Flagiello v. Breakers Restaurant, LLC.
Filing
32
OPINION AND ORDER granting 29 Renewed Motion to Approve Settlement; approving Settlement as fair and reasonable; rejecting 30 Report and Recommendations; sustaining 31 Objections. The Clerk shall enter judgment dismissing the case with prejudice, terminate all pending motions and deadlines, and close the file. Signed by Judge John E. Steele on 12/1/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROSEANN FLAGIELLO, on her own behalf
and others similarly situated,
Plaintiff,
vs.
Case No.
2:10-cv-687-FtM-29SPC
BREAKERS RESTAURANT, LLC., a Florida
limited liability company, doing
business as PORTOFINOS,
Defendant.
___________________________________
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #30), filed
August 1, 2011, recommending that plaintiff’s Renewed Motion and
Memorandum of Law to Approve Settlement Agreement Pursuant to the
Court’s Order of June 24, 2011 (Doc. #29) be denied.
2011,
plaintiff
filed
Objections
and
a
Response
On August 15,
(Doc.
#31).
Defendant did not file objections or a response.
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
the magistrate judge’s report and recommendation.
636(b)(1);
28 U.S.C. §
Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982),
cert. denied, 459 U.S. 1112 (1983).
A district judge “shall make
a
portions
de
novo
determination
of
those
of
the
report
or
specified proposed findings or recommendations to which objection
is made.”
28 U.S.C. § 636(b)(1)(C).
This requires that the
district judge “give fresh consideration to those issues to which
specific objection has been made by a party.”
Jeffrey S. v. State
Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609,
94th Cong. § 2 (1976)).
In the absence of specific objections,
there is no requirement that a district judge review factual
findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th
Cir. 1993), and the court may accept, reject or modify, in whole or
in
part,
the
636(b)(1)(C).
findings
and
recommendations.
28
U.S.C.
§
The district judge reviews legal conclusions de
novo, even in the absence of an objection.
See Cooper-Houston v.
Southern Ry., 37 F.3d 603, 604 (11th Cir. 1994); Castro Bobadilla
v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993), aff’d, 28
F.3d 116 (11th Cir. 1994) (Table).
On June 24, 2011, the Court denied a Joint Motion For Approval
of Settlement Agreement, and Upon Court Approval, for Dismissal of
the Action With Prejudice. (Doc. #28.) The Court found the amount
of attorney fees and costs was unreasonable because no information
was provided in support, and the award would be three times the
amount plaintiff would receive under the facts of the case as
presented by the parties.
On July 21, 2011, plaintiff filed a
Renewed Motion to Approve Settlement Agreement (Doc. #29) arguing
that the Court relied upon incorrect figures because the parties’
original motion contained a typographical error of $14,535.00 in
-2-
damages when the damages never exceeded $4,845.001.
further
argued
that
plaintiff
made
an
informed
Plaintiff
decision
and
instructed her counsel to settle the matter for the $1,000.00
offered. Counsel argues that she significantly reduced her fees to
$1,515.71, from $5,400.00 in fees for actual hours worked, and that
$584.29 in costs was incurred.
Counsel further argued that the
disproportionate amount of fees is not uncommon in civil rights
cases. On August 1, 2011, the Magistrate Judge issued a Report and
Recommendation (Doc. #30) recommending that the motion be denied.
Plaintiff objects that the claims are viable and that “because
of the uncertainty associated with proceeding with litigation”,
defendant wished to minimize its exposure and plaintiff wished to
guarantee at least some recovery while minimizing costs of travel
because she moved out of state.
Plaintiff also argues that the
firm puts clients through a 5 level screening with investigators
and lawyers, prior to filing suit.
Plaintiff objects to any
modification of some terms of the parties’ agreement, and argues
that the fees requested are reasonable.
After conducting an independent examination of the file and
upon due consideration of the Report and Recommendation, the Court
unenthusiastically rejects the Report and Recommendation of the
magistrate judge and sustains the objections.
1
The attached Declaration of Roseann Flagiello (Doc. #29-1)
now states that the company owed her approximately $1,485.00.
-3-
Accordingly, it is now
ORDERED:
1.
The
Report
and
Recommendation
(Doc. #30)
is
hereby
rejected.
2.
3.
Plaintiff’s Objections (Doc. #31) are sustained.
Plaintiff’s Renewed Motion and Memorandum of Law to
Approve Settlement Agreement Pursuant to the Court’s Order of June
24, 2011 (Doc. #29) is granted and the Settlement Agreement and
Plaintiff’s Full and Final Release of Claims for Unpaid Wages is
approved as fair and reasonable.
4.
The Clerk shall enter judgment dismissing the case with
prejudice, terminate all pending motions and deadlines as moot, and
close the file.
DONE AND ORDERED at Fort Myers, Florida, this
December, 2011.
Copies:
Hon. Sheri Polster Chappell
United States Magistrate Judge
Counsel of Record
Unrepresented parties
-4-
1st
day of
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