Choi v. Sushi Maru Express Corp.

Filing 163

MEMORANDUM ORDER denying 159 Motion for Disclosure of email addresses and cellphone numbers. The parties shall forthwith coordinate with Judge Espinosa to schedule a further status conference and move this matter forward expeditiously. Signed by Judge Evelyn Padin on 6/6/2023. (jd, )

Case 2:17-cv-05230-EP-AME Document 163 Filed 06/06/23 Page 1 of 9 PageID: 1413

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAE SUB CHOI, for himself and all others
similarly situated,
Plaintiffs,

No. 17cv5230 (EP) (AME)

v.

MEMORANDUM ORDER

SUSHI MARU EXPRESS CORP., et al.,
Defendants.
PADIN, District Judge.
Plaintiff Dae Sub Cho is a food service employee. Defendants are are sushi restaurants,
suppliers, and individuals involved with those businesses. Plaintiff alleges, on behalf of a putative
class, that Defendants have committed various Fair Labor Standards Act (“FLSA”) wage and
overtime violations. D.E. 1 (Compl.). The Honorable Madeline Cox Arleo, previously assigned
to this matter, conditionally certified a class on November 23, 2019. D.E. 91 (“Certif. Order”).
On March 22, 2022, Judge Arleo approved notice to that class via mail, personal delivery, or
courier service. D.E. 136 (“Notice Order”).
After many of the mailings were allegedly undeliverable, Plaintiff now asks the Court to
order Defendants to supplement the potential class members’ addresses with each employee’s: (1)
email address; (2) cell phone number; and (3) other contact information received since March 20,
2020. D.E. 159-1 (Kimm Decl.) ¶ 13. 1 Plaintiff also seeks leave to serve those individuals by text
message to their cell phones and by email. Id. ¶ 14. Text messages would be sent with an

1

Declaration of Plaintiff’s counsel Michael Kimm.

Case 2:17-cv-05230-EP-AME Document 163 Filed 06/06/23 Page 2 of 9 PageID: 1414

abbreviated summary of the matter and requesting an email address to provide the full Proposed
Notice of Pendency (the “Notice”). Id. The emails would contain the full Notice in English and
Korean. Id.
Defendants oppose. First, Defendants argue that Plaintiffs’ motion is essentially one to
reconsider, making the motion untimely by several years if measured from Judge Arleo’s
November 27, 2019 Certification Order. D.E. 162 (“Opp’n”) at 6. Second, Defendants argue that
Plaintiff has not presented “new evidence” justifying departure from that Certification Order. Id.
8. Third, Defendants argue that Plaintiff has failed to address issues raised by Judge Espinosa
regarding Plaintiff’s prior submission, specifically: (1) a lack of authority for modified notice; and
(2) Judge Arleo’s previous rejection of the exact type of expanded notice Plaintiff now seeks.
Opp’n 9. Plaintiff did not reply.
For the reasons below, the Court will DENY Plaintiff’s motion.
I.

BACKGROUND 2
A full history of this dispute helps contextualize Plaintiff’s request and the two-year gap

between the Certification Order and Notice Order. 3 On April 19, 2019, Plaintiff moved for
conditional collective-group certification. D.E.s 79-80. On November 27, 2019, the Court
conditionally certified a class comprising “sushi chefs, including subcontractor sushi chefs, or staff
workers at any time from January 18, 2010 to present; and (2) all individuals employed by
Defendants who were wage earners and who did not receive overtime pay since January 18,

2

Pursuant to Local Civil Rule 78.1, the Court decides this matter without oral argument.
Plaintiff originally filed this matter in the Southern District of New York before it was transferred
here. D.E. 41. There was significant motion practice before the matter substantively proceeded
here, including Plaintiff’s motion to send the action back to New York, D.E. 42, and Plaintiff’s
subsequent motion to consolidate this matter with another in this District, D.E. 67. Both were
denied. D.E.s 54, 74.
3

2

Case 2:17-cv-05230-EP-AME Document 163 Filed 06/06/23 Page 3 of 9 PageID: 1415

2019[.]” Certif. Order. The Court ordered Defendants to identify the members of the conditional
class and their contact information, and Plaintiff to submit a proposed form of notice. Id. The
Court denied Defendants’ requests to reconsider. D.E.s 100, 103.
The parties collaborated on English and Korean Notices; the Court approved them on
March 22, 2022. D.E.s 123, 136. According to Plaintiff’s counsel, he discovered at that time that
the list of class members comprised 73 business entities and 175 individuals. Kimm Decl. ¶ 10.
Of the mailings to the 175 individuals, the United States Postal Service returned 70 as
undeliverable. Id.; D.E. 141. Plaintiff’s counsel’s staff attempted to hand-deliver the remaining
105, finding in the process that more than half of the addresses were incorrect. Kimm Decl. ¶ 10.
Plaintiff’s counsel has concluded that about 50 percent of the 175 individual addresses
were not valid between April 2022, when mailings were attempted, and October 2022, when he
filed this application. Id. ¶ 11. Plaintiff’s counsel blames this on the individuals’ relocation, or
Defendants providing outdated information. Id. Plaintiff argues that mailed notice is clearly
ineffective, and therefore seeks to modify the conditional class certification order by permitting
notice by cell phone and email. Id. Judge Espinosa granted Plaintiff leave to file a motion
requesting that relief, which prompted this application. D.E. 158.
After Judge Arleo issued the November 27, 2019 Certification Order, Defendants, whose
new counsel had just entered an appearance, sought informally to reconsider the Certification
Order. D.E.s 95, 96. Judge Arleo rejected these efforts. D.E. 100. Plaintiff filed the Notice on
December 29, 2019 for the Court’s consideration. D.E. 97. Magistrate Judge Hammer, who was
previously assigned to this matter, then rejected Defendants’ third request to reconsider. D.E. 103
(denying D.E. 102).

3

Case 2:17-cv-05230-EP-AME Document 163 Filed 06/06/23 Page 4 of 9 PageID: 1416

In the intervening period—which coincided with the beginning of the COVID-19
pandemic—the parties had numerous conferences with Judge Hammer to resolve disputes
regarding the Notice, some of which stemmed from the parties’ dueling interpretations of Judge
Arleo’s ruling. See D.E. 113. This resulted in at least one amendment. D.E. 119. Plaintiff
submitted a new notice on August 3, 2020. D.E. 123.
For reasons that are not immediately clear, Plaintiff took no action for about a year. During
the intervening period, the matter was reassigned to Magistrate Judge Espinosa, who conducted
his first conference on November 9, 2021. After that conference, Judge Espinosa directed Plaintiff
to file an application for approval of the Notice by November 17, 2021, which “shall comply with”
prior orders. D.E. 131.
Plaintiff did not file the new Notice until January 12, 2022. D.E. 132. Defendants objected
based on the time that had passed, arguing “prejudice” stemming from the “passage of time with
respect to, inter alia, potential damages.” D.E. 133 at 2. On March 16, 2022, Plaintiff submitted
a status report indicating that the parties were still waiting for the Court’s review of the Notice.
D.E. 135. Though Plaintiff’s original motion for conditional certification requested service by
email and text message, the proposed Notice Order limited service to regular and/or certified mail,
courier service, or hand delivery. On March 22, 2022, Judge Arleo signed the Notice Order. No
reason for the limitation to non-electronic service was discussed on the record.
On June 27, 2022, Plaintiff filed a letter request for “leave to re-serve the putative collective
group by email and mobile phone text messaging methods.” D.E. 143. The matter was reassigned
to the undersigned the next day. D.E. 144. Judge Espinosa denied Plaintiff’s request on July 8,
2022. Judge Espinosa concluded that Plaintiff had not demonstrated good cause for supplemental

4

Case 2:17-cv-05230-EP-AME Document 163 Filed 06/06/23 Page 5 of 9 PageID: 1417

service because Plaintiff had submitted no authority for additional service, and because Judge
Arleo had already considered and declined to approve additional notice. D.E. 147.
Plaintiff moved to reconsider. D.E. 148. Over Defendants’ opposition, Judge Espinosa
granted the motion, without reaching the merits, to the extent of permitting Plaintiff to move this
Court to consider the additional service methods. D.E. 158.
II.

ANALYSIS
As an initial matter, despite Defendants’ objections, this motion is not procedurally

defective as an untimely motion for reconsideration. District courts have the discretion to permit
late motions for reconsideration if they have a sound rationale to do so, and if the departure does
not unfairly prejudice a party who has relied on the local rule. Gay v. Rorer, No. 16-6634, 2018
U.S. Dist. LEXIS 696, at *6 (E.D. Pa. Jan. 3, 2018) (citing United States v. Eleven Vehicles, 200
F.3d 203, 214 (3d Cir. 2000)). The record is unclear as to how much any delay is attributable to
any one party, though at least some of the delay, can fairly be attributed to Defendants, who filed
numerous motions objecting to the conditional class certification.
There is also nothing to “reconsider.” While Defendants are correct that Plaintiff raised—
and Judge Arleo rejected—Plaintiff’s initial efforts to include phone and email as notice, there is
an important distinction between Plaintiff’s initial efforts and what Plaintiff seeks to do now:
seeking supplemental service service based on new information about attempting to reach class
members. See Hernandez v. Helix Energy Sols. Grp., Inc., No. H-18-1588, 2019 U.S. Dist. LEXIS
3476, at *8-9 (S.D. Tex. Jan. 8, 2019) (“Not before the court in its consideration of the original
motion for class certification and expedited discovery was Helix’s alternative proposal to provide
email addresses if first-class mail notice is returned as undeliverable.”).

5

Case 2:17-cv-05230-EP-AME Document 163 Filed 06/06/23 Page 6 of 9 PageID: 1418

Ultimately, the motion’s designation is irrelevant; the Court can revise its own orders at
any time. Whitemere Dev. Corp. v. Cherry Hill, 786 F.2d 185, 187-88 (3d Cir. 1986) (“Rule 60(a)
allows a court to correct clerical mistakes and orders at any time, on its own initiative or on motion
of a party.”) (citing 11 C. Wright & A. Miller, Federal Practice and Procedure § 2854 (“If the
intention of the judge to include a particular provision in the judgment was clear, but he neglected
to include the provision, the rule authorizes correction of the judgment.”)). Here, the requested
revision is the modified notice method to prospective members of the conditionally certified class
now that physical mailing has encountered significant obstacles.
District courts are afforded broad discretion in determining how notice will be sent to
putative plaintiffs. Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981). As always, the Court’s
primary concern is due process; in the FLSA/collective context, notice satisfies due process
considerations where it is “reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present their objections.”
In re Nat’l Football League Players, 821 F.3d at 435 (quoting Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950)); Wood v. Saroj & Manju Invs. Phila. LLC, No. 19-2820,
2020 U.S. Dist. LEXIS 253960, at *13 (E.D. Pa. May 13, 2020). Courts have “broad discretion to
craft appropriate notices” that effectuate the overarching policies of the collective suit provisions
and provide employees with “accurate and timely notice concerning the pendency of the collective
action, so that they can make informed decisions about whether to participate.” Fasanelli v.
Heartland Brewery, Inc., 516 F. Supp. 2d 317, 323 (S.D.N.Y. 2007) (quoting Hoffmann-La Roche
Inc. v. Sperling, 493 U.S. 165, 170 (1989).
Generally putative class members’ names and addresses are sufficient to ensure that notice
is received. Garcia v. TWC Admin., LLC, 2015 U.S. Dist. LEXIS 50384, at *4 (citing e.g., Altiep

6

Case 2:17-cv-05230-EP-AME Document 163 Filed 06/06/23 Page 7 of 9 PageID: 1419

v. Food Safety Net Servs., Ltd., No. 14-CV-00642, 2014 U.S. Dist. LEXIS 114835 (N.D.Tex. Aug.
18, 2014) (denying plaintiffs’ request for telephone numbers and email addresses because
“[p]laintiffs have shown no reason that sending a letter to a potential plaintiff’s last known address
would provide inadequate notice’”); Aguayo v. Bassam Odeh, Inc., No. 3:13-CV-2951, 2014 U.S.
Dist. LEXIS 24573 (N.D. Tex. Feb.26, 2014) (“limiting production to putative class members’
names, last known addresses, and dates of employment”); Page v. Nova Healthcare Mgmt., LLP,
No. 12-2093, 2013 U.S. Dist. LEXIS 127252 (S.D.Tex. Sept. 6, 2013) (“denying plaintiffs’ request
for telephone numbers ‘because of the highly private and sensitive nature of this information’ and
limiting production to potential plaintiffs’ names and last known mailing addresses”)).
Courts diverge on the appropriateness of producing email addresses for collective notice,
though many have been inclined to permit alternative electronic notice if a plaintiff has
demonstrated that mailing has proven ineffective. See Hernandez, 2019 U.S. Dist. LEXIS 3476,
at *8; Garcia, LLC, 2015 U.S. Dist. LEXIS 50384, at *5; Wilson v. PNK (River City), LLC, No.
4:15CV00380, 2015 U.S. Dist. LEXIS 115261, at *10-11 (E.D. Mo. Aug. 31, 2015); O’Quinn v.
TransCanada USA Servs., Inc., 469 F. Supp. 3d 591, 610 (S.D.W.Va. 2020) (reminder notice after
initial mailing “unnecessary and inappropriate, except where notice is returned as undeliverable”);
Morrissey v. Cruisin’ Chubbys Gentlemen’s Club, No. 17-cv-125, 2019 U.S. Dist. LEXIS 234589,
at *3-4 (W.D. Wis. Jan. 3, 2019) (“[I]f mail notices are returned as undeliverable, the parties should
attempt to contact those individuals by telephone if telephone numbers are available. Because the
number of class members is relatively small (the parties’ estimate is 109), this should not be a
significant burden on counsel.”).
Courts are, however, more inclined to consider some form of electronic notice where the
targeted parties may be engaged in seasonal or other temporary work for employers with high

7

Case 2:17-cv-05230-EP-AME Document 163 Filed 06/06/23 Page 8 of 9 PageID: 1420

turnover, or are otherwise unlikely to receive mail due to the nature of their work. See, e.g., Landry
v. Swire Oilfield Servs., L.L.C., 252 F. Supp. 3d 1079, 1129 (D.N.M. 2017) (approving class notice
by email and text message to putative class of oilfield equipment operators who may be “dispersed
to various wellsites around the country and may be away from their homes and addresses of record
for weeks or months at a time”); Irvine v. Destination Wild Dunes Mgmt., Inc., 132 F. Supp. 3d
707, 711 (D.S.C. 2015) (approving class notice by email and text message); Lynch v. Dining
Concepts Grp., LLC, No. 2:15-CV-580-PMD, 2015 U.S. Dist. LEXIS 138290, at *6 (D.S.C. Oct.
8, 2015) (approving class notice by email to putative class that included “many seasonal
employees,” and by text message where both mail and email notices were returned as
undeliverable); Bhumithanarn v. 22 Noodle Mkt. Corp., No. 14-CV-2625, 2015 U.S. Dist. LEXIS
90616, at *5 (S.D.N.Y. July 13, 2015) (approving class notice by text message to putative class of
restaurant employees due to “high turnover characteristic of the restaurant industry”); Calder v.
GGC-Baltimore, LLC, No. CIV. BPG-12-2350, 2013 U.S. Dist. LEXIS 94466, at *3 (D. Md. July
8, 2013) (approving class notice by email to putative class of exotic dancers); Butler v. DirectSAT
USA, LLC, 876 F. Supp. 2d 560, 575 (D. Md. 2012) (allowing notice by email, in addition to firstclass mail, because email communication is “now the norm” and potential plaintiffs were
technicians who would be especially likely to communicate by email).
However, Defendants argue correctly that Plaintiff has provided little evidence of its
assertions that mailed notice has been ineffective, or other evidence that the targeted class
consisted of high-turnover employees. Opp’n at 8. Indeed, the only submission of any kind is the
certification of Plaintiff’s counsel, which summarizes in very general terms the efforts of his staff
to serve potential class members. D.E. 159-1. Nothing is submitted from those staff members.

8

Case 2:17-cv-05230-EP-AME Document 163 Filed 06/06/23 Page 9 of 9 PageID: 1421

Despite the defects in his submission highlighted by Defendants, Plaintiff’s counsel did not
file any reply, let alone submit any certification detailing efforts at service, locating class members,
or otherwise meaningfully progressing this matter. 4 Nor does Plaintiff explain why he failed to
provide authority in the initial motion to modify the class notice. Thus, even if some delays were
outside of Plaintiff’s control, the fact remains that counsel has failed to take advantage of the
numerous opportunities offered to merit the Court modifying its earlier order. The motion will
therefore be denied.
III.

CONCLUSION AND ORDER
For the reasons above,
IT IS, on this 6th day of June, 2023,
ORDERED that Plaintiff’s motion for disclosure of email addresses and cell phone

numbers (D.E. 159) is DENIED; and it is further
ORDERED that the parties shall forthwith coordinate with Judge Espinosa to schedule a
further status conference and move this matter forward expeditiously.

Evelyn Padin, U.S.D.J.

4

Nor is this the first time that Plaintiff’s counsel has failed to reply. On prior occasions, including
the motion that led to the Certification Order, the Court has reminded Plaintiff that he should file
a reply. See D.E. 50, D.E. 88.
9