                                                           [DO NOT PUBLISH]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.

                                              3
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.

                                                4
       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).

                                                5
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.

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