Rivera et al v. U.S.A. Transporter Services, Inc.

Filing 34

ORDER denying 28 Motion for Settlement; adopting 29 Report and Recommendations.; denying as moot 32 Motion for Extension of Time to File. The Clerk is DIRECTED to STRIKE 33 Plaintiffs' Notice. On or before Wednesday, September 27, 2017, the parties may file an amended motion that remedies the defects identified in 29 Report and Recommendation. Signed by Judge Roy B. Dalton, Jr. on 9/20/2017. (PKK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SANTIARY RIVERA; and HECTOR L.
BURGOS,
Plaintiffs,
v.

Case No. 6:16-cv-2158-Orl-37TBS

U.S.A. TRANSPORTER SERVICES,
INC.,
Defendant.
_____________________________________
ORDER
Plaintiffs initiated this putative collective action against Defendant alleging that it
failed to pay them overtime and minimum wages in violation of the Fair Labor Standards
Act (“FLSA”). (Doc. 1.) On April 4, 2017, the parties submitted their first motion for
approval of their settlement agreement pursuant to Lynn’s Food Stores, Inc. v. United States
ex rel. United States Department of Labor, 679 F.2d 1350 (11th Cir. 1982). (See Doc. 18).
Plaintiffs first four attempts at settlement have failed. (See Docs. 18, 20, 22, 24.) Now—on
their fifth iteration—the parties once again move for approval of their operative
settlement agreement. (Doc. 28 (“Approval Motion”); see also Doc. 28-1 (“Agreement”).)
On August 31, 2017, U.S. Magistrate Judge Thomas B. Smith issued a Report
recommending that the Court deny the Approval Motion and reject the Agreement. (Doc.
29 (“R&R”)). Neither party filed timely objections, which were due on September 14,
2017. Instead, on September 15, 2017, Plaintiffs moved for an extension of time to file
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objections to the R&R. (See Doc. 32 (“Extension Motion”).) Complicating matters, on
September 19, 2017, Plaintiffs filed a Notice of Filing Revised Settlement Agreement in
Support of Motion to Approve Settlement (Doc. 33), and attached another version of a
proposed settlement agreement (Doc. 33-1).
To begin, Magistrate Judge Smith concludes in his R&R that, while the Agreement
corrects some of the problems identified in prior iterations, (see Doc. 29, pp. 2–3
(describing deficiencies in previous versions)), it too is deficient (see id. at 11). Specifically,
Magistrate Judge Smith takes issue with the Agreement’s: (1) language preventing
Plaintiffs’ from bringing claims against Defendant “for any other reason”; (2) jurisdictionretention provision that the Court previously instructed the parties to strike; and (3)
provision where Plaintiffs’ damages are not classified as wages that enables Defendant
to not issue W-2s as appropriate. (Id. at 5–10.)
Given these deficiencies, Plaintiffs’ untimely Extension Motion is moot, and
warrants no further discussion. (See Doc. 32.) Hence, in the absence of timely objections,
the Court has examined the R&R only 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). Finding no clear error, the Court
concludes that the R&R is due to be adopted in its entirety.
As to Plaintiffs’ last-ditch effort to cure the Agreement’s deficiencies by notice, this
is wholly improper and due to be stricken. See Local Rule 3.01(f) (requiring all requests
for relief to be submitted by motion). To the extent Plaintiffs seek the Court’s approval of
a sixth iteration of their proposed settlement agreement, they must do so by motion.
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Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

U.S. Magistrate Judge Thomas B. Smith’s Report and Recommendation
(Doc. 29) is ADOPTED, CONFIRMED, and made a part of this Order.

2.

The parties’ Amended Joint Motion to Approve FLSA Settlement and to
Dismiss with Prejudice (Doc. 28) is DENIED.

3.

The parties’ Settlement Agreement and Mutual Release (Doc. 28-1) is
REJECTED.

4.

Plaintiffs Santiary Rivera and Hector L. Burgos’ Amended Motion for
Extension of Time to File Objections to the Report and Recommendations
(Doc. 31) is DENIED AS MOOT.

5.

The Clerk is DIRECTED to STRIKE Plaintiffs Santiary Rivera and Hector
L. Burgos’ Notice of Filing Revised Settlement Agreement in Support of
Motion to Approve Settlement (Doc. 33).

6.

On or before Wednesday, September 27, 2017, the parties may file an
amended motion for approval that remedies the defects identified in the
Report and Recommendation (Doc. 29). Failure to timely file a motion will
render any settlement agreement reached by the parties unenforceable.

DONE AND ORDERED in Chambers in Orlando, Florida, on September 20, 2017.

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Copies to:
Counsel of Record

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