Ramirez Rogers v. FSM Management Inc. et al

Filing 19

OPINION AND ORDER: Accordingly, for all the foregoing reasons, 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 respectfully requested to mark this matter closed. (As further set forth in this Order.) (Signed by Magistrate Judge Henry B. Pitman on 4/13/2017) Copies Sent By Chambers. (cf)

USDCSDNY

DOCUMENT
ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DOC#:

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DATE FU=-::.E~D:--:- ...-,/..,..,-3-...m~:

DOMINGO RAMIREZ ROGERS,
16 Civ. 4545 (HBP)
Plaintiff,
OPINION
AND ORDER

-againstFSM MANAGEMENT INC., et al.,
Defendants.

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PITMAN, United States Magistrate Judge:

This matter is before me on the parties' joint application to approve their settlement (Docket Item ("D.I.") 18).

All

parties have consented to my exercising plenary jurisdiction
pursuant to 28 U.S.C. § 636(c).
The parties reached their proposed settlement prior to
any settlement conference being scheduled, and therefore, my
knowledge of the underlying facts and the justification for the
settlement is limited to counsels' representations in their
letter submitted in support of the settlement.
Plaintiff formerly worked for defendant FSM Management
Inc. as a building superintendent and seeks, by this action, to
recover unpaid minimum wages and overtime premium pay.

The

action is brought under the Fair Labor Standards Act (the "FLSA"), 28 U.S.C. §§ 201 et

.§.Sill.,

and the New York Labor Law.

Plain-

tiff also asserts a claim based on defendants' alleged failure to
maintain certain records and to provide certain notices under the
Wage Theft Prevention Act (the "WTPA").
Plaintiff alleges he was assigned to perform cleaning
and maintenance work at three buildings in Manhattan from June
2014 through June 2015.

He alleges he worked 46 hours per week

from June 2014 through April 2015 and was paid a flat weekly
salary of $245.00. 1

Plaintiff claims he is owed $4,500.00 in

unpaid minimum wage, $800.00 in unpaid overtime, $5,300.00 in
liquidated damages and $10,000.00 for WTPA violations.
Defendants deny plaintiff's allegations.

Specifically,

defendants dispute the number of hours plaintiff alleges he
worked, claiming that he worked only 24 hours per week.
The parties have agreed to a settlement in the total
amount of $16,500.00.

The proposed settlement further provides

that plaintiff's counsel will receive $5,863.67 and that the
balance of $10,636.33 will be paid to plaintiff.

The amount

allocated to counsel is comprised of $545.00 for out-of-pocket
costs plus one-third of the remaining settlement proceeds, i.g.,
$545.00 + ($15,955.00

3).

1

Plaintiff alleges he did not work overtime after April 2015
and that from that time on, he was paid more than the federal
minimum wage.
2

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
(S.D.N.Y. Apr. 4, 2013)

(HB), 2013 WL 1401887 at *1

(Baer, D.J.)

(alterations in original)

"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."

Lliguichuzhca v. Cinema 60, LLC, 948 F. Supp.

2d 362, 365 (S.D.N.Y. 2013)
tion marks omitted).

(Gorenstein, M.J.)

(internal quota-

"Typically, courts regard the adversarial

nature of a litigated FLSA case to be an adequate indicator of
the fairness of the settlement."
F.R.D. 467, 476 (S.D.N.Y. 2013)

Beckman v. KeyBank, N.A., 293
(Ellis, M.J.), citing Lynn's Food

Stores, Inc. v. United States, supra, 679 F.2d at 1353-54.
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
3

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 bargaining between experienced counsel; and (5) the possibility of fraud or collusion.
(Internal quotation marks omitted).

The settlement here satis-

fies these criteria.
First, the net settlement represents more than 100% of
plaintiff's unpaid wages and approximately one-third of his
liquidated and WTPA damages.

Thus, the net settlement amount

provides plaintiff with a substantial percentage of his claimed
damages.
Second, the settlement will entirely avoid the burden,
expense and aggravation of litigation.
largely on his oral testimony.

Plaintiff's case rests

Trial preparation would require

additional discovery to explore plaintiff's claims.

The settle-

ment avoids that necessity.
Third, the settlement will enable plaintiff to avoid
the risk of litigation.
hours he worked.

Plaintiff has no proof of the amount of

Additionally, plaintiff alleges he received a

raise in pay in May 2015, when he was working fewer hours than he
alleges he worked from June 2014 through April 2015.

4

A jury

assessing that fact might view plaintiff's claims about the
number of hours he worked from June 2014 through April 2015 with
skepticism because it is odd that plaintiff would receive a raise
for working fewer hours than he previously did; the f actf inder
may infer that plaintiff overestimated the amount of hours he
worked from June 2014 through April 2015.

2

Therefore, whether

plaintiff would recover at trial is far from certain.
v. Domino's Pizza, LLC, No. 09-CV-2941
*6 (E.D.N.Y. Jan. 16, 2015)

(Report

&

See Bodon

(SLT), 2015 WL 588656 at
Recommendation)

("[T]he

question [in assessing the fairness of a class action settlement]
is not whether the settlement represents the highest recovery
possible

but whether it represents a reasonable one in

light of the many uncertainties the class faces

"

(inter-

nal quotation marks omitted)), adopted sub nom. ;Qy, Bodon v.
Domino's Pizza, Inc., 2015 WL 588680 (E.D.N.Y. Feb. 11, 2015);
Massiah v. MetroPlus Health Plan, Inc., No. ll-cv-5669 (BMC),
2012 WL 5874655 at *5 (E.D.N.Y. Nov. 20, 2012)

("[W]hen a settle-

ment assures immediate payment of substantial amounts to class
members, even if it means sacrificing speculative payment of a
hypothetically larger amount years down the road, settlement is

2

There is nothing in the complaint or in the parties' letter
seeking settlement approval indicating that plaintiff's job
requirements changed in May 2015.
5

reasonable

" (assessing fairness of class action settle-

ment)).
Fourth, counsel represents that the settlement is the
product of arm's-length bargaining between experienced counsel
and that counsel advocated zealously on behalf of their respective clients during negotiations.
Fifth, there are no factors that suggest the existence
of fraud or collusion.
The settlement also provides that, after deduction of
out-of-pocket costs, one-third of the settlement fund will be
paid to plaintiff's counsel as a contingency fee.

Contingency

fees of one-third in FLSA cases are routinely approved in this
Circuit.

Santos v. EL Tepeyac Butcher Shop Inc., 15 Civ. 814

(RA), 2015 WL 9077172 at *3 (S.D.N.Y. Dec. 15, 2015)
D. J.)

(Abrams,

("[CJ ourts in this District have declined to award more

than one third of the net settlement amount as attorney's fees
except in extraordinary circumstances."), citing Zhang v. Lin
Kumo Japanese Rest. Inc., 13 Civ. 6667
*4

(S.D.N.Y. Aug. 31, 2015)

(Engelmayer, D.J.) and Thornhill v.

CVS Pharm., Inc., 13 Civ. 507
(S.D.N.Y. Mar. 20, 2014)

(JMF), 2014 WL 1100135 at *3

(Furman, D.J.); Rangel v. 639 Grand St.

Meat & Produce Coro., No. 13 CV 3234
(E.D.N.Y. Sept. 19, 2013)

(PAE), 2015 WL 5122530 at

(LB), 2013 WL 5308277 at *l

(approving attorneys' fees of one-third
6

of FLSA settlement amount, plus costs, pursuant to plaintiff's
retainer agreement, and noting that such a fee arrangement "is
routinely approved by courts in this Circuit"); Febus v. Guardian
First Funding Grp., LLC, 870 F. Supp. 2d 337, 340
(Stein, D. J. )

(S.D.N.Y. 2012)

(" [A] fee that is one-third of the fund is typical"

in FLSA cases); accord Calle v. Elite Specialty Coatings Plus,
Inc., No. 13-CV-6126 (NGG) (VMS), 2014 WL 6621081 at *3

(E.D.N.Y.

Nov. 21, 2014); Palacio v. E*TRADE Fin. Corp., 10 Civ. 4030
(LAP) (DCF), 2012 WL 2384419 at *6-*7

(S.D.N.Y. June 22, 2012)

(Freeman, M.J.).
Accordingly, for all the foregoing reasons,
the settlement in this matter.

I approve

In light of the settlement, the

action is dismissed with prejudice and without costs.

The Clerk

of the Court is respectfully requested to mark this matter
closed.
Dated:

New York, New York
April 13, 2017
SO ORDERED

HENRYPITM
United States Magistrate Judge
Copies transmitted to:
All Counsel of Record

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