Zepeda v. Aviation Management Sales, LLC et al
| Wilfredo Zepeda |
| Aviation Management & Repairs, Inc., Brian Hinkle, Aviation Management Sales, LLC and Mildred Garay |
| 2:2020cv14268 |
| July 30, 2020 |
| US District Court for the Southern District of Florida |
| Shaniek M Maynard |
| K Michael Moore |
| Labor: Fair Standards |
| 29 U.S.C. § 0201 |
| Plaintiff |
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This docket was last retrieved on September 18, 2020. A more recent docket listing may be available from PACER.
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Filing 22
PAPERLESS ORDER. THIS CAUSE came before the Court upon Plaintiff's Notice of Compliance #21 filed in response to the Court's September 10, 2020 Paperless Order 20 denying the Parties' Joint Motion and Memorandum of Law in Support of Request for Approval of Settlement. #19 . The Court denied the Motion without prejudice because the Parties failed to include documentation supporting the amount of fees requested, preventing the Court from determining whether the settlement was fair and reasonable. 20 . The Fair Labor Standards Act, 29 U.S.C. 201 et seq. (the "FLSA"), requires judicial review and the court's determination that the settlement agreement "is a fair and reasonable resolution of a bona fide [FLSA] dispute...." Silva v. Miller, 307 F. App'x 349, 351 (11th Cir. 2009). This includes "review of the reasonableness of counsel's 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. See Dees v. Hydradry, Inc., 706 F. Supp. 2d 1227, 1241 (M.D. Fla. 2010). In evaluating specifically the reasonableness of the proposed attorney's fee recovery, the Court should also consider the possible range of the plaintiff's recovery as compared to the extent of success in obtaining the maximum recovery and whether that extent of success justifies the amount of counsel's fee award. See Hensley v. Eckerhart, 461 U.S. 424, 438 (1983); Dees, 706 F. Supp. 2d at 1241, 1243. In the Notice of Compliance, Plaintiff's counsel included an itemized breakdown of attorney's fees and costs. [21-1]. Plaintiff will receive $2,315.14, the full amount of his alleged unpaid overtime and liquidated damages. [19-1] at 3. Plaintiff's counsel, Mr. Todd Shulby, charged an hourly rate of $300. #21 at 2. 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) ("[T]he requested $395 hourly rate for Mr. Pollock, who has over 17 years of experience, is not excessive."). Additionally, Plaintiff's counsel expended 32.9 hours on the case. [21-1] at 5. Although Plaintiff's counsel's total billable fees and costs were approximately $10,532.50, the firm only seeks $6,100.00 in fees and costs. [21-1] at 5; [19-1] at 3. Thus, the Court finds that the settlement is fair and reasonable. UPON CONSIDERATION of the Notice, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the settlement is APPROVED. Plaintiff's Complaint #1 is hereby DISMISSED WITH PREJUDICE. Signed by Chief Judge K. Michael Moore on 9/18/2020. (tgr)
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| Filing 21 NOTICE of Compliance by Wilfredo Zepeda re 20 Order on Motion for Settlement,,,,,,,,,,, (Attachments: #1 Exhibit 1) (Shulby, Todd) |
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Filing 20
PAPERLESS ORDER. THIS CAUSE came before the Court upon a Joint Motion and Memorandum of Law in Support of Request for Approval of Settlement. #19 . Therein, the Parties request that the Court approve their settlement of Plaintiff's claims brought pursuant to the Fair Labor Standards Act, ("FLSA"), 29 U.S.C. 201 et seq., including attorney's fees for Plaintiff's counsel. Id. at 3-4. The FLSA requires judicial review and the court's determination that the settlement agreement is a "fair and reasonable resolution of a bona fide [FLSA] dispute...." Silva v. Miller, 307 F. App'x 349, 351 (11th Cir. 2009). This includes "review of the reasonableness of counsel's 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. In evaluating specifically the reasonableness of the proposed attorney's fee recovery, the Court should also consider the possible range of the plaintiff's recovery as compared to the extent of success in obtaining the maximum recovery and whether that extent of success justifies the amount of counsel's fee award. See Hensley v. Eckerhart, 461 U.S. 424, 438 (1983); Dees v. Hydradry, Inc., 706 F. Supp. 2d 1227, 1243 (M.D. Fla. 2010). The Court cannot conclude from the Motion that the Settlement Agreement is fair and reasonable. Plaintiff's counsel requests $6,100.00 in attorney's fees and costs. #19 at 4. Although the Motion includes Plaintiff's counsel's hourly rate and the total number of hours worked, counsel provided no supporting documentation for the amount of fees requested, such as an attorney's fees billing invoice or a breakdown of costs. See Dees, 706 F. Supp. 2d at 1241. The Court cannot find the Settlement Agreement to be fair and reasonable without evidence explaining Plaintiff's counsel's fee amount. UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Joint Motion and Memorandum of Law in Support of Request for Approval of Settlement #19 is DENIED WITHOUT PREJUDICE. It is further ORDERED that the Parties are hereby given leave to submit a renewed motion for approval of settlement on or before September 17, 2020. In the renewed motion, Plaintiff's counsel shall submit a billing invoice or other document with a breakdown of the total number of hours worked and a description of the corresponding work performed, as well as a breakdown of costs. The invoice or other evidencing document shall be accompanied by an affidavit attesting to its authenticity and accuracy. If the Court approves the settlement, the Court will enter a final order of dismissal with prejudice. Signed by Chief Judge K. Michael Moore on 9/10/2020. (tsr)
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| Filing 19 Joint MOTION for Settlement Approval and Memorandum of Law in Support of Request by Wilfredo Zepeda. Responses due by 9/23/2020 (Attachments: #1 Exhibit Settlement Agreement)(Shulby, Todd) |
| Filing 18 PAPERLESS NOTICE OF COURT PRACTICE UPON NOTICE OF SETTLEMENT. THIS CAUSE came before the Court upon the Parties' Notice of Settlement and Motion to Extend Pretrial Deadlines Including the Time for Plaintiff to File a Response to Defendants' Motion to Dismiss (D.E. 14). #16 . The Parties are hereby directed to file a stipulation of dismissal of all claims signed by all parties pursuant to Rule 41(a), Fed. R. Civ. P., within twenty (20) days from the date of this Notice. If such papers are not filed within the time specified, this matter will be DISMISSED and the Court will be divested of jurisdiction to enforce the settlement agreement. The Clerk of the Court is instructed to administratively CLOSE this case. All pending motions, if any, are DENIED AS MOOT. Signed by Chief Judge K. Michael Moore on 9/8/2020. (tsr) |
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Filing 17
PAPERLESS Order cancelling the Settlement Conference currently set for Monday, September 28, 2020 at 2:00 PM in light of the parties' Notice of Settlement (DE 16). Nor must the parties file settlement memoranda. Signed by Magistrate Judge Shaniek M. Maynard on 9/8/2020. (ip00)
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| Filing 16 NOTICE of Settlement by Wilfredo Zepeda (Shulby, Todd) |
| Filing 15 Unopposed MOTION for Extension of Time to File Response/Reply/Answer as to #8 Final MOTION TO DISMISS #1 Complaint, FOR FAILURE TO STATE A CLAIM by Wilfredo Zepeda. (Shulby, Todd) |
| Filing 14 Statement of: the Claim (FLSA) by Wilfredo Zepeda re 4 Pretrial Order,,,,,,,,,,,,,,,,,,,,, (Shulby, Todd) |
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Filing 13
PAPERLESS ORDER. THIS CAUSE came before the Court upon Plaintiff's Motion for Enlargement of Time to File and Serve Plaintiff's Statement of Claim. #12 . Therein, Plaintiff requests that the Court extend the deadline to file and serve the statement of claim pursuant to the Court's Notice of Court Practice in FLSA Cases 4 by seven (7) days. Id. UPON CONSIDERATION of the Motion #12 , the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Motion for Enlargement of Time to File and Serve Plaintiff's Statement of Claim #12 is GRANTED. Plaintiff shall file and serve on Defendants his statement of claim on or before August 31, 2020. Signed by Chief Judge K. Michael Moore on 8/28/2020. (tsr)
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| Filing 12 Plaintiff's MOTION for Extension of Time to File and Serve Plaintiff's Statement of Claim by Wilfredo Zepeda. Responses due by 9/10/2020 (Shulby, Todd) |
| Filing 11 Notice of Pending, Refiled, Related or Similar Actions by Wilfredo Zepeda (Shulby, Todd) |
| Filing 10 Plaintiff's Certificate of Other Affiliates/Corporate Disclosure Statement by Wilfredo Zepeda (Shulby, Todd) |
| Filing 9 Corporate Disclosure Statement by Aviation Management & Repairs, Inc., Aviation Management Sales, LLC (Gibson, Andre) |
| Filing 8 Final MOTION TO DISMISS #1 Complaint, FOR FAILURE TO STATE A CLAIM by Aviation Management & Repairs, Inc., Aviation Management Sales, LLC, Mildred Garay, Brian Hinkle. Attorney Andre Alexander Gibson added to party Aviation Management & Repairs, Inc. (pty:dft), Attorney Andre Alexander Gibson added to party Aviation Management Sales, LLC(pty:dft), Attorney Andre Alexander Gibson added to party Mildred Garay(pty:dft), Attorney Andre Alexander Gibson added to party Brian Hinkle(pty:dft). Responses due by 9/4/2020 (Gibson, Andre) |
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Filing 7
ORDER SETTING DISCOVERY PROCEDURES Signed by Magistrate Judge Shaniek M. Maynard on 8/3/2020. See attached document for full details. (pcs)
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Filing 6
Order setting Settlement Conference for MONDAY 9/28/2020 at 2:00 PM in Fort Pierce Division before Magistrate Judge Shaniek M. Maynard on the Zoom Platform. (At a time closer to the Settlement Conference this Court will send counsel of record the Zoom link.) The parties shall file their Memoranda by WEDNESDAY, SEPTEMBER 23, 2020. Signed by Magistrate Judge Shaniek M. Maynard on 8/3/2020. See attached document for full details. (ip00)
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Filing 5
PAPERLESS ORDER REFERRING PRETRIAL DISCOVERY MATTERS TO MAGISTRATE JUDGE SHANIEK MAYNARD. 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 Shaniek Maynard 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 Maynard's discovery procedures. Signed by Chief Judge K. Michael Moore on 8/3/2020. (tsr)
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Filing 4
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 Shaniek M. Maynard 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 Maynard 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 Maynard. Absent an extension from Magistrate Judge Maynard, 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 8/3/2020. (tsr)
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| Filing 3 Summons Issued as to Aviation Management & Repairs, Inc., Aviation Management Sales, LLC, Mildred Garay, Brian Hinkle. (pcs) |
| Filing 2 Clerks Notice of Judge Assignment to Chief Judge K. Michael Moore and Magistrate Judge Shaniek M. Maynard. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Shaniek M. Maynard 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. Pro se (NON-PRISONER) litigants may receive Notices of Electronic Filings (NEFS) via email after filing a Consent by Pro Se Litigant (NON-PRISONER) to Receive Notices of Electronic Filing. The consent form is available under the forms section of our website. (pcs) |
| Filing 1 COMPLAINT against Aviation Management & Repairs, Inc., Aviation Management Sales, LLC, Mildred Garay, Brian Hinkle. Filing fees $ 400.00 receipt number AFLSDC-13267670, filed by Wilfredo Zepeda. (Attachments: #1 Civil Cover Sheet, #2 Summon(s), #3 Summon(s), #4 Summon(s), #5 Summon(s))(Shulby, Todd) |
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