Villalva-Zeferino v. Park Pizza, Inc. et al

Filing 19

CORRECTED OPINION AND ORDER: This matter is before me on the parties' joint application to approve the settlement reached in this matter. The application was made orally after the conclusion of a settlement conference held on February 4, 2016 at which I presided. Accordingly, I approve the settlement in this matter. In light of the settlement, the action is dismissed with prejudice and without costs. The Court shall retain jurisdiction to enforce the settlement agreement. See Hendrickson v. United States, 791 F.3d 354, 358 (2d Cir. 2015). (As further set forth in this Order.) (Signed by Magistrate Judge Henry B. Pitman on 2/19/2016) (kko)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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USDCSDNY
DOCUMENT
ELECI'RONICALLY FILED
DOC#: ______~~DATE FILED: 2. /rt /1 6

PONCIANO VILLALVA-ZEFERINO,
Plaintiff,
-against-

15 Civ. 6932

(HBP)

CORRECTED OPINION
AND ORDER 1

PARK PIZZA, INC.
and ARTURO IENTILE,
Defendants.

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PITMAN, United States Magistrate Judge:

This matter is before me on the parties' joint application to approve the settlement reached in this matter.

The

application was made orally after the conclusion of a settlement
conference held on February 4, 2016 at which I presided.

The

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.
Law.

§§

201 et seq. and the New York Labor

Plaintiff also asserts claims based on defendants' alleged

failure to provide a variety of notices required by New York

This Corrected Opinion and Order corrects several wordprocessing errors that exist in the Opinion and Order issued on
February 17, 2016.
1

State law and claims based on certain work-related expenses that
plaintiff claims he was improperly required to pay himself.
Plaintiff was formerly employed by the defendant
restaurant, making deliveries and performing miscellaneous
chores.

Exclusive of liquidated and statutory damages, plaintiff

claims he is owed, in total, approximately $13,000; including
liquidated and statutory damages as claimed by plaintiff raises
the total to approximately $42,750.

Although the parties dispute

the number of hours actually worked by plaintiff, it appears that
defendants have no defense to a portion of plaintiff's claims.
Defendants paid plaintiff a reduced hourly rate based on the tip
credit, and there is no real factual dispute that defendants were
not entitled to the benefit of the tip credit.

Neither side has

any record of the hours worked by plaintiffs.
At this point, the parties' respective positions
concerning the hours plaintiff worked -- the issue the controls
the lion's share of plaintiff's claimed damages -- are based
entirely on the parties' own testimony.

No third parties have

been deposed, and it is not known whether plaintiff's co-employees will support plaintiff or defendants.

2

The gross settlement amount is $29,000.00. 2

The fore-

going settlement was reached after a lengthy settlement conference attended by counsel for both sides and the principals.
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.).

"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 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 settlement figure represent a substantial portion
(approximately 70%) of plaintiff's claimed actual, liquidated and
statutory damages.

Given the uncertainty of litigation, the fact

that plaintiff's case, at least at this point, is based entirely

2

The parties agreed that $29,000 settlement figure will be
paid in 9 equal monthly installments of $3,222.22 commencing on
February 20, 2016. The settlement will be secured by a
confession of judgment in the amount of $36,000 less the amount
previously paid as of the date of default.
The settlement also
provides for notice and cure in the event of default.
3

on plaintiff's own testimony and that plaintiff bears the burden
of proof, the settlement represents a fair and reasonable compromise of plaintiff's claims. 3
Accordingly, I approve the settlement in this matter.
In light of the settlement, the action is dismissed with prejudice and without costs.

The Court shall retain jurisdiction to

enforce the settlement agreement.

See Hendrickson v. United

States, 791 F.3d 354, 358 (2d Cir. 2015).
Dated:

New York, New York
February 19, 2016
SO ORDERED

United States Magistrate Judge
Copies transmitted to:
All Counsel

3

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
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.
4