Picerni v. Bilingual SEIT & Preschool

Civil Practice

New York Law Journal


Judge Brian Cogan

Teacher Picerni's collective action charged employer Bilingual's violation of the Fair Labor Standards Act's (FLSA) minimum wage provisions. On Oct. 19, 2012—before defendant's answer or appearance and prior to an initial status conference—Picerni filed a notice of acceptance of an offer of judgment settling her case, on an individual basis, for $5000 plus $4590 in attorneys fees. The court's Oct. 19 order advised that FLSA claims could not be settled absent approval by the Department of Labor or the court. Martinez v. Bohls Bearing Equipment discussed application of the Supreme Court's rulings in Brooklyn Savings Bank v. O'Neil and D.A. Schultze v. Gangi—asserting the approval requirement—to lower courts. Distinguishing Lynn's Food Stores v. United States and Dees v. Hydrady, district court vacated its Oct. 19 order. The court concluded that the FLSA is not exempt from the right of voluntary dismissal under Federal Rule of Civil Procedure 41. A court procedure requiring approval before allowing parties to voluntarily dismiss an FLSA action was incorrect and was contrary to Rule 41, which gives the plaintiff, at an early stage of a case, or the parties jointly, at a later stage, free reign to discontinue for any reason.

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