Singh et al v. MDB Construction Management Inc. et al
Filing
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OPINION AND ORDER: Accordingly, within 30 days of this Order, the parties are to submit a revised settlement agreement that corrects the foregoing deficiencies. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 11/15/2018) Copies Transmitted By Chambers. (ne)
USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
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DATE FILED: // (IS /ttf:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JASWANT SINGH, et al.,
Plaintiffs,
16 Civ. 5216 (HBP)
-against-
OPINION
AND ORDER
MOB CONSTRUCTION MANAGEMENT,
INC. , et al. ,
Defendants.
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PITMAN, United States Magistrate Judge:
This matter is before me on the parties'
joint applica-
tion to approve their settlement ( Docket Item ( "D. I.") 2 9) .
All
parties have consented to my exercising plenary jurisdiction
pursuant to 28 U.S.C.
§
636(c).
Plaintiffs allege that they were jointly employed by
MDB Construction Management, Inc.
( "MDB"), a construction com-
pany, and Fine Art Construction & Painting Corporation ("Fine
Art"), a sub-contractor of MDB's.
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under the Fair Labor Standards Act
1
Plaintiffs bring this action
(the "FLSA"), 29 U.S.C.
§§
201
According to plaintiffs, MOB and Fine Art each controlled
certain aspects of their employment such that both defendants
exercised "formal control." Plaintiffs claim that Fine Art
specifically recruited them to work on a project for MOB and that
they received their salaries from Fine Art, but that MOB had the
power to hire and fire them, supervised their day-to-day work and
set their work schedules.
See generally Goldberg v. Whitaker
House Co-oo., Inc., 366 U.S. 28, 32 (1961) (setting forth the
factors to be considered in determining whether a person is an
"employer" within the meaning of the FLSA).
et_§_§_£., and the New York Labor Law (the "NYLL"), and seek to
recover unpaid minimum wage and overtime premium pay.
Plaintiffs
also assert claims based on defendants' alleged breach of an
agreement to pay plaintiffs an hourly rate of $31.25 and defendants' failure to pay plaintiffs on a weekly basis as required
for "manual workers."
See N.Y. Lab. Law§ 191(a).
MOB argues that plaintiffs were employees of Fine Art,
not MOB, and that MOB did not supervise plaintiffs, did not have
the power to hire or fire plaintiffs and did not set their rate
of pay.
MOB has asserted several cross-claims against Fine Art
for breach of contract and seeks $104,530.16 in damages from Fine
Art.
To date,
Fine Art has not answered plaintiffs' complaint
and has not participated in this litigation in any way.
Plain-
tiffs intend to dismiss their claims without prejudice against
Fine Art so that they can re-file those claims at a later time.
I held a lengthy settlement conference on January 26,
2017 that was attended by the parties and their counsel, with the
exception of Fine Art.
Although a settlement was not reached at
the conclusion of the conference, the parties and I engaged in a
protracted discussion of the strengths and weaknesses of the
parties' respective positions, and the parties agreed to continue
negotiations.
On May 19, 2017, I received a letter informing me
that plaintiffs and MOB agreed to resolve the dispute (Letter of
Abdul K. Hassan, Esq., to the undersigned, dated May 19, 2017
2
(D.I. 25)).
On November 30, 2017, I received the settlement
agreement and the parties' joint application for court approval
of the settlement (Letter of Abdul K. Hassan, Esq., to the
undersigned, dated Nov. 30, 2017
ter")).
(D.I. 26)
("Hassan 2017 Let-
The parties agreed to resolve the matter for $20,000
with $2,500 being paid to each of the four plaintiffs and the
remaining $10,000 being paid to plaintiffs' counsel as attorneys'
fees and costs
(Hassan 2017 Letter, Ex. 1-4) . 2
I was unable to approve the settlement at that time
because (1) although the plaintiffs each alleged substantially
different damage amounts, each was being awarded the sum of
$2,500 without explanation and (2) plaintiff's counsel requested
almost half of the total settlement for attorneys' fees and
costs.
See Singh v. MDB Constr. Mgmt., Inc., 16 Civ. 5216 (HBP),
2018 WL 2332071 (S.D.N.Y. May 23, 2018)
On June 24, 2018, the parties submitted the proposed
settlement agreement currently before me, claiming to have
revised it in accordance with my earlier Opinion and Order
(Letter of Abdul K. Hassan, Esq., to the undersigned, dated June
24, 2018
(D.I. 29)
("Hassan 2018 Letter")).
Under the revised
agreement, MBD agrees to pay a total amount of $20,000.01 --
The parties have provided separate written settlement
agreements for each of the four plaintiffs, attached to the
Hassan 2017 Letter as Exhibits 1, 2, 3 and 4, respectively.
The
material provisions of each of the agreements were identical.
2
3
$3,399.49 being paid to plaintiff Jaswant Singh, $3,432.30 being
paid to plaintiff Jatinder Singh, $3,180.53 being paid to Amrik
Singh, $2,974.68 being paid to plaintiff Varinderpal Singh and
$7,013.01 being paid to plaintiffs' counsel as attorneys' fees
and costs
(Hassan 2018 Letter, Exs. 1-4).
Although plaintiffs' counsel properly revised his
requested attorneys' fee to $6,493.01, i-~-, one-third of the
total settlement amount after the deduction of out-of-pocket
costs, the four plaintiffs are still receiving inequitable shares
under the revised agreement without explanation or justification.
Based on the amount claimed by each plaintiff,
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the equitable pro
rata share of the total damages each is entitled to and the share
each actually receives under the agreement are as follows:
Actual
Settlement
Percent
Received
Plaintiff
Amount
Claimed
Equitable
Pro Rata
Percent
Jaswant Singh
$13,723.44
30%
2 6%
Jatinder Singh
$14,224.06
31%
2 6%
Amrik Singh
$10,382.81
23%
24%
$7,242.19
16%
23%
Varinderpaul Singh
$45,572.50
Total
The amount claimed by each plaintiff includes unpaid wages,
exclusive of liquidated damages (Hassan 2017 Letter at 1-2).
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4
Plaintiffs once again provide no explanation as to why
Varinderpaul Singh should receive 23% of the $12,987 net
settlement when his pro rata share is only 16% of the $45,572.50
total claimed damages or why Jatinder Singh should only receive
26% of the net settlement when his pro rata share should be 31%.
This method of distribution does not "bear a rational relationship to the amount claimed by each plaintiff" and, because the
parties do not explain or provide any information supporting this
deviation, I must again reject the proposed settlement. Flores v.
Hill Country Chicken, LLC, 16 Civ. 2916 (AT) (HBP), 2017 WL
3448018 at * 1 ( S. D. N. Y. Aug. 11, 201 7)
(Pitman, M. J. ) .
Accordingly, within 30 days of this Order, the parties
are to submit a revised settlement agreement that corrects the
foregoing deficiencies.
Dated:
New York, New York
November 15, 2018
SO ORDERED
----United States Magistrate Judge
Copies transmitted to:
All Counsel
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