United States District Court, M.D. Florida, Fort Myers Division
RONALD O'CONNOR, individually, and on behalf of others similarly situated Plaintiff,
WORTHINGTON PJ, INC., Defendant.
REPORT AND RECOMMENDATION
MCCOY UNITED STATES MAGISTRATE JUDGE
before the Court are the Joint Motion for Preliminary
Approval of Settlement, Appointment of Class Representatives
and Class Counsel, and Certification of Rule 23 Settlement
Class (Doc. 36) filed on March 31, 2017 and Plaintiffs'
Motion for an Award of Attorneys' Fees and Costs Pursuant
to 29 U.S.C. § 216(b) (Doc. 42) filed on April 7, 2017.
For the reasons explained herein, the Undersigned recommends
that the Joint Motion for Preliminary Approval of Settlement,
Appointment of Class Representatives and Class Counsel, and
Certification of Rule 23 Settlement Class (Doc. 36) be
GRANTED and that Plaintiffs' Motion for
an Award of Attorneys' Fees and Costs Pursuant to 29
U.S.C. § 216(b) (Doc. 42) be DENIED WITHOUT
PREJUDICE as premature.
August 4, 2016, Plaintiff Ronald O'Connor brought the
current action for alleged minimum wage violations under the
Fair Labor Standards Act ("FLSA") 29 U.S.C. §
201, et seq., the Florida Minimum Wage Act, Fla.
Stat. § 448.110, and the Florida Constitution, Art. X,
§ 24, both as an FLSA collective action pursuant to 29
U.S.C. § 216(b) and as a class action pursuant to
Fed.R.Civ.P. 23. (See generally Doc. 1).
Subsequently, Plaintiff Ronald O'Connor and Opt-in
Plaintiff Jordan Garrett filed consent forms to join this
action. (Docs. 16, 20).
were pizza delivery drivers for Defendant Worthington PJ,
Inc. (Doc. 36 at ll). Defendant operates three Papa John's
Pizza franchises in North Fort Myers, North Port, and Haines
City, Florida. (Id.). The Complaint alleges that
Defendant failed to provide reasonable reimbursement for
vehicle expenses Plaintiffs incurred while they delivered
pizzas for Defendant. (Id.). Based on the low
reimbursement for deliveries, the Complaint alleges that
"the Plaintiffs' (and the Class members') wages
fell below the applicable Florida minimum wage as well as the
federal minimum wage." (Id.). Plaintiffs also
alleged that "Defendant paid them below the applicable
minimum wage rates when they performed non-tip-generating
tasks in Defendant's restaurant, like folding pizza boxes
or cleaning." (Id.).
October 11, 2016, Defendant filed an answer to
Plaintiffs' Complaint, denying all liability for the
alleged minimum wage violations. (See Doc. 17).
After this time, the parties met on December 21, 2016 for
"a face-to-face meeting at Defense Counsel's Tampa,
Florida office to discuss options to resolve the case."
(Doc. 36 at 11). While an agreement was not reached at that
time, the parties state that "the foundation for
meaningful future settlement conversations was
established." (Id.). The parties continued
settlement discussions and eventually reached a mutually
agreeable settlement. (Id.). The executed Settlement
Agreement and Release is attached as an exhibit to the Joint
Motion. (See Doc. 36-3).
pertinent part, for settlement purposes only, Defendant
stipulated to the certification of a Rule 23 settlement class
defined as "all current and former delivery drivers
employed by Defendant in the State of Florida from August 4,
2012 through the date the Court enters an order of
preliminary approval." (Id. at 11-12; see
also Doc. 36-3 at 6). Additionally, in exchange for
released claims, Defendant agreed to pay Plaintiffs and each
class member $6.07 per week worked as a delivery driver.
(Doc. 36 at 20; Doc. 36-3 at 6). Of note, however, while the
Complaint asserted claims both as a collective action
pursuant to 29 U.S.C. § 216(b) and as a class action
pursuant to Fed.R.Civ.P. 23, the Settlement Agreement only
contemplates a settlement of this case as a class action.
(See Doc. 36-3). The Settlement Agreement (Doc.
36-3) and the parties' Joint Motion (Doc. 36) do not
purport to settle any claims as a collective action under 29
U.S.C. § 216(b). Moreover, the parties did not reach an
agreement regarding attorneys' fees payable to
Plaintiffs' counsel. (See Doc. 36 at 12).
Plaintiffs filed a separate motion directed at the issue of
attorneys' fees. (See Doc. 42).
parties state that "[t]his was a hard fought case,
" which "involved a number of disputed factual and
legal issues" and which "required significant
research and discussion." (Id.). The parties
contend that they have "demonstrated civility, but
zealously advocated their position on every disputed issue,
from liability, to class membership and class certification,
to the reasonableness of Defendant's reimbursement
amounts, and to damages." (Id.). The parties
further state that "[m]any allegations in
Plaintiffs' Complaint remain in dispute. However, the
Parties recognize the uncertainty, risk and expense of
continued litigation; therefore, they have resigned to a fair
and reasonable settlement in lieu of continued
litigation." (Id.). As a result, the parties
jointly request, pursuant to Fed.R.Civ.P. 23(e), the entry of
an Order of Preliminary Approval approving their class
Settlement Agreement. (Id. at 9). The parties'
proposed order is attached as Exhibit 1 (Doc. 36-2) to the
approve the settlement of an FLSA claim, the Court must
determine whether the settlement is a "fair and
reasonable resolution of a bona fide dispute" of the
claims raised pursuant to the FLSA. Lynn's Food
Store, Inc. v. United States, 679 F.2d 1350, 1355 (11th
Cir. 1982); 29 U.S.C. § 216. There are two ways for a
claim under the FLSA to be settled or compromised.
Id. at 1352-53. The first, under 29 U.S.C. §
216(c), provides for the Secretary of Labor to supervise
payments of unpaid wages owed to employees. Id. at
1353. The second way, under 29 U.S.C. § 216(b), is by a
lawsuit brought by employees against their employer to
recover back wages. Id. When employees file suit,
the proposed settlement must be presented to the District
Court for its review and determination that the settlement is
fair and reasonable. Id. at 1353-54.
Eleventh Circuit has found settlements to be permissible when
the lawsuit is brought by employees under the FLSA for back
wages because the lawsuit:
provides some assurance of an adversarial context. The
employees are likely to be represented by an attorney who can
protect their rights under the statute. Thus, when the
parties submit a settlement to the court for approval, the
settlement is more likely to reflect a reasonable compromise
of disputed issues than a mere waiver of statutory rights
brought about by an employer's overreaching. If a
settlement in an employee FLSA suit does reflect a reasonable
compromise over issues, such as FLSA coverage or computation
of back wages, that are actually in dispute; we allow the
district court to approve the settlement in order to promote
the policy of encouraging settlement of litigation.
Id. at 1354.
stage, however, the parties are not seeking final approval of
their FLSA Settlement Agreement. Instead, the parties request
that the Court (1) preliminarily approve their settlement,
(2) appoint class representatives, (3) appoint class counsel,
and (4) certify a Rule 23 settlement class. (Doc. 36 at 1).
The Undersigned addresses these requests, beginning with the
request to preliminarily approve the settlement.
Preliminary Approval of Settlement
Civ. P. 23(e) provides the manner by which class actions may
be settled. The Rule provides:
claims, issues, or defenses of a certified class may be
settled, voluntarily dismissed, or compromised only with the
court's approval. The following procedures apply to a
proposed settlement, voluntary dismissal, or compromise:
(1) The court must direct notice in a reasonable manner to
all class members who would be bound by the proposal.
(2) If the proposal would bind class members, the court may
approve it only after a hearing and on finding that it is
fair, reasonable, and adequate.
(3) The parties seeking approval must file a statement
identifying any agreement made in connection with the
(4) If the class action was previously certified under Rule
23(b)(3), the court may refuse to approve a settlement unless
it affords a new opportunity to request exclusion to
individual class members who had an earlier opportunity to
request exclusion but did not do so.
(5) Any class member may object to the proposal if it
requires court approval under this subdivision (e); the
objection maybe withdrawn ...