The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BAMIDELE AIYEKUSIBE, MISCHELE
HIGGINSON and SHANTAL BROWN-
WINN, individually and on behalf of all
others similarly situated
Plaintiffs,
v. Case No.: 2:18-cv-816-FtM-38MRM
THE HERTZ CORPORATION and
DTG OPERATIONS, INC.,
Defendants.
/
ORDER1
Before the Court is United States Magistrate Judge Mac R. McCoy’s Report and
Recommendation (“R&R”). (Doc. 117). Plaintiffs assert limited objections to the R&R
over the proposed notice form. (Doc. 120). Defendants do not object. (Doc. 121).
A district judge “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982). Without a specific objection,
the judge need not review factual findings de novo. 28 U.S.C. § 636(b)(1); see also
Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993). But the district court reviews
legal conclusions de novo, even without an objection. Cooper-Houston v. S. Ry., 37 F.3d
603, 604 (11th Cir. 1994).
1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using
hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide, nor does it have any agreements with
them. The Court is also not responsible for a hyperlink’s availability and functionality, and
a failed hyperlink does not affect this Order.
There are only three matters to address: (1) Plaintiffs’ limited objections; (2)
Plaintiffs’ request for expedited production of class information; and (3) the Figueroa opt-
in Plaintiffs.
First, Plaintiffs object to the R&R’s recommendation to include certain information
about opt-in plaintiffs’ potential liability if Defendants win. As the R&R states, this Court
consistently requires notice to clearly advise opt-in plaintiffs of their potential liabilities for
prevailing party attorney’s fees and costs. E.g., Holmes v. Swissport Fueling, Inc., No.
2:16-cv-669-FtM-38MRM, 2017 WL 8794900, at *11 (M.D. Fla. Sept. 1, 2017), report and
recommendation adopted, 2017 WL 4129838 (Sept. 19, 2017); Trentman v. RWL
Commc’ns, Inc., No. 2:15-cv-89-FtM-38CM, 2015 WL 2062816, at *4 (M.D. Fla. May 4,
2015); Teahl v. The Lazy Flamingo, Inc., No. 2:13-cv-833-FtM-38CM, 2015 WL 179367,
at *7 (M.D. Fla. Jan. 14, 2015). And courts throughout the Middle and Southern Districts
require the same. E.g., Czopek v. TBC Retail Grp., Inc., No. 8:14-cv-675-T-36TBM, 2015
WL 4716230, at *11 (M.D. Fla. Aug. 7, 2015); Garcia v. J&J, Inc., No. 19-cv-60728-
BLOOM/Valle, 2019 WL 3457613, at *5 (S.D. Fla. July 31, 2019) (collecting cases).
For prevailing defendants in FLSA cases, costs and attorney’s fees are not
governed by the same standard. To get attorney’s fees, a prevailing FLSA defendant
must prove plaintiff acted in bad faith or for vexatious, wanton, or oppressive reasons.
See Mayer v. Wall St. Equity Grp., Inc., 514 F. App’x 929, 932 (11th Cir. 2013) (citing
Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1437 (11th Cir. 1998)). That bar is
much higher than the one a winning defendant must clear to recover taxable costs, which
is set by Federal Rule of Civil Procedure 54(d)(1). See Davis v. City of Hollywood, 120
F.3d 1178, 1181 (11th Cir. 1997); Garcia, 2019 WL 3457613, at *5. So while notice for
potential attorney’s fees may be unnecessary (depending on the case), notice for
potential costs provides opt-in plaintiffs with fair warning of their responsibilities if
defendants prevail. Courts in the Middle District, including this one, have recognized that
distinction. Plummer v. PJCF, LLC, No. 2:15-cv-37-FtM-38CM, 2015 WL 2359996, at *1-
2 (M.D. Fla. May 18, 2015) (holding disclosure of potential costs, but not fees, was
required); Belloso v. Asplundh Tree Expert, Co., No. 6:17-cv-2020-Orl-40GJK, 2018 WL
4760671, at *3 (M.D. Fla. Aug. 24, 2018) (same); Taylor v. C&L Towing & Transp., L.L.C.,
No. 6:17-cv-1929-Orl-40TBS, 2018 WL 3598763, at *5 (M.D. Fla. July 11, 2018) (same),
report and recommendation adopted, 2018 WL 3586324 (July 26, 2018).
Considering the above, the Court rejects Plaintiffs’ argument that the notice should
not include a clear notification of potential taxable costs owed by the opt-in plaintiffs if
Defendants prevail. Plaintiffs’ argument on attorney’s fees, however, is well taken.
Attorney’s fees for a prevailing defendant are only granted in “exceptional circumstances.”
Mayer, 514 F. App’x at 932. Given this and the parties’ agreement on the current
proposed notice, the Court finds it unnecessary to include a warning on attorney’s fees.
This conclusion is in line with the R&R—which does not address including notice for
attorney’s fees. Rather, the R&R recommends the parties amend the proposed notice
“so a potential opt-in is fully and clearly informed of his or her potential liability to
Defendants for costs if Defendants prevail.” (Doc. 117 at 12). The Court agrees.
While the proposed notice includes a passing mention of opt-ins potentially bearing
Defendants’ costs, the R&R correctly observes this warning is “buried” within “a section
titled ‘You May Choose Not to Join the Lawsuit.’” (Doc. 117 at 11 (quoting (Doc. 108-2
at 4-5)). The Court agrees with Magistrate Judge McCoy that possible opt-ins might
misinterpret the notice despite the parties’ intention. So the Court directs the parties to
amend their proposed notice consistent with the R&R and this Order. Although Plaintiffs
offer a modified notice (Doc. 120 at 10-11), Defendants oppose it (Doc. 121 at 3-4). And
the solution may not require an entire rewrite like Plaintiffs suggest; it may be as simple
as moving the current cost warning to the logical section of the notice and more clearly
stating opt-in plaintiffs’ potential liability for costs if Defendants prevail.
Second, Plaintiffs ask the Court to order Defendants to provide class information
within five days, rather than the twenty-one days agreed to in the Joint Motion (Doc. 87).
(Doc. 120 at 11-12). The Court agrees with Defendants, however. This issue was not
addressed in the R&R; thus, the request is not an objection, and it would not be
appropriate for the Court to consider here.2
And third, to dispel any lingering uncertainty, Magistrate Judge McCoy correctly
concluded the Court’s previous Order (Doc. 77) did not preclude the Figueroa opt-in
Plaintiffs from opting into this case. They were free to opt-in here along with the Figueroa
named Plaintiffs. So like the R&R recommends, the Court accepts the Figueroa consent
to join forms as properly and timely filed. (Docs. 83; 84; 85; 86).
After a careful, complete, and independent examination of the file, the Court
accepts and adopts Magistrate Judge McCoy’s R&R in full.
Accordingly, it is now
ORDERED:
2 Even if the Court could somehow construe this as a motion to modify the parties’
stipulated deadline, Plaintiffs’ objections contain no 3.01(g) certification so it would be
denied all the same.
1. The Report and Recommendation (Doc. 117) is ACCEPTED and ADOPTED
and the findings incorporated herein.
2. Plaintiffs’ objections (Doc. 120) are OVERRULED.
3. Plaintiffs’ Unopposed Motion to Strike Objection by Figueroa to Joint Motion
and Stipulation for Conditional Certification DKT 88 and Plaintiffs’ Response to
Figueroa Objections (Doc. 95) is DENIED as moot in light of Plaintiffs’ Notice
of Resolution of Objection (DE 88) and Motion to Strike (DE 95) (Doc. 101).
4. The parties’ Joint Motion and Stipulation for Conditional Collective Action
Certification (Doc. 87) is GRANTED and DENIED in part as follows:
a. Conditional certification under 29 U.S.C. § 216(b) is GRANTED based
on the parties’ stipulated definition: “all persons who worked for
Defendants The Hertz Corporation and DTG Operations, Inc. in the
positions of Function Manager or Location Manager, at any time from
July 1, 2017 to present.” (Doc. 87 at 2).
b. The Joint Motion and Stipulation for Conditional Collective Action
Certification (Doc. 87) is DENIED to the extent the parties seek approval
of their current proposed notice (Doc. 108-2) for the reasons set out in
this Order and the Report and Recommendation (Doc. 117).
c. The parties are DIRECTED to meet and confer and submit an amended
proposed notice to their current proposed notice (Doc. 108-2)—
consistent with this Order and the Report and Recommendation (Doc.
117)—on or before February 26, 2020, for the Court’s consideration
and approval.
5. The Court ACCEPTS as properly and timely filed the Figueroa opt-in Plaintiffs’
notices of filing consent to join forms (Docs. 83; 84; 85; 86).
DONE and ORDERED in Fort Myers, Florida this 19th day of February, 2020.
,
UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record