Miller v. Spence et al
Filing
118
Order re: 113 Joint MOTION to Approve Settlement Agreement. Court finds that the proposed payment to Plfs in the total amount of $260,326.54 is a fair & reasonable settlement as set out. Court also finds that the parties have not provided e nough information for this Court to determine the reasonableness of their proposed payment of attnys' fees & costs. Plfs are to file an amended motion or an affidavit on or before 5/17/2016 as set out. Signed by Senior Judge Callie V. S. Granade on 5/3/2016. (tot)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JESSICA MILLER, et al.,
Plaintiffs,
vs.
EDWIN J. SPENCE, et al.,
Defendants.
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Civil Action No. 14-0468-CG-B
ORDER
This matter is before the Court on the joint motion to approve
settlement filed by the three named Plaintiffs, all fifty-three1 Opt-In
Plaintiffs named therein and Defendants Edwin J. Spence, Edwin J. Spence,
Jr., Port II Seafood & Oyster Bar, Inc. (“Mikee’s”), Gulf Coast Steamer, Inc.
(“Steamer”), The Shrimp Basket, Inc., Spence Enterprises, Inc., and Shrimp
Basket of Orange Beach, Inc. (collectively referred to herein as “Defendants”).
(Doc. 113). The parties jointly agree and assert that they engaged in good
faith, arm’s-length negotiation of a bona fide dispute and have reached a
reasonable and fair resolution of Plaintiffs’ FLSA claims. (Doc. 113, p. 14).
For the reasons stated below, the Court finds that the proposed settlement is
a fair and reasonable settlement of a bona fide dispute under the FLSA.
However, the Court finds that the parties have not provided enough
1 Opt-In Plaintiff Cindy Yarborough (Doc. 92-3) was outside the three-year statute of
limitations and was dismissed from this action by joint stipulation of the parties.
(Docs. 114, 116, 117).
information for this fourt to determine the reasonableness of their proposed
payment of attorneys’ fees and costs. Accordingly, Plaintiff will be ordered to
file an amended motion or an affidavit providing sufficient documentation to
support and allowance of reasonable attorneys’ fees and costs.
I. FACTUAL BACKGROUND
The Plaintiffs brought this action pursuant to the Fair Labor
Standards Act, 29 U.S.C. § 201 et. seq. (“FLSA”) and the collective action
provision of the Act found at § 216(b), for equitable and declaratory relief and
to remedy alleged violations of the wage provisions of the FLSA by
Defendants. (Doc. 67). Defendants allegedly willfully deprived Plaintiffs of
their lawful wages. The named Plaintiffs worked as servers for the
Defendant restaurants and sought to recover unpaid compensation in the
form of unpaid wages and overtime owed to the Plaintiffs and all similarly
situated tipped servers by Defendants. Plaintiffs alleged that they were not
paid the federally mandated minimum wage due to a portion of their tips
being contributed to a tip pool that included non-tipped employees, such as
food expeditors. Plaintiffs further alleged that they performed non-tip
related and non-tip producing activities for Defendants for which they are
owed compensation and were not paid for all hours they worked. Plaintiffs
sought the difference between the Federal minimum wages and the reduced
tipped minimum wage in addition to liquidated damages and attorneys’ fees
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and costs. Defendants deny Plaintiffs’ allegations and further deny that
plaintiffs are entitled to unpaid wages and overtime. Specifically,
Defendants deny Plaintiffs were required to contribute to an invalid tip pool,
deny Plaintiffs were engaged in non-tip-related or non-tip producing duties
for which they were owed compensation, and denied that Plaintiffs worked
hours for which they were not paid.
Notice was sent to all current and former servers employed at Mikee’s,
Steamer, and Shrimp Basket restaurants in Orange Beach, Gulf Shores, and
Foley, Alabama, between November 19, 2011 and November 19, 2014. Fiftythree individuals filed consent to join forms and became Opt-In Plaintiffs.
II. STATEMENT OF THE LAW
The FLSA was enacted to protect employees from substandard wages
and excessive working hours; its provisions are mandatory and not subject to
bargaining between employers and employees. Lynn's Food Stores v. United
States Dept. of Labor, 679 F.2d 1350, 1352 (11th Cir. 1982). An employee's
claim for back wages under the FLSA may be compromised in only two ways:
(1) with payment in full of back wages, supervised by the Secretary of Labor,
with the employee giving up a right to sue for unpaid wages and liquidated
damages; or (2) by stipulated judgment entered by a court in an FLSA action
brought against the employer, entered after the court has “scrutiniz[ed] the
settlement for fairness.” Id. at 1352–53.
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The court may approve a settlement that presents a reasonable
compromise over issues that are actually in dispute with regard to pending
FLSA claims. Id. Additionally, the “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.” Silva v.
Miller, 307 Fed. App'x 349, 351 (11th Cir. 2009) (unpublished opinion) (citing
Lynn's Food Stores, 679 F.2d at 1352). Counsel for Plaintiff must disclose the
extent to which Plaintiff's FLSA claim has or will be compromised by the
deduction of attorneys' fees, costs or expenses pursuant to a contract between
a plaintiff and his counsel, or otherwise. See id. Furthermore, a court should
be mindful of the strong presumption in favor of finding a settlement fair.
Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977).
III. REVIEW OF THE PROPOSED SETTLEMENT
The Defendants provided each Plaintiff with records of their clock in
and clock out times, the days worked and the dates of food expeditor shifts.
Wage calculations were made based on those figures and additional time was
added for alleged under-reporting of food expeditor time and for time spent
working off the clock. The parties jointly agree and assert that they engaged
in good faith, arm’s-length negotiation of a bona fide dispute and have
reached a reasonable and fair resolution of Plaintiffs’ FLSA claims. (Doc. 113,
p. 14). The parties have agreed to the following settlement amounts:
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ABRAMS
ALFANAS
BARRETT ARNOLD
BIDDLE
BLACKWELL
BLACKWELL
BOBO
BOWER
BOYETTE
BOYINGTON
BROWN
CAGLE
CARAWAY
CATTANEO
COOPER
COX
DALRYMPLE
DOZIER
DUBE
DUNBAR
EMERSON
FERREIRA
FISHER
FRANKS
GARDNER
GILHEART
GROVER
HALL
HAMMONTREE
HARRIS
HOLT
HUBBARD
JONES
JORDAN THOMPSON
KNAPP
LONGO BEZZRA
MCABE
MILLER
MOSS
MURRAY
NELSON
NORMAN
NORWOOD
COURTNEY
OLGA
KRISTIE
JEREMY
CINDY
BREE
JAMACIA
JENNIFER
RICHARD
MATT
ROMANA
JACQUELINE
REGINA
PATRICIO
RAVEN
AMANDA
BRANDY
TABITHA
MICHELLEE
JULIA
MARCI
KAILA
AMBER
JAMES
TYRA
JOANNE
KRISTEN
SHANA
KELSEY
NEJLA
MICHELLE
TAWNEY
VICTORIA
KIMBERLY
JAMIE
DARLA
JOANNE
JESSICA
ASHTON
COLBY
VICTORIA
JULIA
REBEKA
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$ 10,061.33
$ 12,439.16
$
699.07
$ 1,641.86
$ 4,405.02
$ 1,800.00
$ 845.67
$ 4,834.09
$ 11,326.11
$ 5,220.88
$ 1,665.05
$ 7,934.89
$ 2,285.09
$ 3,180.21
$ 2,146.67
$ 10,511.11
$ 5,750.15
$ 6,472.43
$ 6,906.40
$ 3,740.71
$ 2,128.89
$
316.41
$
506.97
$ 8,804.39
$ 4,755.17
$ 3,538.61
$
391.59
$ 3,102.83
$ 1,303.06
$ 2,750.27
$
31.05
$
861.43
$ 3,966.63
$
226.74
$ 2,431.90
$ 6,531.92
$
760.60
$ 17,940.37
$ 2,861.49
$
964.65
$
197.49
$ 1,798.90
$ 6,175.69
PRINCE
RACE
RICH
SINGH
SOWER
STACY
STAPLETON
STRINGER
TOBIAS
VETTER
VOGEL
VOUCHOK
WILLIAMS
DANIELLE
AMBER
JESSICA
ANEGLINA
SONYA
RHODA
BRITTANY
MEGAN
CAMERON
LAURA
MARIE
MARYNA
CHRISTOPHER
$ 2,672.33
$ 3,865.15
$ 8,360.10
$ 6,200.61
$ 3,933.46
$ 5,341.70
$ 5,868.77
$
785.99
$ 1,733.53
$ 2,952.29
$ 14,991.67
$ 4,174.23
$ 8,233.76
Total: $ 245,326.54
Additionally, class representatives, Jessica Miller, Richard Boyette
and Rebecca Norwood are to receive incentive compensation of $5,000.00 each
for their participation in this action because they faced substantial risks by
participating in the lawsuit and incurred actual expenses and lost wages
during litigation. The proposed incentive payments to each named Plaintiff
did not diminish the amount any settlement class member would receive
under the formulas used to calculate individual settlement amounts. Thus,
the total amount to be received by Plaintiffs is $260,326.54.
The parties have further agreed that Defendant shall pay $130,000.00
in attorneys’ fees and costs. (Doc. 113, p. 15). The parties state that
attorneys’ fees were agreed upon separately and without regard to the
amount paid to Plaintiffs. (Doc. 113, p. 14). Counsel reports that the amount
for attorneys’ fees and costs was not discussed until after Defendants had
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agreed to pay Plaintiffs $260,326.54 as settlement for their individual claims.
(Doc. 113, p. 15).
The Court finds that the proposed payment of back wages, liquidated
damages and class representative incentive payments are in fact a fair and
reasonable settlement of a bona fide dispute under the FLSA. Lynn's Food
Stores, 679 F.2d at 1354. Accordingly, the Court proceeds to an analysis of
the proposed payment of attorneys’ fees.
IV. REVIEW OF ATTORNEYS’ FEES
The starting point in setting any attorney's fee is determining the
“lodestar” figure — that is, the product of the number of hours reasonably
expended to prosecute the lawsuit multiplied by a reasonable hourly rate for
work performed by similarly-situated attorneys in the community. Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983); see also, Norman v. Housing
Authority of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988).
The fee applicant bears the burden of “establishing entitlement and
documenting the appropriate hours and hourly rates.” Norman, 836 F.2d at
1303. After calculating the lodestar fee, a court should then proceed with an
analysis of whether any portion of this fee should be adjusted upwards or
downwards. See Pennsylvania v. Delaware Valley Citizens' Council for Clean
Air, 478 U.S. 546, 565–66 (1986); see also Pennsylvania v. Delaware Valley
Citizens' Council for Clean Air, 483 U.S. 711 (1987); Hensley, 461 U.S. at
433–34. Redundant, excessive, or otherwise unnecessary hours should not be
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included in the calculation of hours reasonably expended. Hensley, 461 U.S.
at 434. Where the rates or hours claimed seem excessive or lack the
appropriate documentation, a court may calculate the award based on its own
experience, knowledge, and observations. Norman, 836 F.2d at 1299.
The party requesting fees has the burden of supplying the court with
specific and detailed evidence from which the court can determine the
reasonable hourly rate for the work performed by his attorneys. Am. Civil
Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999) (citing
Norman, 836 F.2d at 1303). The Eleventh Circuit has instructed that a
reasonable hourly rate is “the prevailing market rate in the relevant legal
community for similar services by lawyers of reasonably comparable skills,
experience, and reputation.” Norman, 836 F.2d at 1299. In this case, the
relevant legal community is Mobile, Alabama. See Barnes, 168 F.3d at 437
(“[T]he ‘relevant market’ for purposes of determining the reasonable hourly
rate for an attorney's services is the place where the case is filed.” (citation
and quotation marks omitted)).
In the instant case, although Plaintiffs and Defendants agree that the
attorneys’ fees amount is reasonable, that does not exonerate the Court from
its duty to determine and allow a reasonable attorney's fee. Silva v. Miller,
307 Fed.Appx. 349, 352 (11th Cir. 2009) (“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
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the wronged employee recovers under a settlement agreement.”). The parties
have provided no supporting documentation regarding the hours expended or
the hourly rate charged and have not even indicated what portion of the
requested $130,000.00 is for compensation of costs. Because the parties have
not provided the Court with any supporting information, the Court is without
sufficient information to determine whether the attorneys’ fees are
reasonable. Accordingly, Plaintiff is ordered to provide the Court with
sufficient documentation that it may utilize the lodestar method and
determine the reasonableness of the proposed attorneys’ fees and costs.
V. CONCLUSION
The Court finds that the proposed payment to Plaintiffs in the total
amount of $260,326.54 is a fair and reasonable settlement of a bona fide
dispute under the FLSA. However, the Court also finds that the parties have
not provided enough information for this Court to determine the
reasonableness of their proposed payment of attorneys’ fees and costs.
Accordingly, Plaintiffs are ordered to file on or before May 17, 2016, an
amended motion or an affidavit providing sufficient documentation to support
an allowance of reasonable attorneys’ fees and costs.
DONE and ORDERED this 3rd day of May, 2016.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
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