Erling v. American Grille with Sushi LLC et al
Filing
54
OPINION AND ORDER denying as moot 43 Motion for Attorney Fees; denying 47 Motion to Approve Settlement; rejecting 52 Report and Recommendations. The parties may file an amended motion within 14 days, or the case will proceed as scheduled. See Opinion and Order for details. Signed by Judge John E. Steele on 7/11/2018. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TODD ERLING, on behalf of
himself and others similarly
situated,
Plaintiff,
v.
Case No:
2:17-cv-350-FtM-29MRM
AMERICAN GRILLE WITH SUSHI
LLC,
a
Florida
profit
corporation and CHRIS K.
WHITAKER, individually,
Defendants.
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #52), filed
June 18, 2018, recommending that the Joint Motion to Approve
Settlement and Request for the Court to Retain Jurisdiction for an
Award of Attorney's Fees and Costs (Doc. #47) be granted, the
settlement be approved, and the case be dismissed with the Court
retaining jurisdiction to address the attorney's fees and costs
issue.
No objections have been filed and the time to do so has
expired.
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.
28 U.S.C. §
636(b)(1); 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 may accept, reject or modify, in
whole or in part, the findings and recommendations.
636(b)(1).
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. 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).
In the Affidavit of Todd Erling (Doc. #53-1) filed in support
of
a
reply
unrepresented,
on
the
asked
retaining counsel.
issue
of
defendant
attorney’s
for
$700.00
fees,
in
plaintiff,
wages
before
Plaintiff’s counsel has since relied on this
amount as the “original demand” amount, and argued that he obtained
a result at mediation in the amount of $2,000, which is almost
three times the initial demand.
(Doc. #43, pp. 2, 10.)
On June 22, 2017, through counsel, plaintiff initiated the
original Complaint (Doc. #1) estimating overtime wages in the
amount of $5,062.50.
(Doc. #1, ¶ 31.)
(Doc. #19, ¶ 31) demanded this same amount.
to
the
Court’s
Interrogatories
to
The Amended Complaint
In the sworn responses
Plaintiff
(Doc.
#24-1),
plaintiff asserted that his salary was $700, and he was paid a
total of $4,800.
After subtracting the amount paid, plaintiff
claimed $5,062.50 in wages and overtime compensation remained
- 2 -
owing.
This was the amount also demanded of Chris K. Whitaker by
letter demand from counsel attached to the responses.
In the Joint Motion to Approve Settlement (Doc. #47), the
parties seek approval of the attached settlement but provide no
argument or detail as to why the settlement is reasonable and
should be approved.
The Memorandum of Mediated Settlement (Doc.
#47-1, Exh. A) and Settlement Agreement (Doc. #47-2, Exh. B) only
provide that the parties have agreed that plaintiff should be paid
$2,000 as the full settlement for all claims, that objections to
the Report and Recommendation are waived, and that plaintiff’s
counsel
should
receive
reasonable
attorney’s
fees
and
costs
because plaintiff is the prevailing party.
In the Report and Recommendation, the Magistrate Judge noted
that “the parties provided little justification in their Joint
Motion that the amount is reasonable”, but concluded that the
settlement was reasonable because “Plaintiff, in his separate
Motion for an Award of Attorney’s Fees and Costs, states that he
originally sought $700.00 in connection with his FLSA claims. (Doc.
43 at 1). The settlement amount is almost three times greater than
what Plaintiff initially sought. (Doc. 47 at 1).”
3.)
(Doc. #52, p.
This would indeed be the case, and the amount would indeed
account for liquidated damages, id. (noting that the settlement
sum “should account for both unpaid wages and liquidated damages”),
if $700 was the amount actually demanded in litigation.
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The higher
demand in the pleadings and in sworn responses cannot be reconciled
with the ultimate settlement amount based on the current record.
After conducting an independent examination of the file and
upon due consideration of the Report and Recommendation, the Court
finds that it must reject the recommendation, and deny the motion
as presented.
Accordingly, it is now
ORDERED:
1.
The
Report
and
Recommendation
(Doc.
#52)
is
hereby
rejected.
2.
The parties’ Joint Motion to Approve Settlement and
Request for the Court to Retain Jurisdiction for an Award of
Attorney's Fees and Costs (Doc. #47) is DENIED.
3.
Plaintiff's Motion for an Award of Attorney's Fees and
Costs (Doc. #43) is DENIED as moot.
4.
The parties may file an amended motion supported with
additional information to address the larger demand amount within
FOURTEEN (14) DAYS of this Opinion and Order.
If no motion is
filed, the case will proceed under the current Case Management and
Scheduling Order (Doc. #40) as scheduled.
DONE and ORDERED at Fort Myers, Florida, this
of July, 2018.
- 4 -
11th
day
Copies:
Hon. Mac R. McCoy
United States Magistrate Judge
Counsel of Record
Unrepresented parties
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