Opinion
Case No. 2:14-cv-01788-APG-NJK
12-03-2014
DAVID THUMMEL, an individual, Plaintiffs, v. ELKHORN ENVIRONMENTAL, LLC, a Nevada limited liability company; WERDCO BC, INC., a Nevada corporation; BRANDON CONRAD, an individual; JOHN McCLURE, an individual; DOES I through V, inclusive; and ROE corporations I through V, inclusive, Defendants.
Katie Blakey, Esq ROGER L. GRANDGENETT II, ESQ JAMES T. WINKLER, ESQ. JAMES T. WINKLER, ESQ. KATIE BLAKEY, ESQ. LITTLER MENDELSON, PC. Attorneys for Defendants Andrew L. Rempfer, Esq. ANDREW L. REMPFER, ESQ. COGBURN LAW OFFICES Attorneys for Plaintiff
ROGER GRANDGENETT, ESQ., Bar #6323
JAMES T. WINKLER, ESQ., Bar # 6536
KATIE BLAKEY, ESQ., Bar # 12701
LITTLER MENDELSON, P.C.
3960 Howard Hughes Parkway
Suite 300
Las Vegas, NV 89169-5937
Telephone: 702.862.8800
Fax No.: 702.862.8811
Attorneys for Defendants JOINT NOTICE OF VOLUNTARY DISMISSAL UNDER FEDERAL RULE OF CIVIL PROCEDURE 41
Pursuant to Federal Rule of Civil Procedure 41, Defendants ELKHORN ENVIRONMENTAL, LLC., WERDCO BC, INC., BRANDON CONRAD, and JOHN McCLURE (hereinafter "Defendants"), and Plaintiff DAVID THUMMEL (hereinafter "Plaintiff"), by and through their respective counsel, having agreed between themselves to resolve this matter, hereby stipulate and respectfully request an order dismissing the action between Plaintiff and Defendants, with prejudice.
Each of these parties stipulate that this case be dismissed with prejudice. Each party shall bear its own costs and fees for the action and claims dismissed by this Stipulation and Order.
In regard to Plaintiffs' Fair Labor Standards Act (FLSA) retaliation claim, the parties assert that no court approval of the settlement is necessary. The Court's duty to review FLSA settlements under 29 U.S.C. § 216(c) and Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350, 1352-53 (11th Cir. 1982) extends only to FLSA wage claims, not FLSA retaliatory discharge claims.
Specifically, § 216(c) requires the Department of Labor to supervise settlements of FLSA wage claims brought under § 216(b), but says nothing regarding supervision of FLSA retaliatory discharge claims, which are brought under § 215(a) (3). See Dorner v. Polsinelli, White, Vardeman & Shalton, P.C, 856 F.Supp. 1483, 1489 (D. Kan. 1994). Thus, the plain language of the FLSA and the omission of any reference to supervision of FLSA retaliatory discharge claims in § 216(c) (while specifically referencing FLSA wage claims) supports the conclusion that no supervision of FLSA retaliatory discharge claims is required. Id.
Moreover, Lynn's Food requires only "compromises of FLSA back wage or liquidated damage claims" to be presented to the court. Lyn's Food, 679 F.2d at 1355; Yost v. Wyndham Vacation Resorts, Inc., 2012 WL 1165598, at *3 (M.D.Fla. Mar.26, 2012), report and recommendation adopted, 2012 WL 1165468 (M.D.Fla. Apr.9, 2012); McQuillan v. H.W. Lochner, Inc., 2013 WL 6184063, at *3 (M.D.Fla. Nov.25, 2013). Thus, an FLSA retaliatory discharge claim that is settled along with a wage claim does not need to be reviewed for its fairness, "provided that its terms do not serve to contaminate the [settlement] Agreement as to the FLSA [wage] claim." Yost, 2012 WL 1165598, at *3; McQuillan, 2013 WL 6184063, at *3.
Here, Plaintiff brought all of his wage claims under Chapter 608 of the Nevada Revised Statutes and has not filed any FLSA wage claims. Therefore, there is no risk whatsoever that the settlement of Plaintiff's FLSA retaliatory discharge claim could contaminate the settlement of a FLSA wage claim.
For the forgoing reasons, the parties respectfully request an order dismissing the action between Plaintiff and Defendants, with prejudice.
IT IS SO ORDERED.
Dated: December 3, 2014.
/s/_________
UNITED STATES DISTRICT JUDGE
Dated: December 3, 2014 Respectfully submitted, /s/ Katie Blakey, Esq
ROGER L. GRANDGENETT II, ESQ
JAMES T. WINKLER, ESQ.
JAMES T. WINKLER, ESQ.
KATIE BLAKEY, ESQ.
LITTLER MENDELSON, PC.
Attorneys for Defendants Dated: December 3, 2014 Respectfully submitted, /s/ Andrew L. Rempfer, Esq.
ANDREW L. REMPFER, ESQ.
COGBURN LAW OFFICES
Attorneys for Plaintiff