Ametepe et al v. Peak Time Parking, Corp. et al

Filing 112

MEMO ENDORSED ORDER granting 110 Motion to Strike docket entry and document no. 109 filed by James Ametepe, Emmanuel Boadi, Pedro Sabala, 109 Notice (Other) filed by Sam Dar Enterprises Inc., Mustafa Ali Khandwalla, Fayyaz Khan, AD Parking Inc., FIH Enterprise Inc., Naveed Anjum, Zafar Majeed, Peak Time Parking, Corp. from the record. ENDORSEMENT: Granted. The Clerk of Court is respectfully directed to strike the document filed at docket 109. The Court encourages counsel to continue, with dispatch, to discuss a resolution to this case. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 5/17/2021) (va)

May 14, 2021
Via ECF
The Honorable Paul A. Engelmayer
United States District Judge for the
Southern District of New York
40 Foley Square
New York, New York 10007
Re:

Ametepe et al. v. Peak Time Parking, Corp. et al.
Docket No: 18-cv-5384 (PAE)(SDA)

Dear Judge Engelmayer:
This firm represents the named-Plaintiff, James Ametepe, and the two opt-in Plaintiffs,
Pedro Sabala and Emmanuel Boadi (all three, together, as “Plaintiffs”), in the above-referenced
wage and hour matter against Defendants Peak Time Parking, Corp., FIH Enterprise Inc., Sam Dar
Enterprises Inc., AD Parking Inc., Zafar Majeed, Fayyaz Khan, Naveed Anjum, and Mustafa Ali
Khandwalla (collectively as “Defendants”). We write to respectfully request that the Court strike
from the docket Defendants’ filing from earlier today, May 14, 2021, ECF No. 109, of an offer of
judgment under Federal Rule of Civil Procedure 68 (“Rule 68”) that they failed to serve on
Plaintiffs and that Plaintiffs never accepted. Indeed, Defendants’ filing of this document is
impermissible under the terms of Rule 68 and case law interpreting it.
Rule 68(a) provides that “a party defending a claim may serve on an opposing party an
offer to allow judgment on specified terms,” and further, expressly provides, that only upon
acceptance of the offer, “either party may then file the offer and notice of acceptance, plus proof
of service.” But the “filing requirement is inapplicable to a Rule 68 offer of judgment unless the
offer is accepted.” Michael Grecco Prods., Inc. v. Jukely, Inc., 2019 WL 1284256, at *2 (E.D.N.Y.
Mar. 20, 2019) (citation omitted). Moreover, as Judge Mauskopf noted in that same case, if the
court were to construe Federal Rule of Civil Procedure 5 (“Rule 5”), which is a general provision
creating a blanket rule for all papers which must be served, “as mandating that even unaccepted

offers of judgment be filed, Rule 5 would supplant Rule 68(a), rendering it ‘superfluous, void or
insignificant.’” Id. (quoting APWU v. Potter, 343 F.3d 619, 626 (2d Cir. 2003)). Accordingly, it
is “well established that if an unaccepted offer of judgment is filed with the Court in disregard of
the dictates of Rule 68(a), it should be stricken from the docket.” Id. (collecting treatises)
(recognizing that striking the notice of an unaccepted offer from the docket “is endorsed by
leading treatises”). Indeed, “[t]his approach has been uniformly followed by the very few courts
to have addressed the issue.” Id. (collecting cases); see also Hobson v. Manage Transit Corp., et
al., No. 19-cv-02695 (RJD)(LB), Unnumbered Text Order (E.D.N.Y. Mar. 11, 2020) (striking
defendants’ letter regarding an unaccepted Rule 68 offer from the docket).
Based on the foregoing, and refraining from speculating on Defendants’ motivation in
filing this offer without either serving it or Plaintiffs accepting it in the first place, Plaintiffs
respectfully request that the Court strike ECF No. 109 from the docket.
We thank the Court for its time and attention to this matter.
Respectfully submitted,
____________________
Danielle E. Mietus, Esq.
For the Firm
C:

Defendants (via ECF)

Granted. The Clerk of Court is respectfully directed to strike the
document filed at docket 109. The Court encourages counsel to
continue, with dispatch, to discuss a resolution to this case,
SO ORDERED.
__________________________________
PAUL A. ENGELMAYER
United States District Judge
May 17, 2021

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