Mota Bautista v. Countywide Builders, Inc. ( 2024 )

USDC SDNY UNITED STATES DISTRICT COURT DOCUMENT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED GERARDO MOTA BAUTISTA, HUGO DOC BAUTISTA, JUAN LUIS OVANDO ZEPEDA, DATE FILED: _ 03/27/2024 JUAN ZEPEDA, JULIO RICARDO ALVAREZ MACATOMA, LEONCIO TORRES ACUNA, MARIO MORALES ROJAS, OMAR RODRIGUEZ, and ANTONIO LIMON HERNANDEZ, individually and on behalf of others similarly situated, Plaintiffs, -against- No. 19 Civ. 8808 (AT) COUNTY-WIDE MASONRY CORP., ORDER CARBEN INDUSTRIES, INC., CARBEN CONCRETE, INC., CARBEN CONSTRUCTION INC., ANTHONY DERASMO, ANTHONY LOGIUDICE, RONALD BROWNING, and MARTIN DOE a/k/a PERU, Defendants. CARBEN INDUSTRIES, INC., Third Party Plaintiff, -against- BATRUME INDUSTRIES, INC. and COUNTY- WIDE CONSTRUCTION CORP., Third P. Defendants. ANALISA TORRES, District Judge: The Court has been advised by the Honorable Robyn F. Tarnofsky that the parties have reached a settlement in this Fair Labor Standards Act (“FLSA”) case. An FLSA action shall not be dismissed unless the settlement agreement has been approved by the Court or the Department of Labor (“DOL”). See Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015); Samake v. Thunder Lube, Inc., 24 F.4th 804, 810— 11 (2d Cir. 2022) (“The concern of Cheeks was with the settlement that included as one of its terms the dismissal of the action, and not specifically with whether the dismissal was with prejudice or without.”). Accordingly, to the extent Plaintiffs seek dismissal pursuant to Rule 41, Plaintiffs—or the parties jointly—must either file a letter motion requesting that the Court approve the settlement agreement or, alternatively, provide documentation of the approval by DOL. Any letter motion, along with the settlement agreement, must be filed on the public docket by April 26, 2024. The letter motion must explain why the proposed settlement is fair and reasonable and should discuss, at a minimum, the following factors: (1) the plaintiff’s range of possible recovery; (2) the extent to which “the settlement will enable the parties to avoid anticipated burdens and expenses in establishing their respective claims and defenses”; (3) the seriousness of the litigation risks faced by the parties; (4) whether “the settlement agreement is the product of arm’s- length bargaining between experienced counsel”; and (5) the possibility of fraud or collusion. Wolinsky v. Scholastic Inc., 900 F. Supp. 2d 332, 335 (S.D.N.Y. 2012) (quoting Medley v. Am. Cancer Soc’y, No. 10 Civ. 3214, 2010 WL 3000028, at *1 (S.D.N.Y. July 23, 2010)). The letter must also address whether there is a bona fide dispute as to the number of hours worked or the amount of compensation due and how much of the proposed settlement Plaintiff’s attorney shall be seeking as fees. See Cheeks, 796 F.3d at 202, 207. The parties are advised that they should be specific as to the range of possible recovery and the seriousness of the litigation risks faced so that the Court can evaluate the settlement, as “conclusory statements are insufficient.” Brito v. Alpine Constr. & Renovation Corp., No. 23 Civ. 2748, 2024 WL 323368, at *2 (S.D.N.Y. Jan. 29, 2024). Absent special circumstances, the Court will not approve any settlement agreement that is filed under seal or in redacted form. See Lopez v. Nights of Cabiria, LLC, 96 F. Supp. 3d 170, 177 n.44 (S.D.N.Y. 2015). In addition, absent compelling circumstances, the Court will not approve settlement agreements containing sweeping non-disclosure provisions, see id. at 179–80; Flood v. Carlson Rests. Inc., No. 14 Civ. 2740, 2015 WL 4111668, at *2 (S.D.N.Y. July 6, 2015), or broad releases waiving claims having no relation to FLSA issues, see Flood, 2015 WL 4111668, at *2. Specifically, absent extraordinary circumstances, the Court shall not approve settlements that (1) “release from liability numerous entities beyond Defendant[], including[] their predecessors, successors, assigns, parents, subsidiaries,” and other entities; (2) “bind not only Plaintiff[] but also [her] successors, assigns, heirs, . . . and any legal and personal representatives”; and (3) require Plaintiffs to release “any claim regarding unpaid or improperly paid wages,” not only the claims involved in the instant action. Velez v. S.T.A. Parking Corp., No. 23 Civ. 4786, 2024 WL 552781, at *3 (S.D.N.Y. Feb. 12, 2024). Such a “release—read literally—would have the . . . effect of releasing any wage and hour claims that [P]laintiff[s] ha[ve] against a wide range of unidentified individuals and business[es] only tenuously affiliated with [D]efendant[s].” Lara v. Air Sea Land Shipping & Moving, Inc., No. 19 Civ. 8486, 2019 WL 6117588, at *2 (S.D.N.Y. Nov. 18, 2019). Any request for attorneys’ fees must be accompanied by supporting documentation. “In this circuit, a proper fee request ‘entails submitting contemporaneous billing records documenting, for each attorney, the date, the hours expended, and the nature of the work done.’” Lopez, 96 F. Supp. 3d at 181 (quoting Wolinsky, 900 F. Supp. 2d at 336). The parties may consent to proceed before the Honorable Robyn F. Tarnofsky, who would then oversee the approval of the settlement. Ifthe parties consent to Judge Tarnofsky’s jurisdiction, by April 19, 2024, they shall file on the docket a fully executed Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form, available at https://nysd.uscourts.gov/node/754. The parties are free to withhold consent without negative consequences. If the Court approves that form, all further proceedings will then be conducted before Judge Tarnofsky rather than before me. An information sheet on proceedings before magistrate judges is also attached to this order. 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. All conferences are vacated. Dated: March 27, 2024 New York, New York ANALISA TORRES United States District Judge AD 85 (Rav. O19) Notice, Consent, and Reference ofa Civil Action to a Magistrate Judae UNITED STATES DISTRICT COURT for the _Dsinectof iD Plana ) we ) «Cra Acton No. sD Defendant ) NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE Notice of a magistrate judge s availability. A Unoted States magistrate judge of this court = available to conduct all proceedings im this crval action (imchodimg a jury of monjury taal) and to order the entry of a final judgment The judgment may then be appealed directly to the United States court of appeals hike any other padgment of this court. A magistrate judge may exercise this authonty only ifall parhes voluntanly consent. Youmay consent have your case referred to a mapistrate pudge, or you may withhold your consent without adverse substantive consequences. The name of any party withholdmg consent will not be revealed to amy judze who may otherwise be mvolved with your case. Conrent to a magizirate judge's authority. The followme partes consent to have a United States magistrate padge Parties" printed names Signatures of parties or attorneys Datez Reference Order IT IS ORDERED: This case 5 referred to a United States magistrate jodge to conduct all proceedings and order the entry of a final jodzment im accordance with 78 U.S.C. § 636(c) and Fed RK. Crv. P_ 73. Dates ‘District Judge's signamure Printed name and tie Note: Retum this fomm to the clerk of court only if you are consenting to the exercise of pamsdiction by a United States magistrate judze. Do not return this form to a podze. eee. □□ United States District Court ae oe fi Southern District of New York UNITED STATES MAGISTRATE JUDGES: REFERRALS AND CONSENTS All cases in the Southern District of New York are assigned to two judges: a district judge and a magistrate judge. District judges are appointed for life terms by the President. Magistrate judges are selected by a majority vote of the district judges in the particular district and serve terms of eight years. Referrals to the Magistrate Judge. The district judge assigned to your case may refer the case to a magistrate judge for specific purposes. Commonly, the referral will be for the magistrate judge to conduct the proceedings that occur before trial, such as resolving discovery disputes or presiding over settlement conferences. A referral may also be made for the magistrate judge to issue to the district judge a report and recommendation on how to resolve a motion, such as a motion to dismiss or a motion for summary judgment. The consent of the parties is not needed for the district judge to refer the case to the magistrate judge for these purposes. If the district judge has made such a referral, you can ask the district judge to review any magistrate judge's decision by filing an objection with the district jadge within fourteen days of that decision. The district judge will rule on any timely objections that you file. If you do not file an objection, you will give up your right to challenge the magistrate judge's decision at a later time, including on appeal. See Rule 72 of the Federal Rules of Civil Procedure. Consent to Proceed Before the Magistrate Judge. If you would like your case to move more quickly, it is helpful to consent to proceed before the magistrate judge for all Purposes, including any trial. If you consent, the magistrate judge will perform the identical function that the district judge would have performed. Any trial in your case would be either a jury or a nonjury trial, depending upon whether there is a right to a jury trial and a proper request for such a trial. The only difference is that the magistrate judge - and not the district judge - would preside over that trial. Cases that proceed for all purposes before a magistrate judge generally move more quickly than cases before a district judge. If you consent to proceed before the magistrate judge, the district judge plays no further role in the case. Any appeal is taken directly to the Court of Appeals. It is your choice whether or not to consent to proceed before the magistrate judge, and all A copy of the appropriate consent form is attached. Additional forms are also available from the Pro Se Intake Unit and on the Court's website. 500 Pear. Street! New Yorn, NY 10007 300 Quanmoras Street | Wrrre Plams.NY 10601 PRO SE ENTAKE UNIT. 212-805-0175 Rev. 2/20/13