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

Full title: DAVID MACKENZIE, Plaintiff, v. KINDRED HOSPITALS EAST, L.L.C., Defendant

Court: United States District Court, M.D. Florida

Date published: Jul 23, 2003

Case No. 8:00-cv-2405-T-23TGW (M.D. Fla. Jul. 23, 2003)

Opinion

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

July 23, 2003

ORDER

STEVEN 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

1 In his motion to facilitate notice, the plaintiff requests an order for proceeding as a collective action (Doc. 42-1), an order authorizing notice to potential collective action members (Doc. 42-2), and an order requiring the defendant to identify all potential collective action members (Doc. 42-3).

2 The result in this case undoubtedly would differ if the plaintiff offered some material evidence of other willing and similarly situated claimants. Of course, in all instances, the court should guard against a defendant's misuse of the procedure employed in this case. A dismissal for mootness is a tool to comply with jurisdictional limitations imposed by the Constitution of the United States and not a ploy for an agile defendant to escape compliance with the Fair Labor Standards Act.

ORDERED in Tampa, Florida, on July 23rd, 2003.