Hoang v. Doral 888 LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 23-CV-80479-ROSENBERG/REINHART

THANH M. HOANG,

Plaintiff,

v.

DORAL 888 LLC and BOCA 888 LLC,

both d/b/a ZAKA MODERN JAPANESE

CUISINE, and KENNY TANG,

Defendants.

________________________________/

OMNIBUS ORDER DENYING ALL PENDING MOTIONS AND

REFERRING THIS MATTER FOR A SETTLEMENT CONFERENCE

This matter is before the Court on three pending motions: Defendant Kenny Tang’s

Motion for Judgment on the Pleadings at docket entry 52, Kenny Tang’s Motion for Summary

Judgment at docket entry 57, and Plaintiff’s Motion for Partial Summary Judgment at docket

entry 53. Each motion has been fully briefed. For the reasons set forth below, each motion is

denied.

I. BACKGROUND

This is a case about overtime pay. Plaintiff is a hibachi cook. DE 30 at 2. He alleges that

he was not compensated for overtime while working for the Defendants and has brought this case

under the Fair Labor Standards Act. Id. at 5. In response, the Defendants contend that Plaintiff

is not entitled to overtime pay because, inter alia, Plaintiff is a creative professional that, as a

matter of law, is exempt from the Fair Labor Standards Act.

The parties have filed cross motions, with Plaintiff contending that he is entitled to

judgment as a matter of because he is clearly not a creative professional exempt from the Fair

Labor Standards Act, and the Defendants contending that Plaintiff clearly is a creative

professional. Succinctly stated, the Court denies the parties’ cross motions because the

characterization of Plaintiff’s employment—whether or not he is a creative professional—is a

question for the finder of fact,1 not this Court.

II. LEGAL STANDARD

Summary judgment is appropriate 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 existence of a factual dispute is not by itself sufficient grounds to defeat a motion

for summary judgment; rather, “the requirement is that there be no genuine issue of material

fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is genuine if “a

reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of

Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing Anderson, 477 U.S.

at 247-48). A fact is material if “it would affect the outcome of the suit under the governing

law.” Id. (citing Anderson, 477 U.S. at 247-48).

In deciding a summary judgment motion, the Court views the facts in the light most

favorable to the non-moving party and draws all reasonable inferences in that party’s favor.

See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The Court does not weigh conflicting

evidence. See Skop v. Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007). Thus, upon discovering a

genuine dispute of material fact, the Court must deny summary judgment. See id.

1 Plaintiff has demanded a trial by jury. DE 30 at 8.

2

III. ANALYSIS

The parties have filed two motions for summary judgment and one motion for judgment

on the pleadings. Below, the Court analyzes each motion separately.

A. The Defendant’s Motion for Partial Summary Judgment

Defendant Kenny Tang seeks summary judgment on three points. First, Mr. Tang argues

that, as a matter of law, Plaintiff is exempt from the Fair Labor Standards Act (FLSA) as a

creative professional. Second, Mr. Tang argues that the record evidence establishes that he is not

an employer, as that term is defined in the FLSA, and, as a result, he cannot be found liable in

this case. Third, Mr. Tang argues that summary judgment should be entered in his favor for

Plaintiff’s fourth count, a claim for retaliation. The Court addresses each of Mr. Tang’s three

issues in turn.

1. Whether Plaintiff is Exempt from the FLSA as a Creative Professional

Mr. Tang argues in his motion that Plaintiff is a creative professional under the FLSA as

a matter of law. In Part (A)(1)(a), the Court summarizes the law on creative professionals. The

Court then explains three reasons why it declines to decide at summary judgment whether Mr.

Tang is a creative professional. In Part (A)(1)(b), the Court determines that Mr. Tang failed to

include facts on this issue in his Statement of Material Facts as required by Local Rule 56.1. In

Part (A)(1)(c), the Court finds that the only fact in Mr. Tang’s Statement that could arguably

relate to the creative professional exemption—that Plaintiff prepared different types of food on

a large grill—does not satisfy Mr. Tang’s threshold burden as the movant to show that Plaintiff

is a creative professional. Third and finally, in Part (A)(1)(d), the Court holds that if Mr. Tang

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had sufficient evidence to satisfy his burden as the movant, Plaintiff has provided sufficient

counterevidence to create a genuine factual dispute on this material issue.

a. Creative Professionals Under the FLSA

Under the FLSA, employers must pay time and a half for any hours an employee works

over forty during the workweek. 29 U.S.C. § 207(a)(1). The FLSA also requires employers to

pay employees at least a statutory minimum wage for hours worked. 29 U.S.C. § 206. Section

213 of the FLSA carves out exemptions to the maximum hour and minimum wage requirements

in Sections 206 and 207. See 29 U.S.C. § 213. One such exemption is for bona fide professionals.

See 29 C.F.R. § 541.30.

To be a bona fide professional, an employee must (i) earn $684 or more per week on a

salary or fee basis; and (ii) have a primary duty “[r]equiring knowledge of an advanced type” or

“[r]equiring invention, imagination, originality or talent in a recognized field of artistic or

creative endeavor.” 29 C.F.R. § 541.300(a). “Salary basis” means that “the employee regularly

receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting

all or part of the employee’s compensation, which amount is not subject to reduction because of

variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.602. “Fee basis”

means “the employee is paid an agreed sum for a single job regardless of the time required for

its completion.” 29 C.F.R. § 541.605.

One subset of bona fide professionals is the category of creative professionals. See 29

C.F.R. § 541.302. To qualify as a creative professional, “an employee’s primary duty must be

the performance of work requiring invention, imagination, originality or talent in a recognized

field of artistic or creative endeavor as opposed to routine mental, manual, mechanical or physical

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work.” 29 C.F.R. § 541.302(a). Department of Labor (DOL) guidelines note that chefs may

qualify as a creative professional to the extent that their primary duty is a creative endeavor like

“regularly creating or designing unique dishes and menu items.” Defining and Delimiting the

Exemptions for Executive, Administrative, Professional, Outside Sales and Computer

Employees, 69 Fed. Reg. 22,122, 22,154 (Apr. 23, 2004). However, the DOL acknowledges the

“wide variation in duties of chefs,” and specifies that “[t]he Department intends that the creative

professional exemption extend only to truly ‘original’ chefs, such as those who work at five-star

or gourmet establishments, whose primary duty requires ‘invention, imagination, originality, or

talent.’” Id.

Courts generally have been unwilling to hold that chefs fall under the creative

professional exemption as a matter of law on summary judgment. See Karropoulos v. Soup du

Jour, Ltd., 128 F. Supp. 3d 518, 536-37 (E.D.N.Y. 2015) (deferring to DOL guidelines and

denying summary judgment on the basis that, while the plaintiff helped create new menus for the

restaurant, there were still genuine issues of material fact as to whether this was his primary duty

and whether the restaurant was gourmet); Seok Hwi Cha v. YP’s Kani, Inc., 317 F. Supp. 3d

1215, 1219 (N.D. Ga. 2018) (holding that customizing dishes for customers, offering menu

suggestions, and assisting in creating the menus did not demonstrate that sushi chef’s primary

duty required invention, imagination, originality or talent as a matter of law); Eren v. Gulluoglu

LLC, No. 15-CV-4083, 2017 WL 4351516, at *3 (E.D.N.Y. Sept. 30, 2017) (denying summary

judgment because although defendants adequately demonstrated the experience and talent of

plaintiffs, they did not show how that talent was applied to an innovative and imaginative task);

see also Stih v. Rockaway Farmers Mkt., Inc., No. 22-CV-3228, 2023 WL 2760492, slip op. at

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*4 (E.D.N.Y. Apr. 3, 2023) (finding that plaintiff’s pleadings stating that his duties involved

cooking did not sufficiently demonstrate that he fit within the creative professional exemption

for defendants to prevail on their motion to dismiss). The Court now turns to its application of

the law to Mr. Tang’s motion.

b. Mr. Tang Failed to Follow the Summary Judgment Procedures in Local Rule 56.1

Because Mr. Tang makes his argument in a motion for summary judgment, he is required,

pursuant to Local Rule 56.1, to provide citations to record evidence in support of his contention

in a separate document—a statement of material facts. The purpose of Local Rule 56.1 is to

provide the requisite notice to the party opponent of all the facts the movant believes are

undisputed. If a fact is not listed in the statement of material facts, the party opponent is not

clearly informed of the need to dispute the fact.

On the issue of whether Plaintiff’s duties require the kind of “invention, imagination,

originality or talent” that would qualify him as a creative professional,2 Mr. Tang did not include

any supportive facts in his statement of material facts. On this procedural basis alone—Mr.

Tang’s failure to include facts and citations to record evidence in his statement of material facts—

the Court denies Mr. Tang’s requested relief for the following reasons.

Mr. Tang’s failure to include his facts and citations in a statement of material facts is not

harmless error. By failing to include his record evidence in his statement of facts, Plaintiff was

deprived of the opportunity to file counterevidence that clearly disputed Mr. Tang’s record

2 Mr. Tang provided two facts related to the salary and fee requirements of the FLSA creative professional

exemption. See DE 56 at ¶ 3-4. However, to succeed on his motion, Mr. Tang must sufficiently produce evidence

supporting all requirements of the creative professional exemption.

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evidence. And without citations to evidence from both parties on concrete, clearly defined facts,

the Court is unable to accurately determine whether the parties have a dispute of material fact.

Local Rule 56.1 informed Mr. Tang of the potential consequences of failing to comply

with that Rule. Local Rule 56.1(c) reads: “If a party files and serves any Statement of Material

Facts that does not comply with this rule, then the Court may strike the Statement . . . [or] grant

relief to the opposing party for any prejudice arising from a non-compliant statement.” Mr. Tang

was informed early in this case that Rule 56.1 would be strictly enforced. DE 21 at 12-13. The

Court exercises its discretion to grant relief to the non-movant, Plaintiff, in the form of a ruling

that Mr. Tang has provided no record evidence in support of the proposition that Plaintiff’s duties

were artistic or creative enough to qualify as a creative professional under the Fair Labor

Standards Act. Lacking any such evidence, Mr. Tang’s motion is denied on this basis alone.

c. Mr. Tang Fails to Meet his Threshold Burden as a Movant

In the alternative, even if the Court found that Mr. Tang did include a relevant fact in his

Statement of Material Facts as Local Rule 56.1 requires, Mr. Tang falls short of his threshold

burden of persuasion.3 When seeking summary judgment, “[t]he movant bears the responsibility

for demonstrating the basis for the summary judgment motion.” Allen v. Bd. of Pub. Educ. for

Bibb Cnty., 495 F.3d 1306, 1313 (11th Cir. 2007). The movant has “the initial burden of showing

the court, by reference to materials on file, that there are no genuine issues of material fact that

should be decided at trial.” Id. As mentioned above, “[a]n issue is genuine if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Id.

3 Because Mr. Tang falls short on the “creative” prong of the creative professional exemption, the Court need not

reach the salary and fee requirements of the FLSA, although the Court briefly addresses this issue in the context of

Plaintiff’s cross-motion for partial summary judgment.

7

There is one fact in Mr. Tang’s Statement of Material Facts that arguably could relate to

whether Plaintiff’s primary duties, as a chef, were imaginative or innovative: “[a]s a hibachi chef,

Plaintiff ‘prepare[d] distinct types of grilled food (which are served to customers who sit at tables

situated around the grill) typically on a large metal flat grill.’” DE 56 at ¶ 2. The Court is

unpersuaded that this single fact entitles Mr. Tang to relief. Stated differently, even if Plaintiff

failed to file a response to Mr. Tang’s motion, and this fact was deemed admitted by Plaintiff,

the Court would not conclude that Plaintiff qualified for the creative professional exemption as

a matter of law. Therefore, Mr. Tang has not met his initial burden as the movant on this issue,

and his motion is denied on this basis alone.

d. Even if Defendant Met His Threshold Burden, Plaintiff’s Counterevidence Creates a

Genuine Issue of Material Fact

Also in the alternative, even if Mr. Tang had met his initial burden of persuasion, Plaintiff

provided counterevidence sufficient to demonstrate that there remains a genuine issue of material

fact. Once the movant has met its burden, “the non-moving party must then ‘go beyond the

pleadings,’ . . . [and] designate specific facts showing that there is a genuine issue for trial.”

Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th Cir. 1995) (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986)). “[I]f a reasonable fact finder evaluating the evidence could

draw more than one inference from the facts, and if that inference introduces a genuine issue of

material fact, then the court should not grant the summary judgment motion.” Id.

In his response, Plaintiff disputes that the foods were “distinct,” citing to Plaintiff’s own

affidavit to support the contention that the foods were ordered directly from a menu. DE 59 at ¶

2. Plaintiff also cites evidence for the proposition that Plaintiff “neither regularly nor ever created

or designed any dishes or menu items, let alone unique ones.” Id. at ¶ 29. Second, Plaintiff cites

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evidence that he “did not use his intellect or creativity in performing his job; rather, in preparing

the hibachi meal for the customers, his primary duty involved grilling the hibachi food, using

routine mental, manual, mechanical, and physical work, with tools.” Id. at ¶ 30.

These facts demonstrate that there remains a genuine issue of material fact as to whether

Plaintiff is a creative professional. First, the DOL guidelines emphasize the importance of tasks

like the creation and design of unique menu items in determining whether a chef is a creative

professional. 69 Fed. Reg. 22,122, 22,154 (Apr. 23, 2004); see also Falken v. Glynn Cnty., 197

F.3d 1341, 1350 (11th Cir. 1999) (“We must defer to the DOL’s interpretation of its FLSA

regulations unless the interpretation is ‘plainly erroneous or inconsistent with the regulation.’”

(citing Auer v. Robbins, 519 U.S. 452, 461 (1997)). Courts have denied summary judgment on

the basis that a chef only assisted in creating a restaurant’s menu. See, e.g., Seok Hwi Cha v. YP’s

Kani, Inc., 317 F. Supp. 3d 1215, 1219 (N.D. Ga. 2018). Here, Mr. Tang has provided no

evidence that Plaintiff contributed to the menu at all, and Plaintiff has provided evidence that he

did not create any menu items. Second, Mr. Tang’s evidence does not refer at all to Plaintiff’s

primary duty, even though a chef’s primary duty is what governs inclusion in the creative

professional exemption. Instead, only Plaintiff provides evidence of his primary duty, and in

doing so supports the proposition that his primary duty was more like routine manual work than

creativity. Third, neither party addresses another key point in the DOL regulations: whether the

restaurant was gourmet.

Therefore, taking these facts in the light most favorable to Plaintiff as the non-movant,

the Court finds that Mr. Tang has failed to demonstrate, as a matter of law, that Plaintiff was

exempt from the FLSA as a creative professional. There remains a genuine issue of material fact

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as to whether Plaintiff’s duties required the kind of innovation or imagination necessary to satisfy

the creative professional exemption.

2. Whether Mr. Tang was Plaintiff’s Employer

Under the FLSA, an employee may seek damages not only from an employer company,

but also from an employing individual, provided the individual is someone who “asserts control

over the conditions of the employee’s employment.” Josendis v. Wall to Wall Residence Repairs,

Inc., 662 F.3d 1292, 1298 (11th Cir. 2011). Mr. Tang argues that the record evidence in this case

clearly establishes that he did not assert control over Plaintiff or otherwise act as Plaintiff’s

employer; thus, Mr. Tang argues that he is exempt from liability.

Mr. Tang falls short here for the same reason as above: he failed to provide citations to

record evidence supporting his contention in a statement of material facts under Local Rule 56.1.

On this issue—whether Mr. Tang was Plaintiff’s employer—Mr. Tang has provided no facts or

citations to evidence in his statement of material facts.4 The Court therefore denies Mr. Tang’s

requested relief for the same reasons in Part (A)(1)(b) above.

In the alternative, the Court denies Mr. Tang’s requested relief on another ground. In his

Motion for Summary Judgment, Mr. Tang cites to “Plaintiff’s Verified Motion for Temporary or

Permanent Injunction” which he filed in a state court case. Assuming arguendo that Mr. Tang

cites to this document for the proposition that he was not Plaintiff’s employer, and also assuming

that this document qualifies as evidence the Court may consider at summary judgment under

Rule 56(c), the document does not fully support Mr. Tang’s proposition.

4 The facts that Mr. Tang does reference in his Statement of Facts stand for the proposition that he was Plaintiff’s

employer. See, e.g., DE 56 at 2-3 (“Under the terms of the Partnership Agreement, [Mr. Tang was] to operate the

Zaka Boca and Zaka Doral restaurants.”).

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By way of example, the document does not declare that Mr. Tang did not operate the

restaurant business at issue. Instead, the document declares that Mr. Tang did not “successfully

manage” the restaurant, which the Court views as being materially different from whether Mr.

Tang managed—without qualification—the restaurant. Stated differently, the document does

not establish that Mr. Tang did not function as Plaintiff’s employer, but even if it did, there is

record evidence for the opposite proposition.

A declaration authored by Mr. Tang at docket entry 13-1 states: “As part of my Managing

Partner role . . . I am responsible for operating Zaka Boca” and “On February 15, 2023,5 I started

in my operating role of Zaka Boca” and “I handle the day-to-day operations of Zaka Boca, which

includes: (a) the hiring and firing of employees and staff; (b) payroll . . . .” Because there is

record evidence in support of the proposition that Mr. Tang was Plaintiff’s employer, only the

trier of fact can decide whether Mr. Tang was Plaintiff’s employer. Mr. Tang’s request for the

Court to adjudicate this issue at summary judgment is denied.

3. Plaintiff’s FLSA Retaliation Claim, Count IV

Mr. Tang argues that Plaintiff’s fourth claim, a retaliation claim, fails as a matter of law.

Plaintiff’s Count IV alleges that Mr. Tang filed a state-court lawsuit against Plaintiff in retaliation

for Plaintiff asserting his rights under the FLSA. Mr. Tang argues that he is entitled to summary

judgment on Count IV for three reasons.

First, Mr. Tang argues that at the time the state-court suit was filed, Plaintiff was no longer

an employee and, therefore, was no longer covered by the FLSA. For authority, Mr. Tang cites

to a single district court order that conducted no analysis on the subject and did not rest its

5 These dates include Plaintiff’s undisputed dates of employment. E.g., DE 1 at 2-3; DE 56 at 2-3.

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ultimate decision on the issue; instead, the cited district court order merely contains one quotation

with tenuous support for Mr. Tang’s position. See Phillips v. M.I. Quality Lawn Maint., Inc., No.

10-20698, 2011 WL 13100468, slip op. at *7 (S.D. Fla. Mar. 30, 2011) (“First, [plaintiff] was no

longer working for the Defendants.”). In contrast, Plaintiff cites to a large amount of authority

for the proposition that former employees retain their protection under the FLSA. See DE 75 at

17 (collecting cases). Broadly summarized, courts reason that there is nothing in the FLSA to

indicate that Congress intended to penalize dissatisfied employees who voluntarily leave an

employer. See, e.g., Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 306

(5th Cir. 1972) (former employees who assisted in an FLSA investigation should be protected

under the informer’s privilege, because “there is no ground for affording any less protection to

defendant’s former employees than to its present employees”). The Court is unpersuaded that

Mr. Tang is entitled to summary judgment on Count IV on this basis.

Second, Mr. Tang argues that he is immune from Plaintiff’s (federal) FLSA retaliation

claim under Florida’s litigation privilege. That state-law privilege protects litigants from suits

premised on acts occurring during the course of judicial proceedings. E.g., Jackson v. BellSouth

Telecomm., 372 F.3d 1250, 1274 (11th Cir. 2004). However, while it may be true that the Florida

litigation privilege can confer immunity to claims brought under Florida law, Mr. Tang cites to

no case where a court dismissed a federal cause of action based upon Florida’s litigation

privilege. In contrast, Plaintiff does cite to authority—cases that stand for the common-sense

proposition that a state-law privilege cannot confer immunity to federal causes of action. E.g.,

Suchite v. Kleppin, 819 F. Supp. 2d 1284, 1292 (S.D. Fla. 2011) (declining to apply Florida’s

litigation privilege to an FLSA retaliation claim) (quoting Steffes v. Stepan Co., 144 F.3d 1070,

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1074 (7th Cir. 1998) (“A state absolute privilege purporting to confer immunity from suit cannot

defeat a federal cause of action.”)). Thus, Mr. Tang is not entitled to summary judgment on

Count IV on this basis.

Third and finally, Mr. Tang argues that he is entitled to summary judgment because his

state court case is “not groundless but based upon the facts and law.” DE 57 at 15. The Court is

unaware of a legal basis for it to adjudicate on summary judgment whether a state-court case has

merit, and Mr. Tang has provided none. In any event, Plaintiff responds with argument as to

why, in his opinion, the state-court case is groundless and without merit. DE 58 at 18-20. The

Court therefore concludes that, at a minimum, there is an open question as to whether the state

court case is groundless, and the Court is unpersuaded that it should grant Mr. Tang summary

judgment on Count IV on this basis.

The Court is concerned, however, about how Count IV can be submitted to a jury. More

specifically, the Court poses the following questions to the parties: How can a jury decide

whether the state-court case is groundless? Relatedly, upon what authority does Plaintiff suggest

that such a question is appropriate for a jury’s consideration? How would a jury be instructed to

determine whether a state-court case is groundless? And finally, should Count IV be dismissed,

severed, or stayed until such time as the state court case is adjudicated? The parties are

ORDERED to file supplemental briefing that addresses the Court’s questions by November 7,

2023. The supplemental briefing shall be no more than ten pages.

B. Plaintiff’s Cross-Motion for Partial Summary Judgment

Turning to Plaintiff’s cross-motion, Plaintiff’s Motion for Partial Summary Judgment is

premised upon the contention that (i) Plaintiff was not compensated for the final days of his

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employment and (ii) Plaintiff is therefore entitled to damages under the FLSA as a matter of law.

In his Response, Mr. Tang argues that Plaintiff, as a creative professional, is exempt from the

requirements of the FLSA. If Plaintiff was exempt, Mr. Tang argues, no Defendant can be liable

under the FLSA for the alleged failure to compensate Plaintiff for the final days of his

employment. Thus, if Mr. Tang raises a genuine issue of material fact as to whether Plaintiff

was a creative professional, that genuine issue means that Plaintiff’s motion for summary

judgment must be denied. Above, in Part (A)(1), the Court concluded that Mr. Tang failed to

meet his summary judgment burden (in the context of his own motion) to establish that, as a

matter of law, Plaintiff was a creative professional. The Court did not address the inverse

question of whether Plaintiff, as a matter of law, was not an exempt creative professional. The

Court does so now.

As discussed above in Part (A)(1)(a), for an employee to be a creative professional two

distinct requirements apply: the employee must be compensated on a salaried or fee basis and the

employee’s duties must involve invention, imagination, originality, or talent. Mr. Tang has filed

in the court record6 evidence relevant to both requirements—Plaintiff’s compensation and

Plaintiff’s duties. The Court discusses each category of evidence in turn.

As for Plaintiff’s compensation, Mr. Tang has provided evidence that Plaintiff was paid

over $684 per week on a salary or fee basis. More specifically, in Mr. Tang’s deposition he

testified that Plaintiff was paid $190.00 per shift. DE 56-7 at 53:18-24.7 Plaintiff also was

6 Pursuant to Rule 56(c)(3) of the Federal Rules of Civil Procedure, the Court possesses the discretion to consider

evidence in the record that no party had cited to in a statement of material facts or a response to a statement of

material facts. Here, the Court exercises its discretion to consider non-cited evidence when it analyzes Plaintiff’s

motion for partial summary judgment.

7 Plaintiff filed his own declaration in which he says the same. See DE 59-1 at ¶ 14.

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guaranteed six shifts a week, according to Mr. Tang. DE 56-7 at 54:8-12. Mr. Tang further

testified that Plaintiff did not have specific hours and did not clock in, sometimes completing

prep work the night before a shift. Id. at 55:3-8. Finally, Mr. Tang attests that Plaintiff would

arrive around 4:00 pm each day he had a shift but would leave any time between 8:00 pm and

9:30 pm. DE 13-1 at ¶ 13. Taking these facts in the light most favorable to Mr. Tang as the non-

movant, as the Court must, the Court concludes that there is at a minimum a genuine question of

material fact as to whether a chef paid on a per-shift basis, who did not clock in, who worked

variable hours, and whose compensation was unconnected to the number of hours worked was

compensated on a salaried or fee basis.

As for Plaintiff’s duties, Mr. Tang has provided evidence that Plaintiff’s duties required

invention, imagination, originality, or talent. More specifically, in his deposition Mr. Tang

testified that hibachi requires a “show.” DE 56-7 at 20:19-21:1. He also attested that he

“consider[s] hibachi chefs to be entertainers.” DE 13-1 at ¶ 9. Additionally, Mr. Tang has

provided evidence that stands for the proposition that hibachi chefs are “creative and

entertaining,” and that “[n]ot only did [Plaintiff] prepare filet mignon, lobster tails and very high-

end cuisines, he’s [sic] also did tricks, made comedic jokes and interacted with customers.” DE

56-8 at ¶ 12. Finally, Plaintiff’s duties have been summarized by one observer as a “one man

show.” Id. Viewing this evidence in the light most favorable to Mr. Tang, as the non-movant,

this evidence creates a genuine issue of material fact as to whether Mr. Tang’s duties involved

invention, imagination, originality, or talent.

For all of the foregoing reasons, Mr. Tang has created a genuine issue of material fact as

to whether Plaintiff qualified as a creative professional exempt from the FLSA. As a result, the

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Court is unpersuaded that Mr. Tang is not exempt from the FLSA’s requirements as a matter of

law and the Court denies Plaintiff’s motion for partial summary judgment.8

C. Defendant Tang’s Motion for Judgment on the Pleadings

Defendant Tang’s Motion for Judgment on the Pleadings seeks adjudication of two issues

that the Court has already discussed: (i) whether Plaintiff is a creative professional and (ii)

whether Plaintiff’s Count IV should be dismissed pursuant to Florida’s litigation privilege. A

Court may only grant a motion for judgment on the pleadings, however, when the non-moving

party could “prove no set of facts which would allow it to prevail.” Palmer & Cay, Inc. v. Marsh

& McLennan Cos., Inc., 404 F.3d 1297, 1303 (11th Cir. 2005). As the Court has already

discussed, Plaintiff has record evidence in support of the proposition that (i) he is not a creative

professional and (ii) that Count IV should not be dismissed pursuant to Florida’s litigation

privilege. Thus, Plaintiff does have a set of facts which would allow him to prevail, should a

jury decide to credit his evidence. Accordingly, Mr. Tang’s Motion for Judgment on the

Pleadings is denied.

IV. CONCLUSION

For the foregoing reasons, Defendant Tang’s Motion for Judgment on the Pleadings [DE

52], Defendant Tang’s Motion for Summary Judgment [DE 57], and Plaintiff’s Motion for Partial

Summary Judgment [DE 53] are all DENIED. Additionally, this matter is hereby REFERRED

for a settlement conference before the Honorable Magistrate Judge Bruce E. Reinhart, to be

conducted no later than November 22, 2023. The parties are ORDERED to contact the

8 Because Mr. Tang’s evidence creates a genuine issue of material fact on the question of whether Plaintiff was a

creative professional, that dispute of material fact applies to all of Plaintiff’s requested relief, including the relief

that Plaintiff seeks against other Defendants besides Mr. Tang. Accordingly, the Court need not discuss the response

filed by Defendant Boca 888 LLC and Defendant Doral 888 LLC.

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Chambers of Judge Reinhart by Friday, October 27, 2023, at noon. The parties’ briefing on

Count IV is due by November 7, 2023, as more fully set forth in Part I(A)(3). This matter

remains on the Court’s four-week trial calendar beginning on December 4, 2023.

DONE and ORDERED in Chambers, West Palm Beach, Florida, this 25th day of

October, 2023.

Toh x ( Her

ROBIN L. ROSENBERG ~ fi}

UNITED STATES DISTRICT J UDGE

Copies furnished to: Counsel of Record

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