Choi v. Sushi Maru Express Corp.

Filing 158

OPINION AND ORDER granting Plaintiff's 148 Motion for reconsideration of the Court's 7/8/2022 Order; Granting Plaintiff leave to file a motion, by 10/28/2022, to modify the conditional certification order of 11/27/2019, for authorization to distribute notice of this FLSA action to the conditionally certified collectives by email and/or text message. Signed by Magistrate Judge Andre M. Espinosa on 10/12/2022. (mxw)

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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
DAE SUB CHOI, for himself and all others :
similarly situated,
:
:
Plaintiff, :
:
v.
:
:
SUSHI MARU EXPRESS CORP., et al.,
:
:
Defendants. :
:

Civil Action No. 17-5230-EP-AME
OPINION & ORDER

ESPINOSA, Magistrate Judge
This matter is before the Court on the motion by plaintiff Dae Sub Choi (“Plaintiff”) for
reconsideration of the Court’s July 8, 2022 Order, which denied Plaintiff’s request for leave to
file a motion for approval of supplementary notice to potential opt-in plaintiffs, pursuant to
Section 216(b) of the Fair Labor Standards Act (“FLSA”) (the “July 8 Order”) [ECF 148].
Defendants Sushi Maru Express Corp., Sushi Nara, Komolo, Inc., Kevin Kim, and Hak Jae Lim
(collectively, “Defendants”) oppose the motion. The Court has considered the written
submissions and decides the motion without oral argument. See Fed. R. Civ. P. 78(b). For the
reasons that follow, the motion is granted.
I.

BACKGROUND

On November 27, 2019, the District Court issued an order conditionally certifying this
case as a collective action pursuant to the FLSA, 29 U.S.C § 216(b) [ECF 91]. The order

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authorized notice to members of two conditionally certified collectives, consisting generally of
individuals working as sushi chefs and other hourly wage earners employed by Defendants’ food
service business, and directed Defendants to provide Plaintiff the last known mailing addresses
of individuals in those classes. However, notice could not be disseminated until the Court
approved its content, which occurred by Order dated March 22, 2022.
In their jointly filed letter of June 17, 2022, the parties raised a dispute concerning
whether Plaintiff should be permitted to send a second round of notice to the proposed
collectives by means of email and/or text message [ECF 141]. Plaintiff wished to seek the
District Court’s approval of a modified, supplementary notice procedure on the grounds that the
initial notice by mail had been ineffective, contending the list of postal addresses provided by
Defendants for its food service workers, in or about late 2019, was no longer accurate or reliable
in light of the intervening Covid-19 pandemic and its related impact on population and
employment shifts. After inviting and considering concise letter briefs from the parties [ECF
143, 145], this Court entered its July 8 Order denying Plaintiff leave to file a motion for approval
of modified and/or supplementary notice, on the basis that Plaintiff had failed to demonstrate
good cause for bringing the motion [ECF 147].
On July 21, 2022, Plaintiff filed this motion seeking reconsideration of the July 8 Order.
II.

DISCUSSION

To prevail on a motion for reconsideration, the moving party must identify dispositive
factual matters or controlling decisions of law overlooked by the court in reaching its decision.
L. Civ. R. 7.1(i); Bryan v. Shah, 351 F.Supp.2d 295, 297 n. 2 (D.N.J. 2005) (citing Bowers v.
Nat’l Collegiate Athletic Assoc., 130 F.Supp.2d 610, 612 (D.N.J. 2001). A court may not grant a

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motion for reconsideration unless the moving party shows at least one of the following: “(1) an
intervening change in the controlling law; (2) the availability of new evidence that was not
available when the court issued its order; or (3) the need to correct a clear error of law or fact or
to prevent manifest injustice.” See Banda v. Burlington County, 263 F. App’x 182, 183 (3d Cir.
2008) (citing Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). The Third
Circuit has emphasized that a motion for reconsideration is “extremely limited” in scope and
cautioned that it should “not to be used as an opportunity to relitigate the case.” Blystone v.
Horn, 664 F.3d 397, 415 (3d Cir. 2011).
Although reconsideration must be granted sparingly, Plaintiff has made a sufficient
demonstration for the Court to reconsider its July 8 Order, to prevent manifest injustice. Plaintiff
has argued that intervening circumstances between the conditional certification of this action in
November 2019 and distribution by postal mail upon approval granted in March 2022 have
diminished the efficacy of notice to potential members of the FLSA collectives. Here, the Court
does not reach any conclusions regarding whether the circumstances presented warrant
supplementary notice, as Plaintiff contends, nor does it express any view concerning the merits
of such a request. The relief Plaintiff seeks, to modify the procedure authorized by the
conditional certification order, is a matter requiring consideration by the District Court.
However, in the interest of justice, and to ensure Plaintiff has a full opportunity to present his
concern regarding notice to the FLSA collectives and seek appropriate relief, this Court
reconsiders its July 8 Order. Accordingly, it grants Plaintiff leave to file a motion to modify the
conditional certification order and obtain authorization for supplementary notice by email and/or
text message.

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III.

ORDER

Accordingly, for the foregoing reasons,
IT IS on this 12th day of October 2022,
ORDERED that Plaintiff’s motion for reconsideration of the Court’s July 8, 2022 Order
[ECF 148] is GRANTED; and it is further
ORDERED that Plaintiff is granted leave to file a motion to modify the conditional
certification order of November 27, 2019, for authorization to distribute notice of this FLSA
action to the conditionally certified collectives by email and/or text message; and it is further
ORDERED that Plaintiff shall file his motion no later than October 28, 2022.
/s/ André M. Espinosa
ANDRÉ M. ESPINOSA
United States Magistrate Judge

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