Parks v. Bost, Inc.
OPINION AND ORDER granting 117 Motion to Dismiss. Signed by Honorable P. K. Holmes, III on March 13, 2017. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
EMILIA MARTINEZ; VICTOR PIERINI;
and LAUREL RINGUIS
BOST, INC., d/b/a BOST
OPINION AND ORDER
Before the Court is the parties’ joint motion (Doc. 117) to approve their settlement
agreement 1 and dismiss, filed pursuant to Federal Rule of Civil Procedure 41(a)(2). Plaintiffs
assert claims under the Federal Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et. seq. Plaintiffs
also assert a claim under the Arkansas Minimum Wage Act (“AMWA”), Ark. Code Ann. § 11-4201, et. seq. The action was certified as a collective action and then decertified, leaving for
resolution only the remaining Plaintiffs’ individual claims. The Court denied (Doc. 116) an earlier
unopposed motion to dismiss the case. At the Court’s request, the settlement agreement had been
submitted in camera for the Court’s review. The instant motion was filed to address concerns
raised by the Court in denying the first motion to dismiss. The Court has reviewed the joint motion,
its exhibits, and the proposed settlement agreement, and GRANTS the joint motion to dismiss for
the reasons set forth below.
Pursuant to Federal Rule of Civil Procedure 41(a)(2), the Court may dismiss an action
based on the filing of a motion “on terms that the court considers proper.” In the case of an FLSA
stipulated judgment, dismissal is proper when a settlement agreement is fair and reasonable. In
determining whether a settlement is fair and reasonable, factors the Court may consider include
The Court has filed the agreement under seal on the docket. (Doc. 118).
the stage of the litigation and the amount of discovery exchanged, the experience of counsel, the
probability of success on the merits, any “overreaching” by the employer in the settlement
negotiations, and whether the settlement was the product of an arm’s length negotiations between
the parties based on the merits of the case. Carrillo v. Dandan Inc., 51 F. Supp. 3d 124, 132–33
(D.D.C. 2014) (taking into account the “totality of the circumstances” to determine the fairness of
an FLSA settlement).
In denying the earlier motion, the Court noted that it lacked sufficient information to
evaluate whether the settlement agreement is fair and equitable to all parties. In particular, the
Court pointed to a lack of information regarding: the number of unpaid regular and overtime hours,
or the amount of damages Plaintiffs believed they could recover for unpaid time; whether the
agreed-upon amounts included liquidated damages or were simply compensation for back wages;
the scope of discovery and the documents reviewed by Plaintiffs to evaluate their claim for unpaid
wages; a broad release and waiver applicable to any and all of Plaintiffs’ claims against Bost, not
just those specifically related to the FLSA and AMWA wage claims that arise out of the instant
lawsuit; an ambiguous and broad non-disparagement clause; and the agreement to pay Plaintiffs
an attorneys’ fee in the amount of $30,000, with no information regarding the fee arrangement
between Plaintiffs and their attorneys or as to the amount of time expended on the case.
The instant motion sufficiently addresses each of the Court’s concerns. The parties have
supplied the Court with three separate spreadsheets (Docs. 117-1, 117-2, and 117-3) showing the
number of overtime hours claimed and the maximum amount that Bost calculated it could possibly
owe each Plaintiff for those claimed overtime hours following the Court’s prior ruling (Doc. 111)
which limited damages to those that occurred after January 1, 2015. The joint filing compares
these totals to the amount each Plaintiff claimed he or she was owed, including liquidated damages.
(Doc. 117, ¶ 21). Information provided by the parties also sheds light on the approximate number
of documents provided by each party during discovery, the number of subpoenas issued and
responsive documents, and the parties’ extensive deposition practice. This information indicates
that the parties have engaged in substantial discovery into the merits of the action and have reached
a settlement informed by experienced counsel who have analyzed the probable set of facts that
would be found during any trial. These supporting documents show that the settlement is a
compromise of a bona fide dispute over uncompensated hours.
The parties provide that the waiver and release of all of Plaintiffs’ claims was inserted due
to a number of recent lawsuits filed against Bost by Plaintiffs’ counsel. They represent that the
release applies to those claims that “[P]laintiffs might have against Bost as a result of their
employment with Bost.” (Doc. 117, ¶ 37). Yet, the agreement goes further than simply claims
against Bost related to Plaintiffs’ employment there, and includes “any and all claims… against
Bost… as of the date of the Named Plaintiffs’ execution of this Agreement… under the laws of
any state, county, municipality or other governmental subdivision of the United States or any
state…” (Doc. 118, p. 5-6). While the Court finds this release to be quite broad, it understands
that this language was inserted as a result of arms-length negotiating, which necessarily included
Bost’s concern for further litigation brought against it. In light of this and the fact that only one
of the Plaintiffs continues to work for Bost, the Court finds the waiver and release to be acceptable.
The non-disparagement clause also relates to ongoing litigation between Bost and former
employees who are represented by Plaintiffs’ counsel. Bost represents that it does not want any
of the Plaintiffs in this case “to assist in any way in the pending” state law case. 2 (Doc. 117, ¶ 37).
The parties are, however, cautioned that this Court believes it is unlikely any such nondisparagement clause will prevent Plaintiffs from appearing in proceedings pursuant to a subpoena
and truthfully testifying.
Finally, the parties have provided an affidavit (Doc. 117-7) and two invoices that contain
detailed time logs (Docs. 117-4, 117-5) in support of their proposed attorneys’ fees. While
interpreting these invoices is complicated by the inclusion of work performed for a number of optin Plaintiffs who were subsequently dismissed and pursued their claims in state court, 3 the Court
finds the attorneys’ fee request to be reasonable. The parties have explained the approximate fees
associated with Plaintiffs in each of the two lawsuits, and the state court action previously settled
with reliance on this determination. (Doc. 117-6). The Court finds the proposed attorneys’ fees,
which are roughly one-quarter of the fees claimed as attributable to work on the instant case, to be
Furthermore, the parties have provided sufficient information for the Court to
determine that the attorneys’ fee will not be recovered at the expense of the plaintiffs’ wage claims.
IT IS THEREFORE ORDERED that the proposed settlement agreement is approved in its
entirety as fair and reasonable.
IT IS FURTHER ORDERED that the parties’ joint motion to dismiss (Doc. 117) is
GRANTED and, in light of the settlement agreement, this case is DISMISSED WITH
Judgment will be entered by separate order.
IT IS SO ORDERED this 13th day of March, 2017.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
At one point, this case involved more than 30 opt-in Plaintiffs while it was proceeding as
a collective action. Most of those opt-in parties were voluntarily dismissed as part of Plaintiffs’
second amended and substituted complaint (Doc. 90). They then pursued their claims in a state
court action, but up until that point, hours logged on behalf of those individuals was included in
the invoice for this case.
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