Yu v. Hasaki Restaurant, Inc.
Filing
OPINION, granting the petition for section 1292(b) review, by JON, JMW, RSP, C.JJ., FILED.[2153600] [17-1067]
Case 17-1067, Document 56-1, 10/23/2017, 2153600, Page1 of 10
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
- - - - - - - - - - - - - - - - - - - - - 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
- - - - - - - - - - - - - - - - - - - - - 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
above.
The Clerk is requested to change the official caption as
1
Case 17-1067, Document 56-1, 10/23/2017, 2153600, Page2 of 10
Louis Pechman, Laura Rodríguez,
Lillian M. Marquez, Pechman Law
Group PLLC, New York, NY, for
Defendants-Petitioners.
JON O. NEWMAN, Circuit Judge:
The
pending
interlocutory
presents
a
petition
appeal
narrow
for
pursuant
issue
permission
to
28
concerning
to
U.S.C.
the
take
§
an
1292(b)
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
equivalent
of
sought
a
to
section
be
reviewed,
1292(b)
is
petition
the
to
functional
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
Case 17-1067, Document 56-1, 10/23/2017, 2153600, Page3 of 10
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
letters
for
the
detailing
Court’s
why
approval
the
and
also
to
was
fair
settlement
submit
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
Department
of
Labor
another
District
curiae
in
Judge.
a
brief
similar
That
brief
filed
case
by
the
pending
argued
that
U.S.
before
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
Case 17-1067, Document 56-1, 10/23/2017, 2153600, Page4 of 10
On
April
Opinion
and
10,
Order
2017,
the
setting
District
forth
its
Court
view
entered
that
an
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
settled
court
by
approval
stipulated
of
FLSA
dismissal,
claims
see
sought
Fed.
R.
to
be
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
Case 17-1067, Document 56-1, 10/23/2017, 2153600, Page5 of 10
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
3
litigation.”
28
U.S.C.
§
The 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.”
5
Case 17-1067, Document 56-1, 10/23/2017, 2153600, Page6 of 10
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
6
Case 17-1067, Document 56-1, 10/23/2017, 2153600, Page7 of 10
functional
purposes
equivalent
of
of
invoking
a
section
this
1292(b)
Court’s
petition
jurisdiction
for
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
Case 17-1067, Document 56-1, 10/23/2017, 2153600, Page8 of 10
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.
citation
was
§
1292(b).”
helpful,
but
Yu,
the
319
F.R.D.
reference
at
to
117.
The
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
court.
after
Compare
plenary
Hartford
proceedings
Fire
in
Insurance
a
Co.
district
v.
Orient
Overseas Containers Lines (UK) Ltd., 230 F.3d 549, 554 (2d
Cir. 2000) (rejecting appellate jurisdiction because of an
arguably
Citibank,
(upholding
deficient
N.A.,
notice
123
appellate
deficient
notice
appellate
jurisdiction
conscientious
after
a
of
district
comprehensive
of
F.3d
appeal)
723,
725-26
jurisdiction
appeal).
would
Here,
judge
analysis,
8
(2d
despite
achieve
court
with
the
the
who
that
Billino
Cir.
an
1997)
arguably
acceptance
objective
has
an
v.
of
of
a
determined,
interlocutory
Case 17-1067, Document 56-1, 10/23/2017, 2153600, Page9 of 10
appeal
will
serve
the
interests
of
efficient
judicial
administration.
Under all the circumstances, we deem the timely filed
notice
of
appeal
jurisdiction
over
sufficient
the
to
section
invoke
1292(b)
our
appellate
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.
§
difference
1292(b),
of
and
opinion,”
“there
is
substantial
id.,
as
the
4
ground
differing
for
rulings
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.
9
Case 17-1067, Document 56-1, 10/23/2017, 2153600, Page10 of 10
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.
10
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