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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FT. LAUDERDALE DIVISION

JHON SARMIENTO, Individually and on 

behalf of all others similarly situated, 

Plaintiff,

v.

SCHEAR CONSTRUCTION, LLC, a

Florida Limited Liability Company,

Defendant.

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Case No. 0:20-cv-61249-WPD

AMENDED STIPULATION1 OF DISMISSAL WITHOUT PREJUDICE 

AND TOLLING AGREEMENT

WHEREAS, the Parties conducted mediation via Zoom meeting on November 18, 2021 with 

mediator Neil Flaxman; and 

WHEREAS, the Parties have made no compromise of Plaintiffs claims, but have only 

agreed to a methodology of approaching voluntary settlement discussions; and

WHEREAS, the Parties have agreed that if a compromise is reached, they will work 

cooperatively to seek settlement approval pursuant to Lynn’s Food Stores, Inc. v. United States, 

679 F.2d 1350, 1352-53 (11th Cir. 1982);

WHEREAS, the Parties have agreed that if a compromise is not reached, the Plaintiffs will 

re-initiate a lawsuit against Defendant, as set forth in this Stipulation;

 1 The Parties file this Amended Stipulation, adding Paragraph 21, in order to address the Court’s 

concerns as expressed in its Order dated November 30, 2021 [D.E. 73].

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WHEREAS, the Court denied the Parties’ initial stipulation (Doc. 73) on the basis that it 

was a compromise that had not been reviewed for fairness; and

WHEREAS, the Parties have agreed to this Amended Stipulation to clarify that they have 

not yet reached a compromise to resolve an FLSA claim.

ACCORDINGLY, the Parties agree and stipulate to the following:

1. To dismiss the above-captioned case without prejudice on November 29, 2021, so that 

they can explore settlement, utilizing the procedures enumerated herein;

2. Defendant agrees that the dismissal will not count as a voluntary dismissal for purposes 

of the two-dismissal rule codified in Fed. R. Civ. Proc. 41;

3. The statute of limitations regarding FLSA claims for every Plaintiff/Opt-in Plaintiff who 

has submitted a consent to join in the above-referenced case to date shall be tolled 

indefinitely as of the date he or she filed his or her consent to join, until such time that the 

Parties agree in writing that the statute of limitations shall begin running again;

4. The Parties agree that in any re-filed case the Virgin Islands FLSA claims (i.e. the Rule 

23 claims) shall relate back to and be deemed to have been filed on June 25, 2020;

5. To the extent settlement discussions do not result in a settlement, the Parties agree that 

Plaintiff will re-file the instant case, that Defendant will file its Answer within 10 days of 

the date the Complaint is re-filed, and that the Parties will seek an expedited discovery 

period of no more than 90 days to complete any outstanding discovery;

6. If/when the case is re-filed, the Parties agree they will note the re-filed case as being 

related to the above-captioned case and will request that the re-filed case be assigned/reassigned to the same Judge;

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7. Any discovery responses already served in the above-captioned case will have the same 

effect in any subsequently re-filed case as if they had been served in response to 

discovery requests made in the re-filed case;

8. Any discovery responses and document productions that remain outstanding and due to 

be served shall remain outstanding and due to be served in the re-filed case within 15 

days following the Answer;

9. The Defendant will share information about the collective and putative class members 

subject to the mediation privilege as noted below within 10 days of this agreement.

o The mediation privilege will not extend to documents that the parties agree would 

be subject to Plaintiff’s discovery requests to which no objection was stated by 

Defendant.

o The data produced related to the USVI class shall be subject to the mediation 

privilege unless and until at the conclusion of the stay period contemplated herein, 

the Plaintiff secures that data through the normal channels of discovery. The 

mediation privilege shall not make such information undiscoverable in the Book v. 

Schear matter, if that matter proceeds.

o This production will include all time sheets and pay records in Defendant’s 

possession/control for the USVI project for class/collective members.

o Within 5 days of receipt of these documents, Plaintiff will inform Defendant of 

any deficiencies and Defendant will undertake a review of its records and produce 

any documents responsive to the deficiency notice which are within the above 

described categories;

10. The Plaintiff shall secure an expert to analyze the Defendant’s records and data to create 

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a damages projection;

11. The Plaintiff shall provide a copy of this report to Defendant within 45 days of this 

agreement and the report shall be subject to the mediation privilege;

12. The Defendant shall then have the opportunity to secure an expert to create a responsive 

report and, if it elects to secure a responsive expert, shall provide that report to Plaintiff 

within 30 days of receiving the Plaintiff’s expert report;

13. The Defendant’s expert report shall also be subject to the mediation privilege;

14. Notwithstanding the above, either party can waive the privilege as to their own expert 

report without being in violation of the mediation privilege and/or this Stipulation. 

However, any such waiver shall not circumvent the mediation privilege as to the 

underlying information utilized by an expert to create the expert report;

15. The Parties shall then schedule a second day of mediation with mediator Neil Flaxman 

within 20 days after Defendant provides its report to Plaintiff, and if Defendant does not 

elect to retain an expert, no later than 50 days after it receives Plaintiff’s report;

16. The Parties understand that Plaintiff’s expert fees resulting from this agreement shall be 

taxable to Defendant as costs in any voluntary settlement or judgment in this matter, as 

applicable;

17. The Plaintiff agrees to cap his expert’s fees resulting from this agreement at no greater 

than $15,000;

18. In exchange for the mutual promises, agreements and stipulations herein, the Parties 

agree that liquidated damages shall be equal to 85% of the damages calculated due under 

the Virgin Islands FLSA, or in the event that the case does not settle, 85% of the damages 

awarded pursuant to the Virgin Islands FLSA;

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19. The Parties agree that Defendant’s counsel may accept service of the Complaint filed in 

Book v. Schear Construction, LLC, and that shortly thereafter the Parties will jointly seek 

a stay of that case, until such time as the Parties have completed the procedures outlined 

herein; and

20. The deadlines laid out in this Stipulation may be extended by mutual written consent of 

the Parties.

21. To date, no settlement has been reached regarding the claims asserted in the 

case. However, if the Parties reach a negotiated settlement, they agree to promptly re-file 

the case, and to seek Court-approval of any settlement regarding FLSA and/or Rule 23 

(Virgin Islands FLSA) claims.

STIPULATED AND AGREED TO ON THIS 30th day of November, 2021, by:

By: /s/ Andrew R. Frisch

Andrew R. Frisch, Esq.

MORGAN & MORGAN, P.A.

8151 Peters Road, Suite 4000

Plantation, FL 33324

Telephone: (954) WORKERS

Facsimile: (954) 327-3013

Email: afrisch@forthepeople.com

Attorneys for Plaintiff and the 

Putative Collective and Class 

By: /s/ Jesse I. Unruh

Jesse I. Unruh, Esq. 

Florida Bar No. 93121 

/s/ Ashwin R. Trehan 

Ashwin R. Trehan, Esq.

Florida Bar No. 42675

SPIRE LAW, LLC

ashwin@spirelawfirm.com

jesse@spirelawfirm.com

sarah@spirelawfirm.com

Attorneys for Defendant

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