Solis v. New China Buffet No 8, Inc et al
Filing
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ORDER denying 31 Motion to Dismiss Party. Ordered by Judge C. Ashley Royal on 9/14/11 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
HILDA L. SOLIS,
Secretary of Labor,
United States Department of Labor,
Plaintiff,
v.
NEW CHINA BUFFET #8, INC., and
YUN DA CHEN, an Individual,
Defendants.
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No. 5:10‐CV‐78 (CAR)
ORDER ON DEFENDANTS’ MOTION TO DROP A PARTY
This matter comes before the Court on Defendants’ Motion to Drop a Party [Doc.
31]. In their motion, Defendants request that Defendant New China Buffet #8, Inc. be
removed as a party pursuant to Rule 21 of the Federal Rules of Civil Procedure because
the corporation is inactive and dissolved. See Fed. R. Civ. P. 21. Having considered the
parties’ briefs and the applicable law, the Court has determined that Defendants’
Motion to Drop a Party is procedurally improper and therefore DENIED.
I. FACTS AND PROCEDURAL HISTORY
On February 25, 2010, the Secretary of Labor filed a Complaint against New
China Buffet #8, Inc., Yun Da Chen, and Yong Kai Chen, alleging that Defendants
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violated various provisions of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C.
§§ 201‐219. Plaintiff seeks to enjoin Defendants from violating the FLSA and from
withholding back wages owed to forty‐eight employees over a three‐year period.
Plaintiff also seeks liquidated damages equal to those back wages.
Prior to the filing of the Complaint in this case, New China Buffet #8, Inc. was
dissolved under Georgia law. The corporation adopted Articles of Dissolution on April
15, 2009. It filed its Certificate of Notice of Intent to Dissolve with the Georgia Secretary
of State on July 27, 2009, and the Secretary of State certified a Certificate of Dissolution
on that date.
Prior to its dissolution, Defendant Yun Da Chen was the sole owner of Defendant
New China Buffet #8, Inc. He was the Chief Executive Officer, Chief Financial Officer,
Secretary, and Registered Agent for the Corporation. When the corporation was
dissolved, all remaining assets were distributed to Defendant Yun Da Chen.
The restaurant known as New China Buffet #8 is still in operation. It is operated
by D&D Restaurant, Inc. Wen Hai Yang, a former employee of New China Buffet #8,
Inc., owns D&D Restaurant, Inc.1
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It is unclear whether Yang has already bought the restaurant operation or is currently buying the
restaurant operation from Defendant Chen. [See Doc. 36, Doc. 38].
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II. DISCUSSION
Defendants now request that the Court drop Defendant New China Buffet #8,
Inc. as a party to this action pursuant to Rule 21 of the Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 21. They argue that under Georgia law, Defendant Yun Da Chen, as
sole shareholder of New China Buffet #8, Inc., would be liable for all monetary
judgments against the corporation and that injunctive relief against a dissolved
corporation would be valueless. Thus, they contend that dropping New China Buffet
#8, Inc. as a party will simplify the case and serve the interests of administrative and
judicial efficiency without prejudicing Plaintiff.
This Court cannot determine the issues raised in this motion pursuant to Rule 21.
Rule 21, entitled “Misjoinder and Nonjoinder of Parties,” enables the court “on just
terms . . . [to] add or drop a party.” Fed. R. Civ. P. 21. The decision “is left to the sound
discretion of the trial court.” Lampliter Dinner Theater, Inc. v. Liberty Mut. Ins. Co., 792
F.2d 1036, 1045 (11th Cir. 1986). Rule 21, however, “primarily addresses parties, not
factfinding.” Id.
In this case, the Secretary’s response necessarily requires factfinding. The
Secretary argues that she has interest in obtaining injunctive relief against a corporation
to enjoin violations of the FLSA, even when the corporation has been dissolved. In
support, she asserts that “upon further discovery, the Secretary may be able to establish
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that D&D is a mere continuation of New China Buffet #8, Inc. or that the transaction
was entered into fraudulently as a means of avoiding liability.” [Doc. 36, emphasis
added]. This statement unequivocally calls for a factual determination that cannot yet
be supported by the record. Whether the Secretary is able to establish this conjecture
after discovery has yet to be seen. Nevertheless, such an argument that requires this
Court to decide a factual issue should be brought forth, if at all, in a dispositive motion
after discovery.
Even if this Court could consider factual issues under Rule 21, Rule 21 is
generally used to preserve a federal court’s diversity jurisdiction by dropping a
nondiverse dispensable party or cure defects in joinder. Fritz v. Am. Home Shield
Corp., 751 F.2d 1152, 1154 (11th Cir. 1985) (Rule 21 has been used “to preserve diversity
jurisdiction by dropping a nondiverse party not indispensable to the action.”); United
States v. E.I. du Pont de Nemours & Co., 13 F.R.D. 490, 493 (N.D. Ill. 1953) (“Rule 21
controls in situations where Rule 18, 19, or 20 have been violated.”). This case is
predicated on an alleged violation of FLSA and therefore arises under federal law.
Defendant’s motion is not being used to perfect diversity jurisdiction. Additionally,
Plaintiff’s named New China Buffet #8, Inc. as an initial defendant in the Complaint and
did not later join it as a defendant under Rule 18, 19, or 20. Therefore, the Motion to
Drop a Party using Rule 21 is procedurally inappropriate.
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For the reasons discussed above, Defendants’ Motion to Drop a Party [Doc. 31] is
DENIED.
SO ORDERED this 14th day of September, 2011.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
LMH/ssh
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