Jimenez et al v. Borinquen Super Market, Inc et al
Filing
101
ORDER: Consequently, the Court cannot approve the Settlement Agreement in its present form. See Order dated July 25, 2024 (Dkt. 89) at 2 ("Any proposed award of fees and costs must be... supported by copies of... time and expense records, prope rly authenticated") (emphasis added); Fisher v. SD Prot. Inc., 948 F.3d 593, 600 (2d. Cir. 2020) ("The fee applicant must submit adequate documentation supporting the requested attorneys' fees and costs."); cf. Jerstad v. New York Vinters LLC, 2019 WL 6769431 at *6 (S.D.N.Y. April 27, 2020) (taking judicial notice of the filing fee, but denying any additional costs for lack of adequate documentation). Nor can the Court modify the Settlement Agreement to eliminate the unsuppor ted portion of the expense award. See Fisher, 948 F.3d at 600 ("If a district court concludes pursuant to Cheeks that a proposed settlement is unreasonable in whole or in part, the court cannot simply rewrite the agreement[.]"). The parties , however, are free to amend their agreement. If they wish to do so here - and thereby eliminate the unsupported portion of the expense award they may file an appropriate stipulation, no later than November 7, 2024, setting forth the necessary changes to the Settlement Agreement and signed by counsel for all parties. SO ORDERED. (Signed by Magistrate Judge Barbara C. Moses on 10/24/2024) (sgz)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
10/24/2024
GUADELUPE JIMENEZ,
Plaintiff,
21-CV-8620 (BCM)
-againstCOFACI FOODS INC. (dba BORIQUEN
SUPERMARKET) and LILLIAN CASTILLO,
ORDER
Defendants.
BARBARA MOSES, United States Magistrate Judge.
The Court has received and reviewed the parties' joint letter-motion dated September 25,
2024 (Jt. Ltr.) (Dkt. 98), seeking approval of their Settlement and Release Agreement (Sett. Ag.)
(Dkt. 98-1) pursuant to Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d. Cir. 2015), as
well as plaintiff's supplemental letter (Pl. Ltr.) (Dkt. 100) dated October 17, 2024, attaching
documentation supporting litigation costs incurred in prosecuting this matter.
The Court is generally satisfied that the proposed settlement is fair and reasonable to the
plaintiff. However, one discrepancy remains. The Settlement Agreement requires defendants to
pay a total of $28,000, out of which $10,240.32 will go to plaintiff's counsel. See Jt. Ltr. at 1, 4;
Sett. Ag. ¶¶ 1, 3. The contingency agreement between plaintiff and Stillman Legal, P.C. requires
plaintiff to pay legal fees equal to "33.33% of any and all sums recovered either as a result of trial
or by way of settlement[.]" Contingency Ag. (Dkt. 98-4) at 1. 33.33% of $28,000 is $9,332.40.
According to the parties' joint letter, the remaining $906.99 earmarked for counsel represents
"actual litigation expenses incurred." Jt. Ltr. at 4. However, when the Court requested
documentation of these expenses (see Dkt. 99), plaintiff submitted invoices (for service of process)
totaling only $206.00. Pl. Ltr. at ECF pp. 3, 5, 7. Although the Court can take judicial notice of
the $402.00 filing fee paid in this action, see Jerstad v. New York Vinters LLC, 2019 WL 6769431,
at *6 (S.D.N.Y. April 27, 2020), there is still a gap of $298.99 between the documented expenses
($206.00 + $402.00) and the amount to be paid to counsel for expenses ($906.99).
Consequently, the Court cannot approve the Settlement Agreement in its present form. See
Order dated July 25, 2024 (Dkt. 89) at 2 ("Any proposed award of fees and costs must be . . .
supported by copies of . . . time and expense records, properly authenticated") (emphasis added);
Fisher v. SD Prot. Inc., 948 F.3d 593, 600 (2d. Cir. 2020) ("The fee applicant must submit adequate
documentation supporting the requested attorneys' fees and costs."); cf. Jerstad v. New York
Vinters LLC, 2019 WL 6769431 at *6 (S.D.N.Y. April 27, 2020) (taking judicial notice of the
filing fee, but denying any additional costs for lack of adequate documentation). Nor can the Court
modify the Settlement Agreement to eliminate the unsupported portion of the expense award. See
Fisher, 948 F.3d at 600 ("If a district court concludes pursuant to Cheeks that a proposed settlement
is unreasonable in whole or in part, the court cannot simply rewrite the agreement[.]").
The parties, however, are free to amend their agreement. If they wish to do so here – and
thereby eliminate the unsupported portion of the expense award – they may file an appropriate
stipulation, no later than November 7, 2024, setting forth the necessary changes to the Settlement
Agreement and signed by counsel for all parties.
Dated: New York, New York
October 24, 2024
SO ORDERED.
________________________________
BARBARA MOSES
United States Magistrate Judge
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