17-1067-cv
Yu v. Hasaki Restaurant, Inc.

                           UNITED STATES COURT OF APPEALS

                                FOR THE SECOND CIRCUIT

                                   August Term 2017

Submitted: September 19, 2017                 Decided: October 23, 2017

                                  Docket No. 17-1067

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MEI XING YU, individually, on behalf of all other employees
similarly situated,

                Plaintiff,

                         v.

HASAKI RESTAURANT, INC., SHUJI YAGI, KUNITSUGU NAKATA,
HASHIMOTO GEN,

                Defendants-Petitioners,

JOHN DOE AND JANE DOE #1-10,

         Defendants. 1
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Before:         NEWMAN, WALKER, and POOLER, Circuit Judges.

        Petition for permission to appeal pursuant to 28 U.S.C.

§ 1292(b) and for leave to file a late petition.

        Petition and late filing granted.




        1
            The Clerk is requested to change the official caption as
above.

                                          1
                                   Louis Pechman, Laura Rodríguez,
                                      Lillian M. Marquez, Pechman Law
                                      Group PLLC, New York, NY, for
                                      Defendants-Petitioners.


JON O. NEWMAN, Circuit Judge:

    The     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 petition.

                                   Background

    The 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




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New York Labor Law. 2 The complaint was filed “on behalf [of]

all other employees similarly situated.”

       Yu and 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.

       The 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.




       2
       The complaint also sought relief against “Defendant [sic]
John Doe and Jane Doe #1-10” alleged to own the stock of Hasaki
Restaurant, Inc. and to make decisions about employees’ salaries
and hours.

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      On    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.




                                            4
      On April 14, 2017, Hasaki filed in the District Court a

notice of appeal from the District Court’s April 10 Order.3

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 petition for leave to appeal pursuant to

section     1292(b)    with      a    request     that    it    be    accepted      as

timely filed. Yu has filed no response to the petition.

                                     Discussion

      Timeliness. Section 1292(b) of Title 28 authorizes a

district      judge,      when       entering     an    order    not      otherwise

appealable in a civil action, to state “that such order

involves a controlling question of law as to which there is

substantial ground for difference of opinion and that an

immediate appeal from the order may materially advance the

ultimate      termination        of    the      litigation.”         28   U.S.C.    §


      3
       The notice of appeal uses the District Court’s caption,
identifying the plaintiff as “Mei Xing Yu, on behalf of himself
and all others similarly situated.”

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1292(b).     The    relevant      court       of   appeals         may,   in     its

discretion, permit an appeal from the order if application

is made within ten days after entry of the order. See id.

Rule 5 of the Federal Rules of Appellate Procedure requires

a request for permission to file a discretionary appeal to

be   filed      within    the     time       specified        by    the   statute

authorizing the appeal. See FRAP 5(a)(2).

     We acknowledge at the outset that time requirements for

invoking appellate jurisdiction are strictly enforced. See

Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61

(1982)     (appellate     time     limits      are    jurisdictional).            In

Bowles v. Russell, 551 U.S. 205 (2007), for example, the

Supreme     Court   ruled       that     a    court      of    appeals      lacked

jurisdiction where a district court had mistakenly told an

appellant that his notice of appeal could be filed within

seventeen days, instead of the fourteen days specified in

the relevant rule, FRAP 4(a)(6). See id. at 209-15.

     In the pending matter, Hasaki’s petition to appeal the

District Court’s April 10 Order was filed beyond the ten

days specified in section 1292(b). However, a notice of

appeal    was   filed    within    that      ten   day    period.     The      issue

presented is whether the notice of appeal may be deemed the


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functional     equivalent        of    a     section   1292(b)    petition      for

purposes     of     invoking          this       Court’s    jurisdiction       over

Hasaki’s petition.

     In Casey v. Long Island R.R. Co., 406 F.3d 142, 146 (2d

Cir. 2005), we ruled that a brief, filed within ten days of

a District Court’s order, was the functional equivalent of

a section 1292(b) petition. A brief is, of course, a far

more informative document that a bare notice of appeal. But

Casey   permits       us        to     determine       whether,        under    the

circumstances of this case, we should deem Hasaki’s notice

of   appeal,      filed    in    the       District    Court,    sufficient      to

invoke our appellate jurisdiction over the petition for an

interlocutory appeal. That notice identified the Order for

which review was sought. It also triggered the automatic

electronic     transmission           to   this     Court   of   the   notice    of

appeal and the District Court’s Order and Opinion. That

Opinion fully informed us of the considerations relevant to

whether the District Court’s Order was appropriate for a

section 1292(b) appeal.

     We thus knew, within ten days of the District Court’s

Order, everything we needed to know in order to exercise

our discretion whether to permit the interlocutory appeal.


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We    note      that     the     District          Court’s       Order        required          the

parties to explain the justification for their settlement

“[a]bsent a notice of appeal being filed within ten days,

see   28       U.S.C.    §     1292(b).”       Yu,     319    F.R.D.          at       117.    The

citation        was    helpful,       but    the     reference         to     a       notice       of

appeal was not.

      There is a reason why this Court should be somewhat

indulgent        in     determining          whether       the      notice            of     appeal

should be considered the functional equivalent of a section

1292(b)        petition.       We    are     not    asked     to     uphold           appellate

jurisdiction solely for the benefit of a litigant who has

not   prevailed          after       plenary       proceedings           in       a        district

court.     Compare           Hartford        Fire     Insurance          Co.          v.     Orient

Overseas Containers Lines (UK) Ltd., 230 F.3d 549, 554 (2d

Cir. 2000) (rejecting appellate jurisdiction because of an

arguably        deficient           notice    of      appeal)       with          Billino          v.

Citibank,        N.A.,       123      F.3d     723,     725-26         (2d        Cir.       1997)

(upholding        appellate           jurisdiction           despite          an           arguably

deficient        notice        of     appeal).        Here,      the     acceptance                of

appellate        jurisdiction          would       achieve    the      objective              of    a

conscientious           district       court       judge      who      has        determined,

after      a    comprehensive           analysis,        that       an        interlocutory


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appeal   will        serve    the     interests      of    efficient       judicial

administration.

    Under all the circumstances, we deem the timely filed

notice   of     appeal        sufficient       to     invoke    our     appellate

jurisdiction      over       the    section    1292(b)       petition. 4    Having

accepted jurisdiction over the petition by virtue of the

timely   notice       of     appeal    and    timely       receipt    of    related

information, we grant Hasaki’s request to file his later

filed formal section 1292(b) petition.

    Appellate          discretion.       The        District    Court’s      Order

clearly merits interlocutory review under section 1292(b),

as Judge Furman sensibly recognized. The issue of whether

Rule 68 settlements in FLSA cases require District Court

review and approval is “a controlling question of law,” 28

U.S.C.   §    1292(b),       and    “there     is    substantial      ground    for

difference      of     opinion,”       id.,    as    the    differing       rulings

    4
        Our reliance on a timely filed notice of appeal
distinguishes this case from Bowles, 551 U.S. at 213, where the
Supreme Court rejected appellate jurisdiction in the absence of
a notice of appeal filed within the prescribed time period. We
acknowledge that the Eighth Circuit declined to deem a notice of
appeal the functional equivalent of a section 1292(b) petition
under circumstances similar to those in this case. See Estate of
Storm v. Northwest Iowa Hospital Corp., 548 F.3d 686 (8th Cir.
2008). We note that the issue tendered for interlocutory review
concerned whether to certify a state law question to a state
court. See id. at 687. By contrast, the pending case concerns
the interplay of a federal statute and a federal rule.

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within this Circuit demonstrate. Compare, e.g., Sanchez v.

Burgers      &    Cupcakes    LLC,    No.     16-CV-3862    (VEC),   2017   WL

2171870, at *3 (S.D.N.Y. Mar. 16, 2017) (Rule 68 settlement

of FLSA case not valid absent court or Department of Labor

approval), with, e.g., Anwar v. Stephens, No. 15-CV-4493

(JS) (GRB), 2017 WL 455416, at *1 (E.D.N.Y. Feb. 2, 2017)

(Rule   68       settlement   of     FLSA     case   not   subject   to   court

approval). Furthermore, “an immediate appeal from the order

may   materially       advance     the      ultimate   termination    of    the

litigation.” 28 U.S.C. § 1292(b).

                                   Conclusion

      Leave to file the petition for section 1292(b) review

is granted, and the petition is granted.




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