IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JESSICA MILLER, et al., )

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Plaintiffs,

vs. Civil Action No. 14-0468-CG-B

EDWIN J. SPENCE, et al.,

Defendants.

ORDER

This matter is before the Court on the joint motion to approve 

settlement filed by the three named Plaintiffs, all fifty-three1 Opt-In 

Plaintiffs named therein and Defendants Edwin J. Spence, Edwin J. Spence, 

Jr., Port II Seafood & Oyster Bar, Inc. (“Mikee’s”), Gulf Coast Steamer, Inc. 

(“Steamer”), The Shrimp Basket, Inc., Spence Enterprises, Inc., and Shrimp 

Basket of Orange Beach, Inc. (collectively referred to herein as “Defendants”). 

(Doc. 113). The parties jointly agree and assert that they engaged in good 

faith, arm’s-length negotiation of a bona fide dispute and have reached a 

reasonable and fair resolution of Plaintiffs’ FLSA claims. (Doc. 113, p. 14). 

For the reasons stated below, the Court finds that the proposed settlement is 

a fair and reasonable settlement of a bona fide dispute under the FLSA. 

However, the Court finds that the parties have not provided enough 

																																																							 1 Opt-In	Plaintiff	Cindy	Yarborough	(Doc.	92-3)	was	outside	the	three-year statute	of	

limitations	and	was	dismissed	from	this	action	by	joint	stipulation	of	the	parties.	

(Docs.	114,	116,	117).		

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information for this fourt to determine the reasonableness of their proposed 

payment of attorneys’ fees and costs. Accordingly, Plaintiff will be ordered to 

file an amended motion or an affidavit providing sufficient documentation to 

support and allowance of reasonable attorneys’ fees and costs. 

I. FACTUAL BACKGROUND

The Plaintiffs brought this action pursuant to the Fair Labor 

Standards Act, 29 U.S.C. § 201 et. seq. (“FLSA”) and the collective action 

provision of the Act found at § 216(b), for equitable and declaratory relief and 

to remedy alleged violations of the wage provisions of the FLSA by 

Defendants. (Doc. 67). Defendants allegedly willfully deprived Plaintiffs of 

their lawful wages. The named Plaintiffs worked as servers for the 

Defendant restaurants and sought to recover unpaid compensation in the 

form of unpaid wages and overtime owed to the Plaintiffs and all similarly 

situated tipped servers by Defendants. Plaintiffs alleged that they were not 

paid the federally mandated minimum wage due to a portion of their tips 

being contributed to a tip pool that included non-tipped employees, such as 

food expeditors. Plaintiffs further alleged that they performed non-tip 

related and non-tip producing activities for Defendants for which they are 

owed compensation and were not paid for all hours they worked. Plaintiffs 

sought the difference between the Federal minimum wages and the reduced 

tipped minimum wage in addition to liquidated damages and attorneys’ fees 

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and costs. Defendants deny Plaintiffs’ allegations and further deny that 

plaintiffs are entitled to unpaid wages and overtime. Specifically, 

Defendants deny Plaintiffs were required to contribute to an invalid tip pool, 

deny Plaintiffs were engaged in non-tip-related or non-tip producing duties 

for which they were owed compensation, and denied that Plaintiffs worked 

hours for which they were not paid.

Notice was sent to all current and former servers employed at Mikee’s, 

Steamer, and Shrimp Basket restaurants in Orange Beach, Gulf Shores, and 

Foley, Alabama, between November 19, 2011 and November 19, 2014. Fiftythree individuals filed consent to join forms and became Opt-In Plaintiffs.

II. STATEMENT OF THE LAW

The FLSA was enacted to protect employees from substandard wages 

and excessive working hours; its provisions are mandatory and not subject to 

bargaining between employers and employees. Lynn's Food Stores v. United 

States Dept. of Labor, 679 F.2d 1350, 1352 (11th Cir. 1982). An employee's 

claim for back wages under the FLSA may be compromised in only two ways: 

(1) with payment in full of back wages, supervised by the Secretary of Labor, 

with the employee giving up a right to sue for unpaid wages and liquidated 

damages; or (2) by stipulated judgment entered by a court in an FLSA action 

brought against the employer, entered after the court has “scrutiniz[ed] the 

settlement for fairness.” Id. at 1352–53.

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The court may approve a settlement that presents a reasonable 

compromise over issues that are actually in dispute with regard to pending 

FLSA claims. Id. Additionally, the “FLSA requires judicial 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 a settlement agreement.” Silva v. 

Miller, 307 Fed. App'x 349, 351 (11th Cir. 2009) (unpublished opinion) (citing

Lynn's Food Stores, 679 F.2d at 1352). Counsel for Plaintiff must disclose the 

extent to which Plaintiff's FLSA claim has or will be compromised by the 

deduction of attorneys' fees, costs or expenses pursuant to a contract between 

a plaintiff and his counsel, or otherwise. See id. Furthermore, a court should 

be mindful of the strong presumption in favor of finding a settlement fair.

Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977).

III. REVIEW OF THE PROPOSED SETTLEMENT

The Defendants provided each Plaintiff with records of their clock in 

and clock out times, the days worked and the dates of food expeditor shifts. 

Wage calculations were made based on those figures and additional time was 

added for alleged under-reporting of food expeditor time and for time spent 

working off the clock. The parties jointly agree and assert that they engaged 

in good faith, arm’s-length negotiation of a bona fide dispute and have 

reached a reasonable and fair resolution of Plaintiffs’ FLSA claims. (Doc. 113, 

p. 14). The parties have agreed to the following settlement amounts:

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ABRAMS COURTNEY $ 10,061.33 

ALFANAS OLGA $ 12,439.16 

BARRETT ARNOLD KRISTIE $ 699.07 

BIDDLE JEREMY $ 1,641.86 

BLACKWELL CINDY $ 4,405.02 

BLACKWELL BREE $ 1,800.00 

BOBO JAMACIA $ 845.67 

BOWER JENNIFER $ 4,834.09 

BOYETTE RICHARD $ 11,326.11 

BOYINGTON MATT $ 5,220.88 

BROWN ROMANA $ 1,665.05 

CAGLE JACQUELINE $ 7,934.89 

CARAWAY REGINA $ 2,285.09 

CATTANEO PATRICIO $ 3,180.21 

COOPER RAVEN $ 2,146.67 

COX AMANDA $ 10,511.11 

DALRYMPLE BRANDY $ 5,750.15 

DOZIER TABITHA $ 6,472.43 

DUBE MICHELLEE $ 6,906.40 

DUNBAR JULIA $ 3,740.71 

EMERSON MARCI $ 2,128.89 

FERREIRA KAILA $ 316.41 

FISHER AMBER $ 506.97 

FRANKS JAMES $ 8,804.39 

GARDNER TYRA $ 4,755.17 

GILHEART JOANNE $ 3,538.61 

GROVER KRISTEN $ 391.59 

HALL SHANA $ 3,102.83 

HAMMONTREE KELSEY $ 1,303.06 

HARRIS NEJLA $ 2,750.27 

HOLT MICHELLE $ 31.05 

HUBBARD TAWNEY $ 861.43 

JONES VICTORIA $ 3,966.63 

JORDAN THOMPSON KIMBERLY $ 226.74 

KNAPP JAMIE $ 2,431.90 

LONGO BEZZRA DARLA $ 6,531.92 

MCABE JOANNE $ 760.60 

MILLER JESSICA $ 17,940.37 

MOSS ASHTON $ 2,861.49 

MURRAY COLBY $ 964.65 

NELSON VICTORIA $ 197.49 

NORMAN JULIA $ 1,798.90 

NORWOOD REBEKA $ 6,175.69 

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PRINCE DANIELLE $ 2,672.33 

RACE AMBER $ 3,865.15 

RICH JESSICA $ 8,360.10 

SINGH ANEGLINA $ 6,200.61 

SOWER SONYA $ 3,933.46 

STACY RHODA $ 5,341.70 

STAPLETON BRITTANY $ 5,868.77 

STRINGER MEGAN $ 785.99 

TOBIAS CAMERON $ 1,733.53 

VETTER LAURA $ 2,952.29 

VOGEL MARIE $ 14,991.67 

VOUCHOK MARYNA $ 4,174.23 

WILLIAMS CHRISTOPHER $ 8,233.76 

 Total: $ 245,326.54

Additionally, class representatives, Jessica Miller, Richard Boyette 

and Rebecca Norwood are to receive incentive compensation of $5,000.00 each 

for their participation in this action because they faced substantial risks by 

participating in the lawsuit and incurred actual expenses and lost wages 

during litigation. The proposed incentive payments to each named Plaintiff 

did not diminish the amount any settlement class member would receive 

under the formulas used to calculate individual settlement amounts. Thus, 

the total amount to be received by Plaintiffs is $260,326.54. 

The parties have further agreed that Defendant shall pay $130,000.00 

in attorneys’ fees and costs. (Doc. 113, p. 15). The parties state that 

attorneys’ fees were agreed upon separately and without regard to the 

amount paid to Plaintiffs. (Doc. 113, p. 14). Counsel reports that the amount 

for attorneys’ fees and costs was not discussed until after Defendants had 

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agreed to pay Plaintiffs $260,326.54 as settlement for their individual claims. 

(Doc. 113, p. 15).

The Court finds that the proposed payment of back wages, liquidated 

damages and class representative incentive payments are in fact a fair and 

reasonable settlement of a bona fide dispute under the FLSA. Lynn's Food

Stores, 679 F.2d at 1354. Accordingly, the Court proceeds to an analysis of 

the proposed payment of attorneys’ fees. 

IV. REVIEW OF ATTORNEYS’ FEES

The starting point in setting any attorney's fee is determining the 

“lodestar” figure — that is, the product of the number of hours reasonably 

expended to prosecute the lawsuit multiplied by a reasonable hourly rate for 

work performed by similarly-situated attorneys in the community. Hensley 

v. Eckerhart, 461 U.S. 424, 433 (1983); see also, Norman v. Housing 

Authority of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). 

The fee applicant bears the burden of “establishing entitlement and 

documenting the appropriate hours and hourly rates.” Norman, 836 F.2d at 

1303. After calculating the lodestar fee, a court should then proceed with an 

analysis of whether any portion of this fee should be adjusted upwards or 

downwards. See Pennsylvania v. Delaware Valley Citizens' Council for Clean 

Air, 478 U.S. 546, 565–66 (1986); see also Pennsylvania v. Delaware Valley 

Citizens' Council for Clean Air, 483 U.S. 711 (1987); Hensley, 461 U.S. at 

433–34. Redundant, excessive, or otherwise unnecessary hours should not be 

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included in the calculation of hours reasonably expended. Hensley, 461 U.S. 

at 434. Where the rates or hours claimed seem excessive or lack the 

appropriate documentation, a court may calculate the award based on its own 

experience, knowledge, and observations. Norman, 836 F.2d at 1299. 

The party requesting fees has the burden of supplying the court with 

specific and detailed evidence from which the court can determine the 

reasonable hourly rate for the work performed by his attorneys. Am. Civil 

Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999) (citing 

Norman, 836 F.2d at 1303). The Eleventh Circuit has instructed that a 

reasonable hourly rate is “the prevailing market rate in the relevant legal 

community for similar services by lawyers of reasonably comparable skills, 

experience, and reputation.” Norman, 836 F.2d at 1299. In this case, the 

relevant legal community is Mobile, Alabama. See Barnes, 168 F.3d at 437 

(“[T]he ‘relevant market’ for purposes of determining the reasonable hourly 

rate for an attorney's services is the place where the case is filed.” (citation 

and quotation marks omitted)).

In the instant case, although Plaintiffs and Defendants agree that the 

attorneys’ fees amount is reasonable, that does not exonerate the Court from 

its duty to determine and allow a reasonable attorney's fee. Silva v. Miller, 

307 Fed.Appx. 349, 352 (11th Cir. 2009) (“FLSA requires judicial 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 

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the wronged employee recovers under a settlement agreement.”). The parties 

have provided no supporting documentation regarding the hours expended or 

the hourly rate charged and have not even indicated what portion of the 

requested $130,000.00 is for compensation of costs. Because the parties have 

not provided the Court with any supporting information, the Court is without 

sufficient information to determine whether the attorneys’ fees are 

reasonable. Accordingly, Plaintiff is ordered to provide the Court with 

sufficient documentation that it may utilize the lodestar method and 

determine the reasonableness of the proposed attorneys’ fees and costs. 

V. CONCLUSION

The Court finds that the proposed payment to Plaintiffs in the total 

amount of $260,326.54 is a fair and reasonable settlement of a bona fide 

dispute under the FLSA. However, the Court also finds that the parties have 

not provided enough information for this Court to determine the 

reasonableness of their proposed payment of attorneys’ fees and costs. 

Accordingly, Plaintiffs are ordered to file on or before May 17, 2016, an 

amended motion or an affidavit providing sufficient documentation to support 

an allowance of reasonable attorneys’ fees and costs. 

DONE and ORDERED this 3rd day of May, 2016.

/s/ Callie V. S. Granade 

 SENIOR UNITED STATES DISTRICT JUDGE

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