Williams v. EMTB, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

KOMAE WILLIAMS, et al.,

Plaintiffs,

v. Case No. 8:24-cv-01603-AAS

EMTB, LLC, et al.,

Defendants.

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ORDER

Defendants EMTB, LLC (EMTB) and Michael Tomkovich (collectively,

the defendants) move to dismiss the plaintiffs’ complaint or, in the alternative,

to stay the action pending mediation and to strike the plaintiff's collective

action allegations and demand for a jury trial. (Doc. 17). Plaintiffs Komae

Williams, Samantha Blocker, Kayla McQueen, Norma Ferreira, Ashlyn

Metcalf, Dawn Evans, Yvelly McNally, Dayuanna Monteagudo, Alex

Christian, Chayenne Desouza, Autumn Gullick, Taniya Dozier, and Jamie

Burgos (collectively, the plaintiffs) oppose the defendants’ motion. (Doc. 18).

I. BACKGROUND

On July 3, 2024, the plaintiffs sued the defendants under the Fair Labor

Standards Act (FLSA), “on behalf of all persons who were or are employed by

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[the d]efendants as exotic dancers/entertainers at any time during the three

(3) years prior to the commencement of this action.” (Doc. 1, ¶ 43). The

plaintiffs also demand a jury trial. (Id., p. 18).

The plaintiffs allege they executed performer agreements as a condition

of performing at EMTB’s facility.1 (Id., ¶ 33). The performer agreements

mandate adherence to a dispute resolution process, which requires aggrieved

parties to first bring the matter to the attention of their manager or EMBT’s

attorney. (Doc. 17-1, pp. 8–9). EMBT may elect to require the aggrieved person

“to mediate [the] dispute.” (Id., p. 9). After the aggrieved person completes step

two of the grievance process, including mediation, the matter may proceed to

litigation or arbitration. (Id.). The performer agreements also contain a jury

trial and collective action waiver. (Id., pp. 10–11).

The defendants move the court to dismiss or stay this action pending

mediation under the performer agreements’ terms and to dismiss or strike the

plaintiffs’ collective action allegations and jury trial demand. (Doc. 17). The

1 “In ruling upon a motion to dismiss, the district court may consider an extrinsic

document if it is (1) central to the plaintiffs’ claim, and (2) its authenticity is not

challenged.” SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th

Cir. 2010). The performer agreements are central to the plaintiffs’ claims and their

authenticity is not in dispute. Thus, the court may consider the performer agreements

without converting the defendants’ motion to dismiss into a motion for summary

judgment.

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plaintiffs oppose the defendants’ motion and request that the court deny

enforcement of the grievance procedure outlined in the performer agreements.

(Doc. 18). In the alternative, the plaintiffs request that the court stay this

action during the completion of any conditions precedent instead of dismissal.

(Id., pp. 8–9).

II. ANALYSIS

“Courts favor non-binding mediation and will enforce agreements

requiring non-binding mediation as a condition precedent to arbitration or

litigation.” Arbea v. Itemp, Inc., No. 24-80376-CIV, 2024 WL 5078273, at *1

(S.D. Fla. May 20, 2024). Indeed, under Florida law, contractual clauses

requiring parties to mediate or participate in arbitration are presumptively

valid. See, e.g., Smith v. Davison Design & Dev., Inc., No. 3:13-CV-1194-J-

32JBT, 2014 WL 12610156, at *3 (M.D. Fla. Feb. 28, 2014), report and

recommendation adopted, No. 3:13-CV-1194-J-32JBT, 2014 WL 12617003

(M.D. Fla. Mar. 24, 2014) (citing John v. Goodman Ltd. P’Ship v. THF Constr.,

Inc., 321 F.3d 1094, 1096 (11th Cir. 2003)). To invalidate a clause requiring

arbitration or mediation, a plaintiff bears the burden of alleging facts which, if

taken as true, would allow an inference that an agreement is both procedurally

and substantively unconscionable. Golden v. Mobil Oil Corp., 882 F.2d 490,

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493 (11th Cir. 1989); Curbelo v. Autonation Ben. Co., No. 14-CIV-62736, 2015

WL 667655, at *3 (S.D. Fla. Feb. 17, 2015); Murphy v. Courtesy Ford LLC, 944

So.2d 1131, 1134 (Fla. 3d DCA 2006).

“Procedural unconscionability exists when the individualized

circumstances surrounding the transaction reveal that there was no real and

voluntary meeting of the minds of the contracting parties.” Golden, 882 F.2d

at 493 (internal quotations omitted). Substantive unconscionability requires a

showing that the terms of the arbitration agreement are “unreasonable and

unfair,” and focuses on whether the arbitration provision is “so outrageously

unfair as to shock the judicial conscience.” Curbelo, No. 14-CV-62736, 2015 WL

667655, at *3 (internal quotations omitted). The court finds no basis to

conclude that the performer agreements requiring the parties to participate in

pre-suit mediation are procedurally or substantively unconscionable. Thus, the

performer agreements are enforceable.

In addition, the FLSA does not prohibit employees from waiving their

rights to collective action or their right to a jury trial. See Lazo v. W. Coast

Trucking Corp., No. 1:17-CV-21165-UU, 2017 WL 9324346, at *9-10 (S.D. Fla.

June 12, 2017); see also Carter v. Countrywide Credit Indus., Inc., 362 F.3d

294, 298 (5th Cir. 2004) (enforcing collective action waiver of FLSA claims);

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Winiarski v. Brown & Brown, Inc., No. 5:07-cv-409-Oc-10GRJ, 2008 WL

1930484 (M.D. Fla. 2008) (“[t]he mere fact that an employee signs an

employment agreement containing a jury trial waiver in a ‘take it or leave it’

situation does not make the waiver unenforceable or unconscionable.”).

III. CONCLUSION

Because the performer agreements are enforceable, the plaintiffs cannot

litigate their FLSA claims here without first participating in the pre-suit

grievance process, including mediation. However, the court will stay—rather

than dismiss—this action.

Accordingly, the defendants’ motion to dismiss or strike (Doc. 17) is

GRANTED in part and DENIED in part. This action is STAYED pending

the parties participating in the pre-suit grievance process, including

mediation, as required by the performer agreements. The parties are

DIRECTED to file a notice advising the court of the selected mediator and the

mediation date by March 7, 2025. Mediation must be completed by June 6,

2025. Due to the stay, all other deadlines in the CMSO (Doc. 26) are

VACATED.

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ORDERED in Tampa, Florida, on February 20, 2025.

Aranda. Arno Sasone_

AMANDA ARNOLD SANSONE

United States Magistrate Judge