The opinion
UNITED STATES DISTRICT COURT DOC #: _________________
SOUTHERN DISTRICT OF NEW YORK
DATE FILED: 1/2/2024
----------------------------------------------------------------- X
:
ADRIAN BROWN, :
:
Plaintiff, : 1:23-cv-7995-GHW
:
-against- : ORDER
:
STAGEDNYC, LLC, and DEBRA JO :
JACKSON, :
:
Defendants. :
----------------------------------------------------------------- X
GREGORY H. WOODS, United States District Judge:
The Court has been advised that the parties have reached a settlement in this case, which
includes claims arising under the Fair Labor Standards Act (the “FLSA”). The parties are directed to
proceed in one of the three ways described below. The first alternative describes the process that
the parties must follow if they wish to dismiss FLSA claims with prejudice. The second alternative
describes a process that the parties may follow if they wish to dismiss FLSA claims without prejudice if
there is no settlement of FLSA claims. The third alternative reminds the parties of their option to
resolve this case through an offer of judgment under Federal Rule of Civil Procedure 68.
(1) Judicial Approval and Order of Dismissal of FLSA Claims with Prejudice under Rule 41(a)(2).
In light of the decision of the Second Circuit Court of Appeals in Cheeks v. Freeport Pancake House,
Inc., 796 F.3d 199 (2d Cir. 2015), which held that the FLSA falls within the “applicable federal
statute” exception to Federal Rule of Civil Procedure 41(a)(1)(A), the parties cannot dismiss claims
arising under the FLSA with prejudice pursuant to Rule 41(a)(1)(A). The holding of Cheeks does not
apply to claims arising under any statute other than the FLSA. As a result, in order to dismiss an
FLSA claim with prejudice, the parties must seek court approval of the proposed dismissal under Rule
41(a)(2). In order to seek such approval, the parties are directed to proceed as follows:
(a) First, the parties are ORDERED to discuss whether they are willing to consent, under
28 U.S.C. § 636(c), to conducting all further proceedings before the assigned Magistrate Judge.
If both parties consent to proceed before the Magistrate Judge, the parties must, no later than
January 16, 2024 file on ECF a fully executed Notice, Consent, and Reference of a Civil Action to a
Magistrate Judge form, a copy of which is attached to this order (and is also available at
https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf). The executed form should be
filed on ECF as a “Proposed Consent to Jurisdiction by US Magistrate Judge,” and be described
using the “Proposed Consent to Jurisdiction by US Magistrate Judge” filing event in accordance
with ECF Rule 13.27. If the Court approves that form, all further proceedings, including the
evaluation of the proposed settlement, will then be conducted before the assigned Magistrate Judge
rather than before me. Any appeal would be taken directly to the United States Court of Appeals
for the Second Circuit, as it would be if the consent form were not signed and so ordered.
If either party does not consent to conducting all further proceedings before the assigned
Magistrate Judge, the parties must file a joint letter, no later than January 16, 2024, advising the
Court that the parties do not consent, but without disclosing the identity of the party or parties
who do not consent. The parties are free to withhold consent without negative consequences.
(b) Second, if the parties do not consent to conduct all further proceedings before the
assigned Magistrate Judge, they shall submit to the Court by January 23, 2024 a joint motion via
ECF setting forth their views as to why their settlement is fair and should be approved. The motion
must address the considerations detailed in Wolinsky v. Scholastic Inc., 900 F. Supp. 2d 332 (S.D.N.Y.
2012), and must include a copy of the settlement agreement itself, attached as an exhibit. The parties
are advised that the Court will not approve settlement agreements that contain a confidentiality provision, and that the
Court will not permit the parties to file any portion of any document related to the Court’s evaluation of the proposed
settlement under seal unless they have first made a particularized showing of the need for the relevant information to be
sealed that rebuts the presumption of public access to judicial documents.
If the settlement includes attorney’s fees, the parties should also address the reasonableness
of the fees to be awarded under the framework set forth in Goldberger v. Integrated Resources, Inc., 209
F.3d 43, 50 (2d Cir. 2000). Plaintiffs’ attorneys must also attach as an exhibit detailed attorney time
records for the Court’s review, as the Second Circuit “encourage[s] the practice of requiring
documentation of hours as a ‘cross check’” even in cases in which the fees awarded are a percentage
of the total award. Id. (citation omitted).
(2) Stipulation of Dismissal Without Prejudice under Rule 41(a)(1)(A). The court in Cheeks
expressly reserved decision with respect to voluntary dismissals of FLSA claims without prejudice
under Rule 41(a)(1)(A). However, in Samake v. Thunder Lube, Inc., et al., 21-102-cv (2d Cir. January
27, 2022), the Second Circuit concluded that the Court must evaluate such dismissals to ensure that
they do not obscure a settlement. As a result, the Court will accept a stipulation of dismissal under
Rule 41(a)(1)(A), so long as (1) the parties’ stipulation of dismissal dismisses claims arising under the
FLSA without prejudice and (2) the parties certify that there has been no settlement of FLSA claims. If
the parties are unable to certify that there has been no settlement of FLSA claims, they must request
Cheeks review of the settlement, as described in paragraph (1) above. If the parties wish to resolve
the case by a stipulation that dismisses FLSA claims without prejudice under Federal Rule of Civil
Procedure 41(a)(1)(A), they are directed to submit such a stipulation and certification by January 16,
2024. The executed stipulation should be filed on ECF as a “Proposed Order,” and be described
using the “Stipulation of Voluntary Dismissal” filing event in accordance with ECF Rule 13.18. The
certification may be submitted in the form of a letter by counsel for the plaintiff(s) if the dismissal is
proposed under Rule 41(a)(1)(A)(i), or by counsel for all parties if the dismissal is proposed under
Rule 41(a)(1)(A)(ii).
(3) Offer of Judgment Pursuant to Federal Rule of Civil Procedure 68. Federal Rule of Civil
Procedure 68(a) provides that “[a]t least 14 days before the date set for trial, a party defending
against a claim may serve on an opposing party an offer to allow judgment on specified terms, with
the costs then accrued. If, within 14 days after being served, the opposing party serves written
notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof
of service. The clerk must then enter judgment.” Fed. R. Civ. P. 68(a). In Mei Xing Yu v. Hasaki
Restaurant, Inc, the Second Circuit held that judicial approval 1s not required for Rule 68(a) offers of
judgment with respect to actions that raise claims under the FLSA. 944 F.3d 395, 414 (2d Cir.
2019). If the parties wish to resolve the case by an offer and acceptance of judgment pursuant to
Rule 68(a), they are directed to submit the executed offer and acceptance, together with a form of
proposed order for the entry of judgment consistent with the terms of the offer and acceptance, by
January 16, 2024.
In addition, the initial pretrial conference previously scheduled for May 13, 2024, Dkt. No. 5,
is rescheduled for March 13, 2024 at 4:00 p.m. The parties’ joint letter and proposed case
management plan described in the Court’s September 12, 2023 order, Dkt. No. 5, are due no later
than March 6, 2024.
SO ORDERED.
Dated: January 2, 2024 / { De wd -
New York, New York GRE H. WOODS
United States District Judge