Gros Reico et al v. Nicon Build LLC et al
| Jose Luis Gros Reico, Milton Martin Varela Duran and Norman Gomez |
| Nicon Build LLC, Nicon Consulting & Construction, Inc. and Evan Frost |
| 1:2018cv08781 |
| September 25, 2018 |
| US District Court for the Southern District of New York |
| Valerie E Caproni |
| Labor: Fair Standards |
| 29 U.S.C. § 201 |
| None |
Docket Report
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This docket was last retrieved on May 13, 2019. A more recent docket listing may be available from PACER.
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Filing 32
ORDER. WHEREAS on April 23, 2019, the Court approved the parties proposed settlement and ordered that this action would be dismissed with prejudice on May 3, 2019, unless the parties filed any objections or any stipulations of dismissal before then; and WHEREAS no party has filed any objections or stipulations since the Court's order, IT IS HEREBY ORDERED THAT this case is DISMISSED with prejudice and without costs (including attorneys fees) to either party except as may be provided in the previously approved settlement agreements. The Clerk of Court is respectfully directed to terminate all open motions and close the case. SO ORDERED. (Signed by Judge Valerie E. Caproni on 5/13/2019) (rjm)
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Filing 31
MEMO ENDORSEMENT: on re: #30 Letter filed by Milton Martin Varela Duran, Norman Gomez, Jose Luis Gros Reico. ENDORSEMENT: The Court notes that, in addition to making the changes directed by the previous order, the parties have slightly modified the language of the release in paragraph 2 of each agreement. The Court, however, sees no meaningful difference effected by the modification and construes paragraph 2 of each agreement as releasing only the claims alleged in the Complaint. Accordingly, the revised settlement agreements are hereby approved as fair and reasonable under Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015). If the parties intend a different interpretation of the release provision, they must inform the Court by April 26, 2019, at which point the Court would reconsider the Cheeks approval. This action shall otherwise be dismissed with prejudice on May 3, 2019, unless the parties file stipulations of dismissal (Exs. A of the approved settlements) before that date. All other conferences and deadlines are hereby adjourned. SO ORDERED. (Signed by Judge Valerie E. Caproni on 4/23/2018) (ama) Modified on 4/23/2019 (ama).
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| Filing 30 LETTER addressed to Judge Valerie E. Caproni from Lawrence Spasojevich, Esq. dated 4/22/2019 re: Settlement Update. Document filed by Norman Gomez(on behalf of similarly situated individuals), Norman Gomez(on behalf of himself), Jose Luis Gros Reico(on behalf of similarly situated individuals), Jose Luis Gros Reico(on behalf of himself), Milton Martin Varela Duran(on behalf of himself), Milton Martin Varela Duran(on behalf of similarly situated individuals).(Spasojevich, Lawrence) |
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Filing 29
ORDER: granting #28 Letter Motion for Leave to File Document. The parties are directed to file a fully executed versions of the proposed settlement agreements by April 22, 2019. The parties are also directed to include Exhibit A as referenced in the settlement agreements. Exhibit A need not be executed but must in all other respects be final. The April 19, 2019 conference is adjourned to 10:00 A.M. on April 26, 2019. SO ORDERED. (Signed by Judge Valerie E. Caproni on 4/16/2019) (ama)
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| Set/Reset Hearings: Status Conference set for 4/26/2019 at 10:00 AM before Judge Valerie E. Caproni. (ama) |
| Filing 28 LETTER MOTION for Leave to File Settlement Agreements addressed to Judge Valerie E. Caproni from Gregory Frost dated April 15, 2019. Document filed by Nicon Build LLC, Nicon Consulting & Construction, Inc.. (Attachments: #1 Proposed Settlement Agreement, #2 Proposed Settlement Agreement, #3 Proposed Settlement Agreement)(Miller, Kenneth) |
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Filing 27
ORDER granting #26 Letter Motion for Conference. Once again, the Court will not approve as fair and reasonable a general release of all claims arising out of Plaintiffs' employment The Court does not find Defendants' release of their claims against Plaintiffs to be a fair exchange, as most claims encompassed by the release are likely to be actions pursuant to remedial statutes that can only be asserted against an employer, not an employee. Additionally, the Court will not approve of a forfeiture clause that applies to administrative claims outside of the rights implicated in the Complaint. The parties are directed to submit a revised proposal consistent with the foregoing no later than April 15, 2019. The conference on April 12, 2019, is adjourned to April 19, 2019 at 10:00 A.M. Status Conference set for 4/19/2019 at 10:00 AM before Judge Valerie E. Caproni. (Signed by Judge Valerie E. Caproni on 4/8/2019) (mro)
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| Filing 26 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - LETTER MOTION for Conference re: #25 Memo Endorsement, Set Deadlines/Hearings, addressed to Judge Valerie E. Caproni from Gregory Frost dated 4/8/19. Document filed by Nicon Build LLC.(Miller, Kenneth) Modified on 6/4/2019 (db). |
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Filing 25
MEMO ENDORSEMENT: on re: #24 Letter filed by Milton Martin Varela Duran, Norman Gomez, Jose Luis Gros Reico. ENDORSEMENT: The Court finds paragraph 2 of the proposed agreements to be ambiguous. To the extent that the parties only intend to release claims actually alleged in the Complaint, the parties must strike or clarify any language in paragraph 2 that suggests otherwise. In particular, paragraph 2 suggests that the release may be broadly applicable to "any and all claims arising out of or relating in any way to Plaintiff's employment by or separation from Defendants" as well as "any right to file any claim with any administrative agency." The parties are directed to submit a revised agreement consistent with the above no later than April 9, 2019. The April 5, 2019 status conference is adjourned to 10:00 A.M. on April 12, 2019. SO ORDERED., ( Status Conference set for 4/12/2019 at 10:00 AM before Judge Valerie E. Caproni.) (Signed by Judge Valerie E. Caproni on 4/03/2019) (ama)
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| Filing 24 FIRST LETTER addressed to Judge Valerie E. Caproni from All Parties dated 4/2/2019 re: Settlement Approval. Document filed by Norman Gomez(on behalf of similarly situated individuals), Norman Gomez(on behalf of himself), Jose Luis Gros Reico(on behalf of similarly situated individuals), Jose Luis Gros Reico(on behalf of himself), Milton Martin Varela Duran(on behalf of himself), Milton Martin Varela Duran(on behalf of similarly situated individuals). (Attachments: #1 Exhibit Settlement Agreements)(Spasojevich, Lawrence) |
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Filing 23
ORDER: granting #22 Letter Motion for Extension of Time. The March 29, 2019 conference is adjourned to April 5, 2019 at 10:00 A.M. The parties must submit their revised agreement by April 2, 2019. SO ORDERED. (Signed by Judge Valerie E. Caproni on 3/26/2019) (ama)
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| Set/Reset Hearings: Status Conference set for 4/5/2019 at 10:00 AM before Judge Valerie E. Caproni. (ama) |
| Filing 22 FIRST LETTER MOTION for Extension of Time addressed to Judge Valerie E. Caproni from Lawrence Spasojevich, Esq. dated 3/25/2019. Document filed by Norman Gomez(on behalf of similarly situated individuals), Norman Gomez(on behalf of himself), Jose Luis Gros Reico(on behalf of similarly situated individuals), Jose Luis Gros Reico(on behalf of himself), Milton Martin Varela Duran(on behalf of himself), Milton Martin Varela Duran(on behalf of similarly situated individuals).(Spasojevich, Lawrence) |
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Filing 21
MEMO ENDORSEMENT: on re: #20 Letter filed by Milton Martin Varela Duran, Norman Gomez, Jose Luis Gros Reico. ENDORSEMENT: The Court declines to approve the proposed settlement as fair and reasonable at this time. The Court finds that the general release, contained in paragraph 2 of each of the proposed settlements, is overly broad and should instead be limited to a release of the wage-and-hour claims in Plaintiffs' Complaint. The Court further finds that $500 per hour is not a reasonable rate, particularly given what appears to be some inflation of hours. The Court would approve a settlement providing for $20,400 in attorney's fees, based on a $350 hourly rate and a lodestar multiplier of 1.75. Additionally, there is a miscalculation of the amounts in paragraph 4 of Jose Luis's proposed settlement: Jose Luis's recovery and counsel's fees and costs add up to $28,000, not the stated $27,000. Parties are directed to either submit a revised and corrected settlement agreement consistent with this Order by March 26, 2019 or appear for a status conference on March 29, 2019 at 10:00 A.M. SO ORDERED., ( Status Conference set for 3/29/2019 at 10:00 AM before Judge Valerie E. Caproni.) (Signed by Judge Valerie E. Caproni on 3/18/2019) (ama)
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| Filing 20 LETTER addressed to Judge Valerie E. Caproni from Lawrence Spasojevich dated 3/18/2019 re: Settlement Approval. Document filed by Norman Gomez(on behalf of similarly situated individuals), Norman Gomez(on behalf of himself), Jose Luis Gros Reico(on behalf of similarly situated individuals), Jose Luis Gros Reico(on behalf of himself), Milton Martin Varela Duran(on behalf of himself), Milton Martin Varela Duran(on behalf of similarly situated individuals). (Attachments: #1 Exhibit Executed Settlement Agreements, #2 Exhibit Time Records)(Spasojevich, Lawrence) |
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Filing 19
ORDER: 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). 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 March 18, 2019. 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 March 11, 2019, 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 the parties submit a joint letter motion and settlement agreement to the Court for approval on or before March 18, 2019, the Court will then inform the parties whether it is necessary for them to appear for a fairness hearing. If no consent form, letter or stipulation is filed by March 18, 2019, a conference shall be held on March 22, 2019, at 10:00 a.m. inCourtroom 443 of the Thurgood Marshall U.S. Courthouse, 40 Foley Square, New York, New York 10007. And as set forth herein. SO ORDERED., ( Motions due by 3/18/2019., Status Conference set for 3/22/2019 at 10:00 AM in Courtroom 443, 40 Centre Street, New York, NY 10007 before Judge Valerie E. Caproni.) (Signed by Judge Valerie E. Caproni on 2/14/2019) (ama)
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| Mediator Session Held on 2/11/19 at Defendant's Counsel's Office.(ah) |
| MEDIATOR SESSION SCHEDULED First Mediation Session scheduled for 2/11/19, 10 A.M. at Defendant's Counsel's Office.(ah) |
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Filing 17
STIPULATION: IT IS HEREBY STIPULATED AND AGREED, by and between the Parties in the above captioned action, acting by means of the respective counsel, that the time for Defendants to answer, move or otherwise respond with respect the Amended Complaint in the above matter is hereby extended through and including February 15, 2019. SO ORDERED., Evan Frost answer due 2/15/2019; Nicon Build LLC answer due 2/15/2019; Nicon Consulting & Construction, Inc. answer due 2/15/2019., Motions terminated: #16 LETTER MOTION for Extension of Time to File Answer addressed to Judge Valerie E. Caproni from Gregory Frost dated December 19, 2018. filed by Nicon Build LLC. (Signed by Judge Valerie E. Caproni on 12/20/2018) (ama)
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| Filing 16 LETTER MOTION for Extension of Time to File Answer addressed to Judge Valerie E. Caproni from Gregory Frost dated December 19, 2018. Document filed by Nicon Build LLC.(Miller, Kenneth) |
| NOTICE OF MEDIATOR ASSIGNMENT - Notice of assignment of mediator. Mediator Schedule due by 1/9/2019.(mf) |
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Filing 15
STIPULATION: IT IS HEREBY STIPULATED AND AGREED, by and between the Parties in the above captioned action, acting by means of their respective counsel, that the time for Defendants to answer, move or otherwise respond with respect the Amended Complaint in the above matter is hereby extended through and including December 19, 2018. SO ORDERED. Evan Frost answer due 12/19/2018; Nicon Build LLC answer due 12/19/2018; Nicon Consulting & Construction, Inc. answer due 12/19/2018. (Signed by Judge Valerie E. Caproni on 11/26/2018) (ama)
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| Filing 14 LETTER addressed to Judge Valerie E. Caproni from Gregory Frost dated 11/19/18 re: Stipulation Extending Defendants' Time to Answer or Respond to Complaint. Document filed by Nicon Build LLC.(Miller, Kenneth) |
| Terminate Mediation Case Tracking Deadlines: Mediator Assignment Deadline (mf) |
| Filing 13 AFFIDAVIT OF SERVICE. Nicon Build LLC served on 10/1/2018, answer due 10/22/2018. Service was accepted by Sue Zouky Clerk at Secretary of State. Document filed by Norman Gomez(on behalf of similarly situated individuals); Milton Martin Varela Duran(on behalf of himself); Jose Luis Gros Reico(on behalf of similarly situated individuals); Jose Luis Gros Reico(on behalf of himself); Milton Martin Varela Duran(on behalf of similarly situated individuals); Norman Gomez(on behalf of himself). (Spasojevich, Lawrence) |
| Filing 12 AFFIDAVIT OF SERVICE. Nicon Consulting & Construction, Inc. served on 10/1/2018, answer due 10/22/2018. Service was accepted by Sue Zouky Clerk at Secretary of State. Document filed by Norman Gomez(on behalf of similarly situated individuals); Milton Martin Varela Duran(on behalf of himself); Jose Luis Gros Reico(on behalf of similarly situated individuals); Jose Luis Gros Reico(on behalf of himself); Milton Martin Varela Duran(on behalf of similarly situated individuals); Norman Gomez(on behalf of himself). (Spasojevich, Lawrence) |
| Filing 11 AFFIDAVIT OF SERVICE of Mediation Referral Order served on EVAN FROST on 10/12/2018. Service was made by MAIL. Document filed by Norman Gomez(on behalf of similarly situated individuals), Norman Gomez(on behalf of himself), Jose Luis Gros Reico(on behalf of similarly situated individuals), Jose Luis Gros Reico(on behalf of himself), Milton Martin Varela Duran(on behalf of himself), Milton Martin Varela Duran(on behalf of similarly situated individuals). (Spasojevich, Lawrence) |
| Filing 10 AFFIDAVIT OF SERVICE of Mediation Referral Order served on NICON CONSULTING & CONSTRUCTION, INC on 10/12/2018. Service was made by MAIL. Document filed by Norman Gomez(on behalf of similarly situated individuals), Norman Gomez(on behalf of himself), Jose Luis Gros Reico(on behalf of similarly situated individuals), Jose Luis Gros Reico(on behalf of himself), Milton Martin Varela Duran(on behalf of himself), Milton Martin Varela Duran(on behalf of similarly situated individuals). (Spasojevich, Lawrence) |
| Filing 9 AFFIDAVIT OF SERVICE of Mediation Referral Order served on Nicon Build LLC on 10/12/2018. Service was made by MAIL. Document filed by Norman Gomez(on behalf of similarly situated individuals), Norman Gomez(on behalf of himself), Jose Luis Gros Reico(on behalf of similarly situated individuals), Jose Luis Gros Reico(on behalf of himself), Milton Martin Varela Duran(on behalf of himself), Milton Martin Varela Duran(on behalf of similarly situated individuals). (Spasojevich, Lawrence) |
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Filing 8
MEDIATION REFERRAL ORDER FOR CASES FILED UNDER THE FAIR LABOR STANDARDS ACT 29 U.S.C. 201 et seq.: This case, involving claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 201 et seq., has been assigned to this Court for all purposes. In the Court's experience, cases involving FLSA claims often benefit from early mediation. To that end, prior to a Rule 16(b) case management conference the Court is referring this case to the Mediation Office for settlement purposes under Local Civil Rule 83.9. To facilitate mediation the parties shall, within four weeks of this Order, confer and provide the following: 1. Both parties shall produce documents describing Plaintiff's duties and responsibilities. 2. Both parties shall produce records in their possession of wages and hours worked (i.e. payroll records, time sheets, work schedules, wage statements and wage notices). 3. Plaintiff shall produce a spreadsheet of alleged underpayments and other damages. 4. Defendants shall produce any documents describing compensation policies or practices. 5. If Defendants intend to assert an inability to pay then they shall produce proof of financial condition including tax records, business records, or other documents demonstrating their financial status. The parties are reminded that, in most cases, settlements of claims under the FLSA must be scrutinized by the Court to ensure that they are fair. See Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015). In light of this requirement, the parties are likely to have two options in the event that they reach a settlement. First, they could submit the settlement agreement to this Court along with a joint letter explaining the basis for the proposed settlement and why it should be approved as fair and reasonable. Second, the parties may consent to proceed for all purposes before the assigned Magistrate Judge (the appropriate form for which is available at http://nysd.uscourts.gov/file/forms/consent-to-proceed-before-us-magistrate-judge), in which case the assigned Magistrate Judge would decide whether or not to approve the settlement. Counsel who have noticed an appearance as of the issuance of this Order are directed to notify all other parties' attorneys in this action by serving upon each of them a copy of this Order. If unaware of the identity of counsel for any of the parties, counsel receiving this Order must forthwith send a copy of this Order to that party personally and must note service on the docket. Mediator to be Assigned by 10/22/2018. (Signed by Judge Valerie E. Caproni on 10/10/2018) (mro)
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| Filing 7 AFFIDAVIT OF SERVICE. Evan Frost served on 10/2/2018, answer due 10/23/2018. Service was accepted by Emily Smith Co-Worker. Document filed by Norman Gomez(on behalf of similarly situated individuals); Milton Martin Varela Duran(on behalf of himself); Jose Luis Gros Reico(on behalf of similarly situated individuals); Jose Luis Gros Reico(on behalf of himself); Milton Martin Varela Duran(on behalf of similarly situated individuals); Norman Gomez(on behalf of himself). (Spasojevich, Lawrence) |
| Filing 6 ELECTRONIC SUMMONS ISSUED as to Nicon Build LLC, Nicon Consulting & Construction, Inc.. (jgo) |
| Filing 5 ELECTRONIC SUMMONS ISSUED as to Evan Frost. (jgo) |
| ***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Lawrence Lee Spasojevich. The party information for the following party/parties has been modified: Jose Luis Gros Reico; Jose Luis Gros Reico; Milton Martin Varela Duran; Milton Martin Varela Duran; Norman Gomez; Norman Gomez. The information for the party/parties has been modified for the following reason/reasons: party text was omitted; party text contained a typographical error;. (jgo) |
| CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Valerie E. Caproni. Please download and review the Individual Practices of the assigned District Judge, located at #http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at #http://nysd.uscourts.gov/ecf_filing.php. (jgo) |
| Magistrate Judge Barbara C. Moses is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #http://nysd.uscourts.gov/forms.php. (jgo) |
| Case Designated ECF. (jgo) |
| Filing 4 REQUEST FOR ISSUANCE OF SUMMONS as to Nicon Build LLC and Nicon Consulting & Construction, Inc., re: #1 Complaint,. Document filed by Norman Gomez(on behalf of himself and similarly situated individuals), Norman Gomez, Jose Luis Gros Reico(on behalf of himself and similarly situated individuals), Jose Luis Gros Reico, Milton Martin Varela Duran, Milton Martin Varela Duran(on behalf of himself and similarly situated individuals). (Spasojevich, Lawrence) |
| Filing 3 REQUEST FOR ISSUANCE OF SUMMONS as to Evan Frost, re: #1 Complaint,. Document filed by Norman Gomez(on behalf of himself and similarly situated individuals), Norman Gomez, Jose Luis Gros Reico(on behalf of himself and similarly situated individuals), Jose Luis Gros Reico, Milton Martin Varela Duran, Milton Martin Varela Duran(on behalf of himself and similarly situated individuals). (Spasojevich, Lawrence) |
| Filing 2 CIVIL COVER SHEET filed. (Spasojevich, Lawrence) |
| Filing 1 COMPLAINT against Evan Frost, Nicon Build LLC, Nicon Consulting & Construction, Inc.. (Filing Fee $ 400.00, Receipt Number 0208-15616279)Document filed by Norman Gomez(on behalf of himself and similarly situated individuals), Milton Martin Varela Duran, Jose Luis Gros Reico(on behalf of himself and similarly situated individuals), Jose Luis Gros Reico, Milton Martin Varela Duran(on behalf of himself and similarly situated individuals), Norman Gomez.(Spasojevich, Lawrence) |
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