Lee v. New Kang Suh Inc. et al

Filing 36

OPINION & ORDER re: 27 MOTION to Dismiss Amended Complaint. filed by Myung Sook Choi, New Kang Suh Inc.. For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part. Plaintiff's claim s arising from alleged violations of the New York Labor Law are dismissed. Plaintiff's federal claims arising from alleged violations of the Fair Labor Standards Act survive. Defendants shall serve an answer to the Amended Complaint by Oct ober 16, 2020. The parties are then directed to confer and submit the attached proposed case management plan and scheduling order by November 20, 2020. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 27. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 9/11/2020) (ks)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
YOUNG MIN LEE,
Plaintiff,
No. 17-cv-9502 (NSR)
OPINION & ORDER

-againstNEW KANG SUH INC. and MYUNG SOOK CHOI,
Defendants.

NELSON S. ROMÁN, United States District Judge

Plaintiff Young Min Lee (“Plaintiff”) brings this action against Defendants New Kang
Suh Inc. and Myung Sook Choi (together, “Defendants”). (“Complaint,” ECF No. 1.) Plaintiff
asserts claims for violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.,
and New York Labor Law (“NYLL”). By Order dated February 15, 2019, the Court granted
Defendants’ motion to dismiss the Complaint and provided Plaintiff with leave to amend her
claims. (ECF No. 23.) Plaintiff filed an Amended Complaint on March 18, 2019. (ECF No.
24.)
Presently before the Court is Defendants’ motion to dismiss the Amended Complaint
pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). (ECF No. 27.) For the following
reasons, Defendants’ motion is GRANTED in part and DENIED in part.

09/11/2020

BACKGROUND
I.

Factual Background
The following facts are derived from the Amended Complaint or documents Plaintiff was

aware of before she initiated this suit and are assumed to be true for the purposes of this motion.
From 2001 through her termination on June 15, 2017, Plaintiff worked for Defendants as
a waitress in Yonkers, New York. (Am. Compl. (ECF No. 24) ¶ 11.) On June 16, 2017, Plaintiff
contacted Defendants and demanded $30,000.00 as severance payment. (Id. ¶ 25.) Thereafter,
Defendants contacted Plaintiff and offered $17,000.00 as severance payment. (Id.) Defendants
instructed Plaintiff to pick up her severance payment on June 27, 2017, at the residence of a
friend of Defendant Choi. (Id.) When Plaintiff met with Defendants, they presented her with a
Confidential Settlement Agreement and General Release (the “Settlement Agreement”), in which
Defendants agreed to pay Plaintiff $17,000.00 in return for her release of any claims Plaintiff
might have against Defendants, including FLSA claims. (Id. ¶ 26; see Decl. of Sonali Setia in
Supp. of Mot. to Dismiss (“Setia Decl.”) (ECF No. 28) Ex. A.) Plaintiff was told she would have
to sign the Settlement Agreement prior to receiving her severance payment. (Am. Compl. ¶ 27.)
It was Plaintiff’s understanding that she was being offered the severance payment because her
position had been terminated, and she was never told that the severance payment was a payment
of unpaid wages owed to her by Defendants. (Id. ¶ 28.)
Plaintiff signed the Settlement Agreement, stating that due to her recent termination, she
“had little choice but to sign the necessary documents to receive her severance compensation.”
(Id. ¶ 27.) The Settlement Agreement was written in English. (Id. ¶ 29.) Plaintiff, who only
speaks and understands Korean, did not have an interpreter present when she signed the

2

Settlement Agreement. (Id.) Plaintiff also did not have an attorney present when she signed the
Settlement Agreement and never consulted with an attorney about her FLSA rights. (Id.)
During her employment, Plaintiff worked approximately sixty and a half hours per week.
(Id. ¶ 12.) Plaintiff was paid a flat daily rate of $55 from 2001 until 2015 and then $60 from
2015 until her termination. (Id. ¶¶ 13–14.) Plaintiff was never provided with overtime
compensation or “spread of hours” compensation for shifts lasting longer than ten hours. (Id. ¶¶
15–16.) Defendants did not provide Plaintiff with a wage notice at the time of her hiring. (Id. ¶
17.) In fact, Defendants knowingly and willfully deprived their other employees of overtime and
spread of hours compensation. (Id. ¶¶ 31–32.) Plaintiff initiated this case on December 4, 2017
on her own behalf and on behalf of all others similarly situated. (Id. ¶ 1.)
II.

Procedural Background
By motion filed on August 6, 2018, Defendants moved to dismiss Plaintiff’s original

Complaint, asserting that the parties had already resolved this dispute through a private
settlement agreement entered into before the initiation of this case. (ECF No. 14.) On February
15, 2019, the Court granted Defendants’ motion, finding that the Settlement Agreement was
enforceable on its face and that no facts had been alleged to impugn the validity of the
Settlement Agreement or to suggest that the Settlement Agreement was the result of one-sided
bargaining. (ECF No. 23.) The Court’s dismissal was without prejudice and with leave to
replead. (Id.) On March 18, 2019, in accordance with the Court’s directives, Plaintiff filed the
Amended Complaint. (ECF No. 24.) This motion ensued.

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LEGAL STANDARD
To survive a Rule 12(b)(6) motion, a complaint must plead “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim is facially plausible when the factual content pleaded allows a court “to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Id. at 679. In considering a 12(b)(6) motion, a
court must take all material factual allegations as true and draw reasonable inferences in the nonmoving party’s favor, but a court is “not bound to accept as true a legal conclusion couched as a
factual allegation.” Id. at 678 (quoting Twombly, 550 U.S. at 555) (internal quotation marks
omitted). A court also need not credit “mere conclusory statements” or “[t]hreadbare recitals of
the elements of a cause of action.” Id.
Further, a court is generally confined to the facts alleged in the complaint for the
purposes of considering a motion to dismiss pursuant to 12(b)(6). Cortec Indus. v. Sum Holding
L.P., 949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider documents attached to the
complaint, statements or documents incorporated into the complaint by reference, matters of
which judicial notice may be taken, public records, and documents that the plaintiff either
possessed or knew about, such as the Settlement Agreement, and relied upon, in bringing the
suit. See Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013).

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DISCUSSION
Defendants move to dismiss Plaintiff’s Amended Complaint, averring that the Settlement
Agreement executed by the parties is valid and enforceable as it was knowingly and voluntarily
entered into, and was not the product of duress, fraud, or undue influence. (Defs.’ Mem. in
Support of Mot. to Dismiss (“Defs. Mot.”) (ECF No. 30) 5.) Plaintiff opposes dismissal,
maintaining that the Settlement Agreement was fraudulently induced and should therefore be set
aside and rendered invalid as a matter of law. (Pl.’s Mem. in Opp. to Defs.’ Mot. (“Pl. Opp.”)
(ECF No. 28) 4.)
Releases are contracts under New York law, and releases are enforceable when the
language of the release is clear and unambiguous. Weiss, Peck & Greer, L.L.C. v. Robinson,
No. 03-CV-209(RWS), 2003 WL 1396436, at *4 (S.D.N.Y. Mar. 19, 2003); Booth v. 3669
Delaware, Inc., 92 N.Y.2d 934, 935 (1998). Furthermore, releases are enforceable where they
have been entered knowingly and voluntarily, and not as the result of fraud, duress, or undue
influence. See Hummel v. AstraZeneca LP, 575 F. Supp. 2d 568, 570 (S.D.N.Y. 2008)
(citing Skluth v. United Merch. & Mfr., Inc., 559 N.Y.S.2d 280, 282 (N.Y. App. Div. 1990)). To
set aside a release, a party must demonstrate that the release does not apply to the claim at issue
or that there is an equitable basis to vitiate its effect. Id.
Settlement agreements and releases entered into under Federal Rule of Civil Procedure
41 1 in FLSA cases require approval from a district court or the Department of Labor to take
effect. Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015). 2 This extra
protection is warranted because the FLSA was intended to “remedy the evil of overwork by

1

Rule 41 applies to dismissal of actions pending before a court. Fed R. Civ. P. Rule 41.
Cheeks is “confined to the Rule 41 context.” Barnhill v. Fred Stark Estate, No. 15-CV-3360(BMC), 2015
WL 5680145, at *1 (E.D.N.Y. Sept. 24, 2015); see Gaughan v. Rubenstein, 261 F. Supp. 3d 390, 400 (S.D.N.Y.
2017).
2

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ensuring workers were adequately compensated for long hours, as well as by applying financial
pressure on employers to reduce overtime.” Id. (internal quotation marks omitted) (quoting
Chao v. Gotham Registry, Inc., 514 F.3d 280, 285 (2d Cir. 2008)). The purpose of the FLSA
“was to secure for the lowest paid segment of the nation’s workers a subsistence wage.” Id. at
202 (quoting D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 116 (1946)).
The Second Circuit has not yet ruled on whether settlement agreements for FLSA-related
claims entered into prior to litigation require district court or Department of Labor approval.
However, several district courts in this Circuit have addressed the issue. In Gaughan v.
Rubenstein, the parties executed a settlement agreement in which the plaintiff agreed to release
any and all claims, including those related to employment, against the defendant. 261 F. Supp.
3d 390, 397 (S.D.N.Y. 2017). The plaintiff later brought a complaint raising FLSA and NYLL
claims against the defendant for the same conduct covered in the agreement. Id. After
considering the circumstances surrounding the pre-litigation settlement, the court upheld the
settlement agreement because there was “no reason to view that agreement as the product of onesided bargaining.” Id. at 402. In coming to this conclusion, the court in Gaughan emphasized
that (1) the plaintiff was represented by counsel in reaching the settlement agreement, (2) the
plaintiff received significant compensation, (3) the plaintiff was made aware of her FLSA rights,
as shown in her pre-settlement demand letters, and (4) the settlement was reached after months
of negotiation. Id.
Similarly, in Gorczyca v. NVR, Inc., decided two days after Gaughan, the court upheld a
release of the plaintiff’s FLSA claims because at the time the plaintiff signed the release, “he did
not occupy a position of unequal bargaining power relative to [the defendant.]” No. 13-CV6315L, 2017 WL 11435971, at *2 (W.D.N.Y. July 13, 2017). Rather, the plaintiff was “fully

6

aware of the factual and legal grounds” for his FLSA claims and informed the defendant that he
was represented by counsel at the time of negotiations. Id. See also Matamoro v. Khomari, No.
16-cv-9004 (KBF), 2017 WL 6542954, at *2-3 (S.D.N.Y. Dec. 19, 2017) (upholding prelitigation release of FLSA claims where the plaintiff was represented by counsel and there was
no reason to view the agreement as the product of one-sided bargaining).
Most recently, in Tortomas v. Pall Corporation, the court found that it lacked information
at the motion to dismiss stage sufficient to determine whether the plaintiff’s pre-litigation release
of his FLSA claims was enforceable. No. 18-CV-5098 (JMA)(SIL), 2020 WL 2933669, at *4
(E.D.N.Y. May 31, 2020). The court observed that the plaintiff was a “well-compensated
employee,” represented by “able counsel,” had ample time to consider the defendant’s offer, and
received substantial consideration in exchange for her release. Id. at *4-5. However, the parties
had presented no evidence as to whether a bona fide dispute over the defendant’s liability under
the FLSA, i.e., the plaintiff’s entitlement to overtime pay, existed when the release was entered
into. Id. at *5. Accordingly, the court denied the defendant’s motion to dismiss the plaintiff’s
FLSA claims, noting the possibility that the defendant could reassert the same argument with
respect to the release at summary judgment if it could produce further evidence of a bona fide
dispute. Id.
Based on the analysis in Gaughan and related cases in this Circuit, and in consideration
of the employee-friendly purpose of the FLSA, as stated in its prior Order, this Court finds that
settlement agreements for FLSA-related claims entered into prior to litigation should be analyzed
on a case-by-case basis.
The Court notes that settlement agreements for NYLL-related claims entered into prior to
litigation do not enjoy the FLSA’s expressed prohibition of waiver and unsupervised settlements

7

and are generally enforceable. See Tortomas, 2020 WL 2933669, at *3-4; Hummel v.
AstraZeneca LP, 575 F. Supp. 2d 568, 570 (S.D.N.Y. 2008); Simel v. JP Morgan Chase, No. 05
CV 9750(GBD), 2007 WL 809689, at *4-5 (S.D.N.Y. March 19, 2007). Such agreements may
be overcome only if a plaintiff can demonstrate that they do not apply to her NYLL claims or
that there is an equitable basis to vitiate their effect. See Tortomas, 2020 WL 2933669, at *3-4.
Here, no party claims that the release contained in the Settlement Agreement is
ambiguous or does not apply to Plaintiff’s claims in this litigation. Rather, the Settlement
Agreement unambiguously and explicitly releases Plaintiff’s FLSA and NYLL claims arising
from wage and hour violations. (See Setia Decl. Ex. A.) The only issues for the Court to address
at this juncture are (1) Plaintiff’s novel claim that the Settlement Agreement was obtained by
fraud, and (2) if the Settlement Agreement was validly entered into, whether Plaintiff’s release of
her FLSA claims should nonetheless be set aside in light of the unfair circumstances surrounding
the Settlement Agreement.
a. Fraudulent Inducement
The Court turns first to Plaintiff’s claim of fraudulent inducement. Under New York law,
“to state a claim for fraud a plaintiff must demonstrate: (1) a misrepresentation or omission of
material fact; (2) which the defendant knew to be false; (3) which the defendant made with the
intention of inducing reliance; (4) upon which the plaintiff reasonably relied; and (5) which
caused injury to the plaintiff.” Wynn v. AC Rochester, 273 F.3d 153, 156 (2d Cir. 2001)
(citing Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 421 (1996)). Fraudulent
inducement to enter into a contract, where “a promisor’s successful attempts to induce a
promisee to enter into a contractual relationship despite the fact that the promisor harbored an
undisclosed intention not to perform,” is one type of fraud recognized by New York

8

courts. Neckles Builders, Inc. v. Turner, 986 N.Y.S.2d 494, 497 (App. Div. 2014). The claim of
fraud, however, must be “collateral to the contract.” Merrill Lynch & Co. Inc. v. Allegheny
Energy, Inc., 500 F.3d 171, 184 (2d Cir. 2007) (citation omitted).
Importantly, while the rules of federal pleading typically require a “short and plain
statement,” see Fed. R. Civ. P. 8, fraud claims have heightened pleading requirements. See Fed.
R. Civ. P. 9(b) (requiring parties to “state with particularity the circumstances constituting fraud
or mistake.”). To meet Rule 9(b)’s pleading standard, a plaintiff must “(1) specify the statements
that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the
statements were made, and (4) explain why the statements were fraudulent.” Rombach v. Chang,
355 F.3d 164, 170 (2d Cir. 2004). “[A] plaintiff need not plead dates, times, and places with
absolute precision, so long as the complaint gives fair and reasonable notice to defendants of the
claim and the grounds upon which it is based.” Minnie Rose LLC v. Yu, 169 F. Supp. 3d 504,
516 (S.D.N.Y. 2016) (quoting Rana v. Islam, 305 F.R.D. 53, 58 (S.D.N.Y. 2015)). “Allegations
that are conclusory or unsupported by factual assertions are insufficient.” ATSI Commc'ns Inc. v.
Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir. 2007).
Here, Plaintiff fails to plead the alleged fraud with the particularity required by Rule 9(b)
in the Amended Complaint. Plaintiff alleges only that she “was told that she would have to sign
the Settlement Agreement prior to receiving her severance payment” and that “[a]t all times, it
was Plaintiff’s understanding that the severance payment was offered because her position was
terminated.” (Am. Compl. ¶¶ 27-28.) These allegations fail to identify who made these
statements, and when and where they were made. See Mills v. Polar Molecular Corp., 12 F.3d
1170, 1175 (2d Cir. 1993) (“Rule 9(b) is not satisfied where the complaint vaguely attributes the
alleged fraudulent statements to ‘defendants.’”); Optima Media Grp. Ltd. v. Bloomberg L.P., 383

9

F. Supp. 3d 135, 144 (S.D.N.Y. 2019) (“[Plaintiff's] failure to specify the speakers is problematic
in itself.... Taken in conjunction with the failure to specify the location, method of
communication, and precise time frame, [Plaintiff's] claim cannot satisfy Rule 9(b).”) With
respect to the second allegation, it is not even clear on what basis Plaintiff understood that she
was being paid only for her termination.
Even if Plaintiff had met Rule 9(b)’s pleading requirements, as she attempts to do in her
opposition to the instant motion, 3 her fraudulent inducement theory would still fail. Assuming,
without deciding, that the statements identified by Plaintiff constitute material misrepresentations
knowingly made by Defendants, Plaintiff cannot establish that she reasonably relied on them.
Indeed, federal courts in this district as well as New York state courts have found that where “the
alleged misrepresentations conflict with the terms of the [agreement], there can be no reasonable
reliance as a matter of law.” Passelaigue v. Getty Images (US), Inc., No. 16-CV-1362 (VSB),
2018 WL 1156011, at *4 (S.D.N.Y. Mar. 1, 2018) (internal quotation marks omitted); see
also Jackson v. Broad. Music, Inc., No. 06-CV-2283, 2007 WL 2914516, at *1 (2d Cir. Oct. 5,
2007) (summ. order) (affirming the district court’s determination that a plaintiff “could not
reasonably have relied on [an] alleged ... misrepresentation” where it contradicted “the clear
language of the agreement at issue”); Washington Capital Ventures, LLC v. Dynamicsoft, Inc.,
373 F. Supp. 2d 360, 366 (S.D.N.Y. 2005) (rejecting a fraudulent inducement claim where the
alleged misrepresentations “were plainly contradicted by the meaning of the written document

3

Plaintiff adds multiple new factual details to her claims in her opposition. She states that Defendant Choi
“made two materially false statements to Plaintiff concerning the Settlement [Agreement] to induce her to sign the
document. Specifically, Choi knowingly misrepresented that the Settlement [Agreement] pertained only to
Plaintiff’s termination,” and “explicitly told Plaintiff that she will not be able to receive the severance payment if she
did not sign the Settlement [Agreement.” (Pl. Opp. 5.) These allegations are improperly brought in an opposition
brief, as “it is axiomatic that [a] Complaint cannot be amended by the briefs in opposition to a motion to dismiss.”
Jordan v. Chase Manhattan Bank, 91 F. Supp. 3d 491, 500 (S.D.N.Y. 2015).

10

that the claimant failed to read”); Morby v. Di Siena Assocs. LPA, 737 N.Y.S.2d 678, 680 (App.
Div. 2002) (“Having failed to read the release before signing it, plaintiff simply cannot establish
the essential element of justifiable reliance ... [T]he allegedly fraudulent misrepresentation ...
could have been readily discovered upon the reading of the document, and plaintiff cannot now
avoid his obligations under a release he did not read merely by asserting that he ‘thought’ it was
something else.” (internal citations omitted)).
Here, the Settlement Agreement clearly states that the severance payment offered to
Plaintiff serves as consideration for Plaintiff’s release of Defendants from liability from any
wage-related claims. (See Setia Decl. Ex. A.) The Court understands Plaintiff’s contention is
that she was unable to read the Settlement Agreement because she does not speak or understand
English. However, this bare assertion, even coupled with Defendants’ alleged misrepresentation
with respect to the purpose of the severance payment, does not present a sufficient basis for
voiding the Settlement Agreement on the basis of fraud. See Lozowsky v. Planet Automall, Inc.,
No. 07–CV–3684 (RLM), 2009 WL 1910726, at *5 (E.D.N.Y. June 29, 2009) (even accepting as
true plaintiff’s lack of fluency in English and defendant’s having made a misrepresentation,
plaintiff’s own negligence in failing to review or have read and explained to him certain
agreements prior to signing would preclude any relief based on fraudulent inducement);
Continental Airlines, Inc. v. Lelakis, 943 F. Supp. 300, 307 (S.D.N.Y. 1996) (“[D]efendant’s
alleged inability to speak English does not obliterate the overarching requirement of
a fraudulent inducement defense that his reliance on [plaintiff's] representations be justified and
reasonable.”) (citation omitted); see also Maines Paper & Good Serv. Inc. v. Adel, 681 N.Y.S.2d
390, 391 (App. Div. 1998) (finding that an individual could not have justifiably relied on oral
misrepresentations where he failed to read, or have someone else read and explain, the agreement

11

that was otherwise unambiguous and clear); Dunkin’ Donuts of Am., Inc. v. Liberatore, 526
N.Y.S.2d 141,143 (App. Div. 1988) (“It has been uniformly held that if the facts represented are
not matters peculiarly within the representor’s knowledge, and the other party has the means
available to him of knowing by the exercise of ordinary intelligence the truth or real quality of
the subject of the representation, he must make use of those means or he will not be heard to
complain that he was induced to enter into the transaction by misrepresentations.”).
Accordingly, the Court finds that, under the facts presented, the Settlement Agreement is
a valid contract under New York law, and Plaintiff’s release of her claims under the NYLL is
enforceable. Plaintiff’s state NYLL claims are dismissed.
b. FLSA Waiver
However, the Court is unable to determine whether Plaintiff’s release of her FLSA claims
is enforceable.
As other courts in this Circuit have demonstrated, whether there is a sufficient basis to
justify enforcement of a pre-litigation FLSA release is determined on a case-by-case basis. In
performing this analysis, courts emphasize such factors as whether the employee had legal
representation, whether the employee was fully apprised of her rights under the FLSA, whether
the release agreement resolved a bona fide dispute as to the employee’s entitlement to wages
under the FLSA, whether the employee engaged in negotiations with her employer, whether the
employee had time to consider her options, and whether the employee received a substantial
monetary benefit in exchange for the release of her claims. See Gaughan, 261 F. Supp. 3d at
402; Gorczyca, 2017 WL 11435971, at *2; Tortomas, 2020 WL 2933669, at *4-5. Each of these
factors is focused on one overarching question: was the release the result of a fair bargaining
process?

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Here, the Court is not satisfied that this question can be answered in the affirmative.
Plaintiff alleges in the Amended Complaint that she entered into the Settlement Agreement mere
days after she was terminated from a waitressing job she held for over a decade. (Am. Compl. ¶¶
11, 25.) She was not represented by counsel and indicates that she was entirely unaware of her
rights under the FLSA when she signed the Settlement Agreement. (Id. ¶¶ 28-30.) In fact,
Plaintiff states that she was not told the payment she was being offered in exchange for her
signing the Settlement Agreement was related to unpaid wages. (Id. ¶ 28.) There is no
indication that a claim that Plaintiff was owed wages ever arose in the parties’ discussions
surrounding the Settlement Agreement. Rather, Plaintiff understood the payment to be a
severance payment made due to her recent termination. (Id.) Plaintiff signed the Settlement
Agreement because she believed it to be a prerequisite to receiving the severance payment,
which she needed due to her recent termination. (Id. ¶¶ 27-28.)
More troublingly, Plaintiff apparently executed the Settlement Agreement without ever
having read and understood it. Plaintiff does not speak English, the language in which the
Settlement Agreement was written, and did not have the benefit of a translator at the time she
signed. (Id. ¶ 29.)
In light of the foregoing, the Court is deeply concerned that the Settlement Agreement
was the product of exploitation and one-sided bargaining, in contravention of the policies
animating the FLSA — “namely, neutralizing the employer-employee discrepancy in bargaining
power and preventing the ignorant waivers of FLSA rights.” Gaughan, 261 F. Supp. 3d at 401;
see Lynn’s Food Stores, Inc. v. United States By & Through U.S. Dep’t of Labor, Employment
Standards Admin., Wage & Hour Div., 679 F.2d 1350 (11th Cir. 1982) (settlement agreement
releasing FLSA claims set aside where, inter alia, the employees had no idea they were owed

13

wages pursuant to the FLSA, employees never retained an attorney, and some of the employees
who signed the agreement could not speak English). Accordingly, Plaintiff’s FLSA claims
survive at this stage of the proceedings.
The Court notes that, to the extent Defendants may be able to produce evidence that
would rebut Plaintiff’s characterization of the circumstances surrounding the Settlement
Agreement and justify enforcement of Plaintiff’s FLSA release, they are free to re-raise the issue
on a motion for summary judgment.

CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and
DENIED in part. Plaintiff’s claims arising from alleged violations of the New York Labor Law
are dismissed. Plaintiff’s federal claims arising from alleged violations of the Fair Labor
Standards Act survive. Defendants shall serve an answer to the Amended Complaint by October
16, 2020. The parties are then directed to confer and submit the attached proposed case
management plan and scheduling order by November 20, 2020. The Clerk of the Court is
respectfully directed to terminate the motion at ECF No. 27.

Dated:

September 11, 2020
White Plains, New York

SO ORDERED:

________________________________
NELSON S. ROMÁN
United States District Judge

14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------x

Plaintiff(s),

Rev. May 2014

CIVIL CASE DISCOVERY PLAN
AND SCHEDULING ORDER

- against -

Defendant(s).

CV

(NSR)

-------------------------------------------------------------x
This Civil Case Discovery Plan and Scheduling Order is adopted, after consultation with
counsel, pursuant to Fed. R. Civ. P. 16 and 26(f):
1.

All parties [consent] [do not consent] to conducting all further proceedings before
a Magistrate Judge, including motions and trial, pursuant to 28 U.S.C. § 636(c).
The parties are free to withhold consent without adverse substantive consequences.
(If all parties consent, the remaining paragraphs of this form need not be
completed.)

2.

This case [is] [is not] to be tried to a jury.

3.

Joinder of additional parties must be accomplished by ______________________.

4.

Amended pleadings may be filed until _____________________. Any party
seeking to amend its pleadings after that date must seek leave of court via motion.

5.

Interrogatories shall be served no later than ___________________, and responses
thereto shall be served within thirty (30) days thereafter. The provisions of Local
Civil Rule 33.3 [shall] [shall not] apply to this case.

6.

First request for production of documents, if any, shall be served no later than
____________________.

7.

Non-expert depositions shall be completed by ____________________________.
a.

Unless counsel agree otherwise or the Court so orders, depositions shall not
be held until all parties have responded to any first requests for production
of documents.

b.

Depositions shall proceed concurrently.

c.

Whenever possible, unless counsel agree otherwise or the Court so orders,

non-party depositions shall follow party depositions.
8.

Any further interrogatories, including expert interrogatories, shall be served no
later than _______________________.

9.

Requests to Admit, if any, shall be served no later than
______________________.

10.

Expert reports shall be served no later than ______________________.

11.

Rebuttal expert reports shall be served no later than ______________________.

12.

Expert depositions shall be completed by ______________________.

13.

Additional provisions agreed upon by counsel are attached hereto and made a part
hereof.

14.

ALL DISCOVERY SHALL BE COMPLETED BY ______________________.

15.

Any motions shall be filed in accordance with the Court’s Individual Practices.

16.

This Civil Case Discovery Plan and Scheduling Order may not be changed without
leave of Court (or the assigned Magistrate Judge acting under a specific order of
reference).

17.

The Magistrate Judge assigned to this case is the Hon.

18.

If, after entry of this Order, the parties consent to trial before a Magistrate Judge,
the Magistrate Judge will schedule a date certain for trial and will, if necessary,
amend this Order consistent therewith.

19.

The next case management conference is scheduled for _____________________,
at ____________. (The Court will set this date at the initial conference.)

.

SO ORDERED.
Dated: White Plains, New York
_______________________

Nelson S. Román, U.S. District Judge