3–12, 39:09–12). Plaintiff
acknowledges that one hour was offered as a matter of policy but testified that he took lunch breaks
of “15, 20 minutes, [or] half an hour,” depending on how busy Performance Auto was on a given
day, adding that it “would have been a sin for [Defendants] to give you one hour.” (ECF No. 56-1
at 42:18–25).
The FLSA requires employers to pay overtime wages to employees for all “hours worked”
in excess of 40 per week. Gelber v. Akal Sec., Inc., 14 F.4th 1279, 1281 (11th Cir. 2021). The
Department of Labor has promulgated implementing regulations clarifying the meaning of the
term “hours worked” in specific situations, including, as relevant here, meal breaks. Id.; 29 C.F.R.
§ 785.19; see also Kohlheim v. Glynn Cnty., 915 F.2d 1473, 1477 n.20 (11th Cir. 1990) (adopting
the “mealtime exclusion standards of § 785.19 as an appropriate statement of the law”). Section
785.19 excludes “bona fide meal periods” from compensable “hours worked” so long as he is
“completely freed from duties during the meal period.” An employee “bears the initial burden to
show that the meal period constituted work.” Gelber, 14 F.4th at 1283.
Whether Plaintiff took an abbreviated lunch or the full hour of lunch time allotted to him
constitutes a genuine issue of material fact, as does whether Plaintiff’s meal periods should be
considered “bona fide meal periods” under section 785.19. Plaintiff’s Declaration states that his
5 The undersigned notes that the Parties disagree as to the duration of Plaintiff’s weekend work; Defendants maintain
that Plaintiff worked on Saturdays from 10:00 A.M. to 1:00 P.M., see (ECF No. 40 at 33:8–12), whereas Plaintiff
asserts in his Declaration that he “worked every other Saturday from 10:00 a.m. to 2:00 p.m., either at the [Performance
Auto] location or at Fernando Ivan Prado’s home,” see (ECF No. 44-2 ¶ 22).
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weekday breaks were “rare” and “would not last more than 10 to 15 minutes at a time.” (ECF No.
44-2 ¶ 20). The statements in Plaintiff’s Declaration are inconsistent with the testimony Plaintiff
gave at his deposition, that he would take “15, 20 minutes, [or] half an hour” for lunch, depending
on how busy he was on a given day. (ECF No. 56-1 at 42:18–25). In any event, Defendants advance
testimony contradicting Plaintiff’s assertion that he took abbreviated lunch breaks; Mateo Prado
gave cross-examined testimony that Plaintiff was told to, and did, take his hour-long lunch break.
(ECF No. 40 at 33:1–34:5); see also (id. at 39:19–23); (ECF No. 41 at 17:25–18:2). This dispute
of fact is material. As Defendants argue, if they are right that Plaintiff took his hour, then Plaintiff
would have worked a baseline of 35 hours per week and would not be entitled to overtime for an
additional three or four hours of work every other Saturday. See (ECF No. 40 at 39:20–23); (ECF
No. 57-1 ¶ 50) (citations omitted). If Plaintiff is right, and a significant portion of his allotted lunch
time was in fact spent performing compensable work, then his average amount of hours worked
may exceed 40.
Plaintiff’s estimation of the frequency with which he worked on Saturdays is inconsistent
with the record evidence; it does not account for the Parties’ respective deposition testimony noting
that the frequency of Plaintiff’s weekend work varied over the course of years. Compare (ECF No.
44-1 ¶ 50) (Plaintiff’s Statement of Facts, claiming, “Mr. Cardenas estimates that he worked
approximately 44 hours each week he worked for the Defendants”) (emphasis added) with (ECF
No. 56-1 at 39–43) (Plaintiff, testifying that he worked every Saturday except in the six months
before his termination),6 (ECF No. 40 at 39:24–40:2) (Mateo Prado, testifying that “the last couple
6 But see (ECF No. 44-2 ¶ 22) (Plaintiff, declaring that he “worked every other Saturday from 10:00 a.m. to 2:00 p.m.,
either at the Performance Auto Wholesalers, LLC location or at Fernando Ivan Prado’s home”). Here, too, lies a
dispute of fact. Defendants maintain that Plaintiff’s weekend work ran from 10:00 A.M. to 1:00 P.M.—three, not four
hours. See (ECF No. 40 at 39:09–12). Because Plaintiff’s estimate of his weekday hours is itself genuinely contested,
the undersigned cannot now determine whether this hour-long discrepancy is material.
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years or year at least, [Plaintiff] was only working one Saturday”), and (ECF No. 39 at 16:2–5)
(Fernando Ivan Prado, testifying that Plaintiff “would work on alternate Saturdays. One on, one
off”). Whereas Plaintiff avers generally that he worked every other Saturday, (ECF Nos. 44-1 ¶
50, 44-2 ¶ 22), the Parties’ deposition testimony and other materials indicate that this was the case
only for an indeterminate number of months. See, e.g., (ECF No. 40 at 39:24–40:2); (ECF No. 56-
1 at 39:5–9). As Defendants argue, Plaintiff’s deposition testimony is inconsistent not only with
his Statement of Facts and Declaration but also with Defendants’ deposition testimony. See (ECF
No. 57 at 12). Accordingly, the frequency with which Plaintiff worked Saturdays represents a
genuine dispute of material fact.
Numerous other issues of fact remain live. Review of the record evidence reveals conflict
between whether Plaintiff’s weekend work at Fernando Ivan Prado’s home was work pursuant to
Plaintiff’s employment or consisted of household chores. See (ECF No. 56-1 at 43:23–44:1); (ECF
No. 40 at 40:22–41:10). Defendants testify that Plaintiff’s weekend work consisted, at least in part,
of housekeeping tasks rather than work detailing Performance Auto’s cars. (ECF No. 40 at 40:22–
41:2); (ECF No. 56-1 at 43:18–44:1) (“[S]ometimes on the Saturdays, they would tell me, ‘don’t
come to the dealer. Just go to my home and clean there.’ I would clean the pool, the roof. I also
cleaned the house.”). The Parties dispute the extent to which Plaintiff adhered to a 10:00 A.M.–
6:00 P.M. weekday schedule, whether he exceeded or fell short of meeting that schedule. Compare
(ECF No. 41 at 19:12–16) with (ECF No. 44-1 ¶ 49) (stating, in reliance on Plaintiff’s Declaration,
that “Mr. Cardenas was usually the first to arrive at work each day and the last to leave”).
Based upon the evidence advanced in support of Plaintiff’s Motion, Plaintiff has failed to
show his entitlement to summary judgment on the question of whether he worked in excess of 40
hours per week. Despite Plaintiff’s Declaration attesting that he worked approximately 44 hours
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per week, the record evidence, including his cross-examined deposition testimony, reveals
contested facts that undermine Plaintiff’s conclusory estimate.7 While a plaintiff’s uncorroborated
estimate of his overtime hours may be sufficient evidence to create a genuine disputed fact when
submitted in opposition to summary judgment, Plaintiff, as movant, is not entitled to have his
evidence viewed in the light most favorable to him. See, e.g., Brandt v. Gasolinera, Inc., No. 18-
80472-CIV, 2019 WL 3890633, at *7 (S.D. Fla. Jun. 18, 2019) (“I must at this stage consider the
record in the light most favorable to Plaintiff . . . . I cannot overstate how slim the margin by which
his affidavit suffices, though . . .”); Walters v. Am. Coach Lines of Mia., Inc., 569 F. Supp. 2d
1270, 1300–01 (S.D. Fla. 2008) (finding that “[g]enuine issues of material fact remain” as to
whether Plaintiff who opposed summary judgment in sole reliance on an affidavit was
compensated at an effective hourly rate below the federal minimum wage). Here, Defendants are
situated as the non-movant, the evidence upon which Plaintiff relies is ambiguous at almost every
step, and it is contradicted by Defendants’ deposition testimony. While a Plaintiff’s burden to
establish the number of hours he worked is relaxed in these circumstances, it remains a burden that
must be met through Plaintiff’s evidentiary proffer. See Jackson v. Corr. Corp. of Am., 606 F.
App’x 945, 952 & n.10 (11th Cir. 2015). The undersigned concludes that, on this record, Plaintiff
has failed to meet that burden.
The Eleventh Circuit in Klinedinst v. Swift Investments, Inc. held, under circumstances
similar to those here, that a genuine dispute existed as to the number of hours the plaintiff worked.
See 260 F.3d 1251, 1256–57 (11th Cir. 2001). There, as here, a plaintiff claimed entitlement to
overtime payments pursuant to Anderson, and “neither party kept records of the number of hours”
7 Plaintiff’s estimate of weekly hours worked appears to double-count his weekend hours, assuming eight hours of
compensatory work performed each weekday and four hours of compensatory work each weekend, for a total of 44
hours worked per week. This is inconsistent with Plaintiff’s own testimony that he worked “every other Saturday,”
see (ECF No. 44-1 ¶¶ 40, 42) (emphasis added).
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the plaintiff worked. Id. Noting that “both parties offer contradictory statements as to the number
of hours [the plaintiff] actually worked,” the Eleventh Circuit concluded that the district court had
erred in making a factual determination as to the number of hours the plaintiff worked based on
what evidence was available to it on summary judgment. Id.; see also Raum, 2024 WL 6982285,
at *5.
Plaintiff argues that Mateo Prado’s testimony regarding the length of Plaintiff’s meal breaks
is speculative because it is not based on personal knowledge. Consequently, his testimony cannot
be reduced to admissible evidence at trial and therefore cannot give rise to a genuine issue of
material fact sufficient to avoid the entry of summary judgment for Plaintiff. See (ECF No. 63 at
4–7); Ellis v. England, 432 F.3d 1321, 1325–26 (11th Cir. 2005) (“[M]ere conclusions and
unsupported factual allegations are legally insufficient to defeat a summary judgment motion.”).
Plaintiff contends that Mateo Prado mistakenly assumed that “because [Plaintiff] was scheduled to
work certain hours and could take one hour for lunch each day, he worked only those hours and
actually took one hour for lunch each day.” (Id. at 5) (arguing that “Mateo Prado testified that his
testimony was not based on personal knowledge but on ‘assuming he’s taking his hour’ because the
Defendants ‘[d]idn’t really keep track’ of how long [Plaintiff] took for a lunch break”).
Plaintiff’s argument hinges on his complaint that Mateo Prado lacked personal knowledge
as to the precise duration of Plaintiff’s lunch and other breaks. Deposition testimony used to support
or oppose summary judgment motions must “be made on personal knowledge, [and] shall set forth
such facts as would be admissible in evidence.” Macuba v. Deboer, 193 F.3d 1316, 1322–23 (11th
Cir. 1999) (citing Randle v. LaSalle Telecomms., 876 F.2d 563, 570 n.4 (7th Cir. 1989); see also
Fed. R. Civ. P. 56(e). Personal knowledge is “not an absolute” and “may consist of what the witness
thinks he knows from personal perception.” Fed. R. Evid. 602 advisory committee’s note to 1972
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proposed rule (citing 2 Wigmore § 650)8; see also Christian Tennant Custom Homes of Fla., Inc.
v. EBSCO Gulf Coast Dev., No. 15-cv-585, 2017 WL 4102458, at *5 & n.11 (N.D. Fla. Sept. 15,
2017) (collecting cases for the proposition that “[f]ederal district courts in Florida consider the
Advisory Committee Notes accompanying the Federal Rules of Evidence when interpreting and
applying the rules”). Evidence used to prove personal knowledge may consist of the witness’s own
testimony. Fed. R. Evid. 602.
Review of Mateo Prado’s deposition transcript reveals that Prado’s testimony was
adequately based on personal knowledge; Prado explained that he perceived Plaintiff on breaks
throughout the day. When Prado “saw [Plaintiff] eating” and “saw [Plaintiff] on the phone talking,”
he inferred that Plaintiff was taking a break. See (ECF No. 40 at 33:22–34:3). “[P]ersonal
knowledge can be established by showing that the witness was in a physical position to see, hear,
or otherwise perceive the matters to which the testimony relates.” Johnson v. Scotty’s, Inc., 119 F.
Supp. 2d 1276, 1281 (M.D. Fla. Sept. 7, 2000). Mateo Prado’s testimony as to Plaintiff’s use of
break time consisted of what he inferred based upon what he saw. Mateo Prado’s testimony further
indicates that he was in a position to hear Plaintiff “on the phone all the time while he was at work,”
and that he inferred that at least some of Plaintiff’s phone calls were made while on break. (ECF
No. 40 at 33:22–23).
Plaintiff’s challenge strikes at the weight, not the admissibility, of Mateo Prado’s
testimony—a matter the finder of fact will have to evaluate. For purposes of this Motion, however,
Plaintiff’s objection to the Court’s consideration of Mateo’s testimony should be overruled.
Review of the Parties’ argument, the record evidence, and the applicable precedent
8 Plaintiff advances a definition of personal knowledge coextensive with that set forth by the advisory committee notes
to Rule 602 for purposes of this analysis. See (ECF No. 63 at 6) (quoting Batres-Garay v. United States AG, 748 F.
App’x 204, 209 (11th Cir. 2018) (defining personal knowledge as “[k]nowledge gained through firsthand observation
or experience, as distinguished from a belief based on what someone else has said”) (quotations omitted)).
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confirms my conclusions (a) that Plaintiff has failed to meet his burden to demonstrate that he
worked hours in excess of 40 per workweek, and (b) that, even assuming he met such burden,
Defendants have rebutted Plaintiff’s showing and demonstrated the existence of genuine issues of
material fact as to the Plaintiff’s average weekly hours worked over the course of years. The
undersigned accordingly recommends that summary judgment be DENIED as to Plaintiff’s
entitlement to overtime compensation.
* 	* 	*
“Upon determining that the Defendants violated the FLSA,” Plaintiff further seeks
summary judgment on the issues of (a) Plaintiff’s entitlement to liquidated damages and (b)
whether Defendants’ alleged FLSA violation was willful, in which event Plaintiff would be
entitled to recover three years of overtime damages. (ECF No. 44 at 9–10). Based on the analysis
set forth above, the undersigned has recommended that summary judgment be denied as to several
material elements of Plaintiff’s claim. For the undersigned to determine either whether Plaintiff
has proven that Defendants willfully violated the FLSA or whether Plaintiff has proven that he is
entitled to liquidated damages would require inquiry into a but-for world. The better course is to
leave the live factual disputes in this case to be resolved by the factfinder at trial. Accordingly, the
undersigned further recommends that summary judgment be DENIED as to whether (a)
Defendants willfully violated the FLSA’s overtime provisions and (b) Plaintiff is entitled to
liquidated damages.
IV. 	RECOMMENDATION
Based on the foregoing, the undersigned respectfully RECOMMENDS that Plaintiff’s
Motion for Summary Judgment, (ECF No. 44), be GRANTED, in part, and DENIED, in part. The
Motion should be GRANTED as to the undisputed facts that Defendants were Plaintiff’s joint
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employers and that Plaintiff was a non-exempt employee of Defendants. The Motion should in all
other respects be DENIED.
Pursuant to Local Magistrate Rule 4(b), the parties have FOURTEEN (14) days from the
date of this Report and Recommendation to serve and file written objections, if any, with the
Honorable Rodolfo A. Ruiz, II, United States District Judge. Failure to timely file objections will
bar a de novo determination by the District Judge of anything in this recommendation and shall
constitute a waiver of a party’s “right to challenge on appeal the district court’s order based on
unobjected-to factual and legal conclusions.” 11th Cir. R. 3-1 (2016); 28 U.S.C. § 636(b)(1)(C);
see also Harrigan v. Metro-Dade Police Dep’t Station #4, 977 F.3d 1185, 1191–92 (11th Cir.
2020).
RESPECTFULLY SUBMITTED in Chambers, in Miami, Florida, this 18th day of
February, 2026.
__________ _____________________
LAUREN F. LOUIS
UNITED STATES MAGISTRATE JUDGE
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