Choi v. Sushi Maru Express Corp.
Filing
73
OPINION. Signed by Magistrate Judge Michael A. Hammer on 10/30/2018. (gl, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
DAE SUB CHOI,
:
:
Plaintiff,
:
:
Civil Action No. 17-5230 (MCA) (MAH)
v.
:
:
:
SUSHI MARU EXPRESS CORP., SUSHI :
OPINION
NARA, KOMOLO, INC., KEVIN KIM, :
HAK JAE LIM, et al.,
:
:
Defendants.
:
____________________________________:
HAMMER, United States Magistrate Judge
I.
INTRODUCTION
This matter comes before the Court on Plaintiff’s motion to consolidate Choi v. Sushi
Maru Express Corp., et al., Civil Action No. 17-5230 (MCA)(MAH), (“Choi”), with another
matter pending in this district, Chun v. Sushi Maru Express Corp., et al., Civil Action No. 176411 (JMV)(MF), (“Chun”), D.E. 67. The Court has considered the motion, opposition, and
applicable law. Pursuant to Federal Rule of Civil Procedure 78, the Undersigned did not hear
oral argument and has considered this matter on the papers. For the reasons below, the Court
will deny Plaintiff’s motion to consolidate the matters.
II.
BACKGROUND
In Choi, Plaintiff Dae Sub Choi originally filed a putative class and collective action in
the United States District Court for the Southern District of New York against various
Defendants alleging wage and hour violations under the Fair Labor Standards Act (“FLSA”).
See generally Complaint, D.E. 1. Plaintiff alleges that Defendants employed him as a sushi chef
from approximately November 2011 through November 2016. Id. at ¶ 11. Plaintiff further
alleges that he was hired to make sushi products at one or more of Defendants’ locations. Id.
Plaintiff is a New Jersey resident. Id. at ¶ 1. Plaintiff alleges that Defendant Sushi Maru Express
Corp (“Sushi Maru”) is a New Jersey corporation with its principal place of business in
Ridgefield, New Jersey. Id. at ¶ 2. Plaintiff alleges that Defendant Sushi Nara is a business
entity with its principal place of business in Ridgefield, New Jersey. Id. at ¶ 3. Plaintiff alleges
that Defendant Komolo, Inc. is a business entity located in Elkridge, Maryland which provides
sushi supplies to the other Defendants. Id. at ¶ 4. Plaintiff alleges that Defendant Kevin Kim is a
New Jersey resident and managed labor affairs on behalf of Shushi Maru and Sushi Nara. Id. at
¶ 5. Plaintiff also alleges that Defendant Hak Jae Lim is a resident of New Jersey and managed
labor affairs on behalf of Sushi Maru and Sushi Nara. Id. at ¶ 6.
On January 30, 2017, District Judge Swain of the Southern District of New York ordered
Plaintiff to show cause why venue was proper in the Southern District of New York, and why the
case should not be transferred to the United States District Court for the District of New Jersey
or the Eastern District of New York. Plaintiff filed a response to the Order to Show Cause on
February 8, 2017 [D.E. 17]. Defendants also filed a response to the Order to Show Cause on
February 20, 2017 [D.E. 18]. On February 21, 2017, the Court deemed the Order to Show Cause
satisfied by Plaintiff’s response “without prejudice to motion practice by the Defendant in
accordance with the Federal Rules of Civil Procedure . . .” See February 2, 2017 Order, D.E. 19.
Thereafter, Defendants moved to transfer this matter to the District of New Jersey [D.E. 22]
pursuant to 28 U.S.C. §1404(a). On July 10, 2017, the Court issued an Order and Opinion
granting Defendants’ motion and transferring the action to this district. See Order and Opinion,
D.E. 39.
On August 3, 2017, Plaintiff sought to “retransfer” this action to the Southern District of
New York (“SDNY”) or to the Eastern District of New York (“EDNY”). See Motion to Transfer
Case, D.E. 42. In an Opinion dated February 27, 2018, this Court denied that request. Feb. 27,
2018 Opinion, D.E. 53. While the motion was pending, Plaintiff petitioned the United States
Court of Appeals of the Second Circuit for a writ of mandamus or prohibition to direct the
SDNY to vacate its order transferring this action to the District of New Jersey. On October 19,
2017, the Second Circuit denied the petition and dismissed the proceeding “because [Plaintiff]
has not demonstrated that exceptional circumstances warrant the requested relief.” See Second
Circuit Order, D.E. 51 at 2.
In Chun, on the other hand, Plaintiff Lois Chun originally filed a Complaint on August
25, 2017 in the United States District Court for the District of New Jersey naming the same
Defendants as Plaintiff Choi, with the exceptions of Defendant Hak Jae Lim, Defendant ABC
Companies 1-50, and Defendant John Does 1-30. See generally Complaint, D.E. 1. While
Plaintiff Lois Chun’s Complaint similarly alleges wage and hour violations under the FLSA as
well as New Jersey Labor Law violations and failure to keep proper records, it also alleges
defamation, violation of the New Jersey Conscientious Employee Protection Act (“NJ CEPA”),
and retaliation for filing a worker’s compensation request. Id.
Specifically, Plaintiff Chun, a New Jersey resident, alleges that Defendants employed her
for nearly six months, from April 2016 through September 2016. Id. at ¶ 8. Plaintiff Chun
submits that she was hired as a marketing employee to be in charge of the “then-future marketing
direction of the Maru-Nara-Komolo combination of entities towards the next ‘chapter’ of their
development…” Id. ¶ 10. However, within one week of working as a marketing employee,
Plaintiff Chun was allegedly informed that there was insufficient marketing work and she would
be expected to do other things, such as addressing sanitary code violations. Id. ¶ 11. According
to her Complaint, “since the first month of her being on the job with defendants, [she] reported to
upper management about…unsanitary and unlawful practices and warned the officers and
companies that they required immediate, remedial and compliance actions.” Id. at ¶ 15. Plaintiff
Chun’s reports were allegedly to no avail, and, as “[r]etaliatory actions against her grew worse[,]
. . .she was forced to stop going to work.” Id. at ¶ 17. 1
Furthermore, while a description of the matter is unnecessary as it does not appear to be
included in Plaintiff’s consolidation request, it is worthwhile to mention that there is also a
related state court action, Choi v. Sushi Maru Express Corp., et al., BER-L-2113-18, pending in
the New Jersey Superior Court, Law Division, Bergen County.
III.
DISCUSSION
A. Parties’ Arguments
Plaintiff asks this Court to consolidate the Choi and Chun matters under Federal Rule of
Civil Procedure 42(a). Plaintiff submits that the two cases should be consolidated for judicial
economy. Pl. Br. in Support of Motion to Consolidate, D.E. 67-1 at 2. Plaintiff further submits
that “[b]ecause the cases are related; involve essentially the same defendants; involve
1
On July 3, 2018, Plaintiff Lois Chun filed a First Amended Complaint. D.E. 11.
Plaintiff Lois Chun’s Amended Complaint alleges additional background facts related to “on site
sanitary inspections.” Pl. First Amended Complaint, D.E. 11 at ¶ N. Her First Amended
Complaint also submits additional facts related to the alleged wage and hour violations under the
FLSA. Id. at ¶¶ 20-27. It does not; however, include the claim for “failure to make proper
employer contribution to Social Security and other benefits” that is alleged in the original
Complaint.
employment and labor law issues; and most if not all the parties are amenable to process in New
Jersey, consolidation is most favorable and clearly supported by the law.” Id. at 3.
Defendants oppose Plaintiff’s consolidation request, generally arguing that the actions
should remain independent due to their different procedural postures and the different legal
issues involved. Defs. Br. in Opp. to Motion to Consolidate, D.E. 69. Specifically, Defendants
argue that the actions are “disconnected in terms of time, place, and parties, consolidation would
provide few, if any benefits to expediting pretrial discovery, examination of records, the filing of
motions, or conducting a trial.” Id. at 1. To support their position, Defendants note that Plaintiff
Choi alleges he was employed from 2011 to 2016, whereas Plaintiff Chun alleges that she was
employed for a six-month period in 2016. Id. at 3. Defendants further note that the “recordkeeping practices of the defendant have changed significantly between 2011 and 2016.” Id.
Defendants also note that Plaintiff Chun alleges that she was initially hired in April of
2016 as a marketing employee but was later directed to address sanitary code violations, whereas
Plaintiff Choi alleges that he was hired as a chef making sushi products. Id. Additionally,
Defendants note, that Plaintiff Chun asserts a NJ CEPA claim, while Plaintiff Choi does not.
Plaintiff Chun asserts a claim for defamation, while Plaintiff Choi does not. Id. Plaintiff Chun
asserts unlawful retaliation for filing a worker’s compensation claim, whereas Plaintiff Choi does
not. Id. Plaintiff Chun does not assert that he was an investor and a shareholder; however,
Plaintiff Choi does. Id. 2
2
At the end of their brief, Defendants rely on Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,
(2018) to claim that “the plaintiff’s effort to seek class certification will fail[,]” as Plaintiff Choi
signed an employment contract in which he waived participation in class-action suits. Defs. Br.
in Opp. to Motion to Consolidate, D.E. 69 at 4. As the Choi matter is not yet at the class
certification stage, the Court does not need to address that argument.
In reply, Plaintiff affirms the alleged similarities between the cases, and, further, claims
that Defendants have not overcome the caselaw favoring consolidation for judicial economy. Pl.
Reply Br. in Further Support of Motion to Consolidate, D.E. 72 at 2. Plaintiff also takes issue
with Defendants’ reliance on Epic Sys. Corp., contending that it has no bearing on the motion.
Id.
Pursuant to Federal Rule of Civil Procedure 42, if actions before the Court involve a
common question of law or fact, the Court may: (1) join for hearing or trial any or all matters at
issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid
unnecessary cost or delay.” Fed. R. Civ. P. 42(a)(1)-(3). “The Third Circuit recognizes that this
rule confers upon a district court broad power, whether at the request of a party or upon its own
initiative, to consolidate causes for trial as may facilitate the administration of justice.” April
Denise Williams v. USA, et al., Civil Action No. 18-14455, 2018 WL 4929390, at *6 (D.N.J.
Oct. 11, 2018) (citing Ellerman Lines, Ltd. v. Atl. & Gulf Stevedores, Inc., 339 F.2d 673, 675 (3d
Cir. 1964)) (internal quotation marks omitted). “[W]hen exercising its discretion on a
consolidation motion, a court should weigh the interests of judicial economy against the potential
for new delays, expense, confusion, or prejudice.” Murrell v. City of Hackensack, Civil Action
No. 16-2913, 2017 WL 4317387, at *2 (D.N.J. Sept. 28, 2017) (citing Margolis v. Hydroxatone,
LLC, Civil Action No. 11-4355, 2013 WL 875987, at *2 (D.N.J. Mar. 6, 2013)). “The mere
existence of common issues, however, does not require consolidation.” Id. (citing ACR Energy
Partners, LLC v. Polo N. Country Club, Inc., 309 F.R.D. 193, 194 (D.N.J. 2015)) (internal
quotation marks omitted). “Nor can administrative or judicial efficiency serve, on its own, as a
basis to consolidate.” ACR Energy, 309 F.R.D. at 194.
B. Analysis
The Court finds consolidation of the two matters inappropriate. While Sushi Maru
Express Corp., Sushi Nara, Komolo, Inc., and Kevin Kim are named as defendants in both
Complaints, and both Complaints allege wage and hour violations under the FLSA, New Jersey
Labor Law violations, and failure to keep proper records, the similarities end there. See Murrell,
2017 WL 4317387, at *2 (citing Liberty Lincoln Mercury, Inc. v. Ford Mktg. Corp., 149 F.R.D.
65, 81 (D.N.J. 1993)) (“the mere fact that two cases assert similar theories of recovery does not
constitute a ‘common question of law’ so as to warrant consolidation.”) (internal quotations
omitted).
Most of the facts alleged in the operative Chun Complaint relate to her NJ CEPA,
defamation, and retaliation claims—claims that are not alleged in the operative Choi Complaint.
See Pl. First Amended Complaint, D.E. 11 at ¶¶ 12-18, ¶¶ 35-47. In fact, Plaintiff Chun’s
Complaint devotes seventeen paragraphs and twenty subparagraphs to the NJ CEPA, defamation,
and retaliation claims, whereas she devotes eight paragraphs to the FLSA, New Jersey Labor
Law, and failure to keep proper records claims.
Most relevant, however, is the fact that discovery for the NJ CEPA, defamation, and
retaliation claims will be vastly different than discovery for the FLSA, New Jersey Labor Law,
and failure to keep proper records claims. For example, the sanitary code and regulatory
violations alleged in the NJ CEPA count of Plaintiff Chun’s Complaint will likely require
document discovery wholly distinct from the FLSA, New Jersey Labor Law, and failure to keep
proper records claims. The NJ CEPA claim may also result in a request for a site inspection and
will likely call for its own experts. Moreover, Plaintiff Chun’s Complaint alleges that she was
injured on the job and retaliated against for filing a worker’s compensation request. Id. at ¶¶ 4347. Such an allegation will likely result in document discovery even separate from the NJ CEPA
allegation, let alone the FLSA, New Jersey Labor Law, and failure to keep proper records
allegations. The retaliation claim may itself produce a request for a site inspection.
Based on the foregoing, the Court finds no benefit in consolidating these matters. In fact,
consolidation is more likely to be confusing, prejudicial, and inefficient given the discovery
differences. Furthermore, Plaintiff did not explain, nor can the Court infer, any benefits related
to expediting pretrial discovery that outweigh the potential for confusion, prejudice, and
inefficiency by consolidating these matters.
Plaintiff’s argument that “Defendants have not overcome the case law favoring judicial
economy by consolidation of similar issues” is misleading. Pl. Reply Br. in Further Support of
Motion to Consolidate, D.E. 72 at 2. Neither in the moving or reply brief does Plaintiff provide
the Court with caselaw, which bears factual similarities to those here, where a court consolidated
the matters. 3
3
By way of example, Plaintiff relies on Switzenbaum v. Orbital Sciences Corp., 187
F.R.D. 246, 248 (E.D. Va. 1998) for the proposition that “[j]udicial economy generally favors
consolidation.” Pl. Reply Br. in Further Support of Motion to Consolidate, D.E. 72 at 2. While
the Court in Switzenbaum did state that “[j]udicial economy generally favors consolidation,” it
qualified that statement with “but the Court must conduct a careful inquiry in this regard that
balances the prejudice and confusion that consolidation might entail against the waste of
resources, the burden on the parties, and the risk of inconsistent judgments that separate
proceedings could engender.” Switzenbaum., 187 F.D.R. at 248. Additionally, in that matter, the
consolidation request went unopposed, each matter being consolidated was a putative class
action securities fraud case, and only the defendants’ damages may have differed. Here, the
consolidation request was opposed, only one of the two matters is a putative class and collective
action (Choi), and the most detailed count in Plaintiff’s Chun Complaint— the NJ CEPA
violation—has a wholly separate and distinct legal basis from any allegation in the Choi
Complaint.
The Court also notes that Plaintiff did not provide any authority either explaining the
implications of or permitting consolidation of a putative class and collective action with a single
plaintiff action.
Moreover, as noted in an above footnote, the Court agrees with Plaintiff in that
Defendants’ reliance on Epic Sys. Corp., has no bearing on the present motion and does not need
to be addressed at this time. Although the facts of the cases may overlap at times throughout
discovery, that is not enough to convince the Court to consolidate them.
IV.
CONCLUSION
For the reasons stated herein, Plaintiff’s motion to consolidate, [D.E. 67], is denied. The
Court will issue an order consistent with this Opinion.
s/ Michael A. Hammer
UNITED STATES MAGISTRATE JUDGE
Date: October 30, 2018
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?