Vinson et al v. Critter Control Inc. et al

Filing 21

Order denying 20 request for dismissal filed by Critter Control Inc., Jonas Vinson, David Higdon as set out. Signed by Judge Kristi K. DuBose on 10/15/2012. (cmj)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JONAS VINSON and DAVID HIGDON,

)
)
Plaintiffs,
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vs.
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CRITTER CONTROL, INC.; CRITTER
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CONTROL OF THE GULF COAST, LLC; )
CRITTER CONTROL OF JACKSON, MS. )
LLC; and CRITTER CONTROL OF
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SOUTH LOUISIANA, LLC,
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Defendants.
)

CIVIL ACTION NO. 11-0714-KD-N

ORDER
This action is before the Court on the joint stipulation of partial dismissal wherein the
plaintiffs Jonas Vinson and David Higdon and defendant Critter Control, Inc., request that the
Court dismiss with prejudice the above-styled cause against Critter Control, Inc. with each party
to bear their own attorney’s fees, costs and expenses. (Doc. 20)1 Upon consideration, and for the
reasons set forth herein, the request for dismissal is DENIED at this time.
Plaintiffs bring four claims for relief: Claim One for “FLSA/Wage and Hour” pursuant
to the Fair Labor Standards Act, Claim Two for “Retaliation” for complaints regarding the
defendants’ employment practices, Claim Three for “Breach of Contract”, and Claim Four for
“Fraud”. (Doc. 1). Thus, at least one claim is governed by the Fair Labor Standards Act. In this
circuit, the “FLSA provisions are mandatory” and “the ‘provisions are not subject to negotiation

1

Rule 41 of the Federal Rules of Civil Procedure governs dismissals of actions and Rule 41(a)
governs voluntary dismissals by the plaintiff. The Court construes the request as brought
pursuant to Rule 41(a)(2) because Rule 41(a)(1) does not apply. The stipulation has not been
signed by all parties who have appeared and the notice of dismissal was filed after defendants
had served their answers. See Fed. R. Civ. P. 41(a)(1)(A)(i) & (ii). Under Rule 41(a)(2), “an
action may be dismissed at the plaintiff's request only by court order, on terms that the court
considers proper.” Fed. R. Civ. P. 41(a)(2).

or bargaining between employer and employee.’” Silva v. Miller, 307 Fed.Appx. 349, 351 (11th
Cir. 2009) (quoting Lynn's Food Stores, Inc. v. U.S. ex rel. U.S. Dept. of Labor, 679 F.2d 1350,
1352 (11th Cir.1982)). Thus, “[o]nly two ways exist for the settlement or compromise of an
employee FLSA claim: one is where an employee accepts payment supervised by the Secretary
of Labor, [ ] the other is pursuant to ‘a stipulated judgment entered by a court which has
determined that a settlement proposed by an employer and employees, in a suit brought by the
employees under the FLSA, is a fair and reasonable resolution of a bona fide dispute over FLSA
provisions.’” Silva, 307 Fed. Appx. at 351 (quoting Lynn’s Food Stores, Inc., 679 F 2d at 1354).
Plaintiffs did not inform the Court as to why they stipulate to the dismissal of defendant
Critter Control, Inc. Therefore, the Court is without sufficient information to ascertain whether
there has been a settlement or compromise of their FLSA claim against defendant Critter
Control, Inc. or whether the stipulation is based on other grounds. Accordingly, the request to
dismiss defendant Critter Control, Inc. cannot be granted at this time.
DONE and ORDERED this 15th day of October, 2012.

s / Kristi K DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE