Eusebia Cardenas v. Aragon Towers Condominium Association, Inc. , 451 F. App'x 898 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11250 FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
D. C. Docket No. 1:10-cv-22722-PCH JAN 20, 2012
JOHN LEY
CLERK
EUSEBIA CARDENAS,
FRANCISCO A. MORENO,
Plaintiffs-Appellants,
versus
ARAGON TOWERS CONDOMINIUM
ASSOCIATION INC.,
RAUL INTRIAGO,
JOHN GONZALEZ,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 20, 2012)
Before DUBINA, Chief Judge, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Appellants Eusebia Cardenas and Francisco Moreno appeal the district
court’s grant of summary judgment to Appellees Aragon Towers Condominium
Association, Inc., Raul Intriago, and John Gonzalez, in Appellants’ action for
unpaid minimum wage and overtime under the Fair Labor Standards Act, 29
U.S.C. § 201, et seq. (FLSA). Appellants assert the district court (1) abused its
discretion in denying their oral motion to amend their Complaint to add a claim for
recovery under 29 U.S.C. § 206(f), and (2) erred in concluding the amendment
would be futile because Appellants would not prevail under § 206(f).
I. BACKGROUND
Appellants were employed by Appellees from approximately December 1,
2006, until December 31, 2009. Appellants’ primary function was performing
cleaning duties in the common areas of the condominium complex. They
periodically performed other duties, such as changing light bulbs or opening doors
for residents after hours. Appellants were not employed by the Appellees to clean
individual residences in the complex. Appellants lived in a one-bedroom
condominium on the premises, and did not pay rent or a mortgage for this
condominium.
On July 27, 2010, Appellants filed a Complaint against Appellees, alleging
Appellees violated the FLSA by not paying “minimum and overtime wages for
2
work performed in excess of 40 hours weekly.” In their Complaint, Appellants
alleged that Appellees’ business activities involve those to which the FLSA
applies. First, they alleged the business affected interstate commerce, resulting in
individual coverage under the FLSA. See 29 U.S.C. § 207(a)(1); Thorne v. All
Restoration Servs., Inc., 448 F.3d 1264, 1266 (11th Cir. 2006). Second,
Appellants alleged that Appellees grossed over $500,000 annually for the relevant
time period, resulting in enterprise coverage under the FLSA. See 29 U.S.C.
§ 203(s); Polycarpe v. E&S Landscaping Serv., Inc., 616 F.3d 1217, 1229 (11th
Cir. 2010).
Both parties filed a motion for summary judgment. In both Appellants’
partial motion for summary judgment and response to Appellees’ motion for
summary judgment, Appellants no longer asserted that Appellees met the
individual or enterprise coverage standards of the FLSA.1 Rather, for the first time
during summary judgment proceedings, Appellants asserted they were entitled to
FLSA coverage under 29 U.S.C. § 206(f), which provides FLSA coverage for
1
Appellants conceded in the summary judgment hearing that they were no longer
relying on the individual or enterprise coverage arguments.
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employees in domestic service work.2 Appellants had not asserted they were
covered by § 206(f) in their Complaint.
The district court granted summary judgment in favor of Appellees. The
district court concluded (1) the Complaint failed to allege a claim for recovery
under 29 U.S.C. § 206(f), and the time to amend the Complaint had passed as the
case was going to trial in one week; and (2) further amendment would be futile as
Appellants did not qualify as employees in domestic service under § 206(f).
II. DISCUSSION
A. Motion to Amend
Appellants did not allege a violation of § 206(f) until their partial summary
judgment motion and response to Appellees’ summary judgment motion. As an
initial matter, “[a] plaintiff may not amend her complaint through argument in a
brief opposing summary judgment.” Gilmour v. Gates, McDonald & Co., 382
F.3d 1312, 1315 (11th Cir. 2004). Rather, “[a]t the summary judgment stage, the
proper procedure for plaintiffs to assert a new claim is to amend the complaint in
accordance with Fed. R. Civ. P. 15(a).” Id.2
In changing their coverage theory to § 206(f), Appellants no longer had to show that
Appellees’ business affected interstate commerce or that the business grossed over $500,000 a
year, as Congress specifically found the employment of persons in domestic service in
households affects commerce. See 29 C.F.R. § 552.99.
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Here, however, Appellants did not move to amend their Complaint to
include a violation of § 206(f) until the summary judgment hearing. Although
leave to amend shall be freely given, Fed. R. Civ. P. 15(a)(2), the oral motion to
amend was only one week before trial, and the district court concluded the
amendment would be futile. Accordingly, the district court did not abuse its
discretion3 in denying Appellants’ motion to amend.
B. Coverage under 29 U.S.C. § 206(f)
“Any employee who in any workweek is employed in domestic service in a
household” or in “one or more households . . . for more than 8 hours in the
aggregate” is covered by the FLSA. 29 U.S.C. § 206(f). “[T]he term domestic
service employment refers to services of a household nature performed by an
employee in or about a private home . . . of the person by whom he or she is
employed.” 29 C.F.R. § 552.3.
Appellants do not qualify for domestic service employment coverage under
the FLSA. There is no dispute that Appellants were not employed by Appellees to
work in households or a private home, which is a requirement for employment in
domestic service. Appellants were employed by a condominium association that
3
We review a district court’s denial of a motion for leave to amend a complaint for
abuse of discretion. Covenant Christian Ministries, Inc. v. City of Marietta, Ga., 654 F.3d 1231,
1239 (11th Cir. 2011).
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represents the condominium owners and collects fees from them to clean and
maintain the common areas of the complex. They were not employed by the
individual unit owners. Thus, the district court did not err4 in granting summary
judgment on this basis.
III. CONCLUSION
We affirm the district court’s denial of Appellants’ oral motion to amend
and grant of summary judgment to Appellees.5
AFFIRMED.
4
“We review the district court’s grant of summary judgment de novo.” Covenant
Christian Ministries, 654 F.3d at 1239.
5
Because we are affirming the district court, we do not address Appellants’ argument
that Appellees, upon reversal, should not be permitted to argue cost credits to offset damages.
6