United States District Court, D. Kansas
DUANE MCFEETERS, on behalf of himself and all others similarly situated, Plaintiff,
BRAND PLUMBING, INC., Defendant.
MEMORANDUM AND ORDER
F. MELGREN, UNITED STATES DISTRICT JUDGE.
Duane McFeeters, and opt-in Plaintiff Jordan Dreiling, bring
a claim against Defendant Brand Plumbing, Inc. (“Brand
Plumbing”) under the Fair Labor Standards Act, 29
U.S.C. § 201 et seq. (“FLSA”).
Plaintiffs request that this Court (1) finally certify this
action as a collective action; (2) approve the settlement of
Plaintiffs' claims with Defendant; and (3) approve
Plaintiffs' attorneys' fees request (Doc. 44).
Defendant does not oppose Plaintiffs' motion. For the
reasons set forth below, the Court grants Plaintiffs'
Factual and Procedural Background
Duane McFeeters brought this FLSA case on May 3, 2016.
McFeeters was employed by Defendant as a plumber's helper
from September 2, 2008 to April 29, 2016. He filed this
lawsuit, on behalf of himself and all others similarly
situated, alleging that Defendant violated the FLSA by
failing to pay its employees overtime premiums for travel
early 2017, this Court granted McFeeters' request for
conditional class certification. McFeeters sent notices to
potential class members and only received one opt-in request.
Jordan Dreiling, the opt-in Plaintiff, worked for Defendant
in 2016 as a plumber and was paid on an hourly basis.
denied Plaintiffs' allegations. Had the litigation
proceeded, Defendant would have asserted that, pursuant to
its policies, its employees were prohibited from working
overtime without prior approval from their supervisor and
were responsible for submitting accurate time records for
compensation on a weekly basis. Defendant has no records
indicating that McFeeters or Dreiling had unpaid but
compensable time. In addition, Defendant would have asserted
that the time spent by McFeeters or Dreiling as a passenger
traveling to and from a job site is not compensable under the
FLSA. Finally, Defendant would have challenged
Plaintiffs' methods (or assumptions) to calculate their
August 2017, the parties reached an agreement to settle the
claims asserted in the Complaint. Pursuant to the proposed
settlement agreement, Defendant agreed to pay (1) $5, 320.00
to McFeeters, (2) $1, 209.20 to Dreiling, and (3) $8, 851.00
in attorneys' fees to Plaintiffs' counsel.
originally calculated his damages at $11, 250.00. During
settlement negotiations, however, he assumed that he spent
approximately 1.6 hours per week traveling between
Defendant's office and his job sites for which he was not
compensated. Over the three year class period, McFeeters
calculated that it amounted to 249 hours with unpaid wages of
$3, 984.00. McFeeters assumed that he would have been owed
overtime for approximately 166 hours amounting to $1, 328.00
and doubled for liquidated damages to $2, 656.00. Thus,
McFeeters calculated his total damages to be $6, 640.00.
Under the proposed settlement, McFeeters will receive $5,
320.00, or approximately 80% of his total claim.
calculated his damages in a similar manner. During the 17
weeks that he worked for Defendant, he believed that he had
$1020.00 in unpaid wages, overtime wages at $199.30, and
liquidated damages of $398.40. Thus, Dreiling's total
damages were estimated to be $1, 418.40. Under the proposed
settlement, Dreiling will receive $1, 209.20, or
approximately 85% of his total claim.
parties originally filed a Joint Motion to Approve Settlement
of Plaintiffs' FLSA Claims (Doc. 42). This Court denied
the parties' motion without prejudice to refiling finding
that certain issues were not adequately addressed.
Specifically, the parties did not request to certify a final
collective action which is a necessary requirement prior to
approving an FLSA settlement. In addition, the Court
expressed skepticism of the attorneys' fees request
because the attorneys' fee portion of the settlement
has now filed an unopposed Motion for Final Class
Certification of Class Claims under § 216(b) of the
FLSA, Approval of Settlement, and Approval or Plaintiffs'
Attorney Fees (Doc. 44). In addition, Plaintiffs' counsel
submitted a fee statement that reflected time and expenses.
The fee statement provides that a total of 32.20 hours were
expended on this case through August 11, 2017, and reflects
four individual's work. The pay ranged from $95 an hour
to $325 an hour. The total amount of the fee statement equals
$9, 653.00. In addition to this fee statement, attorney
Donald Peterson submitted an affidavit in which he avers that
there were two additional expenses (not included on the fee
statement) of $400 for the filing fee and $198.13 for running
location searches to find potential class members. Thus, the
total fees and expenses were $10, 251.13.
noted above, Plaintiffs' counsel seeks attorneys'
fees and expenses in the amount of $8, 851.00. They state
that as part of the proposed settlement, Plaintiffs'
counsel agreed to accept that amount, which is more than a
$1, 400 reduction from the total fees and expenses actually
incurred. In addition, Plaintiffs' counsel does not
include the time spent from August 11, 2017, through the
present in finalizing the settlement as part of the request
for attorneys' fees.
settlement of claims under the FLSA must be presented to the
Court for review and determination of whether the settlement
is fair and reasonable. To approve an FLSA settlement,
“the Court must find that the litigation involves a
bona fide dispute and that the proposed settlement is fair
and equitable to all parties concerned.” “The Court
may enter a stipulated judgment only after scrutinizing the
settlement for fairness.” The settlement agreement must
also contain an award of attorneys' fees. Furthermore, when
parties settle FLSA claims before the Court has made a final
certification ruling, the Court must make some final class
certification finding before it can approve a collective