Kaloshi v. West Village Oasis, Inc.
- Barbara Moses
- 1:22-cv-04593
- U.S. District Court · Southern District of New York
- 2
In Kaloshi v. West Village Oasis, Judge Moses ordered a process for Alfonso Tenezaca to seek dismissal of his wage claims without prejudice.
Plaintiff Alfonso Tenezaca, his current counsel, the defendants, and the remaining parties to the wage-and-hour action.
What happened
In Kaloshi v. West Village Oasis, the parties agreed that plaintiff Alfonso Tenezaca no longer wanted to remain in the wage-and-hour case. His lawyers suspected that the defendants might have offered him an undisclosed payment or other benefit to leave the case.
The court directed Tenezaca to file, within one week, a motion asking to dismiss his claims without prejudice, along with a sworn statement addressing any payment, benefit, or release. His current lawyer must also explain the statement that Tenezaca would have to pay his own legal bill. If the defendants consent, they must respond within one week and provide a sworn statement about any payment, benefit, or release.
Judge Barbara Moses did not grant or deny the dismissal because no dismissal motion had yet been filed. She explained that a simple notice of dismissal was unavailable because the defendants had already filed an answer, and that the district judge would decide whether to refer the motion if all parties did not consent to Magistrate Judge Moses's authority.
The detailed version
- Kaloshi v. West Village Oasis, Inc. · No. 1:22-cv-04593
- Barbara Moses
- Mar. 9, 2023
Background
The court reviewed letters from the parties concerning plaintiff Alfonso Tenezaca's stated desire to stop being a plaintiff in this wage-and-hour action. The parties made factual assertions that were not supported by admissible evidence, but they appeared to agree that Tenezaca no longer wished to participate.
Plaintiffs' counsel suspected that the defendants and Tenezaca might have reached an undisclosed agreement involving a payment or other benefit. Counsel proposed filing a motion supported by a sworn statement from Tenezaca so the court could determine whether the Fair Labor Standards Act required judicial review of the terms of any agreement.
Court's directions
The court accepted that proposal with modifications. It ordered Tenezaca to file, within one week, a motion under Federal Rule of Civil Procedure 41(a)(2) seeking dismissal of his claims without prejudice. His motion must include an affidavit or declaration describing whether he was offered or accepted any payment or other benefit in exchange for dismissing his claims and whether he signed a release.
The court also ordered Tenezaca's current counsel to file an affidavit or declaration explaining the basis for the statement that Tenezaca would be left to pay his own legal bill. If the defendants consent to the dismissal, they must file a response within one week after the motion, supported by a sworn statement from someone with personal knowledge addressing whether any defendant offered or provided Tenezaca payment or another benefit and whether he signed a release.
Jurisdiction and disposition
Because the defendants had already filed an answer, Tenezaca could no longer dismiss his claims simply by filing a notice under Rule 41(a)(1)(A). The court stated that the parties could unanimously consent to Magistrate Judge Moses's authority over the motion or the entire case. If they did not unanimously consent, the district judge would decide whether to refer the motion for a report and recommendation.
The order did not grant or deny a dismissal motion. Instead, it established the procedure for Tenezaca to request dismissal and for the parties to provide information relevant to possible judicial review of any agreement. Judge Barbara Moses signed the order on March 9, 2023.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.