Morris et al v. Trugreen, Inc.

Filing 63

ORDER adopting 60 Report and Recommendations; overruling 61 Plaintiffs' Objections to Report and Recommendation; and denying 47 Plaintiffs' Renewed Motion for an Order Permitting Court-Supervised Notice to Employees of Opt-In Rights. Signed by Judge Paul G. Byron on 8/1/2018. (JRJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

GEORGE MORRIS, SHANNON BOYD,
RYAN COLEMAN, BARRY DAMICO and
KELVIN CARTER,
Plaintiffs,
v.

Case No: 6:17-cv-1465-Orl-40GJK

TRUGREEN LIMITED PARTNERSHIP,
Defendant.
/
ORDER
This cause comes before the Court without oral argument on the following:
1. Plaintiffs’ Renewed Motion for an Order Permitting Court Supervised Notic e
to Employees of Opt-In Rights (Doc. 47), and Defendant’s Response in
Opposition (Doc. 59);
2. Magistrate Judge Gregory J. Kelly’s Report and Recommendation (Doc.
60), submitted June 14, 2018; and
3. Plaintiffs’ Objections to Report and Recommendation (Doc. 61), and
Defendant’s Response to Plaintiffs’ Objections (Doc. 62).
With briefing complete, the matter is ripe.
This collective action arises under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201 et seq. (Doc. 1). On March 1, 2018, Plaintiffs filed a motion requesting the
Court authorize a notice to a proposed class of the class-members’ opt-in rights. (Doc. 47
(the “Motion”)). In a Report and Recommendation (“R&R”) submitted June 14, 2018,

Magistrate Judge Kelly recommended that the Motion be denied, citing numerous
deficiencies with the Motion. (Doc. 60, p. 13). 1
Plaintiffs submitted objections to the R&R, characterizing the “grounds for
recommending denial of the motion [as] technical in nature and easily remedied.” (Doc.
61, p. 2). Therefore, Plaintiffs request the Court enter an Order permitting notice of opt-in
rights to the proposed class “as set forth in Plaintiffs[’] motion and as modified in
accordance with this Objection,” which conceded some of the issues identified by the
R&R. (Id. at p. 6). Defendants oppose Plaintiffs’ Objections. (Doc. 62).
Upon de novo review, 2 the Court finds that Plaintiffs’ Objections are due to be
overruled, and their Motion denied. Although Plaintiffs ask the Court’s help in correcting

1

Specifically, the R&R stated:
1) Plaintiffs seek a nationwide class but only provided interest from one
employee from the Scotts Orlando, Florida branch; 2) the class definition’s
relevant time period conflicts with the Plaintiff’s request in the Motion and
the information provided in the named plaintiffs’ declarations; 3) the broad
class definition encompasses the plaintiffs in the Vasquez action; 4)
Plaintiffs provide no suggestions regarding a time period for potential class
members to opt into the collective action; and 5) the Complaint’s allegation
regarding unpaid lunches not taken is not supported by the class definition
or by any other evidence of record, this case is not appropriate for class
certification under Section 216(b).
(Id.).

2

Although Defendants request the Court review under Rule 72(a) for clear error
because conditional certification under Section 216(b) is non-dispositive, reports
submitted by Magistrate Judges are non-final; thus, objections to them are generally
subject to de novo review. Jeffrey S. by Ernest S. v. State Bd. of Educ., 896 F.2d 507,
512 (11th Cir. 1990). However, where a litigant does not make specific objections to
a magistrate judge’s factual findings, those findings are reviewed for clear error.
Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993). Plaintiffs did not lodge
specific objections to the Magistrate’s factual findings, so the Court reviews those
findings for clear error. See id. Legal conclusions are reviewed de novo even in the
absence of an objection. Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th

2

the Motion’s “technical” deficiencies, a closer look reveals that Plaintiffs’ proposed notice
(in addition to the Motion) is fundamentally flawed. (See, e.g., Doc. 62, p. 13). The Court
declines Plaintiffs’ invitation to refashion a wholly inadequate proposed notice.
Furthermore, the Court notes that Plaintiffs fail to cite a single case in their Objections to
the R&R supporting their position that the Court should grant Plaintiffs their requested
relief in spite of the pervasive defects found in the Motion. Plaintiffs thus fall short of
establishing their entitlement to conditional certification under 29 U.S.C. § 216(b).
Accordingly, it is ORDERED and ADJUDGED as follows:
1. Magistrate Judge Gregory J. Kelly’s Report and Recommendation (Doc. 60)
is ADOPTED and CONFIRMED and made part of this Order.
2. Plaintiffs’ Objections to Report and Recommendation (Doc. 61) are
OVERRULED.
3. Plaintiffs’ Renewed Motion for an Order Permitting Court Supervised Notic e
to Employees of Opt-In Rights (Doc. 47) is DENIED.
DONE AND ORDERED in Orlando, Florida on August 1, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Parties

Cir. 1994). The Court may accept, reject, or modify, in whole or in part, the findings
and recommendations. 28 U.S.C. § 636(b)(1).

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