Swygert et al v. Ferrell Electric, Inc. et al
Filing
58
ORDER denying Defendants' 56 Motion for settlement approval; denying as moot Plaintiff's 49 Motion to "disapprove" settlement; denying as moot Plaintiff's 50 Motion to "disapprove" settlement; granting Pl aintiff's 51 Motion to Compel; Defendants must comply with this ruling by November 4, 2016; Discovery with respect to the claims brought in "Adams" will officially close on November 14, 2016; ordering that the joint consolidated pro posed pretrial order must be filed by 5:00 p.m. on November 30, 2016, as outlined in the instructions included in this Order; ordering that all evidentiary objections and motions in limine that have not been resolved prior to the pretrial conference must be filed by 5:00 p.m. on December 2, 2016 and responses must be filed by 5:00 p.m. on December 16, 2016 and the parties are not permitted to file reply briefs in support of their motions in limine; directing that the pretrial conference is sched uled for Wednesday, January 4, 2017 at 10:00 a.m. and jury selection and trial are scheduled for Monday, January 9, 2017 at 9:00 a.m., etc.; granting Plaintiff's 52 Motion to Consolidate Cases; and directing the Clerk to consolidate case number CV 114-181 into "Brantley v. Ferrell Electric, Inc., CV 114-022 and all future motions must be filed in case number CV 114-022. Signed by Judge J. Randal Hall on 9/28/2016. (jah)
IN THE UNITED
FOR THE
STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
JOHNNY
BRANTLEY
ROBERT M.
and
*
POU,
*
*
Plaintiffs,
*
*
v,
*
FERRELL ELECTRIC,
JAMES N. FERRELL,
INC.
and
CV 114-022
*
*
*
Defendants.
*
*
JASEN ADAMS,
Plaintiff,
*
v.
*
FERRELL ELECTRIC,
JAMES N. FERRELL,
INC.
CV
114-181
*
and
Defendants.
*
*
ORDER
In
these
Defendants'
cases,
violations
Plaintiffs
of the
seek
Fair Labor
compensation
Standards
Act.
for
Over
a
year ago, the parties attended mediation and reached a favorable
settlement
amount.
Because
this
is
an
FLSA
case,
the
are not permitted to compromise without court approval.
parties
Despite
repeated attempts,
approval
and
different.
the parties have been unable to obtain court
finally
Upon
resolve
these
consideration,
motions for settlement approval
56),
GRANTS
Plaintiffs'
134;
Adams,
doc.
compel
to
(Adams,
52),
doc.
"disapprove"
docs.
49,
51),
the
to
This
Court
(Brantley,
motions
GRANTS
cases.
DENIES
doc.
Jasen
(Brantley,
doc.
(Brantley,
doc.
Adams's
motion
docs.
131,
to
motions
133;
Adams,
50).
I.
Background
Plaintiffs Johnny Brantley,
Gary Fletcher,
Robert Pou, and
Brannon Stuart filed Brantley v. Ferrell Electric,
022,
no
Defendants'
and DENIES AS MOOT Plaintiffs'
settlement
is
138; Adams,
consolidate
Plaintiff
time
Inc.,
CV 114-
as a putative collective action under the FLSA in January
2014.
(Brantley,
Doc.
1.)
Eventually,
Plaintiffs
abandoned
their attempt at a collective action and decided to pursue their
claims
individually.
dismissed
Mr.
(Brantley,
Fletcher's
and
prejudice in January 2015.
Jessie
Swygert
Electric,
and
the
(Adams,
Inc.,
and
CV
Court
doc.
33).
Jasen
114-181,
dismissed
Docs.
Mr.
Doc.
initiated
in September 2014
Mr.
37.)
Stuart's
(Brantley,
Adams
35,
Swygert's
The
claims
63.)
Adams
in
without
Plaintiffs
v.
(Adams,
claims
Court
Ferrell
doc.
July
1) ,
2015
In
cases
June
while
the
114; Adams,
the
116;
November
a
Subsequently,
the
cases
signed
the
(Brantley,
Doc.
Defendants
(Brantley,
Doc.
the
34.)
The
compromises
Adams,
Doc.
that
it
39.)
must
120; Adams, Doc.
settlement
the
Doc.
all
Court
for
both
they
Docs.
cases
opposed
35,
until
37.)
issues
in
filing the
approval.
Court
responded by
FLSA
settlements.
approve
40.)
while
Docs.
that
The
in
(Brantley,
Adams,
Defendants
with
cases
stayed both
informed the Court
but
these
the parties informed
fees.
117;
in
(Brantley,
the
Court
Doc.
agreements
119;
stay
attorneys'
resolved,
informing
file
over
Defendants
settlement
deadlines
proposed
to
(Brantley,
had been
all
mediation.
reached
Court
Doc.
2015.
extended
attended
had
dispute
Adams,
9,
Court
Following mediation,
they
asked
arbitrated
115,
27.)
that
but
the
parties
Doc.
Court
cases,
2015,
Defendants then moved to
agreements
under
seal
because
"[confidentiality is an essential component" of the agreements.
(Brantley,
the
Doc.
Court
denied
127; Adams,
In
124 at 3;
Doc.
both
Adams,
Defendants'
Doc.
motions
43 at 3.)
to
seal.
Unpersuaded,
(Brantley,
Doc.
46.)
cases,
Plaintiffs
have
filed
the
proposed
settlement agreements with the Court and request that the Court
reject the agreements.
(Brantley,
Adams,
50.)
Docs.
47,
48,
49,
Docs.
Defendants,
128,
130,
131,
133;
on the other hand,
move for settlement approval.
(Brantley,
Doc.
138;
Adams,
Doc.
56.)x
II.
Discussion
1. Defendants' Motions for Settlement Approval
Defendants
maintain
that
the
settlement
be approved and the claims dismissed.
the
Court
has
repeatedly
apprised
agreements
should
The Court disagrees.
Defendants,
FLSA
As
settlements
must be approved as fair and reasonable by the Court before they
are enforceable.
ex rel.
U.S.
1982) .
In
examination,
proposed
See Lynn's Food Stores,
Dep't of Labor,
the
typical
the
Court
agreements
do
679
FLSA
must,
not
F.2d 1350,
case,
among
contain
pervasive global releases.2
Inc.
as
v. United States
1353-54
part
other
of
(11th Cir.
its
things,
fairness
ensure
confidentiality
that
clauses
or
See Dees v. Hydradry, Inc., 706 F.
Supp. 2d 1227, 1242 (M.D. Fla. 2010) ("The district court should
reject
as
unreasonable
confidentiality
in contravention
provision,
of
the
Ed., No. CV 415-169,
1
approval.
In
a
Brantley,
(Brantley,
which
FLSA.");
The
Court
is
Defendants
Doc.
notes
filed
138.)
Cantrell
that
an
that
unenforceable
2015 WL 10057707,
for settlement approval (Brantley,
2
compromise
v.
at *2
amended
Accordingly,
contains
and
a
operates
Bryan Cty.
Bd.
of
(S.D. Ga. Dec. 21,
motion
Defendants'
for
settlement
original motion
doc. 137) is DENIED AS MOOT.
the
Eleventh
Circuit
has
declined
to
decide
whether confidentiality clauses in FLSA settlements are per se unreasonable.
See Rodrigues v. CNP of Sanctuary, LLC, 523 F. App'x 628, 629 (11th Cir.
2013) .
2015)
(rejecting
a
proposed
pervasive releases); Webb v.
(CAR),
2011
WL
settlement
because
CVS Caremark Corp.,
6743284,
at
*3
(M.D.
it
No.
Ga.
5:11-CV-106
Dec.
23,
("Although inconsequential in the typical civil case
settlement
entitled
requires
to
employer's
use
a
failing
no
judicial
FLSA
to
claim
comply
(a
with
an
matter
the
from
omitted)
to
the
to
is
not
from
the
leverage
and the Court has already denied Defendants'
contain global
"settles,
releases.
waives,
releases
and discharges
128-3; Adams,
the
Docs.
agreements
employment
discrimination,
3
48-1,
list
48-3.)
all
and
As
claims
relationship,
retaliation,
all
(Brantley,
48-2,
request to
The agreements also
Under these releases,
against the Defendants . . . ."
parties'
(citation
the settlement agreements all contain confidentiality
keep the agreements out of the public eye.3
claims,
FLSA."
a
(internal quotation marks omitted)).
clauses,
unconnected
arising
2011)
(for which
employer
FLSA)
release
Here,
liability
review),
contained
each Plaintiff
claims whatsoever
Docs.
128-1,
128-2,
examples of released
arising
claims
harassment,
out
of
based
the
on
breach-of-contract
The Court recognizes that by filing the agreements with the Court,
the parties arguably waived the confidentiality provisions.
Nevertheless,
should the parties make another attempt at resolving these claims through
settlement, the confidentiality provisions should be removed from the
agreements before they are filed with the Court.
claims,
Doc.
tort claims,
and FLSA claims.4
(See,
e.g.,
Brantley,
that
pervasive
128-1.)
Although
releases
the
are
not
Court
has
permitted
warned
in
the
parties
FLSA settlements,
Defendants
and
their counsel unwaveringly take the position that the agreements
are
acceptable
law,
and
Defendants'
enforceable
capacity
assent
"the
to
[were]
and counsel."
Referencing
assert
contract,
and
reached,
(Brantley,
that
parties
consideration,
agreement[s]
And in
motions
because
and
valuable
enforceable.
the
[]
the
their
clear
counsel
and
Plaintiffs'
Defendants'
Doc.
are
had
the
provided
for
unambiguous
signed by all
138 at 4; Adams,
an e-mail responding to
contract
agreements
contract [s]
in writing,
Doc.
remove the pervasive language,
and
Georgia
parties
56 at
3-4.)
counsel's request to
counsel stated:
We will not agree to back off from or delete the
global release[s] in the agreements, which I believe
[are]
independently
enforceable
with
or
without
Court
approval.
That
said,
for
purposes
of
settlement approval in these cases only I am open to
any suggested language you may have to put in the
joint motion.
Alternatively, we could enter into a
supplemental
agreement
for
purposes
of
court
approval, while keeping the underlying agreements in
place ....
(Brantley,
counsel's
Doc.
133-1; Adams,
arguments
represent
Doc.
a
50-1.)
Defendants'
and their
fundamental misunderstanding
of
the FLSA.5
4
The
first paragraph
pervasive language.
(See, e.g.,
of
each agreement
Brantley,
6
also
appears
Doc. 128-1 1 1.)
to
contain
Contrary to what
not
a
negligible
Defendants may believe,
procedural
court approval
requirement.
Rather,
it
is
is
an
unavoidable prerequisite to the dismissal of an
FLSA action and
to
agreement.
the
enforceability
of
an
FLSA
general,
"AFLSA
rights
cannot
otherwise
waived
because
this
settlement
be
abridged
by
contract
or
^nullify
the
purposes'
of
would
the statute and thwart the legislative policies
to
effectuate.'"
Barrentine
(1981)).
v.
Lynn's
Food,
Arkansas-Best
As noted above,
under the FLSA,
679
Freight
In
F.2d
Sys.,
i t was designed
at
450
1352
(quoting
U.S.
728,
740
an employee may settle claims brought
but only if a district court — or the Department
of Labor — approves the settlement as fair and reasonable.
See
5
Defendants' counsel's statement could also be interpreted as a
proposed plan to skirt the law and the Court's clear directives.
Giving
Defendants'
counsel
the
benefit
of
the
doubt,
the
Court
will
assume
that
he
did not intend his statement as such.
But the parties and their counsel are
warned that, not only are side-deal settlement agreements in this context not
enforceable, they will not be tolerated by the Court.
While the majority of the Court's comments in this Order are directed
at
Defendants
and
escaped scrutiny.
as
much
a
monster
their
counsel,
Plaintiffs
and
their
counsel
have
not
The Court is fully aware that this settlement quagmire is
of
Plaintiffs'
counsel's
creation
as
it
is
Defendants'
counsel's.
When they advised Plaintiffs to sign the settlement agreements in
these cases, Plaintiffs' counsel were undeniably aware that FLSA settlements
require
court
approval
and
that
global
releases
are
not
permitted.
Plaintiffs'
counsel served as
counsel in Barnes v.
Ferrell Electric,
Inc.,
CV
113-056.
There, the parties attempted to stipulate dismissal under Federal
Rule of Civil Procedure 41.
This Court rejected that attempt, informed the
parties that pervasive settlements are unacceptable in FLSA cases, informed
them that sealing settlement agreements is typically not permitted, and
directed them to file a motion to approve settlement, which they did.
In
fact,
in this case, Plaintiffs' counsel cited Barnes in its filing that
informed the Court that Defendants were not willing to jointly move for
approval.
(See Adams,
Doc.
38.)
Plaintiffs'
counsel,
therefore,
their clients to sign agreements they knew would be unacceptable.
a year later,
the
Court's
advised
Now,
over
their clients remain uncompensated and these matters linger on
docket.
id.
at
1353-55.
approved
by
Accordingly,
neither
the
Department
court remains unenforceable."
That is,
"the
release
of
Dees,
Labor
an
nor
706 F. Supp.
FLSA
the
claim
district
2d at 1237-38.
an FLSA settlement between an employee and employer is
enforceable only in a narrow circumstance:
his employer for back wages,
that
of
resolves
the FLSA,
a
bona
fide
"If an employee sues
if the parties propose a compromise
dispute
and
furthers
the
purpose
and if the district court approves the compromise,
employer obtains an enforceable release."
Because
the
confidentiality
Defendants'
agreements
clauses
motions
and
for
settlement
the
Id. at 1238.
submitted
global
of
to
the
releases,
Court
the
approval.
contain
Court
The
DENIES
agreements
signed by the parties remain unenforceable.
2. Plaintiffs'
Motions to Consolidate
Plaintiffs
under
Federal
request
Rule
that
of
the
Civil
Court
consolidate
Procedure
42,
these
which
cases
allows
a
district court to consolidate cases when they "involve a common
question of law or fact . . . ."
rule
is
a
codification
of
a
Fed. R. Civ.
trial
court's
P.
42(a).
inherent
"This
managerial
power to control the disposition of the causes on its docket
with economy of time and effort for itself, for counsel, and for
litigants."
1492,
1495
Hendrix
(11th
v.
Cir.
Raybestos-Manhattan,
1985)
(citation
Inc.,
omitted)
776
F.2d
(internal
quotation
marks
Rule 42(a),
omitted).
In
exercising
its
discretion
under
the district court must determine:
[WJhether
the
specific
risks
of
prejudice
and
possible confusion [are] overborne by the risk of
inconsistent adjudications of
common factual and
legal issues, the burden on parties, witnesses and
available
judicial
resources
posed
by
multiple
lawsuits, the length of time required to conclude
multiple suits as against a single one,
and the
relative expense to all concerned of the singletrial, multiple-trial alternatives.
Id. at 1495
193
(4th
(quoting Arnold v. E. Air Lines,
Cir.
1982)).
pursuing
claims
Electric,
Inc.
Here,
under
and
the
in
both
cases,
FLSA
against
Ferrell
James
Inc.,
based
681 F.2d 186,
Plaintiffs
Defendants
on
are
Ferrell
similar
alleged
violations.
Moreover,
the parties in both cases are represented
by the
same
counsel.
Accordingly,
common
questions
because
SDGa,
of
Defendants
law
do
and
not
fact,
oppose
the Court GRANTS Plaintiffs'
because
Fed.
these
R.
cases
Civ.
consolidation,
P.
see
involve
42,
LR
and
7.5,
motions.
3. Discovery and Plaintiff Jasen Adams's Motion to Compel
In
Brantley,
Brantley,
Doc.
discovery
49.)
closed
In Adams,
the case pending the parties'
in
December
however,
2014.
when the
Court
arbitration over attorneys'
nine days of discovery remained outstanding.
27, 35.)
stay
in
discovery.
Accordingly,
November
Indeed,
in Adams,
2015,
the
in August
(See Adams,
(See
stayed
fees,
Docs.
following the expiration of the
parties
2016,
9
continued
Mr.
Adams
to
engage
in
moved to compel
the
production
Defendants
therefore,
of
did
certain
not
respond
GRANTS Mr.
SDGa.
Defendants
2016.
Discovery
documents.
to
(Adams,
this
Doc.
motion.
The
Adams's motion as UNOPPOSED.
must
with
comply with
respect
to
this
the
will OFFICIALLY CLOSE on November 14,
ruling
claims
51.)
Court,
See LR 7.5,
by November
brought
in
4,
Adams
2016.
4. Trial Date and Pretrial Motions
Because
the
parties
resolve
these
trial.
Accordingly,
parties
claims
meet
consolidated
and
have
through
been
unable
settlement,
to
they
will
proceed
to
the Court ORDERS that lead counsel for the
confer,
proposed
in
person,
pretrial
order.
and
The
prepare
Counsel for Plaintiff has the
a
proposed
order must be filed with the Court by 5:00 p.m.
2016.
successfully
joint,
pretrial
on November 30,
responsibility to initiate
compliance with this instruction.
The form for the proposed pretrial order can be located at
the
Court's
website,
Court"/"Forms."
requirements
of
A
this
www.gas.uscourts.gov,
party's
Order
failure
may
result
to
in
under
comply
"District
with
dismissal
of
the
the
complaint or answer or other sanctions determined appropriate by
the Court.
prepared
The Court will not accept a proposed pretrial order
only
from
telephone
conversations.
The
proposed
pretrial order must include a paragraph stating the date and
location of the meeting,
the duration of the meeting,
10
and the
names
of
pretrial
all
orders
counsel
that
or
parties
are
not
participating.
consolidated
Proposed
(proposed
jointly)
will not be accepted without prior permission from the Court.
All
evidentiary objections
and motions
in limine that
have
not been resolved prior to the pretrial conference must be filed
by 5:00 p.m.
5:00 p.m.
on December 2,
on December 16,
2016.
2016.
Responses
The parties
must
be
filed by
are not permitted
to file reply briefs in support of their motions in limine.
The pretrial conference is scheduled for Wednesday,
4, 2017,
for
at 10:00 a.m.
Monday,
conference,
approve,
January
the
order.
All
Jury selection and trial are scheduled
9,
Court
reject,
or
2017,
will
direct
exhibits
January
(in
at
take
9:00
up
amendment
digital
a.m.
any
of
At
the
pending
the
format)
pretrial
motions
proposed
and
an
and
pretrial
exhibit
list
must be provided to the Court at the pretrial conference.
Lead
counsel for each party must attend the pretrial conference.
Ill.
For
the
Defendants'
Adams,
doc.
consolidate
Adams's
reasons
Conclusion
explained
above,
motions for settlement approval
56).
The
(Brantley,
motion
to
Court
doc.
compel
DIRECTED to CONSOLIDATE
GRANTS
134;
(Adams,
the
(Brantley,
Plaintiffs'
Adams,
doc.
doc.
51).
case number CV 114-181
11
Court
doc.
138;
motions
52),
and
The
into
DENIES
to
Jasen
Clerk
is
Brantley v.
Ferrell Electric,
Inc.,
CV 114-022.
filed in case number CV 114-022.
MOOT
Plaintiffs'
docs.
131,
motions
133; Adams,
ORDER ENTERED
to
docs.
at
All
Further,
disapprove
49,
future motions must be
the Court DENIES AS
settlement
(Brantley,
50).
Augusta,
Georgia
this (^
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