1 Esther C. Rodriguez Michael A. Josephson Nevada State Bar No. 006473 Texas State Bar No. 24014780 2 RODRIGUEZ LAW OFFICES, P.C. Andrew W. Dunlap 10161 Park Run Drive, Suite 150 Texas State Bar No. 24078444 3 Las Vegas, Nevada 89145 Alyssa White Tel: (702) 320-8400; Fax: (702) 320-8401 Texas State Bar No. 24073014 4 esther@rodriguezlaw.com JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 5 Richard J. (Rex) Burch Houston, Texas 77046 Texas State Bar No. 24001807 Tel: (713) 352-1100; Fax: (713) 352-3300 6 BRUCKNER BURCH PLLC mjosephson@mybackwages.com 11 Greenway Plaza, Suite 3025 adunlap@mybackwages.com 7 Houston, Texas 77046 awhite@mybackwages.com Tel: (713) 877-8788 8 rburch@brucknerburch.com
9 Attorneys for Plaintiff and the Opt-in Plaintiffs 10 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13
14 WILL TOOMEY, Individually and On Behalf of Case No.: 2:24-cv-01579-MDC Others Similarly Situated, 15 Plaintiffs, AMENDED JOINT STIPULATION 16 REGARDING DISMISSAL vs. 17 COLD BORE TECHNOLOGY CORP., 18 Defendant. 19 20 Plaintiff Will Toomey, individually and on behalf of others similarly situated, and 21 Defendant Cold Bore Technology Corp. (“Cold Bore”), by and through their respective counsels 22 of record, hereby request the Court approve this Amended Joint Stipulation of Dismissal and 23 enter the attached Proposed Order. 24 BACKGROUND 25 1. Toomey filed this lawsuit on August 26, 2024, asserting claims under the Fair Labor 26 Standards Act (FLSA) and the New Mexico Minimum Wage Act (NMMWA). Doc. 27 No. 1. 28 1 2. On March 7, 2025, the Court entered an Order conditionally certifying Plaintiff’s 2 FLSA Collective and authorizing notice to be sent to the collective members. Doc. 31. 3 By the end of the opt-in period, 31 Plaintiffs had filed written consents to join this 4 lawsuit and to be represented by Plaintiff’s Counsel. Doc. Nos. 34-43. Thereafter, the 5 Court granted a stay of this matter so the Parties could attend private mediation. Doc. 6 No. 54. 7 3. Prior to mediation, the Parties informally exchanged documents and information 8 regarding the FLSA collective and the putative class of New Mexico employees. 9 Review of the data revealed that de minimis time was worked in New Mexico and that 10 the number of individuals working in New Mexico could not fulfill Rule 23’s 11 numerosity requirement. 12 4. The Parties mediated this matter on November 18, 2025. Based on the data provided 13 for Cold Bore’s New Mexico employees, the Parties agreed not to pursue NMMWA 14 class-based claims and focused resolution efforts on the FLSA Collective. 15 16 5. Ultimately, the Parties reached a settlement covering Plaintiff Toomey and the 31 Opt- 17 In Plaintiffs who are represented by Plaintiff’s Counsel. 18 6. As part of the settlement, Plaintiffs agreed to dismiss this lawsuit and proceed privately 19 in arbitration. To that end, the Parties filed a stipulation of dismissal without prejudice 20 on November 25, 2025. Doc. 55. 21 7. On December 1, 2025, the Court entered an Order instructing the Parties to file an 22 amended stipulation addressing whether prior notice of dismissal should be given to 23 class and collective plaintiffs. Doc. 56.
24 RULE 41 DISMISSALS ARE EFFECTIVE UPON FILING 25 8. A notice or stipulation of dismissal under Rule 41(a)(1)(A)(i) and (ii) is self-executing 26 and effective when the notice or stipulation is filed with the court. See, e.g., Karlsson 27 v. Ewing, No. CV 14-0420 FMO (EX), 2020 WL 10762224, at *4 (C.D. Cal. June 19, 28 1 2020); Fastlicht v. Rivian, LLC, No. 25-CV-872-RSH-KSC, 2025 WL 1645591, at *1 2 (S.D. Cal. June 10, 2025); Moyer v. Tilton, No. CIV S–03–1350 FCD DAD P, 2011 3 WL 590602, at *1 (E.D.Cal. Feb. 10, 2011) (“[T]he parties filed a stipulated dismissal 4 with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1) (A)(ii). All of the 5 parties signed the stipulation, and the dismissal was effective upon filing without a 6 court order.”). 7 9. Other Circuits agree with this holding. See, e.g., Gambale v. Deutsche Bank AG, 377 8 F.3d 133, 139 (2d Cir. 2004) (“A plaintiff’s filing in the district court of a stipulation 9 of dismissal signed by all parties pursuant to Rule 41(a)(1)(A)(ii) divests the court of 10 its jurisdiction over a case....”); State Nat'l Ins. Co. v. Cnty. of Camden, 824 F.3d 399, 11 406-07 (3d Cir. 2017) ("Every court to have considered the nature of a voluntary 12 dismissal under Rule 41(a)(1)(A)(ii) has come to the conclusion that it is immediately 13 self-executing. No separate entry or order is required to effectuate the dismissal."); 14 SmallBizPros, Inc. v. MacDonald, 618 F.3d 458, 463 (5th Cir. 2010) (“[A] voluntary 15 16 stipulation of dismissal under Rule 41(a)(1)(A)(ii) is effective immediately, [and] any 17 action by the district court after the filing of such a stipulation can have no force or 18 effect because the matter has already been dismissed by the parties themselves without 19 any court action.”); Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1189 (8th Cir. 1984) 20 (“Caselaw concerning stipulated dismissals under Rule 41(a)(1)[(A)](ii) is clear that 21 entry of such a stipulation of dismissal is effective automatically and does not require 22 judicial approval.”); De Leon v. Marcos, 659 F.3d 1276, 1283 (10th Cir. 2011) (“A 23 stipulation of dismissal filed under Rule 41(a)(1)(A)(i) or (ii) is self-executing and 24 immediately strips the district court of jurisdiction over the merits.”); Anago 25 Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1278 (11th Cir. 2012) (finding that a 26 stipulation filed pursuant Rule 41(a)(1)(A)(ii) is “self-executing and dismisses the 27 case upon its becoming effective” and that “[d]istrict courts need not and may not take 28 1 action after the stipulation becomes effective because the stipulation dismisses the 2 case and divests the district court of jurisdiction.”). 3 10. The Parties believe that their stipulation of dismissal was effective upon filing and 4 divested the Court of jurisdiction. However, the Parties file this Amended Stipulation 5 in response to the Court’s Order regarding notice to the class and collective members. 6 NOTICE PRIOR TO DISMISSAL IS NOT NECESSARY 7 11. Notice prior to dismissal is not necessary for class or collective plaintiffs. 8 12. First, notice is not necessary for the New Mexico Class because a class does not exist 9 and no potential class claims for absent New Mexico employees will be released by 10 the settlement. As discussed above, pre-mediation discovery revealed the proposed 11 12 New Mexico Class did not satisfy numerosity and the Parties agreed to settle FLSA 13 and related NMMWA and other state law claims only for Toomey and the Opt-In 14 Plaintiffs represented by Plaintiff’s Counsel. 15 13. Plaintiff did not move to certify a New Mexico class and the settlement does not 16 release any class claims under the NMMWA. Thus, no absent class members will be 17 bound by this settlement, and all absent New Mexico employees will retain their 18 claims under the NMMWA should they wish to bring a separate lawsuit. Woodard v. 19 Smith, No. 3:23-CV-1165-AR, 2024 WL 1993484, at *3 (D. Or. Apr. 2, 2024), report 20 and recommendation adopted sub nom. Woodard v. Boeing Emp. Credit Union, No. 21 3:23-CV-01165-AR, 2024 WL 1999860 (D. Or.
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1 Esther C. Rodriguez Michael A. Josephson Nevada State Bar No. 006473 Texas State Bar No. 24014780 2 RODRIGUEZ LAW OFFICES, P.C. Andrew W. Dunlap 10161 Park Run Drive, Suite 150 Texas State Bar No. 24078444 3 Las Vegas, Nevada 89145 Alyssa White Tel: (702) 320-8400; Fax: (702) 320-8401 Texas State Bar No. 24073014 4 esther@rodriguezlaw.com JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 5 Richard J. (Rex) Burch Houston, Texas 77046 Texas State Bar No. 24001807 Tel: (713) 352-1100; Fax: (713) 352-3300 6 BRUCKNER BURCH PLLC mjosephson@mybackwages.com 11 Greenway Plaza, Suite 3025 adunlap@mybackwages.com 7 Houston, Texas 77046 awhite@mybackwages.com Tel: (713) 877-8788 8 rburch@brucknerburch.com
9 Attorneys for Plaintiff and the Opt-in Plaintiffs 10 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13
14 WILL TOOMEY, Individually and On Behalf of Case No.: 2:24-cv-01579-MDC Others Similarly Situated, 15 Plaintiffs, AMENDED JOINT STIPULATION 16 REGARDING DISMISSAL vs. 17 COLD BORE TECHNOLOGY CORP., 18 Defendant. 19 20 Plaintiff Will Toomey, individually and on behalf of others similarly situated, and 21 Defendant Cold Bore Technology Corp. (“Cold Bore”), by and through their respective counsels 22 of record, hereby request the Court approve this Amended Joint Stipulation of Dismissal and 23 enter the attached Proposed Order. 24 BACKGROUND 25 1. Toomey filed this lawsuit on August 26, 2024, asserting claims under the Fair Labor 26 Standards Act (FLSA) and the New Mexico Minimum Wage Act (NMMWA). Doc. 27 No. 1. 28 1 2. On March 7, 2025, the Court entered an Order conditionally certifying Plaintiff’s 2 FLSA Collective and authorizing notice to be sent to the collective members. Doc. 31. 3 By the end of the opt-in period, 31 Plaintiffs had filed written consents to join this 4 lawsuit and to be represented by Plaintiff’s Counsel. Doc. Nos. 34-43. Thereafter, the 5 Court granted a stay of this matter so the Parties could attend private mediation. Doc. 6 No. 54. 7 3. Prior to mediation, the Parties informally exchanged documents and information 8 regarding the FLSA collective and the putative class of New Mexico employees. 9 Review of the data revealed that de minimis time was worked in New Mexico and that 10 the number of individuals working in New Mexico could not fulfill Rule 23’s 11 numerosity requirement. 12 4. The Parties mediated this matter on November 18, 2025. Based on the data provided 13 for Cold Bore’s New Mexico employees, the Parties agreed not to pursue NMMWA 14 class-based claims and focused resolution efforts on the FLSA Collective. 15 16 5. Ultimately, the Parties reached a settlement covering Plaintiff Toomey and the 31 Opt- 17 In Plaintiffs who are represented by Plaintiff’s Counsel. 18 6. As part of the settlement, Plaintiffs agreed to dismiss this lawsuit and proceed privately 19 in arbitration. To that end, the Parties filed a stipulation of dismissal without prejudice 20 on November 25, 2025. Doc. 55. 21 7. On December 1, 2025, the Court entered an Order instructing the Parties to file an 22 amended stipulation addressing whether prior notice of dismissal should be given to 23 class and collective plaintiffs. Doc. 56.
24 RULE 41 DISMISSALS ARE EFFECTIVE UPON FILING 25 8. A notice or stipulation of dismissal under Rule 41(a)(1)(A)(i) and (ii) is self-executing 26 and effective when the notice or stipulation is filed with the court. See, e.g., Karlsson 27 v. Ewing, No. CV 14-0420 FMO (EX), 2020 WL 10762224, at *4 (C.D. Cal. June 19, 28 1 2020); Fastlicht v. Rivian, LLC, No. 25-CV-872-RSH-KSC, 2025 WL 1645591, at *1 2 (S.D. Cal. June 10, 2025); Moyer v. Tilton, No. CIV S–03–1350 FCD DAD P, 2011 3 WL 590602, at *1 (E.D.Cal. Feb. 10, 2011) (“[T]he parties filed a stipulated dismissal 4 with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1) (A)(ii). All of the 5 parties signed the stipulation, and the dismissal was effective upon filing without a 6 court order.”). 7 9. Other Circuits agree with this holding. See, e.g., Gambale v. Deutsche Bank AG, 377 8 F.3d 133, 139 (2d Cir. 2004) (“A plaintiff’s filing in the district court of a stipulation 9 of dismissal signed by all parties pursuant to Rule 41(a)(1)(A)(ii) divests the court of 10 its jurisdiction over a case....”); State Nat'l Ins. Co. v. Cnty. of Camden, 824 F.3d 399, 11 406-07 (3d Cir. 2017) ("Every court to have considered the nature of a voluntary 12 dismissal under Rule 41(a)(1)(A)(ii) has come to the conclusion that it is immediately 13 self-executing. No separate entry or order is required to effectuate the dismissal."); 14 SmallBizPros, Inc. v. MacDonald, 618 F.3d 458, 463 (5th Cir. 2010) (“[A] voluntary 15 16 stipulation of dismissal under Rule 41(a)(1)(A)(ii) is effective immediately, [and] any 17 action by the district court after the filing of such a stipulation can have no force or 18 effect because the matter has already been dismissed by the parties themselves without 19 any court action.”); Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1189 (8th Cir. 1984) 20 (“Caselaw concerning stipulated dismissals under Rule 41(a)(1)[(A)](ii) is clear that 21 entry of such a stipulation of dismissal is effective automatically and does not require 22 judicial approval.”); De Leon v. Marcos, 659 F.3d 1276, 1283 (10th Cir. 2011) (“A 23 stipulation of dismissal filed under Rule 41(a)(1)(A)(i) or (ii) is self-executing and 24 immediately strips the district court of jurisdiction over the merits.”); Anago 25 Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1278 (11th Cir. 2012) (finding that a 26 stipulation filed pursuant Rule 41(a)(1)(A)(ii) is “self-executing and dismisses the 27 case upon its becoming effective” and that “[d]istrict courts need not and may not take 28 1 action after the stipulation becomes effective because the stipulation dismisses the 2 case and divests the district court of jurisdiction.”). 3 10. The Parties believe that their stipulation of dismissal was effective upon filing and 4 divested the Court of jurisdiction. However, the Parties file this Amended Stipulation 5 in response to the Court’s Order regarding notice to the class and collective members. 6 NOTICE PRIOR TO DISMISSAL IS NOT NECESSARY 7 11. Notice prior to dismissal is not necessary for class or collective plaintiffs. 8 12. First, notice is not necessary for the New Mexico Class because a class does not exist 9 and no potential class claims for absent New Mexico employees will be released by 10 the settlement. As discussed above, pre-mediation discovery revealed the proposed 11 12 New Mexico Class did not satisfy numerosity and the Parties agreed to settle FLSA 13 and related NMMWA and other state law claims only for Toomey and the Opt-In 14 Plaintiffs represented by Plaintiff’s Counsel. 15 13. Plaintiff did not move to certify a New Mexico class and the settlement does not 16 release any class claims under the NMMWA. Thus, no absent class members will be 17 bound by this settlement, and all absent New Mexico employees will retain their 18 claims under the NMMWA should they wish to bring a separate lawsuit. Woodard v. 19 Smith, No. 3:23-CV-1165-AR, 2024 WL 1993484, at *3 (D. Or. Apr. 2, 2024), report 20 and recommendation adopted sub nom. Woodard v. Boeing Emp. Credit Union, No. 21 3:23-CV-01165-AR, 2024 WL 1999860 (D. Or. May 5, 2024) (“Finally, no class 22 interests are conceded by Woodard's dismissal because no class has been, or is 23 proposed to be, certified in this action. In this context, notice to putative class members 24 of Woodard's voluntary dismissal is unnecessary.”). Thus, notice to class members is 25 not necessary. 26 14. Further, notice of dismissal is not necessary for the FLSA collective members who 27 opted in to this lawsuit and are represented by Plaintiff’s Counsel. In collective 28 1 actions, a settlement only binds plaintiffs who affirmatively join the lawsuit by opting 2 in. McElmurry v. U.S. Bank Nat. Ass'n, 495 F.3d 1136, 1139 (9th Cir. 2007). For that 3 reason, potential plaintiffs in an FLSA matter must give their consent in writing, 4 usually after a case has been conditionally certified and notice has gone out to all 5 potential plaintiffs. Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 535 (N.D. Cal. 6 2007). 7 15. This case was conditionally certified on March 7, 2025 (Doc. 31), and Court- 8 authorized notice went out to all potential collective members. Thereafter, a 60-day 9 opt-in period commenced, during which 31 Plaintiffs joined this lawsuit by submitting 10 their written consents to the Court. See Docs. 34-43. In those consents, the Opt-In 11 Plaintiffs designated Plaintiff’s Counsel as their attorneys and authorized them to 12 negotiate a settlement and resolve claims on their behalf. Id. The Parties’ settlement 13 covers only those 31 Opt-In Plaintiffs who have consented to being bound by 14 settlement and are represented by Plaintiff’s Counsel. 15 16 16. In addition to receiving each Opt-In Plaintiff’s written consent, Plaintiff’s Counsel 17 notified each Opt-In Plaintiff of settlement and dismissal of this matter, as well as next 18 steps. Further notice is not required by the Court. 19 17. Notice is also unnecessary for collective members who received notice of this lawsuit 20 but chose not to join. Because they are not represented by Plaintiff’s Counsel, they are 21 not included in the settlement and they will not release any FLSA claims. Indeed, they 22 could file their own lawsuit against Cold Bore should they choose to do so. See Adams 23 v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 535 (N.D. Cal. 2007) (“Potential plaintiffs 24 who do not opt in are not bound by the judgment and may bring a subsequent private 25 action.”). “The same due process considerations at the notice stage in a Rule 23 class 26 action are therefore not present at the notice stage in an FLSA collective action.” See 27 Keller v. TD Bank, N.A., No. CIV.A. 12-5054, 2014 WL 5591033, at *13 (E.D. Pa. 28 I Nov. 4, 2014) (“As a result, the Court in the FLSA collective action does not serve the same role as the guardian of the absentee class members’ rights.”). 18. Toomey and the 31 Opt-In Plaintiffs are the only individuals included in the ‘ settlement. The settlement does not release any class claims for absent New Mexico ° employees under the NUMWA, and releases FLSA and related NUMWA and other ° state law claims only for the Opt-In Plaintiffs represented by Plaintiff's Counsel. No absent class or collective members will waive any rights in connection with the settlement, nor will they be prejudiced by dismissal of these claims. Thus, prior notice
10 of settlement is unnecessary. 11 ORDER 12 IT ISSO De 14 Hon. Mayaitwétiang/ Dh Couvibier, III I /
17 DATED: December 17,2025 18 19 20 21 22 23 24 25 26 27 28
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1 Date: December 15, 2025 Respectfully Submitted, 2
3 /s/ Alyssa J. White Esther C. Rodriguez (Bar No. 006473) 4 RODRIGUEZ LAW OFFICES, P.C. 5 10161 Park Run Drive, Suite 150 Las Vegas, Nevada 89145 6 Tel: (702) 320-8400 Fax: (702) 320-8401 7 esther@rodriguezlaw.com
8 Michael A. Josephson 9 Andrew W. Dunlap Alyssa White 10 JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 11 Houston, Texas 77046 12 Tel: (713) 352-1100 Fax: (713) 352-3300 13 mjosephson@mybackwages.com adunlap@mybackwages.com 14 awhite@mybackwages.com 15 Richard J. (Rex) Burch 16 BRUCKNER BURCH PLLC 11 Greenway Plaza, Suite 3025 17 Houston, Texas 77046 18 Tel: (713) 877-8788 rburch@brucknerburch.com 19 Counsel for Toomey and the Day Rate 20 Workers 21
22 /s/ Felicity A. Fowler JOSHUA A. SLIKER, ESQ. 23 JACKSON LEWIS P.C. 24 Nevada Bar No. 12493 300 S. Fourth Street, Suite 900 25 Las Vegas, Nevada 89101
26 MCGINNIS LOCHRIDGE, LLP 27 FELICITY A. FOWLER, ESQ. ffowler@mcginnislaw.com 28 DANIEL R. ATKINSON, ESQ. 1 datkinson@mcginnislaw.com 500 N. Akard Street, Suite 3000 2 Dallas, Texas 75201 Telephone: (214) 307-6961 3 Facsimile: (214) 307-6990 4 Attorneys for Defendant 5 Cold Bore Technology Corp. 6 7 8 9 10 11
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