Mei Xing Yu v. Hasaki Restaurant, Inc. , 874 F.3d 94 ( 2017 )

17-1067-cv
Yu v. Hasaki Restaurant, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2017
Submitted: September 19, 2017 Decided: October 23, 2017
Docket No. 17-1067
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MEI XING YU, individually, on behalf of all other employees
similarly situated,
Plaintiff,
v.
HASAKI RESTAURANT, INC., SHUJI YAGI, KUNITSUGU NAKATA,
HASHIMOTO GEN,
Defendants-Petitioners,
JOHN DOE AND JANE DOE #1-10,
Defendants. 1
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Before: NEWMAN, WALKER, and POOLER, Circuit Judges.
Petition for permission to appeal pursuant to 28 U.S.C.
§ 1292(b) and for leave to file a late petition.
Petition and late filing granted.
1
The Clerk is requested to change the official caption as
above.
1
Louis Pechman, Laura Rodríguez,
Lillian M. Marquez, Pechman Law
Group PLLC, New York, NY, for
Defendants-Petitioners.
JON O. NEWMAN, Circuit Judge:
The pending petition for permission to take an
interlocutory appeal pursuant to 28 U.S.C. § 1292(b)
presents a narrow issue concerning the procedure for
perfecting such an appeal. The issue is whether, under the
circumstances of this case, the petitioners’ notice of
appeal, which was filed within ten days of the District
Court’s order sought to be reviewed, is the functional
equivalent of a section 1292(b) petition to invoke our
jurisdiction over a later filed petition.
Background
The section 1292(b) petition arises out of a suit filed
in the District Court for the Southern District of New York
by Mei Zing Yu, a sushi chef, against Yu’s employer, Hasaki
Restaurants, Inc., and three restaurant owners or managers
(collectively “Hasaki”) for alleged violations of the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. and
2
New York Labor Law. 2 The complaint was filed “on behalf [of]
all other employees similarly situated.”
Yu and Hasaki negotiated a settlement. Counsel for Yu
then informed the District Court by letter that Yu had
accepted the defendants’ offer of judgment pursuant to Rule
68 of the Federal Rules of Civil Procedure.
The District Court (Jesse M. Furman, District Judge)
ordered the parties to submit the settlement agreement to
the Court for the Court’s approval and also to submit
letters detailing why the settlement was fair and
reasonable. In response, counsel for Hasaki sent the Court
a letter for all parties, arguing that the District Court
lacked authority to review the offer of judgment because
entry of a Rule 68 judgment is mandatory. The Judge Furman
considered an amicus curiae brief filed by the U.S.
Department of Labor in a similar case pending before
another District Judge. That brief argued that District
Court approval of the settlement was required.
2
The complaint also sought relief against “Defendant [sic]
John Doe and Jane Doe #1-10” alleged to own the stock of Hasaki
Restaurant, Inc. and to make decisions about employees’ salaries
and hours.
3
On April 10, 2017, the District Court entered an
Opinion and Order setting forth its view that judicial
review of an FLSA settlement was required before entry of a
Rule 68 judgment. Yu v. Hasaki Restaurant, Inc., 319 F.R.D.
111 (S.D.N.Y. 2017). Judge Furman explained that the
considerations animating this Court’s decision in Cheeks v.
Freeport Pancake House, Inc., 769 F.3d 199 (2d Cir. 2015),
requiring court approval of FLSA claims sought to be
settled by stipulated dismissal, see Fed. R. Civ. P.
41(a)(1)(A)(ii), applied to Rule 68 settlements. See Yu,
319 F.R.D. at 117. The District Court’s Order directed the
parties, in the absence of a notice of appeal filed within
ten days, to submit a joint letter explaining the basis for
their settlement and why it should be approved.
Acknowledging the split of authorities on the Rule 68 issue
among district courts within the Second Circuit, Judge
Furman certified his order for interlocutory review under
28 U.S.C. § 1292(b). He also stayed the FLSA case in the
event a timely notice of appeal was filed.
4
On April 14, 2017, Hasaki filed in the District Court a
notice of appeal from the District Court’s April 10 Order.3
The notice of appeal identified the Order appealed from and
its date. On the same date, the notice of appeal, the
District Court’s Order and Opinion sought to be reviewed,
and the docket sheet were electronically transferred to
this Court by the CM/ECF system. On April 27, 2017, Hasaki
filed in this Court Forms C and D, describing the nature of
the action and the issues to be raised. On June 21, 2017,
Hasaki filed a petition for leave to appeal pursuant to
section 1292(b) with a request that it be accepted as
timely filed. Yu has filed no response to the petition.
Discussion
Timeliness. Section 1292(b) of Title 28 authorizes a
district judge, when entering an order not otherwise
appealable in a civil action, to state “that such order
involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation.” 28 U.S.C. §
3The notice of appeal uses the District Court’s caption,
identifying the plaintiff as “Mei Xing Yu, on behalf of himself
and all others similarly situated.”
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1292(b). The relevant court of appeals may, in its
discretion, permit an appeal from the order if application
is made within ten days after entry of the order. See id.Rule 5 of the Federal Rules of Appellate Procedure requires
a request for permission to file a discretionary appeal to
be filed within the time specified by the statute
authorizing the appeal. See FRAP 5(a)(2).
We acknowledge at the outset that time requirements for
invoking appellate jurisdiction are strictly enforced. See
Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61
(1982) (appellate time limits are jurisdictional). In
Bowles v. Russell, 551 U.S. 205 (2007), for example, the
Supreme Court ruled that a court of appeals lacked
jurisdiction where a district court had mistakenly told an
appellant that his notice of appeal could be filed within
seventeen days, instead of the fourteen days specified in
the relevant rule, FRAP 4(a)(6). See id. at 209-15.
In the pending matter, Hasaki’s petition to appeal the
District Court’s April 10 Order was filed beyond the ten
days specified in section 1292(b). However, a notice of
appeal was filed within that ten day period. The issue
presented is whether the notice of appeal may be deemed the
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functional equivalent of a section 1292(b) petition for
purposes of invoking this Court’s jurisdiction over
Hasaki’s petition.
In Casey v. Long Island R.R. Co., 406 F.3d 142, 146 (2d
Cir. 2005), we ruled that a brief, filed within ten days of
a District Court’s order, was the functional equivalent of
a section 1292(b) petition. A brief is, of course, a far
more informative document that a bare notice of appeal. But
Casey permits us to determine whether, under the
circumstances of this case, we should deem Hasaki’s notice
of appeal, filed in the District Court, sufficient to
invoke our appellate jurisdiction over the petition for an
interlocutory appeal. That notice identified the Order for
which review was sought. It also triggered the automatic
electronic transmission to this Court of the notice of
appeal and the District Court’s Order and Opinion. That
Opinion fully informed us of the considerations relevant to
whether the District Court’s Order was appropriate for a
section 1292(b) appeal.
We thus knew, within ten days of the District Court’s
Order, everything we needed to know in order to exercise
our discretion whether to permit the interlocutory appeal.
7
We note that the District Court’s Order required the
parties to explain the justification for their settlement
“[a]bsent a notice of appeal being filed within ten days,
see 28 U.S.C. § 1292(b).” Yu, 319 F.R.D. at 117. The
citation was helpful, but the reference to a notice of
appeal was not.
There is a reason why this Court should be somewhat
indulgent in determining whether the notice of appeal
should be considered the functional equivalent of a section
1292(b) petition. We are not asked to uphold appellate
jurisdiction solely for the benefit of a litigant who has
not prevailed after plenary proceedings in a district
court. Compare Hartford Fire Insurance Co. v. Orient
Overseas Containers Lines (UK) Ltd., 230 F.3d 549, 554 (2d
Cir. 2000) (rejecting appellate jurisdiction because of an
arguably deficient notice of appeal) with Billino v.
Citibank, N.A., 123 F.3d 723, 725-26 (2d Cir. 1997)
(upholding appellate jurisdiction despite an arguably
deficient notice of appeal). Here, the acceptance of
appellate jurisdiction would achieve the objective of a
conscientious district court judge who has determined,
after a comprehensive analysis, that an interlocutory
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appeal will serve the interests of efficient judicial
administration.
Under all the circumstances, we deem the timely filed
notice of appeal sufficient to invoke our appellate
jurisdiction over the section 1292(b) petition. 4 Having
accepted jurisdiction over the petition by virtue of the
timely notice of appeal and timely receipt of related
information, we grant Hasaki’s request to file his later
filed formal section 1292(b) petition.
Appellate discretion. The District Court’s Order
clearly merits interlocutory review under section 1292(b),
as Judge Furman sensibly recognized. The issue of whether
Rule 68 settlements in FLSA cases require District Court
review and approval is “a controlling question of law,” 28
U.S.C. § 1292(b), and “there is substantial ground for
difference of opinion,” id., as the differing rulings
4
Our reliance on a timely filed notice of appeal
distinguishes this case from Bowles, 551 U.S. at 213, where the
Supreme Court rejected appellate jurisdiction in the absence of
a notice of appeal filed within the prescribed time period. We
acknowledge that the Eighth Circuit declined to deem a notice of
appeal the functional equivalent of a section 1292(b) petition
under circumstances similar to those in this case. See Estate of
Storm v. Northwest Iowa Hospital Corp., 548 F.3d 686 (8th Cir.
2008). We note that the issue tendered for interlocutory review
concerned whether to certify a state law question to a state
court. See id. at 687. By contrast, the pending case concerns
the interplay of a federal statute and a federal rule.
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within this Circuit demonstrate. Compare, e.g., Sanchez v.
Burgers & Cupcakes LLC, No. 16-CV-3862 (VEC), 2017 WL
2171870, at *3 (S.D.N.Y. Mar. 16, 2017) (Rule 68 settlement
of FLSA case not valid absent court or Department of Labor
approval), with, e.g., Anwar v. Stephens, No. 15-CV-4493
(JS) (GRB), 2017 WL 455416, at *1 (E.D.N.Y. Feb. 2, 2017)
(Rule 68 settlement of FLSA case not subject to court
approval). Furthermore, “an immediate appeal from the order
may materially advance the ultimate termination of the
litigation.” 28 U.S.C. § 1292(b).
Conclusion
Leave to file the petition for section 1292(b) review
is granted, and the petition is granted.
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