Dyer et al v. M & M Asphalt Maintenance Inc.

Filing 225

ORDER granting 215 Motion for Settlement; adopting 223 Report and Recommendations. Signed by Judge Roy B. Dalton, Jr. on 5/26/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
KENNETH A. DYER, JR.; HENRY
L. KEMP, JR.; MARQUIS D. GROOMS;
KIRK SANDY; and THE ESTATE OF
MARQUIS GROOMS,
Plaintiffs,
v.

Case No. 6:15-cv-959-Orl-37KRS

M &M ASPHALT MAINTENANCE
INC.; ALL COUNTY PAVING, INC.;
JEFFREY COHEN; KENNETH
GOLDBERG; and DAVID GOLDBERG,
Defendants.
_____________________________________
ORDER
Plaintiffs initiated this action almost two years ago, asserting violations of the Fair
Labor Standards Act (“FLSA”). (Docs. 1, 32.) Specifically, Plaintiffs alleged that
Defendants failed to compensate them for hours worked in excess of forty hours a week
by improperly deducting hours for: (1) their travel time to Defendants’ place of business
from work job sites; and (2) skipped or interrupted lunch breaks. (Doc. 32.) The parties
settled the action shortly after the Court conditionally certified a class of similarly
situated employees (“Certified Class”). (Docs. 165, 213.) Thereafter, the parties moved
for judicial approval of their settlement agreement. (Doc. 215 (“Motion for Approval”);
see also Doc. 215-1 (“Agreement”).)
Since that time, the parties have submitted additional documentation in response
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to the magistrate’s concerns as to whether they had adequately notified and received
consent from non-named members of the Certified Class (“Opt-In Plaintiffs”). (See
Docs. 216, 217, 218, 219.) Such documentation includes sworn declarations from counsel
for both parties and the named Plaintiffs. (See Docs. 219-1 to 219-5.)
Upon consideration of the supplemental briefing and evidence, U.S. Magistrate
Judge Karla R. Spaulding issued the operative Report and Recommendation, in which
she proposes a number of alternative rulings to the Motion for Approval. (Doc. 223
(“R&R”).) First, Magistrate Judge Spaulding recommends that the Court: (1) modify the
definition of Defendants and the scope of the release in the Agreement; (2) find that the
settlement, as modified, is a fair and reasonable resolution of a bona fide dispute under
the FLSA; (3) grant the Motion for Approval in part, without reserving jurisdiction to
enforce the settlement; (4) dismiss the case with prejudice; and (5) direct the Clerk of
Court to close the file. (Id. at 14 (“First Recommendation”).) Second, in the event that the
Undersigned finds that the Opt-In Plaintiffs did not receive adequate notice of the
Agreement and an opportunity to object, Magistrate Judge Spaulding recommends that
the Court require Court-supervised notice to the Opt-In Plaintiffs. (Id. (“Second
Recommendation”).) Finally, Magistrate Judge Spaulding recommends that the Court
deny the Motion for Approval without prejudice if it finds that any of the terms of the
Agreement undermine the fairness of the settlement. (Id. (“Third Recommendation”).)
In doing so, the R&R specifically addresses the following issues: (1) the compromise of
Plaintiffs’ claims; (2) the released parties; (3) the scope of the released claims; (4) whether
the Opt-In Plaintiffs received proper notice of the Agreement and consented thereto;
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(5) the payment of attorney fees and costs under the Agreement; and (6) service payments
provided to certain individuals. (Doc. 223.)
On May 23, 2017, the parties filed a joint notice indicating that they did not object
to the First Recommendation. (Doc. 224 (“Response”).) Hence, in the absence of
objections to the First Recommendation, the Court has reviewed this portion of the R&R
for clear error. See Wiand v. Wells Fargo Bank, N.A., No. 8:12-cv-557-T-27EAJ,
2016 WL 355490, at *1 (M.D. Fla. Jan. 28, 2016); see also Marcort v. Prem, Inc.,
208 F. App’x 781, 784 (11th Cir. 2006).
As an initial matter, the Court agrees with Magistrate Judge Spaulding’s finding
that the reasons for the compromise of Plaintiffs’ claims are adequate—namely, discovery
revealing: (1) support for Defendants’ defense to liquidated damages; (2) that Plaintiffs
did not work more than forty hours in some work weeks; (3) that Plaintiffs were paid for
their meal times; and (4) that Plaintiffs may have overestimated their travel time from job
sites. (Doc. 223, p. 6.)
The Court also agrees that—consistent with the operative Complaint—the
definition of “Defendants” in the Agreement should be revised to include only:
M&M Asphalt Maintenance, Inc. and any other person or
entity acting with or on behalf of M&M as [a joint] employer
in relation to Plaintiffs;
All County Paving, Inc. and any other person or entity acting
with or on behalf of All County Paving, Inc. as [a joint]
employer in retaliation to Plaintiffs;
Jeffrey Cohen; and

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(Id. at 7.)

Kenneth Goldberg.” 1

Third, the Court adopts the magistrate’s recommendation to sever the portion of
the Agreement releasing Florida Minimum Wage Act claims, as the Complaint only
asserts FLSA claims against Defendants. See Colon v. Garda CL SE, Inc., Case
No. 6:14-cv-1777-Orl-37KRS, at Doc. 29, p. 3, n.1 (severing the portion of a settlement
agreement releasing wage and overtime claims not recoverable under the FLSA because
“it confer[ed] an undeserved benefit upon [the] [d]efendant without furthering the
resolution of any bona fide FLSA dispute”).
The Court also accepts Plaintiffs’ counsel Scott C. Adams’s sworn statements that:
(1) he advised the Opt-In Plaintiffs of the essential terms of the Agreement verbally or by
written notice; and (2) received no objection to the Agreement. (Doc. 219-2, ¶¶ 18–21.)
Such statements are bolstered by the parties’ Response to the R&R, which sets forth the
pertinent portions of the correspondence sent to the Opt-In Plaintiffs, including a
specified timeframe for receipt of objections. (Doc. 224.) While some courts routinely
conduct fairness hearings before determining whether to approve settlements in
collective FLSA actions, at least one court in this Circuit has found that proof of notice to
opt-in plaintiffs without a fairness hearing is sufficient where the opt-in plaintiffs have
been provided an opportunity to object. See Goldsby v. Renosol Seating, LLC,
No. 2:08-0148-KD-N, 2013 WL 6535253, at *9–10 (N.D. Ala. Dec. 13, 2013); see also Moore

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parties previously stipulated to the dismissal of Defendant David Goldberg
from this action with prejudice. (Doc. 211.)
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v. Akerman Inv. Co., No. C-07-3058-MWB, 2009 WL 2848858, at *1–2, *3 (N.D. Iowa Sept. 1,
2009) (approving an FLSA settlement agreement where the plaintiffs’ counsel notified
each plaintiff of the proposed settlement by letter and received only a single objection).
Therefore, based on counsel’s representations, the Court finds that Plaintiffs’
correspondence in the instant action was sufficient to give each Opt-In Plaintiff notice of
the Agreement and an adequate opportunity to object.
Finally, the declarations submitted by the parties: (1) represent that the parties
negotiated the amount of attorney fees and costs awarded under the Agreement
separately from the amount offered to settle the wage claims and liquidated damages of
the Certified Class (Doc. 219-1, ¶¶ 11, 12; Doc. 219-2, ¶ 25); and (2) describe the various
ways that the parties receiving service payments under the Agreement actively
participated in and aided the progression of this lawsuit (Doc. 219-2, ¶¶ 31–41; Doc. 219-3;
Doc. 219-4; Doc. 219-5). Within this District,
if the parties submit a proposed FLSA settlement that . . .
represents that the plaintiff’s attorneys’ fee was agreed upon
separately without regard to the amount paid to the plaintiff,
then, unless the settlement does not appear reasonable on its
face or there is reason to believe that the plaintiff’s recovery
was adversely affected by the amount of fees paid to his
attorney, the Court will approve the settlement without
separately considering the reasonableness of the fee to be paid
to plaintiff’s counsel.
Bonetti v. Embarq Mgmt. Co., 715 F. Supp. 2d 1222, 1228 (M.D. Fla. 2009). Additionally,
courts have approved service payments for individuals who have performed substantial
services for the benefit of a settlement class. See, e.g., Signorelli v. Utiliquest, LLC,
Nos. 5:08-cv-38-Oc-10GRJM, 5:08-cv-39-Oc-10GRJ, 5:08-cv-40-Oc-10GRJ, 2008 WL 78257
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57, at *2 (M.D. Fla. July 25, 2008); see also Hosier v. Mattress Firm, Inc.,
No. 3:10-cv-294-J-32JRK, 2012 WL 2813960, at *5 (M.D. Fla. June 8, 2012). As such, the
Court finds that neither the attorney fees and costs nor the service payments provided
under the Agreement undermine the fairness of the settlement.
In view of the foregoing, the Court finds no clear error in the First
Recommendation set forth in the R&R. Accordingly, it is ORDERED AND ADJUDGED
as follows:
1.

The First Recommendation set forth in U.S. Magistrate Judge Karla
R. Spaulding’s Amended Report and Recommendation (Doc. 223) is
ADOPTED, CONFIRMED, and made a part of this Order.

2.

The parties’ Joint Motion for Approval of FLSA Settlement and
Incorporated Memorandum of Law (Doc. 215) is GRANTED to the extent
set forth in this Order.

3.

The Court finds that the Agreement, as modified, is a fair and reasonable
resolution of a bona fide dispute under the FLSA. Therefore, this modified
version of the parties’ Settlement Agreement (Doc. 215-1) is APPROVED.

4.

This action is DISMISSED WITH PREJUDICE.

5.

The Court DECLINES to retain jurisdiction to enforce the terms of the
parties’ Agreement. In the event of breach, the non-breaching party may
file a separate action for breach of contract.

6.

The Clerk is DIRECTED to terminate all pending motions and close the file.

DONE AND ORDERED in Chambers in Orlando, Florida, on May 26, 2017.
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Copies to:
Counsel of Record

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