Boom et al v. Tops Vacuum & Sewing, Inc. et al
ORDER adopting 31 REPORT AND RECOMMENDATIONS re 30 Joint MOTION for Settlement Approval filed by Tabitha Boom, Dennis Boom. United States Magistrate Judge Douglas N. Frazier's Report and Recommendation 31 is ADOPTED as mod ified herein. The Settlement Agreement, Waiver and General Release [30-1] is restructured to characterize payment of $5500.00 each to Dennis Boom and Tabitha Boom as $4500.00 liquidated damages to each and $1000.00 to each as addition al consideration for general release. The Court approves the agreed amount of $10,000.00 for Attorney's fees and costs as fair and reasonable. To the extent that it conforms with this Order the parties' Joint Motion to Review and Appro ve FLSA Settlement Agreement and Dismiss Action With Prejudice 30 is GRANTED. The case is hereby DISMISSED with prejudice. The Clerk shall enter judgment accordingly, terminate all pending deadlines, and motions, and CLOSE the file. Signed by Judge Sheri Polster Chappell on 5/28/2014. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DENNIS BOOM and TABITHA BOOM,
on behalf of themselves and all others
Case No: 2:14-cv-6-FtM-38DNF
TOPS VACUUM & SEWING, INC.
and GREGORY BANK,
This matter comes before the Court on consideration of United States Magistrate
Judge Douglas N. Frazier's Report and Recommendation (Doc. #31) filed on May 16,
2014. Magistrate Judge Frazier recommends granting the parties Joint Motion to
Review and Approve FLSA Settlement Agreement and Dismiss Action with Prejudice
(Doc. #30) filed on May 15, 2014, and dismissing the case with prejudice. No objections
have been filed.
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. See 28 U.S.C. § 636(b)(1); see also Williams v.
Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). 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 accept, reject, or modify, in whole or in part, the findings and
recommendations, 28 U.S.C. § 636(b)(1)(C). The district judge reviews legal
conclusions de novo, even in the absence of an objection. See Cooper-Houston v.
Southern Ry. Co., 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).
After conducting an independent examination of the file and upon due
consideration of the Report and Recommendation, the Court adopts the Report and
Recommendation of Magistrate Judge Frazier as modified below.
In the Settlement Agreement, the Plaintiffs were given $5,500.00 in liquidated
damages and $4,500.00 in actual damages. The language of 29 U.S.C. § 216(b) is
clear that an employer in violation of § 206 and § 207 shall be “liable to the employee or
employees affected in the amount of their … unpaid overtime compensation…and in an
additional equal amount as liquidated damages.” 29 U.S.C. § 216(b) (emphasis added).
The Court approves the proposed settlement, finding it to be fair and reasonable, but
would reduce the the amount of liquidated damages from $5500.00 to $4500.00 to
conform to the statutory requirements of § 216(b). The remaining $1000.00 each to
Dennis Boom and Tabitha Boom is acceptable as additional consideration for general
release. Additional consideration for general releases has been approved within this
district as fair and reasonable, see Baker v. Sy's Supermarket, Inc., 6:12-CV-1645-ORL19, 2014 WL 542846 (M.D. Fla. Feb. 11, 2014); Rotger v. Hot Dog Heaven of Orlando,
Inc., 6:11-CV-754-ORL-28, 2011 WL 4946636 (M.D. Fla. Sept. 23, 2011) report and
recommendation adopted, 6:11-CV-754-ORL-28DA, 2011 WL 4947726 (M.D. Fla. Oct.
17, 2011); Laso v. SelectBuild, LLC, 608-CV-450-ORL-28KRS, 2009 WL 995470 (M.D.
Fla. Apr. 13, 2009)(report denied as unfair due to attorney’s fees, not the additional
consideration to the employee within the settlement).
Accordingly, it is now ORDERED:
1. United States Magistrate Judge Douglas N. Frazier's Report and
Recommendation (Doc. #31) is ADOPTED as modified herein.
2. The Settlement Agreement, Waiver and General Release (Doc. #30-1) is
restructured to characterize payment of $5500.00 each to Dennis Boom and Tabitha
Boom as $4500.00 liquidated damages to each and $1000.00 to each as additional
consideration for general release. The Court approves the agreed amount of
$10,000.00 for Attorney’s fees and costs as fair and reasonable.
3. To the extent that it conforms with this Order the parties’ Joint Motion to
Review and Approve FLSA Settlement Agreement and Dismiss Action With Prejudice
(Doc. #30) is GRANTED.
4. The case is hereby DISMISSED with prejudice.
The Clerk shall enter
judgment accordingly, terminate all pending deadlines, and motions, and CLOSE the
DONE and ORDERED in Fort Myers, Florida this 28th day of May, 2014.
Copies: All Parties of Record
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?