United States District Court, D. New Jersey, Camden Vicinage
CAMDEN VICINAGE DANIEL KESSLER, on behalf of himself and those similarly situated, Plaintiff,
JOARDER PROPERTIES LIMITED LIABILITY COMPANY, et al., Defendants.
OPINION [DKT. 28, 29, 30, 35, 36, 38, 42]
RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE
Daniel Kessler (“Plaintiff” or “Mr.
Kessler”) commenced this putative collective action, on
behalf of himself and all similarly situated individuals,
against Defendants Joarder Properties Limited Liability
Company and Salim Joarder (“Defendants”)[Dkt. No.
1], alleging failure to pay minimum wage and overtime in
violation of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201, et seq.,
the New Jersey Minimum Wage Law (“NJMWL”), and
the New Jersey Wage Payment Law (“NJWPL”).
somewhat unusual chain of events, this matter comes before
the Court upon various motions filed by the parties,
including Plaintiff's attorneys at Smith Eibeler, LLC
(“Smith Eibeler” or “Plaintiff's
Counsel”). For the reasons set forth herein,
Plaintiff's Counsel's Motion for a Protective [Dkt.
No. 28], Plaintiff's Counsel's Motion to
Amend/Correct the Complaint [Dkt. No. 29], Plaintiff's
Counsel's Motion to Dismiss Plaintiff Daniel Kessler
[Dkt. No. 30], and Defendants' Cross-Motion for a
Protective Order [Dkt. No. 36] will be DENIED AS
MOOT. Additionally, Plaintiff's Voluntary Motion
to Dismiss [Dkt. No. 38] and Defendants' Cross-Motion to
Dismiss [Dkt. No. 35] will be DENIED WITHOUT
PREJUDICE. Because no judgment has been entered in
this case, Plaintiff's Counsel's Motion for
Attorneys' Fees [Dkt. No. 42] is premature and will also
be DENIED WITHOUT PREJUDICE.
as FLSA settlement agreements require approval from either a
court or the Department of Labor (“DOL”),
Defendants will be ORDERED to submit their
settlement agreement with Mr. Kessler for this Court's
review and approval, or attest that no such agreement exists,
if the parties wish to dismiss this matter.
BACKGROUND & PROCEDURAL HISTORY
Daniel Kessler was formerly employed as a pizza delivery
driver for Defendants, who operate Domino's Pizza
franchises in Pennsylvania and New Jersey. On July 20, 2018,
Plaintiff commenced this putative class action against his
former employer. Within days after commencing this action, at
least five putative class members (the “Putative Opt-In
Plaintiffs”) submitted notices of their intent to
“opt-in” to the litigation. [See Dkt.
Nos. 3, 4, 5, 7, and 8]. However, on September 14, 2018, only
a few months later, Defendants represented to this Court that
dismissal was warranted because “Plaintiff has stated
his intention not to proceed with this case.” [Dkt. No.
21]. In response, Plaintiff's Counsel alleged that
Defendants had convinced Plaintiff and the Putative Opt-In
Plaintiffs to drop their cases, using coercive tactics to
secure private and confidential settlement agreements without
the presence of counsel. [See Dkt. No. 22]. In turn,
on October 8, 2018, Plaintiff's Counsel filed a Motion
for a Protective Order [Dkt. No. 28], seeking to prevent
Defendants from communicating with putative class members
about the case without counsel.
on their client's stated desires to withdraw from the
case, Plaintiff's Counsel moved to dismiss Plaintiff
Daniel Kessler as name plaintiff [Dkt. No. 30]. However,
Plaintiff's counsel alleged that additional putative
class members were prepared to step into the case and,
therefore, moved to amend/correct the complaint to substitute
a new name plaintiff [Dkt. No. 29]. In response, on October
23, 2018, Defendants filed cross-motions to dismiss the
complaint [Dkt. No. 35] and for a protective order to prevent
Plaintiff's Counsel from communicating with putative
class members about the case [Dkt. No. 36].
thereafter, on October 29, 2018, Plaintiff's Counsel
argued that the cross-motions for protective orders had
become moot because Defendants had successfully identified
the remaining putative class members and negotiated private
settlements with them. [See Dkt. No. 37]. At this
point, Plaintiff's Counsel conceded that they could no
longer pursue the case because Defendants' private
settlements had convinced every putative class member to
withdraw from the case. As a result, Plaintiff Counsel argued
that they had no choice but to file a Motion for Voluntary
Dismissal of the case in its entirety. [Dkt. No. 38].
However, Plaintiff's Counsel filed a Motion for
Attorneys' Fees [Dkt. No. 42], arguing that it should be
entitled to attorneys' fees because Mr. Kessler had
“prevailed” in the matter by obtaining a
settlement from Defendants.
this matter comes before the Court upon seven pending motions
filed by the parties. Below, the Court will address each of
Motions to Dismiss
are currently three pending motions to dismiss in this
matter. Plaintiff's first motion to dismiss [Dkt. No.
30], was a procedural effort by Plaintiff's Counsel to
continue pursuing the case by dismissing Mr. Kessler and
substituting a different name plaintiff. However, this effort
was mooted by Plaintiff's second, broader, voluntary
motion to dismiss the case in its entirety [Dkt. No. 38],
which noted that there are no longer any putative class
members willing to pursue the case.
their motion to dismiss, Defendants argue that this Court
must dismiss the case because there is no longer an active
case or controversy. This Court disagrees.
Lynn's Food Stores, the Eleventh Circuit Court