Hoang v. Doral 888 LLC et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 23-CV-80479-DSL
THANH M. HOANG,
Plaintiff,
v.
DORAL 888 LLC, et al.,
Defendants.
__________________________________________/
REPORT AND RECOMMENDATION
ON MOTION TO DISMISS COUNT II [ECF No. 184]
Defendant Kenny Tang moves to dismiss Count II of the Amended Complaint
under Rule 12(h)(3) for lack of subject matter jurisdiction (“Motion”). ECF No. 184.
Mr. Tang says Count II is moot because all required minimum wages have been
tendered to Plaintiff Thanh Hoang. ECF Nos. 30, 184. A response was due on
September 2, 2026. ECF No. 184. To date, a response has not been filed. The Motion
is ripe for decision. For the following reasons, the Motion should be DENIED.
I. PROCEDURAL POSTURE
On June 12, 2023, Mr. Hoang filed an Amended Complaint against Defendants
with multiple counts asserting various wage and hour violations. ECF No. 30.
Defendants answered. ECF Nos. 31, 32. Mr. Tang and Mr. Hoang each filed motions
for summary judgment, which were granted in part and denied in part. ECF Nos.
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168, 173, 182. As it relates to Count II, Judge Leibowitz found in Mr. Hoang’s favor
at summary judgment. ECF No. 182 at 13. Subsequently, Mr. Tang moves to dismiss
Count II. ECF No. 184.
II. LEGAL BACKGROUND
Motion to Dismiss for Lack of Subject Matter Jurisdiction
“If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.” Sream, Inc. v. Enshirah, Inc., No. 16-CV-81606,
2017 U.S. Dist. LEXIS 94064, at *3 (S.D. Fla. Apr. 27, 2017) (citing Fed. R. Civ. P.
12(h)(3)). “Thus, under Rule 12(h)(3) . . . the defense of lack of subject matter
jurisdiction may be raised at any time by motion of a party or otherwise.” Id. (quoting
Mackenzie v. Kindred Hosps. E., L.L.C., 276 F. Supp. 2d 1211, 1218 (M.D. Fla. 2003)).
“Subject-matter jurisdiction is the court’s ‘statutory or constitutional power to
adjudicate the case.’” Parsons v. Regna, 847 F.App’x 766, 770 n.8 (11th Cir. 2021)
(quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)). “The
jurisdiction of a court over the subject matter of a claim involves the court's
competency to consider a given type of case, and cannot be waived or otherwise
conferred upon the court by the parties.” Univ. of S. Ala. v. Am. Tobacco Co., 168
F.3d 405, 410 (11th Cir. 1999) (citation omitted). The Court has an independent duty
to assure its own subject matter jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500,
514 (2006); U.S. v. Hays, 515 U.S. 737, 742 (1995).
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Unpaid Minimum Wage
The Fair Labor Standards Act (“FLSA”) sets the federally required minimum
hourly wage. 29 U.S.C. § 206. Under Section 207 of the FLSA, overtime compensation
of “one and one-half times the [employee’s] regular rate” is required for each hour
worked in excess of forty hours per week. 29 U.S.C. § 207.
Further, The FLSA permits the court to award “in addition to any judgment
awarded to the plaintiff or plaintiffs, [ ] a reasonable attorney’s fee to be paid by the
defendant, and costs of the action.” 29 U.S.C. § 216(b).
III. ANALYSIS
Mr. Tang moves to dismiss Count II of the Amended Complaint with prejudice
because the Court no longer has subject matter jurisdiction. ECF No. 184. He says
the Court no longer had jurisdiction because Mr. Tang fully paid Mr. Hoang for the
minimum wage violations pled in Count II. Id. Mr. Hoang did not respond.
Mr. Tang cites various cases, including Gathagan v. Rag Ship/Hollywood, Inc.,
to support his Motion. No. 04-80520-CIV, 2005 WL 6504414 (S.D. Fla. Feb. 10, 2005).
In that case, the parties settled, the defendant paid the plaintiff, and the parties
“agreed to work out an attorneys’ fees arrangement.” Id. at *1. The plaintiff filed a
Notice of Settlement and Motion to be Declared the Prevailing Party. Id.
Subsequently, the defendant moved to dismiss for lack of subject matter jurisdiction
because full payment was tendered to the plaintiff, which mooted the action. Id. The
court held “Defendant’s tender of Plaintiff’s maximum recoverable damages has
rendered her case moot, and the motion to dismiss with prejudice is granted.” Id. at
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*2.
However, I find Gathagan distinguishable from the case at bar. Notably, the
parties agreed to work out attorney fees after a settlement had occurred in Gathagan.
In contrast, Mr. Hoang makes no mention of attorney fees in his Motion. Additionally,
Mr. Tang argues, “[T]he settlement of a plaintiff’s claim moots an action,” but Mr.
Hoang and Mr. Tang did not settle. ECF No. 184 at 2 (citation omitted). Rather, Judge
Leibowitz found against Mr. Tang at summary judgment for Count II and the parties
are awaiting entry of final judgment.
The FLSA expressly permits the Court to assess attorney fees against a
defendant in addition to any judgment. 29 U.S.C. § 216. Once final judgment is
entered, Mr. Hoang can seek attorney fees. Generally, a party must move for attorney
fees within sixty (60) days of final judgment. S.D. Fla. Loc. R. 7.3(a)(1). As a result,
the attorney fee issue remains open. Therefore, I find that the Court continues to
have subject matter jurisdiction over Mr. Tang on Count II to assess attorney fees.
REPORT AND RECOMMENDATION
Accordingly, this Court RECOMMENDS that the District Court DENY the
Motion.
NOTICE OF RIGHT TO OBJECT
A party shall serve and file written objections, if any, to this Report and
Recommendation with the Honorable David Leibowitz, United States District Court
Judge for the Southern District of Florida, within FOURTEEN (14) DAYS of being
served with a copy of this Report and Recommendation. Failure to timely file
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objections 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).
If counsel do not intend to file objections, they shall file a notice
advising the District Court within FIVE DAYS of this Report and
Recommendation.
DONE and SUBMITTED in Chambers at West Palm Beach, Palm Beach
County, in the Southern District of Florida, this 4th day of September 2026.
__________________________________
BRUCE E. REINHART
UNITED STATES MAGISTRATE JUDGE
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