Vinson et al v. Critter Control Inc. et al
Order re: 25 MOTION for Settlement filed by Jonas Vinson, David Higdon. This action is dismissed without prejudice as to defendant Critter Control, Inc. The joint motion to approve settlement is DENIED with leave to re-file by 1/18/13 to include information as set out. Signed by Judge Kristi K. DuBose on 12/28/2012. (cmj)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
JONAS VINSON and DAVID HIGDON,
CRITTER CONTROL, INC.; CRITTER
CIVIL ACTION NO. 11-0714-KD-N
CRITTER CONTROL OF JACKSON, MS. )
LLC; and CRITTER CONTROL OF
SOUTH LOUISIANA, LLC,
This action is before the Court on the parties’ joint motion to approve settlement of
Plaintiff David Higdon’s case against all defendants and to dismiss defendant Critter Control,
Inc. (Doc. 25)
I. Joint motion to dismiss Critter Control, Inc.
In the joint motion, the parties state that Critter Control, Inc. provided Higdon with
evidence that it was not his employer for purposes of the Fair Labor Standards Act. They now
agree that Critter Control, Inc., should be dismissed from this action. The docket indicates that
all remaining parties signed the joint motion.1 Therefore, the Court shall construe the motion as
a joint stipulation for dismissal pursuant to Rule 41(a)(1(A)(ii) of the Federal Rules of Civil
Procedure. Accordingly, this action is DISMISSED without prejudice2 as to defendant Critter
Plaintiff Jonas Vinson’s claims against all defendants were dismissed without prejudice for lack
of subject matter jurisdiction. (Doc. 24)
Rule 41 provides that “[u]nless the notice or stipulation states otherwise, the dismissal is
without prejudice.” Fed. R. Civ. P. Rule 41(a)(1)(B)
Control, Inc. However, this dismissal shall not be construed as dismissing Higdon’s claims
against the remaining defendants.
II. Joint motion to approve settlement of Higdon’s claims under the Fair Labor Standards
Act 29 U.S.C. §§ 201, et seq
Plaintiff Higdon brings two claims for relief under the Fair Labor Standards Act: Claim
One for “FLSA/Wage and Hour” and Claim Two for “Retaliation” for complaints about the
defendants’ employment practices. (Doc. 1)3 The parties now move the Court to approve the
settlement of Higdon’s claims.
In this circuit, the “FLSA provisions are mandatory” and “the ‘provisions are not subject
to negotiation 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). The latter is applicable here. Thus, before entry of a stipulated judgment, the
Court must determine whether there is a “bona fide dispute over FLSA provisions” and then
determine whether the settlement agreement proposed is a fair and reasonable resolution of that
dispute. Id. Moreover, the FLSA “contemplates that ‘the wronged employee should receive his
full wages plus the penalty without incurring any expense for legal fees or costs.’” Id. Therefore,
The complaint indicates that only Vinson brought state law claims for breach of contract and
fraud. (Doc.1) (“Plaintiff Vinson also asserts state law claims for breach of contract and fraud.”)
in any case where a plaintiff agrees to accept less than his full FLSA wages and liquidated
damages, he has compromised his claim within the meaning of Lynn's Food Stores.” Vergara v.
Delicias Bakery & Restaurant, Inc., 2012 WL 2191299, *1 (M.D. Fla. May 31, 2012).
The parties state that Higdon sought “$10.00 an hour for all meal time hours that he was
denied” during the “period of less than four months” that he was employed by defendants and
that defendants denied Higdon’s allegations as to the unpaid wages. (Doc. 25, p. 2) The parties
explain that after “arms-length negotiations the parties reached an agreement in which both sides
compromised their positions” and that the “agreement calls for a “total settlement of $3,000.00”.
(Id.) The parties also state that “[t]he settlement for which all parties seek this Court’s approval
reimburses Plaintiff for essentially all hours that he alleged he was not paid and liquidated
Review of the complaint and the parties’ statements in the joint motion indicates that
there is a “bona fide dispute” over FLSA provisions. See Lynn's Food Stores, 679 F.2d at 1353
(“If a settlement in an employee FLSA suit ... reflect[s] a reasonable compromise over issues,
such as FLSA coverage or 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.”). However, the complaint and these statements do not assist the Court in
determining the amount of unpaid wages actually claimed by Higdon and consequently, whether
the compromise, i.e., the settlement for a total of $3,000.00, was fair and reasonable.
Also, under the FLSA there are certain provisions that are generally disallowed in a
settlement agreement disposing of FLSA claims. For example, confidentiality clauses and
pervasive release provisions generally render a FLSA settlement agreement unfair and
unreasonable. See Robertson v. Ther-Rx Corp., 2011 WL 1810193, *3 (M.D. Ala. May, 12,
2011) (striking the confidentiality clause); Moreno v. Regions Bank, 729 F. Supp. 2d 1346, 1348-
1349 (M.D. Fla. 2010) (denying approval of a pervasive release). Without review of the
settlement agreement as executed, the Court cannot ascertain whether its terms comply with the
FLSA and thus whether the settlement is a fair and reasonable resolution of the FLSA dispute.
As to attorney’s fees, the parties state that “[a]ttorney fees were paid as part of the
settlement” and that “plaintiff and plaintiff’s attorney agree that the attorneys’ fee paid in this
matter is fair and reasonable”. (Doc. 25) The FLSA requires that 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) Although plaintiff
and counsel agree that the attorney’s fees paid are reasonable, that does not exonerate the Court
from its duty to determine and allow a reasonable attorney’s fee. Silva, 307 Fed. Appx. at 352
(“FLSA requires judicial review of the reasonableness of counsel’s legal fees to assure both that
counsel is compensated adequately and that no conflict of interest taints the amount the wronged
employee recovers under a settlement agreement.”).
In that regard, because the parties have not provided the Court with any information as to
the attorney’s fees paid to plaintiff’s counsel, the Court is without sufficient information to
determine whether the attorney’s fee paid is a reasonable attorney’s fee. In FLSA actions, this
Court begins with the lodestar analysis and the plaintiff bears the burden to document and prove
the hours reasonably expended and the reasonable hourly rates. Norman v. Alorica, 2012 WL
5452196, *2 (S.D. Ala. Nov. 7, 2012). Accordingly, plaintiff shall provide the Court with
sufficient documentation that it may utilize the lodestar method and determine the
reasonableness of the attorney’s fees paid. See Padurjan v. Aventura Limousine & Transp.
Service, Inc., 441 Fed.Appx. 684, 686, (11th Cir. 2011) (“To calculate reasonable attorneys' fees,
courts are to consider the number of hours reasonably expended on the litigation, together with
the customary hourly rate for similar legal services. These amounts are multiplied together to
determine the so-called ‘lodestar.’” which may then be adjusted “as necessary in the particular
case.”) (citations omitted).
Accordingly, for the reasons set forth herein, the joint motion is DENIED with leave to
re-file on or before January 18, 2013, to include a copy of the written settlement agreement,
information about the amount claimed and sufficient documentation to support an allowance of a
reasonable attorney’s fee.4
DONE and ORDERED this 28th day of December, 2012.
s / Kristi K DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
The court recognizes that the additional work needed to approve the settlement is burdensome
in comparison to the amount involved in the settlement. However, the law requires the court to
micromanage FLSA settlements.
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