The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DAVID MARTINEZ, RIVERA
RAFAEL and ROJAS JUAN,
Plaintiffs,
v. Case No: 6:21-cv-794-GAP-EJK
DDS DELIVERY SERVICES, LLC
Defendant.
ORDER
This matter comes before the Court on Plaintiffs’ Second Amended Motion
for Entry of Default Judgment (“Motion”). Doc. 15. On referral, Magistrate Judge
Embry J. Kidd issued a Report and Recommendation (“Report”) recommending
that the Motion be granted in part and denied in part. Doc. 16. Plaintiffs filed an
Objection to the Report. Doc. 18. Upon de novo review of the above, the Report
will be adopted.
I. Background
Plaintiffs allege that they performed work for Defendant DDS Delivery
Services, LLC (“DDS”) but did not receive the proper minimum wage or overtime
compensation. Doc. 1. They filed suit under the Fair Labor Standards Act of 1938
and the Florida Constitution, seeking unpaid wages, liquidated damages, and
reasonable attorneys’ fees and costs. Id. ¶ 11.
DDS never answered Plaintiffs’ properly served complaint. Doc. 16. So, on
July 15, 2021, the Clerk entered default against DDS. Doc. 10. Plaintiffs then filed a
Motion for Default Judgment (Doc. 13), an Amended Motion for Default
Judgment (Doc. 14), and a Second Amended Motion for Default Judgment. Doc.
15. The Court referred the matter to United States Magistrate Judge Embry J. Kidd,
who recommended that the Motion be granted in part and denied in part. Doc. 16.
Plaintiffs object to a sliver of Judge Kidd’s Report—namely, Judge Kidd’s
conclusion that Plaintiffs are not entitled to relief under the Florida Constitution
because Plaintiffs did not allege that they provided Defendant with pre-suit notice
of their claims. See Doc. 18 at 2-3. This objection raises a deceptively simple
question: is pre-suit notice required to vindicate minimum wage claims under
Article 10, Section 24, of the Florida Constitution? As discussed below, the Court
concludes that the answer is yes.
II. Legal Standard
In resolving objections to the recommendation of a magistrate judge, the
district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.1 De novo review requires
1 Where a litigant does not make specific objections to a magistrate judge’s factual
findings, those findings are reviewed for clear error. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th
independent consideration of factual issues based on the record. Jeffrey S. by Ernest
S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 513 (11th Cir. 1990). After conducting a
careful and complete review of the findings and recommendations, the district
judge “may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” Fed. R.
Civ. P. 72(b)(3).
III. Analysis
A. Article 10, Section 24, of the Florida Constitution and the Florida
Minimum Wage Act
Article 10, Section 24, of the Florida Constitution provides that “[e]mployers
shall pay [e]mployees [w]ages no less than the [m]inimum [w]age for all hours
worked in Florida.” Fla. Const. art. X, § 24(c). And “[p]ersons aggrieved by a
violation of this amendment may bring a civil action in a court of competent
jurisdiction against an [e]mployer or person violating this amendment.” Fla.
Const. art. X, § 24(e).
Although Section 24 is self-executing, see Fla. Const. art. X, § 24(f)
(“Implementing legislation is not required in order to enforce this amendment.”),
“[t]he state legislature may by statute . . . adopt any measures appropriate for the
implementation” of the rights contained therein. Fla. Const. art. X, § 24(f).
Cir. 1993).
The legislature took up that invitation. See Fla. Stat. § 448.110. It adopted the
Florida Minimum Wage Act (“FMWA”) to “provide measures appropriate for the
implementation of [Section] 24.” § 448.110(2). And it declared that the FMWA
“constitute[s] the exclusive remedy under state law for violations of [Section] 24.”
§ 448.110(10); see also § 448.110(6)(a) (“Any person aggrieved by a violation of this
section may bring a civil action in a court of competent jurisdiction against an
employer violating this section . . . .”).
As is pertinent here, the FMWA includes a requirement otherwise absent
from Section 24: the provision requires written pre-suit notice. See § 448.110(6)(a)-
(b). “The notice 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.” § 448.110(6)(a). And after it is given, the employer has fifteen
days “to pay the total amount of unpaid wages or otherwise resolve the claim to
the satisfaction of the person aggrieved”—a period during which the statute of
limitations is tolled. § 448.110(6)(b).
Plaintiffs’ objection rests on whether this pre-suit notice requirement is
constitutional. The Court concludes that it is.
B. The Overarching Constitutional Standard
The Florida Supreme Court has said that “the Legislature may provide
additional laws addressing a self-executing constitutional scheme” so long as
those laws “supplement, protect, or further the availability of the constitutionally
conferred right.” Browning v. Fla. Hometown Democracy, Inc., PAC, 29 So. 3d 1053,
1064 (Fla. 2010) (citations omitted). Stated alternatively, “the Legislature may not
modify the right in such a fashion that it alters or frustrates the intent of the
framers and the people.” Id.
C. Federal Case Law Addressing the Issue
The Florida Supreme Court has yet to address whether the pre-suit notice
requirement in the FMWA strays beyond permissible bounds. But federal courts
have weighed in on the issue. See, e.g., Smith v. Heritage Health Care Ctr., No.
4:17cv293, 2017 WL 10841212, at *3 (N.D. Fla. Aug. 2, 2017) (delimiting those
“factions” that have “emerged” in the dispute surrounding the “constitutionality
of section 448.110(6)(a)’s pre-suit notice requirement”).
Some have held the pre-suit notice requirement unconstitutional because it
“add[s] a requirement that must be fulfilled before an aggrieved party may
exercise a right previously granted by the Constitution.” Throw v. Republic Enter.
Sys., Inc., No. 8:06-cv-724, 2006 WL 1823783, at *1-2 (M.D. Fla. June 30, 2006); see,
e.g., Moore v. AIA Direct, Inc., 8:15-cv-1885, 2016 WL 320139, at *3 (M.D. Fla. Jan. 26,
2016) (intimating that an “exception to the notice requirement” exists for claims
brought directly under Section 24 (referencing Throw, 2006 WL 1823783, at *1-2)).
C.f. Bates v. Smuggler’s Enters., Inc., No. 2:10-cv-136, 2010 WL 3293347, at *1-4 (M.D.
Fla. Aug. 19, 2010) (“The cause of action created by the Florida Constitution does
not contain the notice requirements of the Florida statute, and such requirements
. . . impermissibly modify the [constitutional] right in such a fashion that it alters
and frustrates the intent of the framers and the people to provide a cause of action
without the detailed pre-suit notice.”).
Others have concluded that the pre-suit notice requirement is constitutional
because Section 24 “authorize[s] the legislature” to craft implementing legislation,
and the pre-suit notice requirement “protects the right of the worker to full
compensation” while “encourag[ing] prompt resolution of wage disputes short of
litigation.” Resnick v. Oppenheimer & Co. Inc., No. 07-80609-CIV, 2008 WL 113665, at
*2-3 (S.D. Fla. Jan. 8, 2008); see, e.g., Aquino v. BT’s on the River, LLC, No. 20-20090-
Civ, 2020 WL 7356372, at *4 (S.D. Fla. Dec. 15, 2020); Smith, 2017 WL 10841212, at
*2-4; Nichols v. Lab’y Corp. of Am., No. 2:13-cv-848, 2014 WL 820656, at *3-5 (M.D.
Fla. Mar. 3, 2014); Garcia-Celestino v. Ruiz Harveseting, Inc., No. 2:10-cv-542, 2013
WL 3816730, at *15-17 (M.D. Fla. July 22, 2013).2
2 Others have declined to exercise supplemental jurisdiction, reasoning that the issue is
best left for state courts. See, e.g., Oster v. Lucky Rest. Mgmt., LLC, No. 8:16-cv-2352, 2016 WL
With respect to this divergence of opinion, the Court sides with those cases
that find the pre-suit notice provision to be a permissible (i.e., constitutional)
requirement that does not frustrate the intent of Section 24.3 That section expressly
contemplates the prospect of implementing legislation. See Fla. Const. art. X, §
24(f); see generally Anagnos v. Nelsen Residence, Inc., 721 F. App’x 901, 903-04 (11th
Cir. 2018) (non-precedential) (noting that, “[b]ased on th[e] authority” conferred in
Section 24, the Florida Legislature enacted the FMWA (citation omitted)). And the
FMWA’s pre-suit notice requirement neither curtails a plaintiff’s ability to
vindicate his or her constitutional rights, see Fla. Hosp. Waterman, Inc. v. Buster, 984
So. 2d 478, 492-93 (Fla. 2008), nor restricts those rights to certain groups. See
Sparkman v. State ex rel. Scott, 58 So. 2d 431, 432 (Fla. 1952).
Instead, it supplies a reasonable procedural framework for vindicating one’s
constitutional rights — a framework that “provides employers and employees
with a method to quickly resolve disputes without resorting to the filing of a
lawsuit” and “without sacrificing judicial economy.” Nichols, 2014 WL 820656, at
6893972, at *2-5 (M.D. Fla. Nov. 23, 2016).
3 Many courts in the Southern District of Florida that have considered the issue, if not
most, have adopted this position. See Aquino, 2020 WL 7356372, at *4 (noting that a “wealth” of
courts in the Southern and Middle districts have concluded that the “pre-suit notice requirement
is . . . constitutional”); Smith, 2017 WL 10841212, at *3 n.4 (collecting cases from across the state).
As has Judge Walker in the Northern District. See Smith, 2017 WL 10841212, at *3-4. This Court
follows their lead.
*4. This cuts to the public policy underpinning Section 24, see id. (referencing Fla.
Const. art. X, § 24(a)), which expresses a purpose that serves “working
Floridians,” their “employers,” and “taxpayer[s].” Fla. Const. art. X, § 24(a).
“This Court is obligated to ‘construe a statute in such a way as to render it
constitutional if there is any reasonable basis for doing so.’” Nichols, 2014 WL
820656, at *4 (quoting Aldana v. Holub, 381 So. 2d 231, 237–38 (Fla. 1980)). So
although Plaintiffs brought their claims under the Florida Constitution and not the
FMWA, their claims “must be viewed through the lens of the FMWA.”4 Li v. Roger
Holler Chevrolet Co., No. 6:19-cv-1249, 2021 WL 4935673, at *2 (M.D. Fla. May 5,
2021) (citing Nichols, 2014 WL 820656, at *4). “Allowing a cause of action to
proceed under [Section 24] without meeting the notice requirement renders
Section 448.110(10) and the FMWA meaningless.” Garcia-Celestino, 2013 WL
3816730, at *17.
4 In their Motion, Plaintiffs assert that “prior to filing this lawsuit, Plaintiffs sent
Defendant a demand letter on January 6, 2021 putting Defendant on notice of Plaintiffs’ claims.”
Doc. 18. But there is no analogous allegation in Plaintiffs’ complaint, and because Plaintiffs have
not attached the “demand letter,” the Court cannot determine whether such complies with the
requirements of the FMWA.
IV. Conclusion
Plaintiffs’ objection (Doc. 18) is OVERRULED, and Judge Kidd’s Report
(Doc. 16) is ADOPTED and CONFIRMED. Plaintiffs Second Amended Motion
for Default Judgment (Doc. 15) is thus GRANTED IN PART as set forth in Judge
Kidd’s Report. Doc. 16.
The Clerk is directed to enter final judgment for Plaintiffs and against
Defendant as follows:
Plaintiff Martinez $7,437.68
Plaintiff Rojas $3,311.68
Plaintiff Rivera $5,466.18
Attorneys’ Fees and Costs $2,402.00
‘Total = ——~—~™—s«S 28,6175
DONE and ORDERED in Chambers, Orlando, Florida on January 24, 2022.
Sy SRE RSET
Copies furnished to:
Counsel of Record
Unrepresented Party
“Note, Judge Kidd’s Report calculated the total sum as $18,607.54. Judge Kidd’s
recommendation is modified to include the correct addition.