Garcia v. Viand Coffee Shop of 61st. Inc. et al

Filing 41

OPINION AND ORDER. Accordingly, I approve the settlement in this matter. In light of the settlement, the action is dismissed with prejudice and without costs. The Clerk of the Court is requested to mark this matter closed. (As further set forth in this order) (Signed by Magistrate Judge Henry B. Pitman on 5/13/2016) Copies Sent By Chambers. (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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USDCSDNY
DOCUMENT
ELECTR0~"1CALLY FILED
DOC#:
DA:fE F1LED:

DARQUI GARCIA,

S"

/13 ~ i
.;

15 Civ. 3854 (HBP)

Plaintiff,

OPINION
AND ORDER

-againstVIAND COFFEE SHOP OF 61ST. INC.,
d/b/a "Viand Coffee Shop" and
GEORGE KONTOGIANNIS,
Defendants.

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PITMAN, United States Magistrate Judge:

This matter is before me on the parties' joint application to approve the parties' settlement, made by letter dated
April 28, 2016 (Docket Item 40).

All parties have consented to

my exercising plenary jurisdiction pursuant to 28 U.S.C. §
636 (c) .
This is an action for allegedly unpaid wages, overtime
and spread-of-hours pay brought under the Fair Labor Standards
Act ("FLSA"), 29 U.S.C. §§ 201 et seq. and the New York Labor
Law.

I

'~

Plaintiff also asserts claims based on defendants' alleged

failure to maintain certain records as required by New York State
law.
Plaintiff alleges that he was formerly employed by
defendants as a delivery worker, cashier, drink server, telephone

attendant, coffee preparer and waiter at defendants' coffee shop.
Plaintiff claims that he worked for defendants from October 2001
through September 11, 2015 and that he typically worked 63 hours
per week.

According to plaintiff, he worked 63 hours per week

and was initially paid $2 per hour; he alleges that he later
received a fixed salary of $50 per day but was required to work
one day per week without any compensation.

Plaintiff claims that

exclusive of liquidated damages and statutory penalties, he is
owed approximately $91,000; if liquidated damages, statutory
damages and interest are included, plaintiff claims he is owed
approximately $314,000.
Defendants dispute plaintiffs allegations concerning
the number of hours worked and the wages received.

Defendants

state that they have time cards showing that plaintiff rarely
worked more than 40 hours per week. 1

According to defendants, if

plaintiff's tips are credited, plaintiff received well in excess
of the minimum wage.

If plaintiff succeeds in proving that he

was not paid for one day per week and that defendants are not
entitled to the benefit of the tip credit, defendants claim that
plaintiff's unpaid wages are approximately $66,000 exclusive of
liquidated damages.

1

Plaintiff disputes the accuracy of these time cards.
2

I held a lengthy settlement conference on February 24,
2016 that was attended by the principals and their counsel.

The

parties were unable to agree on a figure to settle the matter
during the course of the conference, and at the conclusion of the
conference, I suggested that $130,000, paid over 18 months, would
be a fair settlement.

The parties subsequently advised that each

had agreed to my proposal.
Court approval of an FLSA settlement is appropriate
"when [the settlement] [is] reached as a result of
contested litigation to resolve bona fide disputes."
Johnson v. Brennan, No. 10 Civ. 4712, 2011 WL 4357376,
at *12 (S.D.N.Y. Sept. 16, 2011).
"If the proposed
settlement reflects a reasonable compromise over contested issues, the court should approve the settlement."
Id. (citing Lynn's Food Stores, Inc. v. United
States, 679 F.2d 1350, 1353 n. 8 (11th Cir. 1982)).
Agudelo v. E & D LLC, 12 Civ. 960 (HB), 2013 WL 1401887 at *1
(S.D.N.Y. Apr. 4, 2013)

(Baer, D.J.).

"Generally, there is a

strong presumption in favor of finding a settlement fair,

[be-

cause] the Court is generally not in as good a position as the
parties to determine the reasonableness of an FLSA settlement."
Lliguichuzhca v. Cinema 60, LLC, 948 F. Supp. 2d 362, 365
(S.D.N.Y. 2013)

(Gorenstein, M.J.)

citations omitted).

(inner quotation marks and

"Typically, courts regard the adversarial

nature of a litigated FLSA case to be an adequate indicator of
the fairness of the settlement."

Beckman v. Keybank, N.A., 293

3

F.R.D. 467, 476 (S.D.N.Y. 2013)

(Ellis, M.J.), citing Lynn's Food

Stores, Inc. v. United States, 679 F.2d 1350, 1353-54 (11th Cir.
1982) .

The presumption of fairness in this case is bolstered by

he caliber the parties' counsel.

All parties are represented by

counsel who are known to me to be extremely knowledgeable regarding wage and hour matters and who are well suited to assess the
risks of litigation and the benefits of the proposed settlement.
The proposed settlement, before deduction of legal
fees, provides plaintiff with approximately 140% of what he
claims is unpaid wages to be and more than 200% of what defendants state the unpaid wages would be if plaintiff succeeds in
proving that plaintiff was compelled to work one day without any
pay and that defendants are not entitled to the tip credit.
Given the general uncertainty of litigation, the fact that
plaintiffs' case, at least at this point, is based entirely on
plaintiffs' own testimony, defendants' time records (which may or
may not be accurate) and the burden of proof that plaintiff
bears, the settlement represents a fair and reasonable compromise
of plaintiffs' claims. 2

2

I do not address the fee arrangement between plaintiff and
his counsel because I do not believe I am required to do so under
Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir.
2015), cert. denied, 136 S. Ct. 824 (2016). As described in
Cheeks, the purpose of the FLSA is to regulate the relationship
(continued ... )
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Accordingly, I approve the settlement in this matter.
In light of the settlement, the action is dismissed with prejudice and without costs.

The Clerk of the Court is requested to

mark this matter closed.
Dated:

New York, New York
May 13, 2016
SO ORDERED

H2Y~/~~
United States Magistrate Judge
Copies transmitted to:
All Counsel

2

continued)
between an employee and his employer and to protect the employee
from over-reaching by the employer.
796 F.3d at 206.
I do not
understand the FLSA to regulate the relationship between the
employee as plaintiff and his counsel or to alter the freedom of
contract between a client and his attorney.
( •••

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