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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Josephine Tijerino,

Plaintiff,

v. 

Stetson Desert Project LLC, et al.,

Defendants.

No. CV-15-02563-PHX-SMM

ORDER 

Before the Court is Plaintiff Tamicka Toliver (“Plaintiff Toliver”) and Defendants 

Stetson Desert Project LLC, Cory J. Anderson, and Cary Anderson’s (collectively, 

“Defendants”) Joint Motion to Approve Settlement and Stipulation for Dismissal. (Doc. 

91.) Because this matter involves Fair Labor Standards Act (“FLSA”) claims asserted 

against Defendants, the parties were ordered to submit the settlement agreement to the 

Court for approval and to ensure its enforceability. (Doc. 88 at 1-2.) After review and 

consideration, the Court will grant the parties’ joint motion and approve the proposed 

settlement agreement.

I. BACKGROUND

In 2013, Plaintiff Toliver was hired by Defendants to work as a dancer at Le Girls 

Gentlemen’s Club. (Doc. 1 at 3.) Defendants classified Plaintiff Toliver as an independent 

contractor, and in doing so, did not pay Plaintiff Toliver the minimum wage. (Id. at 5.)

Plaintiff Toliver brought this action against Defendants for unpaid wages pursuant 

to the Fair Labor Standards Act (“FLSA”). (Id. at 10.) At the outset of the case, and 

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pursuant to the Court’s Order, the parties briefed the issue of whether Plaintiff Toliver was 

an “employee” within the meaning of the FLSA. (Doc. 21 at 3-4.) The Court found that 

Plaintiff Toliver was an independent contractor under the economic realities test set forth 

in Real v. Driscoll Strawberries Associates, Inc., 603 F.2d 748, 754 (9th Cir. 1979) and 

dismissed this matter for lack of subject matter jurisdiction. (Docs. 52 at 14; 62 at 5.)

The Ninth Circuit reversed this Court’s decision, finding that the statutory 

requirement that Plaintiff Toliver must be an employee as defined in the FLSA is a meritsbased determination, not a jurisdictional limitation that must be proven at the outset of the 

case. (Doc. 78-1 at 7, 13-14.)

On remand, Plaintiff Toliver and Defendants notified the Court that they reached an 

agreement to settle this matter. (Doc. 87 at 2.) Accordingly, the Court ordered the parties 

to submit a joint motion to approve settlement agreement and the settlement agreement to 

the Court for approval and to ensure its enforceability. (Doc. 88 at 1-2.)

II. DISCUSSION

Under the reasoning set forth in Lynn’s Food Stores, Inc. v. United States, 679 F.2d 

1350, 1352-53 (11th Cir. 1982), there are only two ways in which back-wage claims under 

the FLSA can be settled or compromised by employees.1 One, pursuant to 29 U.S.C. 

§ 216(c), the Secretary of Labor is authorized to supervise payment to employees of unpaid 

wages owing to them. Id. at 1353. The second way is provided in the context of litigation 

brought directly by employees against their employer pursuant to § 216(b) to recover back 

wages. Id. When an employee brings a private action for back wages and presents to the 

district court a proposed settlement, the district court “may enter a stipulated judgment after 

scrutinizing the settlement for fairness.” Id.

Outside of the FLSA context, the Court normally does not rule on a private 

settlement agreement negotiated between the parties. However, because this is a FLSA 

action against Defendants, the parties must seek approval of their settlement agreement to 

1 While the Ninth Circuit has not specifically addressed the issue, district courts in 

the Ninth Circuit have followed the reasoning set forth in Lynn’s Food Stores. See, e.g., 

Hand v. Dionex Corp., No. CV 06-1318-PHX-JAT, 2007 WL 3383601, at *1 (D. Ariz. 

Nov. 13, 2007).

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ensure its enforceability. The Court may approve the settlement if it is a fair and reasonable 

compromise of the issues. See Lynn’s Food Stores, 679 F.2d at 1354. 

The Court has reviewed the proposed settlement agreement. (Doc. 91-1.) According 

to the proposed settlement agreement, Defendants will pay a total of $1,500.000. (Id. at 2.) 

Specifically, Defendants will pay Plaintiff Toliver $1,000.00 and Plaintiff Toliver’s 

counsel $500.00. (Doc. 91 at 3.) 

The Court finds that the proposed settlement agreement is a fair and reasonable 

resolution of the issues. First, the Court finds the settlement amount reasonable, 

considering the parties stringently dispute the existence of an employment relationship. In 

addition, absent the settlement agreement, the parties would have spent a significant 

amount of time litigating this case and would have risked potential adverse rulings at trial

and again on appeal. Moreover, the proposed settlement agreement provides reasonable 

payments to Plaintiff Toliver’s counsel for attorney’s fees and court costs. Therefore, the 

Court will approve the proposed settlement agreement entered into between the parties.

III. CONCLUSION

Based on the foregoing,

IT IS HEREBY ORDERED granting the parties’ Joint Motion to Approve 

Settlement Agreement. (Doc. 91.) 

IT IS FURTHER ORDERED approving the parties’ proposed settlement 

agreement. (Doc. 91-1.)

IT IS FURTHER ORDERED directing the Clerk of Court to dismiss with 

prejudice Plaintiff Toliver’s case No. CV-15-02564-PHX-SMM.

Dated this 9th day of March, 2020.

Honorable Stephen M. McNamee

Senior United States District Judge

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