HA v. BAUMGART CAFE OF LIVINGSTON et al
Filing
119
OPINION. Signed by Judge Esther Salas on 3/27/2018. (JB, )
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
SIU CHING HA and PAK CHUAN
:
LEONG, on behalf of themselves and
:
others similarly situated,
:
:
Plaintiffs,
:
:
v.
:
:
4175 LLC d/b/a BAUMGART’S CAFÉ, :
et al.,
:
:
Defendants.
:
:
Civil Action No. 15-5530 (ES) (MAH)
OPINION
SALAS, DISTRICT JUDGE
This matter comes before the Court on Plaintiffs’ motion to conditionally certify a
collective action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). (D.E. No.
100). The Court has jurisdiction under 28 U.S.C. § 1331. Having considered the parties’
submissions in support of and in opposition to the instant motion, the Court decides the motion
without oral argument. See Fed. R. Civ. P. 78(b). For the reasons set forth below, the Court
DENIES Plaintiffs’ motion without prejudice.
I.
BACKGROUND
The Parties. Plaintiffs (comprising a chef, waiter, and delivery driver at three different
restaurants) and prospective collective action members are former employees of Defendants
(comprising four different restaurants and their owners and managers).1
1
The relevant background facts are adopted from the parties’ pleadings and submissions in support of and in
opposition to the instant motion.
1
Plaintiff Siu Ching Ha (“Ha”) filed an initial Complaint on behalf of himself and others
similarly situated on July 14, 2015. (See D.E. No. 1). Ha worked as a chef for Defendant Baumgart
Café of Livingston, Inc. d/b/a Baumgart’s Café located at 4175 Town Center Way in Livingston,
New Jersey 07039 (“Baumgart Livingston”) from June 15, 2014 to April 15, 2015. (D.E. No. 25,
(“Am. Compl.”) ¶ 8; D.E. No. 100-3 (“Ha Aff.”) ¶ 4).2
Plaintiff Pak Chuan Leong (“Leong”) worked as a waiter for Defendant Baumgart’s
Edgewater Corp. d/b/a Baumgart’s Café located at 59 The Promenade in Edgewater, New Jersey
07020 (“Baumgart Edgewater”) from April 7, 2014 to November 30, 2014. (Am. Compl. ¶ 9; D.E.
No. 100-4 (“Leong Aff.”) ¶ 4). Leong, together with Ha, filed an Amended Complaint on April
1, 2016. (See Am. Compl.).
Plaintiff Laura Wahyudi (“Wahyudi”) opted in to this action on April 18, 2016. (See D.E.
No. 29). Wahyudi worked as a delivery driver for Defendant Baumgart Restaurant, Inc. d/b/a
Baumgart Café located at 45 East Palisade Avenue in Englewood, New Jersey 07631 (“Baumgart
Englewood”) from April 14, 2012 to February 11, 2016. (D.E. No. 105-5 (“Wahyudi Aff.”) ¶¶ 45; D.E. No. 101-3 (“Wahyudi Dep.”) at 59).
The Amended Complaint includes Defendant Baumgart’s of Ridgewood, Inc. located at
158 Franklin Avenue in Ridgewood, New Jersey (“Baumgart Ridgewood”), although none of the
Plaintiffs have worked there and there are no allegations of wrongdoing by Baumgart Ridgewood.
(See Am. Compl.).3
2
Plaintiffs allege that Defendant 4175 LLC d/b/a is the successor corporate employer to Baumgart Livingston
because “they employed substantially the same waiters, deliverymen, and kitchen staff working substantially the same
work in substantially the same working conditions.” (Am. Compl. ¶ 17).
3
The Court refers to Baumgart Livingston, Baumgart Edgewater, Baumgart Englewood, and Baumgart
Ridgewood collectively as the “Baumgart Defendants.” The Baumgart Defendants together with Defendants Joseph
Yuan, Zong Hou Xie a/k/a Peter Xie, Gou-Fu Wang a/k/a Sam Wang, Steve Wu, Marsha Wu, and Leung Fong Ho
a/k/a Alex Ho are collectively referred to as “Defendants.” And Ha, Leong, and Wahyudi are referred to collectively
as “Plaintiffs.”
2
According to Plaintiffs, the Baumgart Defendants “are all members of a Chinese-American
chain store ‘founded in the mid 80’s by Steve and Marsha Wu along with their partner Sam Wang.”
(Id. ¶ 27). Plaintiffs further allege that the Baumgart Defendants “[were] and continue[] to be, a
single and joint employer and ha[ve] had a high degree of interrelated and unified operation, and
share common management, centralized control of labor relations, common ownership, common
control, common website, . . . common business purposes and interrelated business goals.” (Id.
¶ 28).
Allegations. Plaintiffs allege that (i) Defendants failed to compensate Plaintiffs and the
purported class members at the statutory minimum wage in violation of the FLSA and New Jersey
Labor Law, NJWHL §§ 34:11-56 (Counts I and II); (ii) Defendants failed to pay Plaintiffs and the
purported class members overtime compensation at the statutory rate of time-and-a-half for all
hours worked in excess of 40 hours per workweek in violation of the FLSA and New Jersey Labor
Law (Counts III and IV); and (iii) Defendants violated 26 U.S.C. § 7434, which provides that if
any person willfully files a fraudulent information return with respect to payments purported to be
made to any other person, such other person may bring a civil action for damages against the
person so filing such return (Count V).
(See generally id.).
“Plaintiffs bring this action
individually and on behalf of all other former non-exempt deliverymen, servers, busboys, and
kitchen staff who have been or were employed by the Defendants for up to the last three (3) years
. . . and whom were not compensated at least the hourly minimum wage and/or overtime
compensation for all hours worked in excess of forty (40) hours per week (‘Collective Class
Members’).” (Id. ¶ 47).
Motion for Conditional Class Certification. On May 12, 2017, Plaintiffs moved for
conditional certification of the FLSA collective action and publication of the proposed notice of
3
pendency. (D.E. No. 100-9 (“Pls. Mov. Br.”); D.E. No. 100-6 (“Notice”)). Baumgart Livingston
and Baumgart Ridgewood opposed Plaintiffs’ motion on June 5, 2017. (D.E. No. 101 (“Baumgart
Livingston & Ridgewood Opp. Br.”)). Baumgart Edgewater opposed Plaintiffs’ motion on June
6, 2017. (D.E. No. 103 (“Baumgart Edgewater Opp. Br.”)). On June 12, 2017, Plaintiffs submitted
a reply in further support of their motion. (D.E. No. 104 (“Pls. Reply Br.”)). The motion is now
ripe for resolution.
II.
LEGAL STANDARD
“The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees
that cannot be modified by contract.” Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1527
(2013). In Section 216(b), the FLSA grants employees the right to bring suit on behalf of
“themselves and other employees similarly situated.” 29 U.S.C. § 216(b); see Symczyk, 133 S. Ct.
at 1527. Such an FLSA suit, not to be confused with a class action under Federal Rule of Civil
Procedure 23, is known as a “collective action.” “A collective action allows . . . plaintiffs the
advantage of lower individual costs to vindicate rights by the pooling of resources.” HoffmannLa Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). To become parties to a FLSA collective
action, employees must affirmatively opt-in by filing written consents with the court. Camesi v.
Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 242-43 (3d Cir. 2013) (citing 29 U.S.C. § 216(b)).
This feature distinguishes the collective-action mechanism under Section 216(b) from the classaction mechanism under Rule 23, where, once the class is certified, those not wishing to be
included in the class must affirmatively opt-out. Id. at 243.
Courts approach collective action certification under the FLSA by engaging in a two-step
process. Id. The first step is deciding whether to grant “conditional certification”—the type of
certification at issue here. Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 192 (3d Cir.
4
2011), rev’d on other grounds, 133 S. Ct. 1523 (2013). Applying a “fairly lenient standard,” courts
make a preliminary determination as to whether the named plaintiffs have made a “modest factual
showing” that the employees identified in their complaint are “similarly situated.” Zavala v. WalMart Stores, Inc., 691 F.3d 527, 536 & n.4 (3d Cir. 2012). “Under the modest factual showing
standard, a plaintiff must produce some evidence, beyond pure speculation, of a factual nexus
between the manner in which the employer’s alleged policy affected her and the manner in which
it affected other employees.” Symczyk, 656 F.3d at 193. “Being similarly situated” means that
members of a collective action are “subjected to some common employer practice that, if proved,
would help demonstrate a violation of the FLSA.” Zavala, 691 F.3d at 538.
A court’s grant of conditional certification is an exercise of its “discretionary power, upheld
in Hoffmann–La Roche, to facilitate the sending of notice to potential class members, and is neither
necessary nor sufficient for the existence of a representative action under FLSA.” Symczyk, F.3d
at 194 (internal quotation marks and citations omitted). Upon a court’s preliminary determination
that the plaintiffs have successfully produced some evidence of similarly situated employees,
notice of the suit is sent to this class of employees, who may join the action by returning a signed
consent form to the court. Camesi, 729 F.3d at 242-43 (citing 29 U.S.C. § 216(b)).
The second step is deciding whether to grant final certification. Symczyk, 656 F.3d at 192.
During this step, the plaintiffs must satisfy a preponderance of the evidence standard. Zavala, 691
F.3d at 537. In other words, the plaintiffs will have to show that it is “more likely than not” that
“plaintiffs who have opted in are in fact similarly situated to the named plaintiffs.” Id.
5
III.
DISCUSSION
A. Standard for Evaluating Plaintiffs’ Motion
As noted above, courts approach collective-action certification under the FLSA by
engaging in a two-step process: conditional certification and final certification. Camesi, 729 F.3d
at 242-43; Zavala, 691 F.3d at 537-38. Defendants aver that the Court should apply either a
“heightened scrutiny test” under step one or the “higher evidentiary standard” of step two in
assessing Plaintiffs’ motion because (i) discovery was concluded over six months ago; and (ii)
“Plaintiffs’ deposition testimony in this case did not strengthen Plaintiffs’ factual showing that
they were similarly situated to other putative class members.”
(Baumgart Livingston &
Ridgewood Opp. Br. at 6-10; Baumgart Edgewater Opp. Br. at 2). Plaintiffs acknowledge that the
parties engaged in some discovery, but counter that the “modest factual showing” standard is
appropriate here because (i) “the discovery that occurred in this case was limited”; (ii) “the
depositions of Defendants have not occurred”; and (iii) “the depositions of the three Plaintiffs have
been taken recently and for purposes limited to Plaintiffs’ Motion.” (Pls. Reply Br. at 3; see also
Pls. Mov. Br. at 7).
The Court concludes that the parties have not engaged in discovery sufficient to make a
final determination and therefore reviews the parties’ arguments under the first-step analysis.
Indeed, although discovery is not a requirement at this stage, courts routinely consider conditional
certification under the “modest factual showing standard” after the parties have engaged in limited
discovery. See, e.g., Symczyk, 656 F.3d at 193 (“Under the modest factual showing standard, a
plaintiff must produce some evidence . . . .”) (emphasis added); Shala v. Dimora Ristorante, Inc.,
No. 16-3064, 2016 WL 7386954, at *2 (D.N.J. Dec. 21, 2016) (“A court usually considers
conditional certification after the parties have engaged in limited discovery.”); Depalma v. Scotts
6
Co. LLC, No. 13-7740, 2016 WL 7206151, at *1 (D.N.J. Mar. 31, 2016) (“The parties conducted
discovery for the limited purpose of this conditional certification motion.”).
B. Analysis
Defendants argue that Plaintiffs have failed to meet the burden of proof for conditional
certification “under any standard however lenient or modest.”
(Baumgart Livingston &
Ridgewood Opp. Br. at 9; see also Baumgart Edgewater Opp. Br. at 1-2). The Court agrees.
There are several reasons why conditional certification, even in the initial and lenient notice
phase, is not appropriate at this time.4 The most glaring issue, however, is the named Plaintiffs’
failure to equate their personal situations with the other putative class members. In support of their
motion, Plaintiffs assert that “they experienced a common set of policies and practices by
Defendants as to the payment of wages[] and overtime wages in violation of the FLSA,” and “there
are additional former and current employees who have been victim to the same unlawful
employment practices.” (Pls. Mov. Br. at 5). To begin, the Court notes the paucity of Plaintiffs’
allegations in their Amended Complaint. There, Plaintiffs have provided mere generalizations and
legal conclusions about the putative class members and have failed to put forth any relevant facts
for the Court to consider at this stage (such as the names of any similarly situated employees or
the years in which those employees worked). These basic facts are readily ascertainable at the
pleading stage even before discovery, and their absence is noticeable. See White v. Rick Bus Co.,
4
As an initial matter, the Court notes that Plaintiffs’ submissions are inconsistent—and the Court is unclear—
on exactly which employees Plaintiffs seek to include in their purported collective action. In their Amended
Complaint, Plaintiffs describe the putative class as Plaintiffs and “all other and former non-exempt deliverymen,
servers, busboys, and kitchen staff.” (Am. Compl. ¶ 47). But in their submissions in support of the instant motion,
“Plaintiffs seek to certify a class of all non-managerial employees” of the Baumgart Defendants. (Pls. Reply Br. at 4;
Pls. Mov. Br. at 10-11). In the alternative, Plaintiffs seek to certify “chefs at Baumgart’s Livingston location, waiters
at Baumgart’s Edgewater location and delivery persons at Baumgart’s Englewood location” (which the Court refers
to as the “three alternative subclasses”). (Pls. Mov. Br. at 10). Yet, in their proposed Notice accompanying their
motion, Plaintiffs ask this Court to permit notice of the lawsuit to “[a]ll individuals employed” by the Defendants.
(Notice at 1; see also D.E. No. 100-8, Proposed Publication Order ¶ 1).
7
743 F. Supp. 2d 380, 382, 388 (D.N.J. 2010) (noting scarcity of plaintiffs’ allegations at the
pleading stage and denying employee’s motion for conditional certification).
In support of their motion for conditional certification, each of the Plaintiffs also submitted
an affidavit. But the affidavits are unhelpful because each contains the same sort of blanket
assertions without factual support or is based on inadmissible hearsay.5 The facts shared by the
named Plaintiffs and the putative class members are that they are former employees of one of the
four Baumgart Defendants and each worked in excess of 40 hours per workweek but did not
receive adequate minimum wage or overtime compensation. (See Pls. Mov. Br. at 4; Ha Aff.;
Leong Aff.; Wahyudi Aff.). But Plaintiffs held different positions, had different job requirements,
and worked for different Baumgart Defendants from each other and from members of the putative
class. In fact, none of the Plaintiffs ever worked at Baumgart Ridgewood and none of the alleged
violations pertain to that Defendant. Even more, Plaintiffs have not provided any evidence to
suggest that they have personal knowledge or otherwise observed other non-managerial employees
(or any employee in the three alternative subclasses) fail to receive adequate minimum wage or
work in excess of a 40-hour workweek. Plaintiffs’ evidence in support of their motion (and the
deficiencies associated with it) is summarized below.
Ha’s Allegations & Affidavit. Ha alleges that, while working as a chef at Baumgart
Livingston, he worked 65 hours each week with no break other than approximately 10 minutes to
eat breakfast, lunch, and dinner. (Am. Compl. ¶¶ 69-72). He was paid a flat $750 every half
month and was not compensated at least one-and-one-half of the minimum wage or his calculated
5
“Only admissible evidence may be considered in deciding a motion for conditional class certification under
29 U.S.C. § 216(b) of the FLSA.” Kuznyetsov v. W. Penn Allegheny Health Sys., Inc., No. 09-0379, 2009 WL
1515175, at *3 (W.D. Pa. June 1, 2009); see also L. Civ. R. 7.2(a) (“Affidavits shall be restricted to statements of fact
within the personal knowledge of the affiant.”); Dreyer v. Altchem Envtl. Servs., Inc., No. 06-2393, 2007 WL
7186177, at *3 (D.N.J. Sept. 25, 2007) (“Courts will not consider affidavits that are not founded on personal
knowledge.”).
8
hourly wage, whichever is greater, for all hours worked above 40 in each workweek. (Id. ¶¶ 7374). In his affidavit, Ha attests that two “fry woks (kitchen workers whose duties included frying
meats in oil, in a wok)” named Hu and Zheng were paid $110 per day, but never indicates the
number of hours the fry woks worked. (Ha Aff. ¶¶ 13-14). Ha also attests that the “waitstaff was
not paid overtime” (id. ¶ 17), but does not explain the number of hours the waitstaff worked or
how he came to learn this specific assertion. Likewise, without explaining the basis for his
knowledge, Ha claims, “[p]ersonally, I know that many times Peter [Xie] would not pay the chefs.”
(Id. ¶ 36). Instead, Ha explains, “I know these things because employees would discuss their terms
and conditions of employment, the restaurant’s debt, and their resulting pay shortfalls, in the
kitchen and in the delivery vans coming and going to work.” (Id. ¶ 22). These conclusory
statements, however, are inadequate to meet even Plaintiffs’ modest standard here. See White, 743
F. Supp. 2d 380, 388-89 (D.N.J. 2010) (finding deficient and conclusory plaintiff’s statement “that
other similarly situated employees were denied overtime is ‘based upon my conversations with
them and in many instances, the comparison of our weekly pay checks’”).
Moreover, rather than demonstrating that Ha and the putative class members are similarly
situated, Ha’s affidavit suggests that Baumgart Livingston’s employees were actually situated
differently from him. For example, he notes that “workers other than [him] were paid every week
rather than every two weeks.” (Id. ¶ 13). And, while Ha was supposed to be paid a flat rate “almost
always” in cash (id. ¶¶ 8-9), some unidentified employees were paid by check (id. ¶ 16), while the
waitstaff was paid a $3.25 hourly base rate plus tips (id. ¶ 17), and the delivery staff was paid “a
flat rate every week, plus tips every evening” (id. ¶ 20).
Further, Plaintiffs here request that the purported class include all non-managerial
employees or the three alternative subclasses, yet Ha appears to include claims on behalf of an
9
individual named A’Xiao, whom Ha describes as the former “Manager” of Baumgart Livingston.
(Id. ¶¶ 37-39). According to Ha, “A’Xiao was also not paid every time.” (Id. ¶ 38). This, too,
weighs against granting Plaintiffs’ motion at this time.
Leong’s Allegations & Affidavit. Leong similarly alleges that, while working as a waiter
at Baumgart Edgewater, he worked 56 hours a week at all relevant times, at $2.50 per hour, without
compensation of at least one-and-one-half of the minimum wage or his calculated hourly wage,
whichever is greater, for all hours worked above 40 in each workweek. (Am. Compl. ¶¶ 76-80;
Leong Aff. ¶¶ 10-11). Like Ha’s affidavit, Leong’s affidavit in support of Plaintiffs’ motion is
riddled with unsupported conclusory allegations, contradictions, and facts demonstrating that other
employees were situated differently—as opposed to similarly—from him. Leong claims that “[i]t
is my belief that my fellow waiters were compensated at around the same rate I was at two dollars
and fifty cents ($2.50) per hour, also receiving cash tips” and that “[o]ther waiters were also paid
flat sums every two weeks, without overtime.” (Leong Aff. ¶¶ 13-14). Yet, Leong does not
provide the Court with any facts for the basis of his “belief.” As another court noted, “[u]nder the
standard for conditional class certification, there must be a factual nexus, not an assumption of
facts.” Rogers v. Ocean Cable Grp. Inc., No. 10-4198, 2011 WL 6887154, at *4 (D.N.J. Dec. 29,
2011) (emphasis in original). As to non-waitstaff employees, Leong asserts that “[f]rom my
understanding, the delivery workers were compensated in a similar fashion to the waitstaff”
(Leong Aff. ¶ 19), but nowhere explains how he came to this understanding. Regarding chefs,
Leong states, “I recall that there were at least fifteen chefs, although I do not know much about
how their schedules worked. About four or five of them were Chinese and about ten of them were
Mexican.” (Id. ¶ 21). Leong provides this Court with no information on how any of Baumgart
Edgewater’s policies—or those of any other Defendant—affected these chefs.
10
Wahyudi’s Allegations & Affidavit. Wahyudi similarly alleges that, while working as a
delivery driver at Baumgart Englewood, she regularly worked between 60 and 63 hours per week
without overtime. (Wahyudi Aff. ¶¶ 10-13). Wahyudi’s affidavit is likewise unhelpful because it
contains the same flaws as those of Ha and Leong and, in any event, it is based on hearsay.
Wahyudi states that “[o]ther delivery drivers were also paid flat sums every two weeks, without
overtime” (id. ¶ 13), yet she, too, fails to explain how she came to know this information. Wahyudi
also attests to the conditions of the waitstaff at Baumgart Englewood, but explains that “I know
what I know about how Baumgart Englewood’s waitstaff was treated from talking with my
husband.” (Id. ¶¶ 13-17, 36). The Court agrees with Defendants that Wahyudi’s statements
regarding the treatment of waitstaff comprise inadmissible hearsay,6 and the Court will not rely on
them.7
In sum, the Court finds that, while the threshold for conditional certification is modest,
Plaintiffs have nevertheless failed to provide evidence of a “factual nexus between the manner in
which the employer’s alleged policy affected [them] and the manner in which it affected other
employees.” Symczyk, 656 F.3d at 192. Plaintiffs are asking this Court to speculate, based on their
own affidavits alone, that other workers—who held different positions, performed different
requirements, and worked at different locations—are similarly situated to them. “Courts in this
Circuit, however, have routinely found that such speculation is not proper.” Shala, 2016 WL
7386954, at *3 (collecting cases). Put differently, Plaintiffs ask this Court to assume that because
their rights may have been violated, the rights of all non-managerial employees (or those
employees composing the three alternative subclasses) at the different Baumgart Defendants were
6
(See Baumgart Livingston & Ridgewood Opp. Br. at 13).
7
See supra at n.5; see also Kuznyetsov, 2009 WL 1515175, at *3 (refusing to consider information in affidavits
based on “other employees” as inadmissible hearsay).
11
also violated. But, again, the law requires “a factual nexus, not an assumption of facts.” Rogers,
2011 WL 6887154, at *4. Plaintiffs have submitted no evidence—other than their allegations—
to support the existence of a companywide policy in violation of the FLSA. And “the alleged
application of a uniform policy does not, without more, show that potential class members are
similarly situated.” Asirifi v. W. Hudson Sub-Acute Care Ctr., LLC, No. 11-4039, 2014 WL
294886, at *3 (D.N.J. Jan. 24, 2014).
Finally, the evidence that has been submitted appears to demonstrate that some employees
are not similarly situated to Plaintiffs, in that they worked part time, may not have worked
overtime, were paid differently, or held management positions. At this stage, it would be
inappropriate for the Court to conditionally certify either all non-managerial employees or the
three alternative subclasses. See Shala, 2016 WL 7386954, at *3 (declining to conditionally certify
class where “at least some other employees [were] not similarly situated” to the named plaintiff)
(emphasis in original).
Accordingly, the Court denies Plaintiffs’ motion for conditional certification of the FLSA
collective action without prejudice to Plaintiffs refiling this motion at a later date.8
IV.
CONCLUSION
For these reasons, the Court DENIES without prejudice Plaintiffs’ motion for conditional
certification of the FLSA collective action. An appropriate Order accompanies this Opinion.
s/Esther Salas
Esther Salas, U.S.D.J.
8
See Halle v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 224-25 (3d Cir. 2016) (“A denial at the
conditional certification stage is not necessarily a final determination of whether the matter may proceed as a collective
action . . . . [Courts may] “permit the issue to be revisited after discovery or efforts by the named plaintiff to re-define
the contours of the proposed collective action.”).
12
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