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Kessler v. Joarder Properties, Limited Liability Co.

United States District Court, D. New Jersey, Camden Vicinage

May 17, 2019

CAMDEN VICINAGE DANIEL KESSLER, on behalf of himself and those similarly situated, Plaintiff,
v.
JOARDER PROPERTIES LIMITED LIABILITY COMPANY, et al., Defendants.

          OPINION [DKT. 28, 29, 30, 35, 36, 38, 42]

          RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE

         Plaintiff 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”).

         After a 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.

         Finally, 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.

         I. BACKGROUND & PROCEDURAL HISTORY

         Plaintiff 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.

         Based 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].

         Shortly 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.

         II. DISCUSSION

         Now, this matter comes before the Court upon seven pending motions filed by the parties. Below, the Court will address each of them.

         A. Motions to Dismiss

          There 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.

         In 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.

         In Lynn's Food Stores, the Eleventh Circuit Court ...


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