Yu v. Hasaki Restaurant, Inc., 102317 FED2, 17-1067
|Opinion Judge:||JON O. NEWMAN, CIRCUIT JUDGE.|
|Party Name:||MEI XING YU, individually, on behalf of all other employees similarly situated, Plaintiff, v. HASAKI RESTAURANT, INC., SHUJI YAGI, KUNITSUGU NAKATA, HASHIMOTO GEN, Defendants-Petitioners, JOHN DOE AND JANE DOE #1-10, Defendants.|
|Attorney:||Louis Pechman, Laura Rodríguez, Lillian M. Marquez, Pechman Law Group PLLC, New York, NY, for Defendants-Petitioners.|
|Judge Panel:||Before: NEWMAN, WALKER, and POOLER, Circuit Judges.|
|Case Date:||October 23, 2017|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
The Second Circuit granted leave to file a petition for 28 U.S.C. 1292(b) review. At issue was whether petitioners' notice of appeal, which was filed within ten days of the district court's order sought to be reviewed, was the functional equivalent of a section 1292(b) petition to invoke the court's jurisdiction over a later filed petition. The court held that, under all the circumstances of this ... (see full summary)
Submitted: September 19, 2017
Petition for permission to appeal pursuant to 28 U.S.C. § 1292(b) and for leave to file a late petition.
Petition and late filing granted.
Louis Pechman, Laura Rodríguez, Lillian M. Marquez, Pechman Law Group PLLC, New York, NY, for Defendants-Petitioners.
Before: NEWMAN, WALKER, and POOLER, Circuit Judges.
JON O. NEWMAN, CIRCUIT JUDGE.
The pending petition for permission to take an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) presents a narrow issue concerning the procedure for perfecting such an appeal. The issue is whether, under the circumstances of this case, the petitioners' notice of appeal, which was filed within ten days of the District Court's order sought to be reviewed, is the functional equivalent of a section 1292(b) petition to invoke our jurisdiction over a later filed petition.
The section 1292(b) petition arises out of a suit filed in the District Court for the Southern District of New York by Mei Zing Yu, a sushi chef, against Yu's employer, Hasaki Restaurants, Inc., and three restaurant owners or managers (collectively "Hasaki") for alleged violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. And New York Labor Law.2 The complaint was filed "on behalf [of] all other employees similarly situated."
Yu and Hasaki negotiated a settlement. Counsel for Yu then informed the District Court by letter that Yu had accepted the defendants' offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure.
The District Court (Jesse M. Furman, District Judge) ordered the parties to submit the settlement agreement to the Court for the Court's approval and also to submit letters detailing why the settlement was fair and reasonable. In response, counsel for Hasaki sent the Court a letter for all parties, arguing that the District Court lacked authority to review the offer of judgment because entry of a Rule 68 judgment is mandatory. The Judge Furman considered an amicus curiae brief filed by the U.S. Department of Labor in a similar case pending before another District Judge. That brief argued that District Court approval of the settlement was required.
On April 10, 2017, the District Court entered an Opinion and Order setting forth its view that judicial review of an FLSA settlement was required before entry of a Rule 68 judgment. Yu v. Hasaki Restaurant, Inc., 319 F.R.D. 111 (S.D.N.Y. 2017). Judge...
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