UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: 10/2/ 2023 ------------------------------------------------------------ X JOSE HICIANO, on behalf of himself, : individually, and on behalf of all others similarly- : situated, : Plaintiffs, : 21-CV-4508 (VEC) -against- : : ORDER JOYERIA ELIZABETH I, CORP., and JOYERIA : ELIZABETH II, CORP., and JOYERIA : ELIZABETH III, CORP., and JOYERIA : ELIZABETH IV, CORP., and TOMASA : IZAQUIRRE, individually, and MICHELLE : IZAQUIRRE, individually, : : Defendants. : ------------------------------------------------------------ X VALERIE CAPRONI, United States District Judge: WHEREAS on September 19, 2023, the Court was notified that through the magistrate, an agreement was reached on all issues; and WHEREAS this case involves claims brought under the Fair Labor Standards Act (“FLSA”); IT IS HEREBY ORDERED THAT the parties may not dismiss this action with prejudice unless the settlement agreement has been approved by either the Court or the Department of Labor (DOL). See Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015). Accordingly, to the extent the parties wish to dismiss this action with prejudice, they must either file a joint letter motion requesting that the Court approve the settlement agreement or, alternatively, provide documentation of the approval by DOL. Any letter motion, along with the settlement agreement, must be filed on the public docket by October 19, 2023. The letter motion must explain why the proposed settlement is fair and reasonable and should discuss, at a minimum, 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. Wolinsky v. Scholastic Inc., 900 F. Supp. 2d 332, 335 (S.D.N.Y. 2012) (quoting Medley v. Am. Cancer Soc., No. 10-CV-3214(BSJ), 2010 WL 3000028, at *1 (S.D.N.Y. July 23, 2010)). The letter must also address whether there is a bona fide dispute as to the number of hours worked or the amount of compensation due and how much of the proposed settlement plaintiff’s attorney shall be seeking as fees. See Cheeks, 796 F.3d at 206. Absent special circumstances, the Court will not approve any settlement agreement that is filed under seal or in redacted form. See id. The Second Circuit has left open for future decision whether an FLSA case may be settled without Court or DOL approval and dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A). See id. at 201 n.2 (“[W]e leave for another day the question of whether parties may settle [FLSA] cases without court approval . . . by entering into a Rule 41(a)(1)(A) stipulation without prejudice.”). If the parties wish to proceed without Court or DOL approval, they must submit a stipulation pursuant to Federal Rule of Civil Procedure 41(a)(1)(A). Any such stipulation must be filed on the public docket within 30 days and must be accompanied by an affirmation from Plaintiff’s counsel (1) stating that the Plaintiff(s) have been clearly advised that the settlement of this case does not preclude them from filing another lawsuit against the same Defendant(s) and (2) affirming that the settlement agreement does not contain a release of the Defendant(s). See, e.g., Elfenbein v. Gulf & W. Indus., Inc., 590 F.2d 445, 449 (2d Cir. 1978) (per curiam) (“[A] dismissal without prejudice permits a new action (assuming the statute of limitations has not run) without regard to Res judicata principles.” (quoting Rinieri v. News Syndicate Co., 395 F.2d 818, 821 (2d Cir. 1967)). The parties are warned that this option runs the risk that the case may be reopened in the future. In the alternative, the parties may consent to conducting all further proceedings before this case’s assigned Magistrate Judge by completing the attached consent form by October 10, 2023, which permits the Magistrate Judge to enter a final disposition in the case. As the form indicates, no adverse substantive consequences will arise if the parties choose not to proceed before the Magistrate Judge. If no consent form, letter or stipulation is filed by October 19, 2023, a conference shall be held on October 20, 2023 at 10:00 a.m. in Courtroom 443 of the Thurgood Marshall U.S. Courthouse, 40 Foley Square, New York, New York 10007. SO ORDERED. . Date: October 2, 2023 Vole ( | New York, NY VALERIE CAPRONI United States District Judge
Sh ‘2 a 2\ United States District Court ey) Southern District of New York Sees of
UNITED STATES MAGISTRATE JUDGES: REFERRALS AND CONSENTS All cases in the Southern District of New York are assigned to two judges: a district judge and a magistrate judge. District judges are appointed for life terms by the President. Magistrate judges are selected by a majority vote of the district judges in the particular district and serve terms of eight years. Referrals to the Magistrate Judge. The district judge assigned to your case may refer the case to a magistrate judge for specific purposes. Commonly, the referral will be for the magistrate judge to conduct the proceedings that occur before trial, such as resolving discovery disputes or presiding over settlement conferences. A referral may also be made for the magistrate judge to issue to the district judge a report and recommendation on how to resolve a motion, such as a motion to dismiss or a motion for summary judgment. The consent of the parties is not needed for the district judge to refer the case to the magistrate judge for these purposes. If the district judge has made such a referral, you can ask the district judge to review any magistrate judge’s decision by filing an objection with the district judge within fourteen days of that decision. The district judge will rule on any timely objections that you file. If you do not file an objection, you will give up your right to challenge the magistrate judge’s decision at a later time, including on appeal. See Rule 72 of the Federal Rules of Civil Procedure. Consent to Proceed Before the Magistrate Judge. If you would like your case to move more quickly, it is helpful to consent to proceed before the magistrate judge for all purposes, including any trial. If you consent, the magistrate judge will perform the identical function that the district judge would have performed. Any trial in your case would be either a jury or a nonjury trial, depending upon whether there is a right to a jury trial and a proper request for such a trial. The only difference is that the magistrate judge - and not the district judge - would preside over that trial. Cases that proceed for all purposes before a magistrate judge generally move more quickly than cases before a district judge. If you consent to proceed before the magistrate judge, the district judge plays no further role in the case. Any appeal is taken directly to the Court of Appeals.
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UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: 10/2/ 2023 ------------------------------------------------------------ X JOSE HICIANO, on behalf of himself, : individually, and on behalf of all others similarly- : situated, : Plaintiffs, : 21-CV-4508 (VEC) -against- : : ORDER JOYERIA ELIZABETH I, CORP., and JOYERIA : ELIZABETH II, CORP., and JOYERIA : ELIZABETH III, CORP., and JOYERIA : ELIZABETH IV, CORP., and TOMASA : IZAQUIRRE, individually, and MICHELLE : IZAQUIRRE, individually, : : Defendants. : ------------------------------------------------------------ X VALERIE CAPRONI, United States District Judge: WHEREAS on September 19, 2023, the Court was notified that through the magistrate, an agreement was reached on all issues; and WHEREAS this case involves claims brought under the Fair Labor Standards Act (“FLSA”); IT IS HEREBY ORDERED THAT the parties may not dismiss this action with prejudice unless the settlement agreement has been approved by either the Court or the Department of Labor (DOL). See Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015). Accordingly, to the extent the parties wish to dismiss this action with prejudice, they must either file a joint letter motion requesting that the Court approve the settlement agreement or, alternatively, provide documentation of the approval by DOL. Any letter motion, along with the settlement agreement, must be filed on the public docket by October 19, 2023. The letter motion must explain why the proposed settlement is fair and reasonable and should discuss, at a minimum, 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. Wolinsky v. Scholastic Inc., 900 F. Supp. 2d 332, 335 (S.D.N.Y. 2012) (quoting Medley v. Am. Cancer Soc., No. 10-CV-3214(BSJ), 2010 WL 3000028, at *1 (S.D.N.Y. July 23, 2010)). The letter must also address whether there is a bona fide dispute as to the number of hours worked or the amount of compensation due and how much of the proposed settlement plaintiff’s attorney shall be seeking as fees. See Cheeks, 796 F.3d at 206. Absent special circumstances, the Court will not approve any settlement agreement that is filed under seal or in redacted form. See id. The Second Circuit has left open for future decision whether an FLSA case may be settled without Court or DOL approval and dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A). See id. at 201 n.2 (“[W]e leave for another day the question of whether parties may settle [FLSA] cases without court approval . . . by entering into a Rule 41(a)(1)(A) stipulation without prejudice.”). If the parties wish to proceed without Court or DOL approval, they must submit a stipulation pursuant to Federal Rule of Civil Procedure 41(a)(1)(A). Any such stipulation must be filed on the public docket within 30 days and must be accompanied by an affirmation from Plaintiff’s counsel (1) stating that the Plaintiff(s) have been clearly advised that the settlement of this case does not preclude them from filing another lawsuit against the same Defendant(s) and (2) affirming that the settlement agreement does not contain a release of the Defendant(s). See, e.g., Elfenbein v. Gulf & W. Indus., Inc., 590 F.2d 445, 449 (2d Cir. 1978) (per curiam) (“[A] dismissal without prejudice permits a new action (assuming the statute of limitations has not run) without regard to Res judicata principles.” (quoting Rinieri v. News Syndicate Co., 395 F.2d 818, 821 (2d Cir. 1967)). The parties are warned that this option runs the risk that the case may be reopened in the future. In the alternative, the parties may consent to conducting all further proceedings before this case’s assigned Magistrate Judge by completing the attached consent form by October 10, 2023, which permits the Magistrate Judge to enter a final disposition in the case. As the form indicates, no adverse substantive consequences will arise if the parties choose not to proceed before the Magistrate Judge. If no consent form, letter or stipulation is filed by October 19, 2023, a conference shall be held on October 20, 2023 at 10:00 a.m. in Courtroom 443 of the Thurgood Marshall U.S. Courthouse, 40 Foley Square, New York, New York 10007. SO ORDERED. . Date: October 2, 2023 Vole ( | New York, NY VALERIE CAPRONI United States District Judge
Sh ‘2 a 2\ United States District Court ey) Southern District of New York Sees of
UNITED STATES MAGISTRATE JUDGES: REFERRALS AND CONSENTS All cases in the Southern District of New York are assigned to two judges: a district judge and a magistrate judge. District judges are appointed for life terms by the President. Magistrate judges are selected by a majority vote of the district judges in the particular district and serve terms of eight years. Referrals to the Magistrate Judge. The district judge assigned to your case may refer the case to a magistrate judge for specific purposes. Commonly, the referral will be for the magistrate judge to conduct the proceedings that occur before trial, such as resolving discovery disputes or presiding over settlement conferences. A referral may also be made for the magistrate judge to issue to the district judge a report and recommendation on how to resolve a motion, such as a motion to dismiss or a motion for summary judgment. The consent of the parties is not needed for the district judge to refer the case to the magistrate judge for these purposes. If the district judge has made such a referral, you can ask the district judge to review any magistrate judge’s decision by filing an objection with the district judge within fourteen days of that decision. The district judge will rule on any timely objections that you file. If you do not file an objection, you will give up your right to challenge the magistrate judge’s decision at a later time, including on appeal. See Rule 72 of the Federal Rules of Civil Procedure. Consent to Proceed Before the Magistrate Judge. If you would like your case to move more quickly, it is helpful to consent to proceed before the magistrate judge for all purposes, including any trial. If you consent, the magistrate judge will perform the identical function that the district judge would have performed. Any trial in your case would be either a jury or a nonjury trial, depending upon whether there is a right to a jury trial and a proper request for such a trial. The only difference is that the magistrate judge - and not the district judge - would preside over that trial. Cases that proceed for all purposes before a magistrate judge generally move more quickly than cases before a district judge. If you consent to proceed before the magistrate judge, the district judge plays no further role in the case. Any appeal is taken directly to the Court of Appeals. It is your choice whether or not to consent to proceed before the magistrate judge, and all parties must consent or the case will not proceed before the magistrate judge. A copy of the appropriate consent form is attached. Additional forms are also available from the Pro Se Office and on the Court’s website.
THE DANIEL PATRICK MOYNIHAN THE CHARLES L. BRIEANT, JR. UNITED STATES COURTHOUSE UNITED STATES COURTHOUSE 500 PEARL STREET 300 QUARROPAS STREET NEW YorK, NY 10007-1312 WHITE PLAINS, NY 10601-4150 PRO SE OFFICE (212) 805-0175
AO 85 (Rev. 01/09) Notice, Consent, and Reference of a Civil Action to a Magistrate Judge UNITED STATES DISTRICT COURT for the District of
Plaintiff ) V. ) Civil Action No.
Defendant )
NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE Notice of a magistrate judge’s availability. A United States magistrate judge of this court is available to conduct all proceedings in this civil action Gncluding a jury or nonjury trial) and to order the entry of a final judgment. The judgment may then be appealed directly to the United States court of appeals like any other judgment of this court. A magistrate judge may exercise this authority only if all parties voluntarily consent.
You may consent to have your case referred to a magistrate judge, or you may withhold your consent without adverse substantive consequences. The name of any party withholding consent will not be revealed to any judge who may otherwise be involved with your case.
Consent to a magistrate judge’s authority. The following parties consent to have a United States magistrate judge conduct all proceedings in this case including trial, the entry of final judgment, and all post-trial proceedings.
Parties’ printed names Signatures of parties or attorneys Dates
Reference Order IT IS ORDERED: This case is referred to a United States magistrate judge to conduct all proceedings and order the entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Date: District Judge’s signature
Printed name and title