Lorenzo v. Prime Communications, L.P.

Filing 295

ORDER adopting Report and Recommendations regarding 281 Memorandum and Recommendations; denying 205 Motion for Partial Summary Judgment; granting 209 Motion to accept late opt-in consent forms. Other pending motions in this matter shall be ruled on in due course. Signed by Senior Judge Malcolm J. Howard on 3/21/2017. (Rudd, D.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:12-CV-69-H

ROSE LORENZO, on behalf of
herself and all others
similarly situated,
Plaintiffs,

v.

ORDER

PRIME COMMUNICATIONS, L.P., a
Texas General Partnership,
Defendant.

This is an action under the
U.S.C.

§§

201 et seq.,

Hour Act, N.C. Gen. Stat.

("FLSA")
§§

Fair Labor Standards Act,

29

and the North Carolina Wage and

95-25. 1 et seq., 'brought by Plaintiff

Rose Lorenzo against her former employer,

Prime Communications,

L.P. The court previously entered orders conditionally certifying
Plaintiff's FLSA claim as a collective action pursuant to 29 U.S.C.
§

216 (b)

[DE #7 4] and certifying a Rule 23 class as to Plaintiff's

state-law claims [DE #94].
Presently before the court is defendant's motion for partial
summary judgment [DE #205]
opt-in

consents

judgment,

[DE

defendant

#209].

and plaintiffs' motion to accept late
In

contends

its
that

motion

for

seventeen

partial

summary

individuals

have

released their claims against defendant as part of the settlement
of a prior California class-action lawsuit involving wage and hour

claims, ten individuals missed the deadline for joining this suit,
and

two

opt-in

plaintiffs

executed

individual

settlement

agreements that preclude them from participating in this action.
Plaintiff filed a response to this motion as well as a motion
seeking the court's leave to accept as timely the tardily filed
consent notices.
United States Magistrate
memorandum

and

recommending

Judge

recommendation

to

this

court

Kimberly A.

("M&R")

on

defendant's

Swank filed

February

motion

be

14,

a

2017,

denied

and

plaintiffs' motion be granted and thoroughly details the reasons
for her recommendation.

Defendant has filed objections to the

M&R, and plaintiff has filed a response.
Under Rule 72(b) of the Federal Rules of Civil Procedure, a
district judge "must determine de novo any part of the magistrate
judge's disposition that has been properly objected to."
Civ. P. 72 (b)
First,

Fed. R.

(3).

defendant

recommendation

that

objects

to

the Martinez

the

settlement 1 does

claims of the California plaintiffs.

judge's

magistrate
not

bar the

Defendant's objection though

centers on the argument that it believes the magistrate judge is
allowing a collateral attack of the Martinez settlement.
argument is without merit.

Rather,

the magistrate judge found

Martinez v. Prime Commc'ns of Cal., LLC, No. BC44767
Cal).
1

2

This

(Super. Ct. L.A. Cnty.,

some internal inconsistencies in the settlement,

and finding an

absence of any mention of the FLSA or the waiver of federal rights
or claims in both the Settlement Notice and the judgment approving
I

the class-action settlement,

ultimately found defendant had not

met its burden of demonstrating that the Martinez judgment would
be construed under California law to preclude the FLSA claims of
all California plaintiffs involved in this action.

The court has

considered this matter de novo, and agrees with the recommendation
of the magistrate judge.
defendant

Next,

objects

to

the

judge's

magistrate

recommendation that the late consents to opt-in be accepted as
timely, and defendant's motion for judgment as to these claims be
denied.
these

Defendant acknowledges the court's discretion to allow
late

magistrate

consents.
judge's

However,

exercise

of

defendant
discretion.

disagrees
This

with

the

court

has

independently reviewed this matter, and finds, in its discretion,
these late opt-ins should be allowed.
Finally,

defendants

object

to

the

magistrate

judge's

recommendation that summary judgment be denied as to plaintiffs
Rebecca Willoughby and Patricia White because the Fourth Circuit
has not permitted private settlements of FLSA disputes and even
assuming they would permit enforcement of such, there are genuine
issues of material fact that preclude summary judgment on those
issues.

Defendant cites case law from multiple circuits to support
3

its objection; notably, however, defendant does not cite a Fourth
Circuit case.

This court has carefully studied this issue, and

finds defendant's objection to be without merit.
Therefore,

the

pertinent documents

court
of

having

record

reviewed

finds

the

the

M&R

and

other

recommendation of the

magistrate judge is in accordance with law and should be approved.
Therefore, the court adopts the findings of the M&R as its own.
Plaintiffs' motion to accept late opt-in consent forms is GRANTED
[DE #209], and defendant's motion for partial summary judgment is
DENIED.

[DE #205].

Other pending motions in this matter shall

be ruled on in due course.
..

This

:Z.l

~

day of March 2017.

Senior United States District Judge

At Greenville, NC
#26

4