MEI XING YU, individually, on behalf of all other employees similarly situated, Plaintiff,
HASAKI RESTAURANT, INC., SHUJI YAGI, KUNITSUGU NAKATA, HASHIMOTO GEN, Defendants-Petitioners, JOHN DOE AND JANE DOE #1-10, Defendants.
Submitted: September 19, 2017
for permission to appeal pursuant to 28 U.S.C. § 1292(b)
and for leave to file a late petition.
and late filing granted.
Pechman, Laura Rodríguez, Lillian M. Marquez, Pechman
Law Group PLLC, New York, NY, for Defendants-Petitioners.
Before: NEWMAN, WALKER, and POOLER, Circuit Judges.
NEWMAN, CIRCUIT JUDGE.
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
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
The complaint was filed "on behalf [of] all other
employees similarly situated."
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.
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.
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 Furman explained that the
considerations animating this Court's decision in
Cheeks v. Freeport Pancake House, Inc., 769 F.3d 199
(2d Cir. 2015), requiring court approval of FLSA claims
sought to be settled by stipulated dismissal, see
Fed. R. Civ. P. 41(a)(1)(A)(ii), applied to Rule 68
settlements. See Yu, 319 F.R.D. at 117. The District
Court's Order directed the parties, in the absence of a
notice of appeal filed within ten days, to submit a joint
letter explaining the basis for their settlement and why it
should be approved. Acknowledging the split of authorities on
the Rule 68 issue among district courts within the Second
Circuit, Judge Furman certified his order for interlocutory
review under 28 U.S.C. § 1292(b). He also stayed the
FLSA case in the event a timely notice of appeal was filed.
April 14, 2017, Hasaki filed in the District Court a notice
of appeal from the District Court's April 10
Order.The notice of appeal identified the Order
appealed from and its date. On the same date, the notice of
appeal, the District Court's Order and Opinion sought to
be reviewed, and the docket sheet were electronically
transferred to this Court by the CM/ECF system. On April 27,
2017, Hasaki filed in this Court Forms C and D, describing
the nature of the action and the issues to be raised. On June
21, 2017, Hasaki filed a ...