Szymialis v. Cossu & Lukasiewicz, P.A. et al
Filing
48
OPINION AND ORDER denying 42 Tender of Full Payment and Motion to dismiss; terminating 45 Motion to stay discovery as moot. The 47 Stipulation is approved as fair and reasonable and the case is dismissed with prejudice. The Clerk shall enter judgment dismissing the case with prejudice, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 9/11/2012. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LORA SZYMIALIS, on her own behalf
and others similarly situated,
Plaintiff,
vs.
Case No.
2:11-cv-672-FtM-29DNF
COSSU
&
LUKASIEWICZ,
P.A.,
a
Florida profit corporation, JOHN L.
COSSU,
CYNTHIA
LUKASIEWICZ,
individually,
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on defendants’ Tender of
Full Payment and Motion to Dismiss Complaint With Prejudice (Doc.
#42) filed on July 30, 2012.
Plaintiff filed a Response in
Opposition to 12(h)(3) Motion to Dismiss (Doc. #44) on August 12,
2012.
Also before the Court is the parties’ Stipulation of
Dismissal With Prejudice (Doc. #47) filed on September 10, 2012.
Plaintiff initiated this case by filing a Complaint (Doc. #1)
against defendants under the Fair Labor Standards Act to recover
overtime wages, liquidated damages, declaratory relief, fees and
costs.
Plaintiff alleges that she regularly worked between 45 and
50 hours per workweek from February 2009 through March 2011, and
that defendants routinely required plaintiff to “flex” her overtime
hours so that she would be paid “comp” or “straight” time instead
of time and one-half for hours worked in excess of the 40 hour
workweek.
In response to the Court’s Scheduling Order (Doc. #16),
plaintiff filed Answers to Court Interrogatories (Doc. #20-1)
providing that plaintiff was paid at a rate of $15.75 an hour and
worked between 5 and 10 overtime hours each week for February 2009
through March 2011.
Plaintiff did not provide an estimate, but
asserted that it was $295.94 at a minimum.
After a motion to
compel, plaintiff filed Amended Responses to Court Interrogatories
(Doc. #27-1) providing that the amount was at least $295.94 in
unpaid overtime compensation, and the same amount for liquidated
damages, and additional unknown wages based on the mishandling of
vacation time.
The parties met in person on May 29, 2012, to
discuss settlement without success.
(Docs. ## 29, 30.)
The
parties thereafter participated in a settlement conference before
the Magistrate Judge on July 11, 2012, but reached an impasse.
(Doc. #40.)
Based on these sworn responses, and statements by plaintiff’s
counsel
during
settlement
conferences,
defendants
state
that
plaintiff’s “total claim cannot and does not exceed $471.08.”
(Doc. #42, ¶ 5.)
Therefore, defendants tendered two checks for
$500.00 each to plaintiff, for unpaid overtime compensation and
liquidated damages, without admitting any allegations of the claim
and to moot any case or controversy.
-2-
In response, plaintiffs
specifically questioned how defendants arrived at $500 as the
amount owed in unpaid overtime and because no evidence to support
the amount was provided.
(Doc. #44, p. 6.)
On August 27, the Eleventh Circuit Court of Appeals determined
that settlement offers that do not offer full relief, that is, a
judgment in plaintiff’s favor, are merely promises to pay and
therefore do not moot a case.
Zinni v. ER Solutions, Inc., Nos.
11-12413, 11-12931, 11-12937,
Cir. Aug. 27, 2012).
(Doc. #46).
F.3d
, 2012 WL 3641911 (11th
See also Notice of Supplemental Authority
Defendants’ motion will be denied on this basis as the
tender of payment is clearly only a promise to pay or payment if
the checks have been issued and cashed.
Having determined that a controversy remains, the Court will
consider the later filed Stipulation of Dismissal With Prejudice.
The parties state that they reached an agreement for defendants to
pay plaintiff $500 in unpaid overtime, $500 in liquidated damages,
and $8,000.00 in attorney’s fees and costs.
Plaintiff asserts she
has not compromised her claim, however this is clearly inaccurate
as she did not agree to a general release or a confidentiality
agreement,
and
is
foregoing
a
judgment
in
exchange
for
the
settlement funds. As the parties did reach a compromise, the Court
must review and approve the terms of the settlement.
There are only two ways in which back wage claims
arising under the FLSA can be settled or compromised by
employees. First, under section 216(c), the Secretary of
-3-
Labor is authorized to supervise payment to employees of
unpaid wages owed to them.
. . . .
The only other route for compromise of FLSA claims
is provided in the context of suits brought directly by
employees against their employer under section 216(b) to
recover back wages for FLSA violations. When employees
bring a private action for back wages under the FLSA, and
present to the district court a proposed settlement, the
district court may enter a stipulated judgment after
scrutinizing the settlement for fairness.
Lynn’s Food Stores, Inc. v. United States Dep’t of Labor, 679 F.2d
1350, 1352-53 (11th Cir. 1982).
Plaintiff is represented by
counsel and there is a dispute as to the hours between plaintiff’s
pay stubs and records that are maintained by defendants with regard
to vacation time.
A review of the terms agreed upon reflect
amounts in excess of the minimum amounts sought in the initial
interrogatories, plaintiff is not providing a general release, and
the attorney’s fees and costs appear to be separate from the amount
of
overtime
wages.
Upon
review,
the
Court
finds
that
the
settlement is a fair and reasonable resolution of the case.
Accordingly, it is now
ORDERED:
1.
Defendants’ Tender of Full Payment and Motion to Dismiss
Complaint With Prejudice (Doc. #42) is DENIED.
2.
The Stipulation of Dismissal With Prejudice (Doc. #47) is
approved as a fair and reasonable resolution of a bona fide
dispute.
-4-
3.
The case is dismissed with prejudice.
The Clerk shall
enter judgment accordingly, terminate all pending motions and
deadlines as moot, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
September, 2012.
Copies:
Counsel of record
-5-
11th
day of
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