Paez et al v. Whaleneck Enterprises et al

Filing 18

MEMORANDUM OF DECISION & ORDER re 16 Motion for Settlement; 17 Motion for Reconsideration. Upon reconsideration, the Court finds that in this particular situation, judicial approval of the Defendants offer of judgment pursuant to Rule 68 is unnecessary. Rule 68 explicitly states that after either party files a notice of acceptance of an offer of judgment, the Clerk of the Court must then enter judgment. This Court will not ignore such plainly mandatory language; holding otherwise would constitute a judicial rewriting of Rule 68. Arzeno v. Big B World, Inc., 317 F.R.D. 440, 441 (S.D.N.Y. 2016) Accordingly, this Court joins the majority of district courts in this Circuit [that] have held that judicial approval is not required for R ule 68 offers of judgment. Anwar, 2017 WL 455416 at *1. The Clerk of the Court is respectfully directed to enter judgment in favor of the Plaintiffs consistent with the notice of acceptance [ECF No. 15], and to close the case. SEE ATTACHED DECISION for details. It is SO ORDERED by Judge Arthur D. Spatt on 6/14/2017. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
JUAN PAEZ, RAMON A. JIMENEZ PERALTA,
RAFAEL LUNA, AQUILES V NUNEZ, individually
and on behalf of those individuals similarly situated,
Plaintiffs,

FILED 
CLERK 

11:34 am, Jun 14, 2017

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

MEMORANDUM OF
DECISION & ORDER
16-cv-2673 (ADS)(ARL)

-againstWHALENECK ENTERPRISES, doing business as
The Boathouse Restaurant, LINDSAY MAGILL,
Defendants.
---------------------------------------------------------X
APPEARANCES:
Zabell & Associates, PC
Attorneys for the Plaintiffs
1 Corporate Drive
Suite 103
Bohemia, NY 11716
By:
Saul D. Zabell, Esq., Of Counsel
Stevenson Marino LLP
Attorneys for the Defendants
75 Maiden Lane
Suite 402
New York, NY 10038
By:
Justin Robert Marino, Esq., Of Counsel
SPATT, District Judge:
On May 26, 2016, the Plaintiffs Juan Paez, Ramon A. Jimenez Peralta, Rafael Luna, and
Aquiles V. Nunez (collectively, the “Plaintiffs”), commenced this action under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the New York Labor Law (“NYLL”) against
the Defendants Whaleneck Enterprises d/b/a the Boathouse Restaurant (“Whaleneck”), and
Lindsay Magill (“Magill”), (collectively, the “Defendants”), for unpaid overtime, damages and
attorneys’ fees.
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On March 9, 2017, the Defendants filed a notice of acceptance with offer of judgment
pursuant to Federal Rule of Civil Procedure (“FED. R. CIV. P.” or “Rule”) 68. On May 11, 2017,
the Court issued an order informing the parties that the Court would not accept the offer of
judgment, stating that the parties would have to submit a written settlement agreement pursuant
to the Second Circuit’s decision in Cheeks v. Freeport Pancake House, 796 F.3d 199, 206 (2d
Cir. 2015).
On June 9, 2017, the parties jointly moved for reconsideration, pursuant to Local Civil
Rule 6.3, of the Court’s May 11, 2017 Order.
Upon reconsideration, the Court finds that in this particular situation, judicial approval of
the Defendants’ offer of judgment pursuant to Rule 68 is unnecessary. The Second Circuit has
not yet ruled on this issue, and district courts in the circuit are divided. See Anwar v. Stephens,
No. 15-cv-4493 (JS)(GRB), 2017 WL 455416, at *1 (E.D.N.Y. Feb. 2, 2017) (collecting cases
that stand for the proposition that “judicial approval is not required for Rule 68 offers of
judgment,” and stating that those courts form the majority); cf. Mei Xing Yu v. Hasaki
Restaurant, Inc., --- F.R.D. ---, No. 16-cv-6094 (JMF), 2017 WL 1424323 at *6 (collecting cases
that “conclude that Rule 68 does not override the need for judicial [] [] approval of a settlement
of claims under the FLSA,” but admitting that those courts are in the minority).
The Court is sympathetic to the argument advanced by the Defendants--namely, that if
they spent their scarce resources on negotiating a settlement, the Plaintiffs would receive less
money. As the Second Circuit said in Cheeks, “We are mindful . . . that the vast majority of
FLSA cases . . . are simply too small, and the employer’s finances too marginal, for proceeding
with litigation to make financial sense if the district court rejects the proposed settlement.” 796
F.3d at 206 (internal citations and quotation marks omitted). While the Cheeks court went on to

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say that those concerns must be balanced against the FLSA’s purpose of preventing abuses by
employers and remedying the disparate bargaining power present in these cases, id. at 207, the
Court does not believe that those abuses warned of by the Second Circuit are present here.
Furthermore, Rule 68 explicitly states that after either party files a notice of acceptance of
an offer of judgment, the Clerk of the Court “must then enter judgment.” This Court will not
ignore such plainly mandatory language; holding otherwise “would constitute a judicial rewriting
of Rule 68.” Arzeno v. Big B World, Inc., 317 F.R.D. 440, 441 (S.D.N.Y. 2016)
Accordingly, this Court joins the “majority of district courts in this Circuit [that] have
held that judicial approval is not required for Rule 68 offers of judgment.” Anwar, 2017 WL
455416 at *1.
The Clerk of the Court is respectfully directed to enter judgment in favor of the Plaintiffs
consistent with the notice of acceptance [ECF No. 15], and to close the case.

It is SO ORDERED:

Dated: Central Islip, New York
June 14, 2017

______/s/ Arthur D. Spatt________
ARTHUR D. SPATT
United States District Judge

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