Anwar v. Stephens et al

Filing 27

MEMORANDUM AND ORDER - For the foregoing reasons, the Clerk of the Court is directed to enter judgment in favor of Plaintiff in the amount of $199,500.00 and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 2/2/2017. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
MUHAMMAD ANWAR,
Plaintiff,

MEMORANDUM & ORDER
15-CV-4493(JS)(GRB)

-againstCHRISTOPHER STEPHENS, d/b/a 7-ELEVEN,
and ATTAULLAH KHAN,

Defendants.
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APPEARANCES
For Plaintiff:
Alexander T. Coleman, Esq.
Michael J. Borrelli, Esq.
Todd Dickerson, Esq.
Michael R. Minkoff, Esq.
Borrelli & Associates, PLLC
1010 Northern Blvd., Suite 328
Great Neck, NY 11021
For Defendants:

Kyle T. Pulis, Esq.
Scott Michael Mishkin PC
One Suffolk Square, Suite 240
Islandia, NY 11749

SEYBERT, District Judge:
On

September

(“Plaintiff”)
Christopher

filed
Stevens,

a

15,

2016,

Notice
d/b/a

of

plaintiff

Muhammad

Acceptance

7-Eleven

and

of

Anwar

defendants

Attaullah

Khan’s

(collectively “Defendants”) offer of judgment pursuant to Federal
Rule of Civil Procedure 68 in this Fair Labor Standards Act
(“FLSA”) case.

(Notice, Docket Entry 26.)

For the reasons set

forth below, the Clerk of the Court is directed to enter judgment
in favor of Plaintiff and mark this case CLOSED.

Settlement agreements that provide for the dismissal of
FLSA claims with prejudice under Federal Rule of Civil Procedure
41(a)(1)(A)

must

be

approved

by

the

district

Department of Labor in order to take effect.

court

or

the

Cheeks v. Freeport

Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015) (“Rule
41(a)(1)(A)(ii) stipulated dismissals settling FLSA claims with
prejudice require the approval of the district court or the
[Department of Labor] to take effect.”).

However, the Second

Circuit has not addressed whether judicial approval is required
when the parties seek dismissal of an FLSA case after the plaintiff
accepts a Rule 68 offer of judgment.
The majority of district courts in this Circuit have
held that judicial approval is not required for Rule 68 offers of
judgment.

See Arzeno v. Big B World, Inc., 317 F.R.D. 440, 441

(S.D.N.Y. Nov. 22, 2016) (holding that requiring judicial approval
of Rule 68 offers “would constitute a judicial rewriting of Rule
68”) (collecting cases).

See also Pest v. Express Contracting

Corp. of Great Neck, --- F. Supp. 3d ----, 2016 WL 6518577, *1
(E.D.N.Y. 2016); Baba v. Beverly Hills Cemetery Corp., No. 15-CV5151, 2016 WL 2903597, at *1 (S.D.N.Y. May 9, 2016); Barnhill v.
Fred Stark Estate, No. 15-CV-3360, 2015 WL 5680145, at *1 (E.D.N.Y.
Sept. 24, 2015).

But see Sagardia v. AD Delivery & Warehousing,

Inc., No. 15-CV-0677, 2016 WL 4005777, at *1 (E.D.N.Y. Jul. 25,
2016) (assuming that Cheeks applies to Rule 68 offers of judgment
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and concluding that the offer of judgment was fair and reasonable).
This Court concurs with the majority and declines to “ignore the
mandatory language of Rule 68.”

Pest, 2016 WL 6518577, at *1; FED.

R. CIV. P. 68(a) (stating that “[t]he clerk must . . . enter
judgment” after an offer is accepted).

Accordingly, the Clerk of

the Court is directed to enter judgment in favor of Plaintiff in
the amount of $199,500.00 and mark this case CLOSED.
CONCLUSION
For the foregoing reasons, the Clerk of the Court is
directed to enter judgment in favor of Plaintiff in the amount of
$199,500.00 and mark this case CLOSED.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: February
2 , 2017
Central Islip, New York

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