GIL v. ZEN AUTO CONCEPTS LLC
| JOSHUA GIL |
| ZEN AUTO CONCEPTS LLC |
| 2:2022cv14258 |
| July 15, 2022 |
| US District Court for the Southern District of Florida |
| K Michael Moore |
| Labor: Fair Standards |
| 29 U.S.C. § 0201 Fair Labor Standards Act |
| Plaintiff |
Docket Report
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Filing 19
PAPERLESS ORDER. THIS CAUSE came before the Court upon Plaintiff's Renewed Joint Motion for Court Approval of Settlement Agreement and Request for Order of Dismissal with Prejudice. #18 . 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 Motion, Plaintiff includes an itemized breakdown of his counsel's hours, fees and costs. See generally [18-2]. Plaintiff himself will receive $1,853.04 in total for his unpaid overtime wages and liquidated damages. [18-1] at 2. Plaintiff's counsel, USA Employment Lawyers Jordan Richards PLLC, billed its senior attorney at an hourly rate of $395.00 per hour, and its junior attorneys at an hourly rate of $275.00 per hour. See [18-2] at 2. The Court does not find either of these hourly rates excessive given Mr. Jordan Richards' nearly ten years of experience, 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."). Based on the foregoing, the Court finds that the settlement is fair and reasonable. 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 settlement is APPROVED. Plaintiff's Complaint #1 is hereby DISMISSED WITH PREJUDICE. The Court retains jurisdiction to enforce the terms of the Parties' settlement agreement. Signed by Judge K. Michael Moore on 8/22/2022. (fpi)
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| Filing 18 Renewed MOTION for Settlement Approval and for Dismissal with Prejudice by JOSHUA GIL. Responses due by 9/2/2022 (Attachments: #1 Exhibit A, #2 Exhibit B - Declaration of Jordan Richards, Esquire and Lodestar, #3 Exhibit C - Declaration of Jake Blumstein)(Blumstein, Jake) |
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Filing 17
PAPERLESS ORDER. THIS CAUSE came before the Court upon the Parties' Joint Motion for Court Approval of Settlement Agreement and Request for Order of Dismissal With Prejudice. #16 . 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 1-4. 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 $2,646.95 in attorney's fees and costs. [16-1] at 2. However, the Motion does not include either Plaintiff's counsel's hourly rate or the total number of hours worked, nor does counsel provide any 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 for Court Approval of Settlement Agreement and Request for Order of Dismissal With Prejudice #16 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 August 25, 2022. 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. However, because the Parties have settled this matter, the Clerk of the Court is instructed to administratively CLOSE this case. Signed by Judge K. Michael Moore on 8/18/2022. (fpi)
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| Filing 16 Joint MOTION for Settlement Approval and for Dismissal of FLSA Claims with Prejudice by JOSHUA GIL. Responses due by 8/31/2022 (Attachments: #1 Exhibit A (Settlement Agreement), #2 Exhibit B - Proposed Order Granting Joint Motion for Court Approval)(Blumstein, Jake) |
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Filing 15
PAPERLESS ORDER. THIS CAUSE came before the Court upon Defendant's Unopposed Motion for Extension of Time to File a Response to Plaintiff's Preliminary Statement of Claim. #14 . Therein, Defendant requests a brief extension of time to file a response because its lead counsel is currently involved in a federal trial. See generally id. Plaintiff Joshua Gil does not oppose Plaintiff's request. Id. at 6. 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 Motion #14 is GRANTED. Defendant shall file a response to Plaintiff's Statement of Claim on or before August 15, 2022. Signed by Judge K. Michael Moore on 8/9/2022. (fpi)
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| Filing 14 Unopposed MOTION for Extension of Time to File Response/Reply/Answer as to #10 Statement of Claim by ZEN AUTO CONCEPTS LLC. (Attachments: #1 Text of Proposed Order)(Scala, Alexandra) |
| Filing 13 NOTICE of Attorney Appearance by Adi Amit on behalf of ZEN AUTO CONCEPTS LLC. Attorney Adi Amit added to party ZEN AUTO CONCEPTS LLC(pty:dft). (Amit, Adi) |
| Filing 12 NOTICE of Attorney Appearance by Alexandra Rebecca Frances Scala on behalf of ZEN AUTO CONCEPTS LLC. Attorney Alexandra Rebecca Frances Scala added to party ZEN AUTO CONCEPTS LLC(pty:dft). (Scala, Alexandra) |
| Filing 11 NOTICE of Attorney Appearance by Jake Slome Blumstein on behalf of JOSHUA GIL. Attorney Jake Slome Blumstein added to party JOSHUA GIL(pty:pla). (Blumstein, Jake) |
| Filing 10 Statement of: Claim by JOSHUA GIL re 5 Pretrial Order,,,,,,,,,,,,,,,,,,,,,,,,,,, (Nudel, David) |
| Filing 9 Plaintiff's Certificate of Other Affiliates/Corporate Disclosure Statement - NONE disclosed by JOSHUA GIL (Nudel, David) |
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Filing 8
PAPERLESS ORDER: This matter has been referred to the undersigned for a settlement conference [DE 5]. The parties shall contact the undersigned's Chambers by telephone (561-803-3470) or by email (McCabe@flsd.uscourts.gov) with three mutually agreed upon dates for a settlement conference in accordance with the Court's Order 5 . Signed by Magistrate Judge Ryon M. McCabe on 7/18/2022. (mw00)
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Filing 7
ORDER SETTING DISCOVERY PROCEDURE. Signed by Magistrate Judge Ryon M. McCabe on 7/18/2022. See attached document for full details. (cds)
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Filing 6
PAPERLESS ORDER REFERRING PRETRIAL DISCOVERY MATTERS TO MAGISTRATE JUDGE RYON M. MCCABE. PURSUANT to 28 U.S.C. 636 and the Magistrate Judge Rules of the Local Rules of the Southern District of Florida, the above-captioned Cause is referred to United States Magistrate Judge Ryon M. McCabe 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 McCabe's discovery procedures. Signed by Judge K. Michael Moore on 7/18/2022. (elm)
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Filing 5
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 attorney's 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 Defendant's 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 Judge Rules of the Southern District of Florida, the Parties shall conduct a Settlement Conference before United States Magistrate Judge Ryon M. McCabe 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 Ryon M. McCabe 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 McCabe. Absent an extension from Magistrate Judge McCabe, 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. The parties are hereby on notice that this Court requires all filings to be formatted in 12 point Times New Roman font and double spaced, including any footnotes, with one inch margins on all sides. Failure to follow these formatting guidelines may result in the filing being stricken, any opposing filing being granted by default, and the imposition of other sanctions, including attorney's fees and costs. Multiple Plaintiffs or Defendants shall file joint motions with co-parties unless there are clear conflicts of position. If conflicts of position exist, parties shall explain the conflicts in their separate motions. Failure to comply with ANY of these procedures may result in the imposition of appropriate sanctions, including but not limited to, the striking of the motion or dismissal of this action. The parties shall seek extensions of time in a timely fashion. "A motion for extension of time is not self-executing.... Yet, by filing these motions on or near the last day, and then sitting idle pending the Court's disposition of the motion, parties essentially grant their own motion. The Court will not condone this." Compere v. Nusret Miami, LLC, 2020 WL 2844888, at *2 (S.D. Fla. May 7, 2020) (internal citations omitted). Pursuant to Administrative Order 2016-70 of the Southern District of Florida and consistent with the Court of Appeals for the Eleventh Circuit's Local Rules and Internal Operating Procedures, within three (3) 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. 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 Judge K. Michael Moore on 7/18/2022. See attached document for full details. (elm)
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| Filing 4 NOTICE of Attorney Appearance by David Mark Nudel on behalf of JOSHUA GIL (Nudel, David) |
| Filing 3 Summons Issued as to ZEN AUTO CONCEPTS LLC. (swr) |
| Filing 2 Clerks Notice of Judge Assignment to Judge K. Michael Moore. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Ryon M. McCabe 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. (swr) |
| Filing 1 COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL against ZEN AUTO CONCEPTS LLC. Filing fees $ 402.00 receipt number AFLSDC-15792587, filed by JOSHUA GIL. (Attachments: #1 Civil Cover Sheet, #2 Summon(s) as to Zen Auto Concepts LLC)(Richards, Jordan) |
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| Plaintiff: JOSHUA GIL | |
| Represented By: | David Mark Nudel |
| Represented By: | Jordan Lee Richards |
| Represented By: | Jake Slome Blumstein |
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| Defendant: ZEN AUTO CONCEPTS LLC | |
| Represented By: | Adi Amit |
| Represented By: | Alexandra Rebecca Frances Scala |
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