Hogan v. Cleveland Ave Restaurant, Inc. et al

Filing 444

ORDER granting in part and denying in part 424 Motion to Enforce the Settlement, Re-Engage the Special Master, and Award Atorney's Fees. Plaintiffs Motion to Enforce the Settlement and Re-Engage the Special Master is GRANTED. The Consent Jud gment Entry from March 31, 2022 (ECF No. 363) remains in effect. John Camillus, Esq. is RE-ENGAGED as Special Master. Plaintiffs Motion for an Award of Attorneys Fees is DENIED. Signed by Chief Judge Algenon L. Marbley on 11/7/2023. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JESSICA HOGAN, et. al.,

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Plaintiffs,
v.
CLEVELAND AVE
RESTAURANT, INC., et al.,
Defendants.

Case No. 2:15-cv-02883
Chief Judge Algenon L. Marbley
Magistrate Judge Kimberly A. Jolson

OPINION & ORDER
This matter is before the Court on Plaintiff’s Motion to Enforce the Settlement, ReEngage the Special Master, and Award Attorney’s Fees. (ECF No. 424). For the reasons set forth
below, Plaintiff’s Motion is GRANTED IN PART AND DENIED IN PART.
I.

BACKGROUND

This class action case involves the Fair Labor Standards Act (“FLSA”). On December 10,
2019, this Court preliminarily approved the Settlement Agreement between Defendants and two
separate classes of Plaintiffs—the “Entertainer” and “Bartender” classes. (ECF No. 230). On
September 29, 2020, Plaintiffs filed a motion to enforce the settlement agreement. (ECF No. 315).
On November 23, 2020, this Court granted Plaintiffs’ motion to enforce the settlement agreement.
(ECF No. 323). On May 17, 2021, this Court approved the final Settlement Agreement. (ECF No.
350). On March 31, 2022, this Court approved a consent judgment entry resolving Plaintiffs’
September 29, 2020 motion to enforce the agreement. (ECF No. 363).
Defendants agreed to a total settlement of $600,000.00 and were ordered to make $8,000.00
monthly payments to the Entertainer class. (Id.). As of August 8, 2023, Defendants paid
$42,000.00 toward the total settlement. (ECF No. 436). According to Plaintiffs, though,

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Defendants have failed to make their $8,000.00 monthly payment to the Entertainer class since
December 2022. (ECF No. 424). Plaintiffs’ counsel and Defendants’ counsel negotiated informal
agreements for Defendants’ missed payments, but Defendants failed to meet their obligations
under those informal agreements. (Id.). On August 2, 2023, Plaintiffs filed the motion sub judice.
(ECF No. 424).
On August 30, 2023, Defendants responded in opposition to Plaintiffs’ motion. (ECF No.
436). Defendants do not dispute their missed payments. Defendants allege they have been unable
to make their payment obligations because of their business(es) shutting down during the COVID19 pandemic. (Id.). Defendants’ counsel states Defendants anticipate reopening their business(es)
in November 2023 and asserts Defendants will be able to make their required payments then. (Id.).
On September 11, 2023, Plaintiffs replied to Defendants’ response in opposition. (ECF No. 438).
Under the Settlement Agreement, if Defendants fail to pay, at the request of Plaintiffs’
counsel, the Court can appoint a Special Master to ensure that Defendants fulfill their payment
obligations under the Settlement Agreement. (ECF No. 436, Exhibit A ¶ 10(B)). Defendants are
responsible for the costs associated with the Special Master, to be paid separately and in addition
to the Settlement Fund. (Id.). This Court previously appointed John Camillus, Esq. to serve as a
Special Master due to Defendants’ failure to pay. (ECF No. 363). Plaintiffs request that this Court
re-engage Mr. Camillus as a Special Master. (ECF No. 424). Defendants “reluctantly” consent to
the re-appointment of Mr. Camillus as a Special Master, but rather prefer that their limited financial
resources be used to pay settlement funds to Plaintiffs rather than be applied toward attorney’s fees
and/or Special Master fees. (ECF No. 436).

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II.

STANDARD OF REVIEW

Public policy favors settling cases without litigation, and thus settlement agreements
should be upheld whenever it is equitable to do so. Graley v. Yellow Freight Sys., Inc., No. 984166, 2000 WL 799779, at *4 (6th Cir. June 14, 2000) (internal citation omitted). Settlement
agreements are a type of contract, so “the formation and enforceability of a purported settlement
agreement are governed by state contract law.” Tocci v. Antioch Univ., 967 F. Supp. 2d 1176, 1191
(S.D. Ohio 2013) (citing Smith v. ABN AMRO Mortg. Grp. Inc., 434 F. App’x 454,460 (6th Cir.
2011)). In this case, the applicable law is Ohio contract law, since the parties are all Ohio residents
and the Settlement Agreement was entered into in Ohio. Summary enforcement of an agreement,
without holding a hearing, is appropriate where the parties “do not dispute material facts pertaining
to the existence or terms of a settlement agreement.” Graley v. Yellow Freight Sys., Inc., 221 F.3d
1334 (6th Cir. 2000).
III.

LAW AND ANALYSIS

In this case, both parties agree they came to an agreement on the material terms of the
settlement. The sole issue is Defendants’ failure to make its $8,000.00 monthly payments to the
Entertainer class.
A. Special Master
Based on Defendants’ repeated failure to make required payments and meet its obligations
under the informal agreements negotiated between Plaintiffs’ counsel and Defendants’ counsel,
this Court finds the re-engagement of a Special Master appropriate. The requested appointment of
a Special Master falls squarely within Rule 53(a)(1)(A) of the Federal Rules of Civil Procedure
and the parties consented to the appointment of a Special Master upon the happening of certain

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contractual breaches, such as missed payments here. Accordingly, this Court GRANTS Plaintiffs’
Motion to Enforce the Settlement and Re-Engage the Services of the Special Master.
B. Award of Attorney’s Fees
Plaintiffs also request that this Court impose an attorney’s fee award that would require
Defendants to pay Plaintiffs’ counsels’ fees after Defendants have paid all other settlement money
owed to the Entertainer class. (ECF No. 424). The FLSA allows a plaintiff to recover reasonable
attorney’s fees and costs. 29 U.S.C. § 216(b). To determine reasonable attorney's fees, a district
court “begins by determining ‘the fee applicant's lodestar, which is the proven number of hours
reasonably expended on the case by an attorney, multiplied by his court-ascertained reasonable
hourly rate.’” Waldo v. Consumers Energy Co., 726 F.3d 802, 821 (6th Cir. 2013) (citing AdCockLadd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000)). To prove that the purported fees are
reasonable, the requesting party must provide “evidence supporting the hours worked and rates
claimed.” Granada Inv., Inc. v. DWG Corp., 962 F.2d 1203, 1207 (6th Cir. 1992) (citation
omitted).
Here, Plaintiffs’ counsel did not provide this Court with a lodestar rate or any evidence
supporting the hours worked and rates claimed. Accordingly, this Court DENIES Plaintiffs’
Motion for an Award of Attorney’s Fees. If Plaintiffs’ counsel wishes to file another motion for
attorney’s fees that includes the required information, this Court will re-consider its ruling.
IV.

CONCLUSION

For the reasons set forth above, Plaintiffs’ Motion to Enforce the Settlement, Re-Engage
the Special Master, and Award Attorney’s Fees (ECF No. 424) is GRANTED IN PART AND
DENIED IN PART. Specifically, Plaintiffs’ Motion to Enforce the Settlement and Re-Engage the
Special Master is GRANTED. The Consent Judgment Entry from March 31, 2022 (ECF No. 363)

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remains in effect. John Camillus, Esq. is RE-ENGAGED as Special Master. The scope of Mr.
Camillus’ appointment will be consistent with the Enforcement Terms in the Settlement
Agreement, namely, “The Special Master will have wide discretion to oversee Defendants Sirens,
Francis Sharrak and/or Michael Sharrak’s income and assets to ensure the required payments are
met.” (ECF No. 436, Exhibit A ¶ 10(B)). Once services are rendered, Mr. Camillus is directed to
submit an invoice to Defendants. Defendants shall pay the invoice submitted by Mr. Camillus
within thirty (30) days of receipt of the invoice.
Plaintiffs’ Motion for an Award of Attorney’s Fees is DENIED.
IT IS SO ORDERED.

ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE
DATED: November 7, 2023

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