Michaelsen v. Sickday, LLC et al

Filing 49

OPINION AND ORDER OF DISMISSAL: This matter is before me on the parties' joint application to approve the parties' settlement (Docket Item 36). All parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 63 6(c). (As further set forth in this 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. (Signed by Magistrate Judge Henry B. Pitman on 4/11/2017) Copies Sent By Chambers. (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
ANDREW MICHAELSEN,

:
Plaintiff,

16 Civ. 1474 (HBP)

:

-against-

:

OPINION AND
ORDER OF DISMISSAL

SICKDAY, LLC, SICKDAY PHYSICIAN
ASSISTANT HOUSE CALLS, PLLC, d/b/a
"Sickday House Calls, PLLC" and
NAOMI FRIEDMAN,
:
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 (Docket Item 36).

All

parties have consented to my exercising plenary jurisdiction
pursuant to 28 U.S.C. § 636(c).
This is an action brought by an individual who was
formerly employed as an administrative assistant and scheduler by
defendants and seeks unpaid minimum wages, unpaid overtime
premium pay, spread-of-hours pay as well as damages for illegal
retaliation.

The action is brought under the Fair Labor Stan-

dards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the New York
Labor Law ("NYLL").

Plaintiff also asserts claims for alleged

violations of other provisions of the NYLL.

Plaintiff alleges that he was employed by defendants as
an administrative assistant/scheduler from February 15, 2013
through December 13, 2014.

Plaintiff claims that from February

2013 through September 2013 his agreed-upon work schedule was 60
hours per week and he was paid a "flat rate" wage of $9 per hour
for those 60 scheduled hours.

During this period, plaintiff

claims that he was generally required to work 1-3 hours per day
beyond his scheduled shifts, but was not paid for those additional hours.
Plaintiff further alleges that from October 2013
through December 2013 his agreed-upon work schedule was four days
a week for ten hours a day and he was paid a "flat rate" wage of
$9 per hour for those 40 scheduled hours.

Plaintiff claims that

during this period, defendants typically required him to work an
additional 1-3 hours per day beyond his scheduled shifts, but did
not pay him for those extra hours.
Finally, plaintiff alleges that from January 2014
through October 2014, his agreed-upon work schedule was 11.5
hours per day for three days a week and that he was paid a "flat
rate" wage of $12 per hour for those 34.5 scheduled hours.
During this period, plaintiff claims that he was generally
required to work an additional 1-3 hours per day, but was never
paid for these hours.

Plaintiff further alleges that when he
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raised the foregoing wage issues with defendants, defendants
initially retaliated by cutting the number of hours he worked and
subsequently firing him.
In addition to his claims for failure to pay the
minimum wage, unpaid overtime premium pay and illegal retaliation, plaintiff seeks damages under the NYLL for defendants'
alleged failure to pay "spread-of-hours" pay and to provide
plaintiff with a written notice of his regular hourly rate,
overtime rate and other related information.

Plaintiff claims

his unpaid wages total approximately $13,000.00.

Plaintiff

alleges that if he is awarded this sum as unpaid wages, he is
also entitled to $26,000.00 in liquidated damages and $5,000.00
for wage notice violations.

However, because plaintiff cannot

recover liquidated damages under both the FLSA and the NYLL,
Chowdhury v. Hamza Express Food Corp., 666 F. App'x 59 60-61(2d
Cir. 2016) (summary order), he can recover a maximum of $13,000
in liquidated damages.

Additionally, if the case proceeds to

trial, plaintiff may be entitled to recover additional damages
for his retaliation and emotional distress claims, and, potentially, putative damages.

Thus, plaintiff's maximum possible

recovery could exceed $100,000.00, exclusive of attorney's fees
and costs.

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Among other things, defendants dispute the number of
hours plaintiff claims that he worked and his claim of retaliation.

Defendants deny that plaintiff actually worked the number

of hours he alleges and contend that, in any event, plaintiff is
exempt from the overtime provisions of the FLSA and NYLL.
Additionally, defendants deny that they retaliated against
plaintiff for complaining about not being paid properly.
The parties have agreed to a total settlement of
$40,000.00.

Plaintiff is represented by pro bono counsel who has

graciously waived any claim for fees.

After $,046.37 for coun-

sel's out-of-pocket costs, plaintiff's net recovery will be
$38,953.63.
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, [because] the Court is generally not in as good a position as the
parties to determine the reasonableness of an FLSA settlement."

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Lliguichuzhca v. Cinema 60, LLC, 948 F. Supp. 2d 362, 365
(S.D.N.Y. 2013) (Gorenstein, M.J.) (inner quotation marks and
citations omitted).

"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 presumption of fairness in this case is bolstered by

the caliber of the parties' counsel.

All parties are represented

by counsel who have demonstrated themselves 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.
In Wolinsky v. Scholastic, Inc., 900 F. Supp. 2d 332,
335 (S.D.N.Y. 2012), the Honorable Jesse M. Furman, United States
District Judge, identified five factors that are relevant to an
assessment of the fairness of an FLSA settlement:
In determining whether [a] proposed [FLSA] settlement
is fair and reasonable, a court should consider the
totality of circumstances, including but not limited to
the following factors: (1) the plaintiff's range of
possible recovery; (2) the extent to which the settlement will enable the parties to avoid anticipated
burdens and expenses in establishing their respective
claims and defenses; (3) the seriousness of the litigation risks faced by the parties; (4) whether the settlement agreement is the product of arm's-length bar

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gaining between experienced counsel; and (5) the possibility of fraud or collusion.
(inner quotations and citations omitted).

The settlement here

satisfies these criteria.
First, the settlement provides plaintiff with all of
his unpaid wages and 100% of his liquidated damages.

While the

plaintiff's maximum potential recovery could exceed $100,000.00,
because plaintiff was able to secure new employment soon after
his termination, it is likely that any recovery on his emotional
distress claim would be minimal.

Thus, the settlement is within

the reasonable range of plaintiff's potential recovery.
Third, the settlement will entirely avoid the burden,
expense and aggravation of litigation.

Plaintiff's case rests

heavily on plaintiff's oral testimony, and litigating the case
would require the taking of several depositions.

The settlement

avoids the expense and burden of these depositions.
Fourth, the settlement will enable plaintiff to avoid
the risk of litigation.

Neither the plaintiff nor the defendants

have written records verifying the amount of hours plaintiff
worked.

Because the principal witnesses on both sides are

interested in the outcome, it is impossible to predict the
credibility findings that a fact finder would make.

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Fifth, given the substantial size of the settlement
figure in comparison to plaintiff's potential recovery, I am
confident that it is the product of arm's-length bargaining
between experienced counsel and that no fraud or collusion
affected the parties' negotiations.
As noted above, plaintiff's counsel have also agreed to
waive all attorney's fees.

The Legal Aid Society is also waiving

costs while Quinn Emmanuel seeks $1,046.37 in court and service
of process costs.

"A prevailing plaintiff under the FLSA and

NYLL is entitled to reasonable costs as well as fees."

Lora v.

J.V. Car Wash, Ltd., 11 Civ. 9010 (LLS)(AJP), 2015 WL 4496847 at
*14 (S.D.N.Y. July 24, 2015)(Report & Recommendation) (Peck,
M.J.), adopted, 2015 WL 7302755 (S.D.N.Y. Nov. 18, 2015)(Stanton,
D.J.).

Here, the costs amount to less than 3% of the overall

settlement figure and are reasonable.

The costs award of

$1,046.37 is, therefore, approved.
Accordingly, I approve the settlement in this matter.
In light of the settlement, the action is dismissed with preju

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dice and without costs.

The Clerk of the Court is requested to

mark this matter closed.
Dated:

New York, New York
April 11, 2017

SO ORDERED

HENRYPi
United States Magistrate Judge
Copies transmitted to:
All Counsel

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