Mackenzie v. Kindred Hospitals East, L.L.C.

• Decision Date: 24 July 2003
• Docket Number: No. 8:00-cv-2405-T-23TGW.,8:00-cv-2405-T-23TGW.
• Citation: 276 F.Supp.2d 1211
• Parties: David MACKENZIE, Plaintiff, v. KINDRED HOSPITALS EAST, L.L.C., Defendant.
• Court: U.S. District Court — Middle District of Florida

276 F.Supp.2d 1211

David MACKENZIE, Plaintiff, v. KINDRED HOSPITALS EAST, L.L.C., Defendant.

No. 8:00-cv-2405-T-23TGW.

United States District Court, M.D. Florida, Tampa Division.

July 24, 2003.

David J. Linesch, The Linesch Firm, Palm Harbor, FL, for plaintiff.

Christine E. Howard, Jeffery E. Robertson, Fisher & Phillips, Atlanta, GA, Carlos J. Burruezo, Fisher & Phillips LLP, Orlando, FL, for defendant.

ORDER

MERRYDAY, District Judge.

The Court referred (Doc. 45) the plaintiff's motion to strike the defendant's offer of judgment (Doc. 33); the defendant's motion to dismiss (Doc. 39); and the plaintiff's motion to facilitate notice pursuant to 29 U.S.C. § 216(b) (Doc. 42)¹ to United States Magistrate Judge Thomas G. Wilson for a report and recommendation. On June 30, 2003, the Magistrate Judge issued a report and recommendation (Doc. 63), to which no party objects. The Magistrate Judge's report and recommendation (Doc. 63) is ADOPTED. Accordingly, the plaintiff's motion to strike the defendant's offer of judgment (Doc. 33) is DENIED; the defendant's motion to dismiss (Doc. 39) is GRANTED to the extent that judgment in the amount of $1,200.00 plus costs and a reasonable attorney's fee shall be entered in favor of the plaintiff and against the defendant; and the plaintiff's motion to facilitate notice (Doc. 42) is DENIED. The plaintiff shall, within fifteen (15) days of the date of this order, file a memorandum, affidavits, or other supporting papers with respect to the award of a reasonable attorney's fee. The Clerk is directed to (1) enter judgment in the amount of $1,200.00 plus costs and a reasonable attorney's fee in favor of the plaintiff and against the defendant and (2) close the file.²

REPORT AND RECOMMENDATION

THOMAS G. WILSON, United States Magistrate Judge.

The plaintiff, a pharmacist formerly employed by the defendant, claims that the defendant required him to work in excess of forty hours a week without paying him overtime compensation as required by the Fair Labor Standards Act ("FLSA"). The plaintiff styled his complaint as a collective action, purporting to act also as a representative of other pharmacists who are allegedly entitled to overtime compensation from the defendant.

Although the defendant disputes that it violated the FLSA, it served upon the plaintiff an offer of judgment which compensates him in full for his alleged damages. The plaintiff has moved to strike the defendant's offer of judgment, contending that it is inappropriate in a collective FLSA action (Doc. 33). The defendant subsequently filed a motion to dismiss the plaintiff's lawsuit, alleging that its offer of judgment renders the lawsuit moot (Doc. 39). Thereafter, the plaintiff filed a motion to facilitate court-authorized notice of this lawsuit to potential collective action members, to designate this matter as a collective action, and to order the defendant to produce a data file permitting the identification of potential plaintiffs (Doc. 42). These motions were referred to me for a report and recommendation (Doc. 45).

Importantly, the plaintiff has failed to identify any similarly situated individual who has expressed an interest in filing a written consent to join this lawsuit, as required by the FLSA. This circumstance essentially defeats the plaintiff's motions to strike the offer of judgment and to facilitate a court-authorized notice of this action. Moreover, in light of the offer of full relief to the only plaintiff, this matter is moot, since there is no longer a case or controversy. Accordingly, this case should be resolved by the entry of judgment for the plaintiff in the amount of $1,200, plus costs and a reasonable attorney's fee.

I.

The defendant is a corporation specializing in long-term care for chronic and acutely-ill patients.¹ The plaintiff worked as a pharmacist for the defendant at its St. Petersburg facility from approximately January 1998 until June 15, 2000, when he was terminated. During his employment, there were many weeks in which the plaintiff worked more than forty hours. He was remunerated for that time at his regular hourly wage.

On November 22, 2000, the plaintiff filed this lawsuit claiming that the defendant's failure to pay him one and one-half times his regular hourly wage for hours worked in excess of forty in a week violated the FLSA (Doc. 1). He also alleged that the defendant violated the FLSA by failing to keep adequate time records. The defendant denies that its recordkeeping is inadequate and contends that the plaintiff is not owed any overtime compensation because he qualifies for the FLSA's professional exemption (Doc. 14).

The plaintiff also seeks to act as representative of a collective action of pharmacists who are allegedly owed overtime compensation by the defendant. However, to date, the plaintiff has been unable to identify any pharmacist wishing to participate in this lawsuit (Doc. 52, p. 159). Further, the plaintiff's discussions about this lawsuit with two pharmacists formerly employed by the defendant did not yield any interest in joining this action (id. at pp. 154-57).

Approximately one month after the plaintiff filed his complaint, this matter was administratively closed pending resolution of the defendant's bankruptcy petition (Doc. 6). In January 2002, the court reopened this case and dismissed the plaintiff's pre-bankruptcy-petition claims, thereby limiting the time for which the plaintiff could recover damages to the period from September 13, 1999, to his termination in June 2000 (Doc. 13).

The parties then engaged in discovery. The defendant produced to the plaintiff his payroll and timecard records, which allegedly indicated that, at most, the plaintiff had worked a total of 32.5 overtime hours during this period (see Ex. 7 attached to Doc. 52). Further, the plaintiff had already been paid his regular hourly wage for that time (id. at p. 105). Accordingly, the defendant calculated that the plaintiff's overtime compensation would be, at most, half-time for 32.5 hours, which totaled $552.33 (see Doc. 35, p. 2). The plaintiff has not disputed the accuracy of this computation.

On approximately June 28, 2002, the defendant served upon the plaintiff an offer of $1,200 plus a reasonable attorney's fee and costs (see id. at Ex. 2). The defendant computed this sum by rounding up its maximum overtime liability to $600, and doubling that amount for liquidated damages.

The plaintiff did not accept this offer. Instead, several weeks later he filed a motion to strike the offer, contending that it is inappropriate in a collective action (Doc. 33). Thereafter, the defendant filed a motion to dismiss this case for lack of subject matter jurisdiction, alleging that its offer of full relief ended the necessary case or controversy (Doc. 39). The plaintiff then filed a motion to permit this matter to proceed as a collective action, to obtain a court-authorized notice of this lawsuit to potential plaintiffs, and to direct the defendant to produce a data file containing identification information of potential plaintiffs (Doc. 42).

These motions were referred to me for a report and recommendation (Doc. 45). Oral argument on the motions was conducted and each party was thereafter afforded ample opportunity to submit additional legal authority in support of their contentions (Docs.53, 55, 57, 58, 59).

II.

The plaintiff alleges that the defendant violated the FLSA by failing to pay him one and one-half times his regular hourly wage for overtime work. 29 U.S.C. 207. Thus, the Act states (id.):

Except as otherwise provided in this section, no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

The Act provides that an individual whose employer violates § 207 is entitled to the unpaid overtime compensation, an additional equal amount as liquidated damages, a reasonable attorney's fee and costs. 29 U.S.C. 216(b). An action for such relief may be maintained by an employee for himself "and other employees similarly situated." Id. However, "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." Id.

As indicated, the defendant served upon the plaintiff an offer of judgment for $1,200, plus a reasonable attorney's fee and costs.² The defendant asserts that this offer affords the plaintiff greater relief than he could achieve at trial, and the plaintiff has not disputed that assertion. Nevertheless, the plaintiff has moved to strike the offer of judgment, contending that it "is clearly inappropriate in a collective FLSA action such as this case . . ." (Doc. 33, p. 1). There is nothing improper, however, about the offer of judgment in this case.

Initially, the defendant contended that, because the offer of judgment has not been filed with the court, there is nothing to strike. Asch v. Teller, Levit & Silvertrust, P.C., 200 F.R.D. 399, 401 (N.D.Ill. 2000). The defendant, however, submitted the offer of judgment in responding to the motion (Doc. 35, Ex. 2). That offer, moreover, is the basis for the defendant's subsequent motion to dismiss. Consequently, the plaintiff's motion to strike should not be denied simply because the offer was not originally filed with the court.

As noted, the parties considered the offer of judgment to have been proffered in accordance with Rule 68, F.R.Civ.P. That rule provides:

At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. . . . If the judgment...