Wolff v. Royal American Management, Inc.
ORDER denying 36 Motion to Dismiss; granting 41 Motion to Approve Settlement Agreement; plaintiff is authorized to submit a petition for fees and costs by 5/3/12; denying as moot 43 Motion to Waive jury trial; granting 49 Motion to Supplement. The court will enter judgment on the merits of plaintiffs claim in the amount of $3,600. Signed by Magistrate Judge Katherine P. Nelson on 4/18/2012. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ROYAL AMERICAN MANAGEMENT,
CIVIL ACTION NO. 11-0351-N
This matter is before the court on numerous motions: defendant’s Second Motion to
Dismiss Complaint With Prejudice as Moot (doc. 36), together with plaintiff’s Response (doc
38) and defendant’s Reply (doc. 39); Plaintiff’s Motion to Approve Settlement Agreement (doc.
41), defendant’s Response (doc. 50) and plaintiff’s Reply (doc. 51)1; plaintiff’s Motion to Waive
Jury Trial (doc. 43); and plaintiff’s Motion to Supplement Record (doc. 49) along with
defendant’s Response (doc. 50). The parties have consented to the exercise of jurisdiction by the
undersigned Magistrate Judge (doc. 10) and the case has been referred to the undersigned for all
purposes (doc. 11).
The motions relate to the effect to be given a purported settlement between plaintiff and
A hearing on the pending matters2 was held on March 19, 2012: attorneys Banks
Ladd and Henry Seawell appeared on behalf of the plaintiff and attorney David Byrne was
present for defendant.
Plaintiff filed a Motion for Leave to Reply (doc. 51) to which the Reply is attached as
an exhibit. Defendant has filed a Response (doc. 52) to the Motion for Leave.
The hearing notice (doc. 40) provided that the hearing would “cover all issues raised in
connection with defendant’s Motion to Dismiss.”
Plaintiff brought this action under the Fair Labor Standards Act (“FLSA”) seeking
payment for overtime that she alleged she worked in her position with defendant and for
liquidated damages. The complaint also raises a state-law breach of contract claim and a request
for declaratory relief, and her FLSA claim includes a request for an award of reasonable
attorneys’ fees and costs pursuant to 29 U.S.C. §216(b). Defendant has denied the allegations.
In her initial disclosures and discovery responses, plaintiff identified the period in which
she claims she worked “off the clock” overtime, and calculated that defendant failed to pay her
$1800 in overtime wages. Liquidated damages under the FLSA in the same amount bring her
total itemized damages claim to $3600.
On July 28, 2011, a panel of the Court of Appeals for the Eleventh Circuit entered an
order in Dionne v. Floormasters Enterprises, Inc. (“Dionne I”), 647 F.3d 1109 (11th Cir. 2011),
which appeared to allow a defendant in an FLSA case to bypass the requirements of
Fed.R.Civ.P. 68 governing offers of judgment and, by the simple expedient of making a tender of
twice the claimed wages, render the FLSA action moot at any stage in the litigation whether or
not the offer was accepted, avoiding an award of attorneys’ fees under the statute. On rehearing,
the panel issued a corrected order (“Dionne II”), 667 F.3d 1199 (11th Cir. 2012) to make clear
that its ruling was based on the unusual fact that plaintiff had conceded that “the claim for
overtime should be dismissed as moot.”
On December 1, 2011, defendants tendered $3600 to plaintiff through her attorney and
filed Defendant’s Tender of Full Payment and Motion to Dismiss Complaint with Prejudice (doc.
18) on the basis of Dionne I.3 On February 6, 2012, following the entry of Dionne II, the court
denied defendant’s Motion. Doc. 35. Four days later, defendant filed its second Motion to
Dismiss Complaint With Prejudice as Moot (doc. 36). Defendant’s second motion is premised
on a purported in-person settlement between the plaintiff and agents of the defendant.
Despite the attention focused by counsel for both parties on the details of the settlement
process,4 the basic facts are as follows: after plaintiff received a 1099 form reflecting a payment
of $3600.5 Plaintiff called defendant to determine what 1099 was for. Plaintiff was informed of
the prior tender for the first time and indicated that she was interested in settling her case. The
parties arranged for plaintiff to come to defendant’s offices where she signed a general release
and took the $3600 check.
Defendant claims that the payment and release constitute an accord and satisfaction,
rendering the action moot and, as a result, plaintiff is not entitled to an award of fees since there
is no judgment in the case which would render plaintiff the prevailing party. Plaintiff counters
with authority that any private settlement of an FLSA claim must be approved by the court for
reasonableness, see e.g. Lynn’s Food Stores, Inc. v. U.S. ex rel. U.S. Dep’t of Labor, 679 F.2d
1350, 1352 (11th Cir. 1982). Defendant thereafter alternatively argues that, should the court
follow such authority, it should find the settlement to be reasonable and either a) find the
After discussions concerning a settlement to include attorneys’ fees, defendant made an
offer of $5,000.00, which plaintiff’s counsel rejected without notifying his client.
Defendant notes repeatedly that plaintiff’s counsel failed to notify his client of the two
prior offers it had made to settle the entire case for $3600 and argues that this lapse should
preclude any award of fees. Plaintiff’s counsel notes that defendant’s counsel may have been
involved in their client’s direct contact with plaintiff and the plaintiff’s uncounseled settlement
Defendant asserts this document was sent in the ordinary course of business despite the
fact that the original tender check was never cashed but was returned to defendant’s counsel.
settlement to be reasonable without payment of attorneys fees or b) should limit any fee award to
no more than an additional $3600.6
Arguing in the alternative,7 plaintiff has filed a Motion (doc. 41) seeking approval of the
settlement on the merits and requests leave to request an award of fees and costs.8
Any employer who violates the provisions of section 206 or section 207 of this
title shall be liable to the employee or employees affected in the amount of their
unpaid minimum wages, or their unpaid overtime compensation, as the case may
be, and in an additional equal amount as liquidated damages . . . . The court in
such action shall, in addition to any judgment awarded to the plaintiff or
plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs
of the action.
29 U.S.C. § 216(b).
In Lynn’s Food Stores, Inc. v. U.S. ex rel. Dep’t of Labor, 679 F.2d 1350 (11th Cir.
1982), the Eleventh Circuit Court of Appeals affirmed the dismissal of a declaratory judgment
action brought by an employer. The employer, Lynn’s Food Stores, sought a declaration9 that a
settlement entered by a group of employees precluded the employer’s liability under the FLSA.
Defendant argues at length that plaintiff’s counsel has racked up unnecessary fees. It
picks the $3600 figure as reasonable apparently because a) it equals what plaintiff claims as
damages and/or b) because it equals the offer defendant made to plaintiff for attorneys’ fees after
the filing of the instant motions.
Plaintiff had previously argued in opposition to the Motion to Dismiss that the
settlement should be rejected on various grounds, including the existence of a parallel state-law
breach of contract claim and a declaratory judgment claim as well as the possibility that plaintiff
might also be able to prove an additional FLSA damages for shaving hours. In seeking approval
of the settlement, plaintiff has dropped these prior arguments against approval.
Plaintiff’s counsel has submitted detailed time records as an exhibit at the hearing, but
nonetheless claims that it has not yet presented the issue of the amount of such relief.
The Court of Appeals recharacterized the action as seeking judicial approval of the
The district court held that the settlements violated the FLSA and thus were of no effect. The
Court of Appeals agreed.
The Court held that the FLSA sought to protect employees from “inequalities in
bargaining power between employers and employees,” and thus Congress made its provisions
mandatory. Id. at 1352, citing Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1945). “FLSA
rights cannot be abridged by contract or otherwise waived because this would ‘nullify the
purposes' of the statute and thwart the legislative policies it was designed to effectuate.” Id.
quoting Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, ---, 101 S.Ct. 1437, 1445
There are only two ways in which back wage claims arising under the FLSA can
be settled or compromised by employees. First, under section 216(c) the Secretary
of Labor is authorized to supervise payment to employees of unpaid wages owed
to them. An employee who accepts such a payment supervised by the Secretary
thereby waives his right to bring suit for both the unpaid wages and for liquidated
damages, provided the employer pays in full the back wages.
The only other route for compromise of FLSA claims is provided in the context of
suits brought directly by employees against their employer under section 216(b)
to recover back wages for FLSA violations. When employees bring a private
action for back wages under the FLSA, and present to the district court a proposed
settlement, the district court may enter a stipulated judgment after scrutinizing the
settlement for fairness.
Lynn’s Food Stores, at 1352-53; see id. at n.8.
As the Eleventh Circuit found in Lynn’s Food Stores,
It is clear that the agreements for which Lynn's seeks judicial approval fall into
neither recognized category for settlement of FLSA claims. The agreements
cannot be approved under section 216(c) because they were not negotiated or
supervised by the Department of Labor; and because the agreements were not
entered as a stipulated judgment in an action brought against Lynn's by its
employees, the agreements cannot be approved under existing case law.
Id. at 1353 and n.9. In that case, there were no judicial proceedings pending at the time of the
‘settlement’. The Court held that
[s]ettlements may be permissible in the context of a suit brought by employees
under the FLSA for back wages because initiation of the action by the employees
provides some assurance of an adversarial context. The employees are likely to
be represented by an attorney who can protect their rights under the statute. Thus,
when the parties submit a settlement to the court for approval, the settlement is
more likely to reflect a reasonable compromise of disputed issues than a mere
waiver of statutory rights brought about by an employer’s overreaching. If a
settlement in an employee FLSA suit does reflect a reasonable compromise over
issues, such as FLSA coverage of computation of back wages, that are actually in
dispute[,] we allow the district court to approve the settlement in order to promote
the policy of encouraging settlement of litigation.
Id. at 1354.
The manner in which the instant settlement was reached does not cleanly fit into this
category of settlements, as defendant reached the settlement without the participation of
plaintiff’s counsel. However, in light of the Motion to Approve Settlement filed by plaintiff, the
court finds that it is within its discretion to accept this settlement as a valid one if it is found to be
With regard to the matter of attorney’s fees and costs, such matters are generally
submitted to the court after judgment is entered on the settlement on the merits. See e.g. Saizan
v. Delta Concrete Products Co., Inc., 448 F.3d 795 (5th Cir. 2006). On occasion, a settlement
may include an agreed provision for the award of fees, see e.g. Davis v. J.P. Morgan Chase &
Co., 2011 WL 4793835 (W.D.N.Y. 2011), but that is not required.
To the extent that the settlement agreement purports to preclude any award for attorney’s
fees, the court finds that it would not be reasonable. See e.g. Silva v. Miller, 307 Fed. Appx.
349 (11th Cir. 2009). However, in the context provided herein, such does not appear to be the
intention of the parties: for example, after plaintiff accepted the $3600.00 check, counsel for
plaintiff and defendant continued to negotiate over a reasonable attorney’s fee to be paid by
As plaintiff’s wage claim was stated to total $1800 and as the settlement includes that full
amount as well as an equal amount for liquidated damages, the court finds that the settlement is
Accordingly, it is hereby ORDERED that defendant’s Motion to Dismiss is
DENIED, that plaintiff’s Motion to Approve Settlement Agreement is GRANTED; that plaintiff
is authorized to submit a petition for fees and costs no later than May 3, 201211; that plaintiff’s
Motion to Waive Jury Trial is DENIED as Moot; and that plaintiff’s Motion to Supplement
Record is GRANTED. The court will enter judgment on the merits of plaintiff’s claim in the
amount of $3,600.
DONE this the 18th day of April, 2012.
/s/ Katherine P. Nelson
UNITED STATES MAGISTRATE JUDGE
Defendant has elsewhere indicated that it did not want to leave the fee amount openended while settling the merits of the case. Regardless, that is the procedural posture presented
by the pending motions.
The parties should endeavor to reach an agreement on the amount of attorneys fees.
Toward that end, the court provides the following as guidance. The court has broad discretion in
awarding fees. Gary v. Health Care Services, Inc., 744 F.Supp. 277 (M.D.Ga.), aff’d 940 F.2d
673 (11th Cir. 1990). Defendant claims that plaintiff’s counsel will seek attorneys fees in excess
of $100,000; while the amount of the lost wages does not pose a limit on the amount of the fee, it
may be a consideration, see Azam-Qureshi v. The Colony Hotel, Inc., 540 F.Supp.2d 1293
(S.D.Fla. 2008), and an attorney seeking to hold the opposing party responsible for a fee which
would be 25 to 30 times the recovery would bear a heavy burden to prove reasonableness of such
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