Navarro v. Doles Grill Corp.,et al
| Stella Maris Navarro |
| Fedja Balkich and Doles Grill Corp. |
| 0:2018cv61898 |
| August 15, 2018 |
| US District Court for the Southern District of Florida |
| Ft Lauderdale Office |
| Broward (Office: Ft Lauderdale) |
| K Michael Moore |
| Lurana S Snow |
| Labor: Fair Standards |
| 29 U.S.C. § 0201 |
| Plaintiff |
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Filing 19
PAPERLESS ORDER APPROVING SETTLEMENT. THIS CAUSE came before the Court upon the Renewed Joint Motion for Approval of FLSA Settlement. #17 . On September 11, 2018, the Parties filed their Joint Motion for Settlement Approval and Dismissal With Prejudice. #15 . In the Motion #15 , Plaintiff's Counsel requests $34,480.00 in attorneys fees and costs, alleging that this amount satisfies the attorney's contingency fees and costs incurred. On September 13, 2018, this Court ordered Plaintiff's counsel to provide a detailed justification for the claimed attorney's fees and costs, including an itemized breakdown of such fees and costs, no later than September 20, 2018. 16 . Plaintiff's counsel has submitted the requisite justification to the Court. #17 .When a plaintiff prevails in a Fair Labor Standards Act ("FLSA") action, the district court shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action. Martinez v. Hernando Cnty. Sheriff's Office, 579 F. App'x 710, 713 (11th Cir. 2014). The FLSA requires judicial review of the reasonableness of counsel's legal fees. Silva v. Miller, 307 F. App'x 349, 351 (11th Cir. 2009). To determine the reasonableness of attorney's fees, courts consider, among other things, the existence of fraud or collusion, the complexity and duration of litigation, and the stage of the proceedings upon settlement. Dees v. Hydradry, Inc., 706 F. Supp. 2d 1227, 1241 (M.D. Fla. 2010). The Court relies on the lodestar method to determine the reasonableness of the fees sought, which is calculated by multiplying the number of hours reasonably expended on the litigation and the customary hourly rate for similar legal services. Padurjan v. Aventura Limousine & Transp. Serv., Inc., 441 Fed. App'x. 684, 686 (11th Cir. 2011). However, when an action involves settlement of FLSA and non-FLSA claims, the Court need not approve the non-FLSA claims. See McQuillan v. H.W. Lochner, Inc., No. 6:12-cv-1586, 2013 WL 6184063, at *3 (M.D. Fla. Nov. 25, 2013) ("Settlement of... non-FLSA claims... need not be approved by the District Court."). The Settlement agreement in this case resolves Plaintiff's FLSA claims as well as Plaintiff's potential claims for discrimination and wrongful termination. #17 at 3. The total settlement amount is $85,000.00. Plaintiff's counsel provided a breakdown of the settlement which will be apportioned as follows: $7,000.00 as payment for alleged unpaid overtime and minimum wages to Plaintiff; $3,000.00 payable to Plaintiff's counsel as attorney's fees for FLSA claims; $44,712.00 as payment for compensatory mental damages, wrongful termination damages, and discrimination damages; $80.00 payable to Plaintiff's counsel as reimbursement of service of process costs; $400.00 payable to Plaintiff's counsel reimbursement of the filing fee in the instant lawsuit; and $29,808 payable to Plaintiff's counsel as attorney's fees for potential discrimination and wrongful termination claims. #17 at 5-6. With regards to the FLSA claims, Plaintiff's counsel charged an hourly rate of $400.00. #17 at 6. n. 3. The Court does not find this hourly rate excessive. See e.g., Araujo v. C.R.C. Car Rental Inc., 2017 WL 3382315, at *1 (S.D. Fla. Aug. 4, 2017) ("the requested $395 hourly rate for Mr. Pollock, who has over 17 years of experience, is not excessive."). Plaintiff's counsel spent 17.4 hours of time working on Plaintiff's claim but reduced the FLSA fees to $3,000.00. The remainder of Plaintiff's counsel's fees were based on a contingency fee, which the Court need not approve. #17 at 6. Accordingly, UPON CONSIDERATION of the Renewed Motion #17 , pertinent portions of the record, and being otherwise fully advised in the premises, the Court finds that the settlement is fair and reasonable. Accordingly, it is ORDERED AND ADJUDGED that the settlement is APPROVED. Plaintiff's Complaint #1 is hereby DISMISSED WITH PREJUDICE. The Clerk of Court is instructed to CLOSE this case. All pending motions, if any, are DENIED AS MOOT. Signed by Chief Judge K. Michael Moore on 9/28/2018. (jm01)
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| Filing 18 NOTICE of Filing by Stella Maris Navarro re #17 Renewed MOTION for Settlement Approval of FLSA Case Affidavit of Ruben Martin Saenz re: Authenticity and Accuracy of Exhibits (Attachments: #1 Affidavit Exhibit "A") (Saenz, Ruben) Modified text on 9/19/2018 (vmz). |
| Filing 17 Renewed MOTION for Settlement Approval of FLSA Case by Stella Maris Navarro. Responses due by 10/3/2018 (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F)(Gibson, Brandon) |
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Filing 16
PAPERLESS ORDER. THIS CAUSE came before the Court upon the Parties Joint Motion to Approve Settlement. #15 , which states that the Parties have settled this matter and seeks the Court's approval of the settlement agreement. The Fair Labor Standard Act, 29 U.S.C. 201 et seq. (the FLSA), requires, upon settlement of an FLSA claim, either approval of the settlement agreement by the Secretary of Labor, or judicial review and the courts determination that the settlement agreement is a fair and reasonable. Silva v. Miller, 307 F. Appx 349, 351 (11th Cir. 2009). This includes review of the reasonableness of counsels legal fees to assure both that counsel is compensated adequately and that no conflict of interest taints the amount the wronged employee recovers under [the] settlement agreement. Id. The framework for assessing the reasonableness of an FLSA settlement agreement should include, among other things, analysis of: (1) the existence of fraud or collusion; (2) the complexity and duration of the litigation; and (3) the stage of the proceedings upon settlement. Dees v. Hydradry, Inc., 706 F. Supp. 2d 1227, 1241 (M.D. Fla. 2010). Even where Plaintiff enters into a contingency fee arrangement with counsel, the attorneys' compensation is still subject to judicial scrutiny for reasonableness. Silva, 307 F. App'x at 35152 ("To turn a blind eye to an agreed upon contingency fee in an *352 amount greater than the amount determined to be reasonable after judicial scrutiny runs counter to FLSA's provisions for compensating the wronged employee."); see also Zegers v. Countrywide Mortgage Ventures, LLC, 569 F. Supp. 2d 1259, 1266-68 (M.D. Fla. 2008) (holding that a forty-percent contingency fee agreement was not consistent with the purposes of the FLSA). Plaintiff's Counsel requests $34,480.00 in attorneys fees and costs, alleging that this amount satisfies the attorney's contingency fees and costs incurred. Under the terms of the settlement, Plaintiff will receive $50,520.00. Accordingly, Plaintiff's Counsel would receive a 40% contingency fee based on the total settlement of $85,000.00. The Court cannot find the Settlement Agreement to be fair and reasonable without evidence explaining Plaintiff's Counsels fee amount because (1) the docket reflects that Plaintiffs Counsel performed little substantive work on the case; and (2) Plaintiff's Counsel provided no supporting documentation for the amount of fees requested, such as an attorneys fees billing invoice. See Dees, 706 F. Supp. 2d at 1241. Consequently, the Court cannot knowledgeably determine whether the Settlement Agreement is fair and reasonable. Accordingly, UPON CONSIDERATION of the Motion, the Settlement Agreement, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED and ADJUDGED that the Motion #15 is DENIED WITHOUT PREJUDICE. On or before September 20, 2018, the Parties shall submit a renewed motion for settlement approval that shall include a billing invoice or other document showing the hourly rate, the number of hours worked, and a description of the corresponding work performed. The document shall be accompanied by an affidavit attesting to its authenticity and accuracy. It is further ORDERED that, in light of the notification of settlement, the Clerk of Court shall administratively CLOSE this case. Signed by Chief Judge K. Michael Moore on 9/13/2018. (jm01)
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| Civil Case Terminated. Closing Case. (jm01) |
| Filing 15 MOTION for Settlement Approval of FLSA Case by Stella Maris Navarro. Responses due by 9/25/2018 (Attachments: #1 Exhibit A)(Gibson, Brandon) |
| Filing 14 Statement of: Claim by Stella Maris Navarro (Gibson, Brandon) |
| Filing 13 NOTICE of Attorney Appearance by Brandon Javon Gibson on behalf of Stella Maris Navarro. Attorney Brandon Javon Gibson added to party Stella Maris Navarro(pty:pla). (Gibson, Brandon) |
| Filing 12 Notice of NO Pending, Refiled, Related or Similar Actions by Stella Maris Navarro (Saenz, Ruben) |
| Filing 11 Certificate of Interested Parties/Corporate Disclosure Statement by Stella Maris Navarro (Saenz, Ruben) |
| Filing 10 SUMMONS (Affidavit) Returned Executed on #1 Complaint with a 21 day response/answer filing deadline by Stella Maris Navarro. Fedja Balkich served on 8/16/2018, answer due 9/6/2018. (Saenz, Ruben) |
| Filing 9 SUMMONS (Affidavit) Returned Executed on #1 Complaint with a 21 day response/answer filing deadline by Stella Maris Navarro. Doles Grill Corp. served on 8/16/2018, answer due 9/6/2018. (Saenz, Ruben) |
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Filing 8
General Order On Discovery Objections And Procedures. Signed by Magistrate Judge Lurana S. Snow on 8/15/2018. See attached document for full details. (vmz)
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Filing 7
PAPERLESS ORDER REFERRING PRETRIAL DISCOVERY MATTERS TO MAGISTRATE JUDGE LURANA S. SNOW. PURSUANT to 28 U.S.C. 636 and the Magistrate Rules of the Local Rules of the Southern District of Florida, the above-captioned Cause is referred to United States Magistrate Judge Lurana S. Snow to take all necessary and proper action as required by law with respect to any and all pretrial discovery matters. Any motion affecting deadlines set by the Court's Scheduling Order is excluded from this referral, unless specifically referred by separate Order. It is FURTHER ORDERED that the parties shall comply with Magistrate Judge Lurana S. Snow's discovery procedures, which the parties shall be advised of by the entry of an Order. Signed by Chief Judge K. Michael Moore on 8/15/2018. (jm01)
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Filing 6
PAPERLESS NOTICE OF COURT PRACTICE IN FAIR LABOR STANDARDS ACT CASES AND REFERRAL TO MAGISTRATE JUDGE FOR SETTLEMENT CONFERENCE. This is a Fair Labor Standards Act case in which Plaintiff seeks unpaid wages. In order to assist the Court in the management of the case, and in an effort to foster its early and cost effective resolution, the Parties are hereby ordered that: 1. Plaintiff shall file a Statement of Claim (the Statement) setting forth the amount of alleged unpaid wages, the calculation of such wages, and the nature of the wages (e.g., overtime or regular) within twenty (20) days from the date of this Notice. Plaintiff shall promptly serve a copy of this Notice, the Statement, and copies of all documents supporting Plaintiff's claims (e.g., time sheets, pay stubs, etc.), on Defendant's counsel when counsel for Defendant first appears in the case or at the time of filing if Defendant's counsel has already appeared. The Statement shall include all attorneys fees and costs incurred to date. With respect to attorney's fees, provide the hourly rate sought and the number of hours expended by each person billing time. 2. Defendant shall file a Response within fifteen (15) days of receiving service of Plaintiff's statement. This Response shall set forth in detail Defendants defenses to Plaintiff's claims. Defendant shall serve copies of all documents in support thereof on Plaintiff. 3. Referral to Magistrate for Settlement Conference. Pursuant to Rule 1 of the Magistrate Rules of the Southern District of Florida, the Parties shall conduct a Settlement Conference before Magistrate Judge Lurana S. Snow within twenty (20) days after the date that Defendant's Response is due. Plaintiff's counsel must confer with defense counsel and contact the Chambers of Magistrate Judge Lurana S. Snow on, or before, the date that Defendant's Response is due to schedule a date for the Settlement Conference. The Settlement Conference date may not be extended without prior approval from Magistrate Judge Snow. Absent an extension from Magistrate Judge Snow, the Parties shall complete their Settlement Conference within fifty-five (55) days of this Notice. If the Parties reach an agreement during the Settlement Conference the Parties shall file the agreement with the undersigned within five (5) days of the Settlement Conference. If the Parties wish to file the settlement agreement as a sealed document, they must file a Motion to Seal that provides compelling reasons for the Court to allow them to do so. See Brown v. Advantage Eng'g, Inc., 960 F.2d 1013, 1016 (11th Cir. 1992) ("If a settlement agreement is filed with the court for approval or interpretation, then the parties must demonstrate extraordinary circumstances in order to deny the public access to the agreement."); see also Hanson v. Wells Fargo Bank, N.A., No. 08-80182-CIV, 2009 WL 1490582, at *1 (S.D. Fla. May 26, 2009) ("'[A] business's general interest in keeping its legal proceedings private does not overcome the presumption of openness' in FLSA cases.") (citing Stalnaker v. Novar Corp., 293 F. Supp. 2d 1260, 1264 (M.D. Ala. 2003)). The undersigned will review the agreement and determine whether it is a fair and reasonable resolution of a bona fide dispute over FLSA issues. See Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982). If the Court approves the settlement, the Court will enter a final order of dismissal with prejudice. If no settlement is reached, the Parties shall file a Joint Scheduling Report within fourteen (14) days after the Settlement Conference. 4. Except as provided under Local Rule 16.2.E for public-sector entities, the appearance of counsel and each party, or representatives of each party with full authority to enter into a full and complete compromise and settlement, is mandatory. Appearance shall be in person; telephonic appearance is prohibited. If insurance is involved, an adjuster with authority up to the policy limits or the most recent demand, whichever is lower, shall attend. 5. All discussions, representations and statements made at the settlement conference shall be confidential and privileged. Nothing disclosed in the settlement conference can be used for any purpose except settlement. 6. Settlement. If this case is settled, counsel must inform the Court within three (3) days by calling Chambers. 7. Pursuant to Administrative Order 2016-70 of the Southern District of Florida and consistent with the Court of Appeals for the Eleventh Circuits Local Rules and Internal Operating Procedures, within three days of the conclusion of a trial or other proceeding, parties must file via CM/ECF electronic versions of documentary exhibits admitted into evidence, including photographs of non-documentary physical exhibits. The Parties are directed to comply with each of the requirements set forth in Administrative Order 2016-70 unless directed otherwise by the Court. 8. Non-compliance with Order. Non-compliance with any provision of this Order, the Federal Rules of Civil Procedure, and/or the Local Rules of Court, may subject the offending party to sanctions or dismissal. It is the duty of all counsel to take all actions necessary to comply with this Order to ensure an expeditious resolution of this matter. Signed by Chief Judge K. Michael Moore on 8/15/2018. (jm01)
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| Filing 5 Summons Issued as to Fedja Balkich, Doles Grill Corp.. (lh) |
| Filing 4 Clerks Notice to Filer re: Electronic Case. Party(ies) Improperly Formatted. The Filer failed to enter the party name(s) in accordance with the CM/ECF Format for Adding Parties for Attorneys Guide. The correction was made. It is not necessary to re-file the document. (lh) |
| Filing 3 Clerks Notice to Filer re: Electronic Case. Incorrect case opening information. The Filer selected the incorrect Cause of Action when filing. The correction was made. It is not necessary to re-file this document. (lh) |
| Filing 2 Clerks Notice of Judge Assignment to Chief Judge K. Michael Moore. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Lurana S. Snow is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent. (lh) |
| Filing 1 COMPLAINT against All Defendants. Filing fees $ 400.00 receipt number 113C-10907298, filed by Stella Maris Navarro. (Attachments: #1 Civil Cover Sheet, #2 Summon(s), #3 Summon(s))(Saenz, Ruben) |
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