22-1558
Zivkovic v. Laura Christy LLC



                                          In the
                     United States Court of Appeals
                                For the Second Circuit
                                      ______________

                                     August Term, 2023

                (Argued: February 13, 2024          Decided: March 5, 2024)

                                    Docket No. 22-1558
                                     ______________

  PAVLE ZIVKOVIC, on behalf of himself and others similarly situated, VOJISLAV
   KNEZEVIC, ULAS GECKIL, ARBEN BUQAJ, IMRAM SHONAR, ADRIAN CELMETA,
 ALEJANDRA C. RINDON, RAFAEL MOCTESUMA, JESUS ESPINOSA, DIANA MARTHA
 MICHOS, FERNANDO MARIN, JULIA BOYADJAN, RICARDO SANCHEZ, ULAS KONCA,

                                     Plaintiffs-Appellees,

                                       VITO AVELLA,

                                          Plaintiff,

                                             –v.–

   LAURA CHRISTY LLC, DBA VALBELLA, LAURA CHRISTY MIDTOWN LLC, DAVID
                        GHATANFARD, GENCO LUCA,

                                   Defendants-Appellants.

                                      ______________

        Before:          KEARSE, PARK, and ROBINSON, Circuit Judges.
                                     ______________
       Defendants-Appellants appeal from a partial final judgment of the
United States District Court for the Southern District of New York (Woods,
J.) entered in favor of Plaintiffs-Appellees following a jury trial.

       Plaintiffs-Appellees, two subclasses of current and former tipped
employees at two New York City restaurants, filed suit against Defendants
alleging violations of the New York Labor Law and the federal Fair Labor
Standards Act. Prior to trial, the parties agreed to submit only the New York
Labor Law claims to the jury.

      On appeal, Defendants argue that the district court abused its
discretion in exercising supplemental jurisdiction over the Plaintiffs’ New
York Labor Law claims.

       Because Plaintiffs’ federal claims were never formally dismissed, and
because the partial final judgment did not contain a disposition as to the
federal claims, this matter is REMANDED to the district court pursuant to
the procedures set forth in United States v. Jacobson, 

 (2d Cir.
1994), so that the court may clarify the record as to the status of the federal
Fair Labor Standards Act claims.

                           ______________

                          DANIEL S. ALTER, Abrams Fensterman, LLP, White
                          Plains, NY, for Defendants-Appellants

                          YOSEF NUSSBAUM (D. Maimon Kirschenbaum,
                          Lucas C. Buzzard, on the brief), Joseph &
                          Kirschenbaum LLP, New York, NY, for Plaintiffs-
                          Appellees.
                           ______________




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PER CURIAM:

        Defendants-Appellants appeal from a partial final judgment of the United

States District Court for the Southern District of New York (Woods, J.) entered in

favor of Plaintiffs-Appellees following a jury trial.

        Plaintiffs-Appellees, two subclasses of current and former tipped employees

at two New York City restaurants, filed suit against Defendants alleging violations

of the New York Labor Law (“NYLL”) and the federal Fair Labor Standards Act

(“FLSA”). Prior to trial, the parties agreed to submit only the NYLL claims to the

jury.

        On appeal, Defendants argue that the district court abused its discretion in

exercising supplemental jurisdiction over the Plaintiffs’ NYLL claims.

        Because Plaintiffs’ federal claims were never formally dismissed, and

because the partial final judgment did not contain a disposition as to the federal

claims, this matter is REMANDED to the district court pursuant to the procedures

set forth in United States v. Jacobson, 

 (2d Cir. 1994), so that the court

may clarify the record as to the status of the FLSA claims.


                                  BACKGROUND

        In January 2017, Pavle Zivkovic filed this class action on behalf of himself

and all other similarly situated employees at two Manhattan restaurants: Valbella

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Midtown and Valbella Meatpacking. Defendants include Laura Christy LLC,

which operates Valbella Meatpacking; Laura Christy Midtown LLC, which

operates Valbella Midtown; David Ghatanfard, owner and operator of both LLCs

and both Valbella locations; and Genco Luca, the executive chef of Valbella

Midtown.

      The district court certified two subclasses in this action: current and former

tipped employees at Valbella Midtown, and current and former tipped

employees at Valbella Meatpacking. The complaint asserts ten causes of action,

seven of which pertain to the Subclass Plaintiffs, and three of which pertain to

Zivkovic individually. The Subclass Plaintiffs allege that Defendants: (1) failed

to pay them the minimum wage in violation of the FLSA and NYLL; (2) failed to

pay the Subclass Plaintiffs the proper overtime premium, in violation of the

FLSA and NYLL; (3) failed to compensate the Subclass Plaintiffs for the spread of

hours worked, in violation of the NYLL; (4) failed to comply with New York’s

wage notice requirement, in violation of the NYLL; and (5) failed to comply with

New York’s wage statement requirement, in violation of the NYLL. Pavle

Zivkovic asserts individual discrimination claims under the New York City

Human Rights Law against all Defendants and a common-law battery claim




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against Genco Luca and the remaining Defendants on a theory of respondeat

superior.

      As the case developed, the district court asked the parties to consider

submitting only the NYLL claims to the jury, because in the court’s experience

with jury trials involving similar claims, such an approach “dramatically

simplifies the instructions that go to the jury.” J. App’x 106. Accordingly, in

February 2022, the parties submitted a proposed joint pretrial order that included

the following stipulation: “Without waiving any arguments about jurisdiction,

the Parties agree that for the purposes of trial, only Plaintiffs’ New York Labor

Law wage and hour claims will be tried.” 

.

      The jury found in favor of Plaintiffs on all claims except for Zivkovic’s

battery claim. The court granted Defendants’ motion for a new trial as to

Zivkovic’s discrimination claim against Ghatanfard and as to punitive damages

on Zivkovic’s discrimination claim against Laura Christy Midtown LLC. The

Subclass Plaintiffs then filed an unopposed motion for entry of partial final

judgment under Federal Rule of Civil Procedure 54(b). Finding no just reason for

delay, and on consent of the parties, the court entered partial judgment in favor

of the Subclass Plaintiffs on their NYLL claims. This appeal followed.




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                                  DISCUSSION

      On appeal, Defendants argue, among other things, that the district court

abused its discretion in exercising supplemental jurisdiction over the Subclass

Plaintiffs’ NYLL claims. It is undisputed that the NYLL and FLSA claims form

part of the same case or controversy such that 

(a) is satisfied. But

Defendants assert that the district court improperly exercised supplemental

jurisdiction over the NYLL claims after Plaintiffs “abandoned” their FLSA

claims. The Subclass Plaintiffs, on the other hand, respond that their FLSA

claims were neither abandoned nor dismissed by the district court but were

instead “subsume[d] or encompass[ed]” into the NYLL claims, and take the

position that the district court’s partial judgment included a judgment on the

federal claims. Oral Argument Transcript at 12.

      Neither party’s position is borne out by the record. The FLSA claims were

not dismissed, and the partial judgment certified by the district court makes no

mention of the FLSA claims, instead incorporating by reference the jury verdict,

which finds Defendants liable only for violations of New York law. As far as the

record reflects, the FLSA claims are still pending―neither dismissed nor

resolved by a judgment.




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      This lack of clarity as to the status of the FLSA claims impairs our ability to

review Defendants’ challenges. For one, it leads to questions about the validity

of the district court’s judgment certifying this appeal pursuant to Federal Rule of

Civil Procedure 54(b). See Novick v. AXA Network, LLC, 

 (2d Cir.

2011) (“We have repeatedly noted that the district court generally should not

grant a Rule 54(b) certification if the same or closely related issues remain to be

litigated.” (cleaned up)); Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy, 

, 418 (2d Cir. 1989) (analyzing challenge to Rule 54(b) certification of one

of several claims by considering whether the plaintiffs’ claims were “sufficiently

separate and distinct as to lend themselves to review as single units, or whether

they [were] so interrelated and dependent upon each other as to be one

indivisible whole”). Moreover, the status of the FLSA claims may be relevant to

our analysis of Defendants’ challenge to the district court’s exercise of

jurisdiction under 

.

      To bring clarity to the record and to facilitate our review, we remand to the

district court pursuant to the procedures set forth in United States v. Jacobson, 

 (2d Cir. 1994). The purpose of this remand is to allow the district

court to clarify the record as to the status of the FLSA claims.




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      The mandate shall issue forthwith, and jurisdiction shall be restored to this

panel without the need for a new notice of appeal if, within thirty days after entry

of the district court’s order, either party informs us by letter that the district court

has supplemented the record to clarify the status of the FLSA claims. This letter

should attach the district court’s order, and may be accompanied by a letter, not

to exceed ten double-spaced pages, providing additional argument in light of the

district court’s order. Upon the filing of the letter, the opposing party may file a

response of the same maximum length within fourteen days. Following such

notification, the reinstated appeal will be decided by this panel without additional

oral argument unless otherwise ordered.


                                   CONCLUSION

      For the foregoing reasons, this matter is REMANDED to the district court

for further proceedings consistent with this opinion.




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