MARTINEZ v. SUNRISE SUPERMARKET & RESTAURANT, INC. et al
| RICARDO A. MARTINEZ |
| JORGE HOYO and SUNRISE SUPERMARKET & RESTAURANT, INC. |
| 4:2018cv10267 |
| November 16, 2018 |
| US District Court for the Southern District of Florida |
| K Michael Moore |
| Andrea M Simonton |
| Labor: Fair Standards |
| 29 U.S.C. § 0201 |
| Plaintiff |
Docket Report
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| Filing 18 Second MOTION for Settlement Approval by RICARDO A. MARTINEZ. Responses due by 1/22/2019 (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C)(Palma, Zandro) |
Filing 17
PAPERLESS ORDER. THIS CAUSE came before the Court upon the Parties Renewed Motion to Approve Settlement. #16 . On December 20, 2018, the Parties moved the Court to approve a proposed settlement agreement [14-1] in this matter, brought under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 201 et seq. #14 . The proposed settlement agreement stated that $5,000 should be awarded to Plaintiff in wages and liquidated damages, and $5,000 should be awarded to Plaintiff's counsel in fees and costs. In other words, the fee awarded to Plaintiff would be effectively equal to that of Plaintiff's counsel. The Court denied the Parties' proposed settlement 15 , in part because Plaintiff's counsel did not provide any supporting documentation for the amount of fees requested. The Court also denied the Motion because the docket "reflect[ed] that Plaintiff's counsel performed little substantive work on the case." In the Renewed Motion #16 , Plaintiff's counsel provides supporting documentation reflecting his work on this matter, stating that he worked a total of approximately twelve (12) hours on this case. The Renewed Motion moves the Court to approve an essentially identical proposed settlement agreement, which includes a $5,000 payment for attorney's fees and costs, even though Plaintiff would receive an identical amount for his substantive FLSA claims, and the docket reflects that the only substantive filings made by Plaintiff's counsel for this case were the Complaint #1 , Statement of Claim #10 , and the proposed settlement agreement itself.Settlements reached in FLSA cases require approval by either the Secretary of Labor or the Court, in order to determine that the proposed agreement is fair and reasonable. See Silva v. Miller, 307 F. App'x 349, 351 (11th Cir. 2009). Courts also review 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, an 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); 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 is not consistent with the purposes of the FLSA.). In evaluating the reasonableness of the proposed attorneys fee recovery in FLSA cases, the Court considers the possible range of the plaintiffs recovery, as compared to the extent of success in obtaining the maximum recovery and whether that extent of success justifies the amount of counsels fee award. See Hensley v. Eckerhart, 461 U.S. 424, 438 (1983); Dees v. Hydradry, Inc., 706 F. Supp. 2d 1227, 1241 (M.D. Fla. 2010). The Court once again cannot conclude that the proposed settlement agreement is fair and reasonable. Plaintiff's counsel would receive $5,000 in attorneys fees and costs for only 12 hours of work, and Plaintiff, who alleged $21,468.80 in total damages in the Statement of Claim #10 , would also recover $5,000. Plaintiff's counsel would thus earn approximately 50% of the total settlement fee, even while performing little substantive work on this matter beyond actually filing the Complaint and Statement of Claim and negotiating the proposed settlement agreement. Moreover, Plaintiff's final recovery, compared to the damages alleged in the Statement of Claim #10 , is low. See Hensley, 461 U.S. at 438; Dees, 706 F. Supp. 2d at 1241, 1243 (encouraging courts to 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 counsels fee award). Plaintiff will recover $5,000 through the proposed Settlement Agreement, whereas he alleged entitlement to a total $21,468.80 ($10,734.40 in unliquidated damages + $10,734.40 in liquidated damages) #10 . Meanwhile, Plaintiffs counsel stands to recover $5,000 when he alleged entitlement to only $4,640 in fees and costs. Accordingly, UPON CONSIDERATION of the Renewed Motion #16 , the proposed Settlement Agreement [16-3], Plaintiff's Statement of Claim #10 , other pertinent portions of the record, and being otherwise fully advised in the premises, the Renewed Motion is hereby DENIED WITHOUT PREJUDICE. The Parties are granted leave to submit a renewed motion for approval of settlement on or before January 12, 2019. In the renewed motion, Plaintiffs counsel shall specifically address whether Plaintiffs proposed recovery is fair and reasonable in light of the amounts Plaintiff alleged in the Statement of Claim, and whether Plaintiff's final recovery justifies the proposed fee to Plaintiff's counsel. Plaintiffs counsel is hereby on notice that failure to file a renewed motion for approval of settlement by the deadline, or failure to include the above-described information, may be grounds for sanctions. The case remains CLOSED. Signed by Chief Judge K. Michael Moore on 12/27/2018. (osk)
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| Filing 16 Renewed MOTION for Settlement Approval and Dismissing Case With Prejudice by RICARDO A. MARTINEZ. Responses due by 1/10/2019 (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C)(Palma, Zandro) |
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Filing 15
PAPERLESS ORDER. THIS CAUSE came before the Court upon the Parties' Joint Motion for Entry of Order Approving Settlement and Dismissing Case with Prejudice. #14 . Therein, the Parties inform the Court that a settlement of all claims in this matter has been reached and move the Court to (i) approve the terms of a proposed settlement agreement and (ii) dismiss the case with prejudice.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 court's determination that the settlement agreement is a fair and reasonable. Silva v. Miller, 307 F. Appx 349, 351 (11th Cir. 2009). Courts review 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); 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 is not consistent with the purposes of the FLSA.).The proposed settlement states that $5,000 should be awarded to Plaintiff in wages and liquidated damages, and $5,000 should be awarded to Plaintiff's counsel in fees and costs. In other words, the fee awarded to Plaintiff would be effectively equal to that of Plaintiff's counsel. The Court cannot find the Settlement Agreement to be fair and reasonable without evidence explaining Plaintiff's counsel's fee amount because the docket reflects that Plaintiff's counsel (1) performed little substantive work on the case and (2) provided no supporting documentation for the amount of fees requested, such as an attorneys' fees billing invoices. 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 Parties' Joint Motion for Entry of Order Approving Settlement and Dismissing Case with Prejudice #14 is DENIED WITHOUT PREJUDICE. On or before December 28, 2018, the Parties shall submit a renewed motion for settlement approval that shall include a billing invoice or other document showing Plaintiff's counsel's hourly rate, the number of hours worked on this matter, and a description of the corresponding work performed. The document shall be accompanied by an affidavit attesting to its authenticity and accuracy.Because the Parties have settled the substantive claims in this matter, the Clerk of Court is instructed to CLOSE this case for administrative purposes. All pending motions are hereby DENIED AS MOOT. Signed by Chief Judge K. Michael Moore on 12/20/2018. (osk)
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| Filing 14 Joint MOTION for Settlement Approval and Dismissing Case With Prejudice by RICARDO A. MARTINEZ. Responses due by 1/3/2019 (Attachments: #1 Exhibit A- Settlement Agreement)(Palma, Zandro) |
| Civil Case Terminated. Closing Case. (osk) |
| Set/Reset Answer Due Deadline: All Defendants. per DE 13 (cbr) |
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Filing 13
PAPERLESS ORDER. THIS CAUSE came before the Court upon Defendants' Motion for Extension of Time to Respond to Complaint. #12 . UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, Defendants' Motion for Extension of Time to Respond to Complaint #12 is hereby GRANTED IN PART. Defendants shall respond to the Complaint on or before December 28, 2018. Signed by Chief Judge K. Michael Moore on 12/18/2018. (osk)
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| Filing 12 MOTION for Extension of Time to File Response/Reply/Answer as to #1 Complaint, by JORGE HOYO, SUNRISE SUPERMARKET & RESTAURANT, INC.. (Baldor, Jose) |
| Filing 11 NOTICE of Attorney Appearance by Jose I. Baldor on behalf of JORGE HOYO, SUNRISE SUPERMARKET & RESTAURANT, INC.. Attorney Jose I. Baldor added to party JORGE HOYO(pty:dft), Attorney Jose I. Baldor added to party SUNRISE SUPERMARKET & RESTAURANT, INC.(pty:dft). (Baldor, Jose) |
| Filing 10 Statement of: Claim by RICARDO A. MARTINEZ re 4 Pretrial Order,,,,,,,,,,,,,,,,,,,,, (Palma, Zandro) |
| Filing 9 Clerks Notice to Filer re #6 Summons Returned Executed. Incorrect Service Date Entered; ERROR - The incorrect service date was entered. The correction was made by the Clerk and filing was re-docketed, see 8 . It is not necessary to refile this document. (cbr) |
| Filing 8 SUMMONS (Affidavit) Returned Executed on #1 Complaint, with a 21 day response/answer filing deadline SUNRISE SUPERMARKET & RESTAURANT, INC. served on 11/26/2018, answer due 12/17/2018. see DE #6 for image (cbr) |
| Filing 7 SUMMONS (Affidavit) Returned Executed on #1 Complaint, with a 21 day response/answer filing deadline by RICARDO A. MARTINEZ. JORGE HOYO served on 11/26/2018, answer due 12/17/2018. (Palma, Zandro) |
| Filing 6 SUMMONS (Affidavit) Returned Executed on #1 Complaint, with a 21 day response/answer filing deadline by RICARDO A. MARTINEZ. SUNRISE SUPERMARKET & RESTAURANT, INC. served on 11/21/2018, answer due 12/12/2018. (Palma, Zandro) |
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Filing 5
PAPERLESS ORDER REFERRING PRETRIAL DISCOVERY MATTERS TO CHIEF MAGISTRATE JUDGE ANDREA M. SIMONTON. 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 Andrea M. Simonton 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 Andrea M. Simonton's discovery procedures, which can be found on the Southern District of Florida website, www.flsd.uscourts.gov, under the tab for Judge Simonton, in the drop down menu Judge Information. Signed by Chief Judge K. Michael Moore on 11/19/2018. (osk)
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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 Andrea M. Simonton 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 Andrea M. Simonton 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 Simonton. Absent an extension from Magistrate Judge Simonton, 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 11/19/2018. (osk)
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| Filing 3 Summons Issued as to All Defendants. (jao) |
| Filing 2 Clerks Notice of Judge Assignment to Chief Judge K. Michael Moore and Ch. Magistrate Judge Andrea M. Simonton. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Andrea M. Simonton 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. (jao) |
| Filing 1 COMPLAINT against JORGE HOYO, SUNRISE SUPERMARKET & RESTAURANT, INC.. Filing fees $ 400.00 receipt number 113C-11168321, filed by RICARDO A. MARTINEZ. (Attachments: #1 Civil Cover Sheet, #2 Summon(s), #3 Summon(s))(Palma, Zandro) |
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