Scarpino v. Imagination Industries, Inc. et al

Filing 81

MEMORANDUM AND ORDER that the Court is satisfied the Second Amendment is fair and reasonable and approves it to the extent necessary. The parties' prior motion seeking approval of their now-supplanted amendment is denied as moot. Ordered by Chief Judge Robert F. Rossiter, Jr. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KRISTEENA SCARPINO, individually and
on behalf of similarly situated individuals,
Plaintiff,
v.
IMAGINATION INDUSTRIES, INC., and
CASEY ROWE,

8:20CV449
MEMORANDUM
AND ORDER

Defendants.
On October 26, 2020, Plaintiff Kristeena Scarpino (“Scarpino”) brought this action
(Filing No. 1), individually and on behalf of others similarly situated, against defendants
Imagination Industries, Inc., and Casey Rowe (together, the “defendants”) alleging they
“misclassified [her and other workers] as independent contractors rather than employees,
[] failed to pay them minimum wage compensation, and [] required dancers to pay fees
and tip-outs” in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et
seq., and the Nebraska Wage and Hour Act (“NWHA”), Neb. Rev. Stat. § 48-1201 et seq.
The Court later conditionally certified Scarpino’s federal claim as an FLSA collective
action (Filing No. 31) upon accepting the magistrate judge’s unobjected-to Findings and
Recommendation (Filing No. 30) that her Motion for Conditional Certification (Filing
No. 15) be granted. See 28 U.S.C. § 636(b)(1)(B) (allowing a district judge to “designate
a magistrate judge to conduct hearings . . . and to submit” proposed findings and
recommendations for the certification of a class action).
The parties successfully negotiated Scarpino’s FLSA claims and moved the Court
to approve their settlement agreement (Filing No. 56) on September 3, 2021. The Court
approved that agreement (Filing No. 59) as well as a subsequent amendment (Filing
No. 61).

Now, over three years after the parties reached their original agreement,

Scarpino reports the defendants have fallen behind on their payment obligations.

On January 5, 2024, Scarpino filed a Motion to Enforce Settlement (Filing
No. 62), stating the defendants failed to pay their agreed-upon installments in full and on
time throughout 2023. As of that time, the defendants reportedly still owed $13,800 of
the original $45,000 settlement. In light of this breach, Scarpino asked the Court to
enforce the parties’ amended agreement and “order that Defendants pay the $13,800.00
balance.”
The Court held a hearing with the parties to address these issues as well as defense
counsel’s motions to withdraw (Filing Nos. 64, 65). With the help of the defendants’ new
counsel, the parties informed the Court that they had agreed to a second amendment to
their settlement agreement (Filing No. 75), which they asked the Court to approve. The
defendants also paid another $1,000 of the outstanding settlement amount.
On April 24, 2024, the Court held another hearing to discuss deficiencies and
ambiguities it noticed in the parties’ new amendment. There, the parties agreed to
renegotiate and clarify the terms of that agreement. As requested, the Court denied as
moot Scarpino’s Motion to Enforce Settlement (Filing No. 77).
The parties have now presented the Court with a renewed Second Amendment to
the Settlement Agreement (the “Second Amendment”) (Filing No. 79). That Second
Amendment sets a schedule requiring the defendants “to pay off the remaining balance of
$12,800” in $1,000 monthly increments. 1 It also waives the original “interest provisions
of the Settlement Agreement” and first amendment and, in their place, provides for
liquidated damages of $25 per day for a late payment. Scarpino’s counsel further reports
that the opt-in plaintiffs were notified of the Second Amendment and did not object.
The Court is satisfied the Second Amendment is fair and reasonable and approves
it to the extent necessary. See Barbee v. Big River Steel, LLC, 927 F.3d 1024, 1026-27
The Court has been informed the defendants have already timely paid the first
$1,000 payment under the Second Amendment, which was due April 30, 2024. That
leaves an $11,800 balance.
1

2

(8th Cir. 2019) (describing the circuit split on whether judicial approval is required of all
FLSA settlements and not taking “a side on this issue”). The parties’ prior motion
seeking approval of their now-supplanted amendment is denied as moot.
IT IS SO ORDERED.
Dated this 9th day of May 2024.
BY THE COURT:

Robert F. Rossiter, Jr.
Chief United States District Judge

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