DING v. BAUMGART RESTAURANT, INC. et al

Filing 87

OPINION. Signed by Judge John Michael Vazquez on 12/30/2020. (ld, )

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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GUI HUA DING, et al.,
Plaintiffs,
v.

Civil Action No. 18-10358
OPINION

BAUMGART RESTAURANT, INC., et al.,
Defendants.

John Michael Vazquez, U.S.D.J.
This matter comes before the Court on Plaintiffs Gui Hua Ding and Zhi Qiang Li’s motion
to certify a class and collective action. Plaintiffs, former deliverymen at Defendants’ restaurant,
seek to certify a class of employees pursuant to Federal Rule of Civil Procedure 23 and Section
216(b) of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). Plaintiffs also seek an
order for court-facilitated notice under the FLSA. D.E. 64. Defendants filed a brief in opposition
to Plaintiffs’ motion, D.E. 68, to which Plaintiffs’ replied, D.E. 71. 1 The Court reviewed all
submissions made in support and in opposition to the motion, and considered the motion without
oral argument pursuant to L. Civ. R. 78.1(b). For the reasons stated below, Plaintiffs’ motion is
GRANTED in part and DENIED in part.

1

Plaintiffs’ brief in support of the motion to certify a class, D.E. 66, is referred to as “Plfs. Br.”;
Defendants’ brief in opposition, D.E. 68, is referred to as “Defs. Opp”; and Plaintiffs’ reply brief,
D.E. 71, is referred to as “Plfs. Reply”.

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I.

FACTUAL BACKGROUND & PROCEDURAL HISTORY
Plaintiff Ding filed the Complaint in this matter on June 10, 2018, alleging that Defendants

failed to pay him minimum wage and compensate him for overtime work as required by the FLSA
and New Jersey Wage and Hour Law (“NJWHL”), N.J. Stat. Ann. § 34:11-56 et seq. Ding further
alleges that Defendants had a policy and practice of underpaying other non-exempt and nonmanagerial employees. 2 D.E. 1. On July 9, 2019, Plaintiff Li filed a consent to join as a plaintiff
in this matter. D.E. 41.
Ding was hired as a deliveryman at Defendant Baumgart Restaurant, Inc. (“Baumgart
Café”) on or about October 1, 2015. Compl. ¶ 35. Defendants Steve Wu, Marsha Wu, and GouFu Wang are “founders of the Baumgart enterprise,” which includes Baumgart Café, and had the
power to hire, fire, determine wages, and establish work schedules for employees. Id. ¶ 15. Ding
also alleges that Defendant Thean Choo Chang was the owner/operator of Baumgart Next Door,
and also had the power to hire, fire, determine wages, and establish work schedules. 3 Id. ¶ 18.
Ding states that between October 1, 2015 and September 30, 2017, he worked 10.5-hour
shifts five days a week and a five-hour shift once a week. Thus, Ding regularly worked 57.5 hours
per week. Ding Aff. ¶¶ 6-7, D.E. 65-5. In addition to his job as a deliveryman, Ding was on
“driver duty” three to four days a week, shuttling other employees to and from a location in

2

The factual background is taken from the Complaint, D.E. 1; and affidavits provided by the
parties. D.E. 65, 68-4, 68-5.
3

The corporate structure of the “Baumgart enterprise” is unclear. In the Complaint, Ding asserts
claims against two different corporate entities but refers to them both as Baumgart Café and pleads
that he was employed by Baumgart Café. Compl. ¶¶ 9, 12, 35. In his affidavit, Ding states that
he was employed by Baumgart Restaurant, Inc. from October 1, 2015 through September 30, 2017
and by Baumgart Next Door, Inc. from October 1, 2017 through April 29, 2018. Ding Aff. ¶¶ 45. Because Ding refers to the Defendants collectively, and because Defendants do not contest the
collective reference, the Court will do the same.
2

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Queens, New York to the restaurant in Englewood, New Jersey. Id. ¶¶ 8-10. Ding’s work as a
driver added about six more hours of work per week, for a total of approximately 63 hours a week.
Id. ¶¶ 8-13. Ding was paid $300 a week, with an additional $15 a day while on driver duty. Id. ¶
14.
From about October 1, 2017 to April 29, 2018, Ding worked 10.5 hours per day, five days
a week, and was on driver duty three to four days a week. Id. ¶¶ 15-17. On average, Ding worked
approximately 58 hours a week during this time frame. Id. ¶ 21. Ding was paid $325 per week
and an additional $15 each day he was on driver duty. Id. ¶ 23. Ding was never given any
breaktime throughout his employment. Id. ¶ 25.
Li was also a deliveryman for Baumgart Café from August 1, 2015 through March 10,
2019. Li Aff. ¶ 3, D.E. 65-6. Between August 1, 2015 and September 30, 2017, Li worked
approximately 58 hours a week, and was on driver duty three or four days a week. Thus, Li worked
an average of sixty-four hours a week during this time period. Li Aff. ¶¶ 12-13. Li was paid $300
a week plus an additional $15 each day he was on driver duty. Id. ¶ 14. Between October 1, 2017
and March 10, 2019, Li worked an average of 52.5 hours a week, and was on driver duty three to
four days a week. Accordingly, Li worked a total of approximately 58 hours a week during this
time, and was paid $325 a week, with an additional $15 for each day he was on driver duty. Id. ¶¶
17, 23. Li also contends that he was not given any time for breaks. Id. ¶ 25.
Ding and Li both allege that Defendants had a policy of refusing to pay minimum wage, as
well as overtime, to other non-exempt and non-managerial employees. Compl. ¶ 67. Plaintiffs
continue that this policy violates the FLSA and the NJWHL’s requirements for employers to
provide one and a half times the wage rate for every hour worked in excess of 40 hours per week.

3

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Id. ¶ 71. Plaintiffs seek several forms of relief, including compensation for unpaid minimum and
overtime wages. 4 Id. ¶ 81.
On April 19, 2019, Ding filed a motion to conditionally certify and provide notice to a class
of similarly situated, non-managerial employees for his FLSA claims. D.E. 23. In support of the
claim that other putative class members (all non-exempt, non-managerial employees in the threeyear period prior to the filing of the claim) are “similarly situated,” Plaintiff submitted an affidavit
regarding the hours and pay rates of other employees. This Court denied Ding’s motion without
prejudice because Ding failed to provide sufficient evidence of a factual nexus between his
experiences and those of all non-managerial employees. D.E. 59.
Ding and Li filed the instant motion to certify a class pursuant to the FLSA and Rule 23 on
April 12, 2020. Plaintiffs again seek to certify a class of all non-managerial employees, and in the
alternative seek to certify a class of deliverymen. 5 Plfs. Br. at 7. Plaintiffs also seek courtfacilitated notice for their FLSA claims. Id. at 12-13.

4

The Complaint also seeks reimbursement for out-of-pocket costs that Plaintiffs and other
deliverymen incurred in the course of their delivery duties. Compl. ¶ 84. But this relief does not
appear to apply the larger class, in which Plaintiffs seeks to include all non-managerial employees,
including those without delivery duties.

5

In their reply brief, Plaintiffs state that “the class should include, at least, all the tipped employees,
including deliverymen.” Plfs. Reply at 7. The Court does not consider this new proposed class
definition as it was first raised in Plaintiffs’ reply brief. See e.g., Cobra Enterprises, LLC v. All
Phase Servs., Inc., No. 20-4750, 2020 WL 2849892, at *1 (D.N.J. June 1, 2020) (“[T]his is a new
argument raised in a reply brief and will not be considered. As a matter of procedure, this Court
will not accept arguments offered for the first time in the reply brief, as they were not properly
asserted in the opening brief and Plaintiffs have not had the opportunity to respond to them.”).
4

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II.

LEGAL STANDARD
A. FLSA Collective Actions
The FLSA requires employers to pay overtime compensation for an employee’s work that

is over forty hours per week. 29 U.S.C. § 207(a). In addition, the FLSA provides employees with
a private right of action to bring a collective suit against an employer to recover unpaid wages.
Pursuant to 29 U.S.C. § 216(b), an employee and “similarly situated” employees can file a
collective action suit against an employer to recover unpaid overtime compensation. The term
“similarly situated,” however, is not defined by the FLSA or the supporting regulations. See Ruffin
v. Avis Budget Car Rental, LLC, No. 11-1069, 2014 WL 294675, at *2 (D.N.J. Jan. 27, 2014). As
a result, courts have interpreted similarly situated to mean that 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 v.
Genesis HealthCare Corp. (Symczyk I), 656 F.3d 189, 193 (3d Cir. 2011), rev’d on other grounds
by Genesis HealthCare Corp. v. Symczyk (Symczyk II), 133 S. Ct. 1523 (2013). Further, “[n]o
employee shall be a party plaintiff to any such action unless he gives his consent in writing to
become such a party and such consent is filed in the court in which such action is brought.” 29
U.S.C. § 216(b). Thus, employees must actively “opt-in” to an FLSA collective action suit. 6
The Third Circuit follows a two-step process for deciding whether a case may proceed as
an FLSA collective action. Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir.
2013). In the first step, a court must determine whether plaintiffs make “‘a modest factual
showing’ that the employees identified in their complaint are ‘similarly situated.’” Id. (quoting

6

In response to “excessive litigation spawned by plaintiffs lacking a personal interest in the
outcome,” the FLSA was amended in 1947 to, among other things, add the opt-in requirement.
See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 173 (1989).
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Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 536 & n.4 (3d Cir. 2012)). If plaintiffs satisfy this
burden, “the court will ‘conditionally certify’ the collective action for the purpose of facilitating
notice to potential opt-in plaintiffs and conducting pre-trial discovery.” Maddy v. Gen. Elec. Co.,
59 F. Supp. 3d 675, 681 (D.N.J. 2014) (quoting Zavala, 691 F.3d at 536). A court usually considers
conditional certification after the parties have engaged in limited discovery. See, e.g., Goodman
v. Burlington Coat Factory, No. 11-4395, 2012 WL 5944000, at *1-2 (D.N.J. Nov. 20, 2012).
The term conditional certification is actually a misnomer. Conditional certification of an
FLSA matter does not produce a class with independent legal status and is not necessary “for the
existence of a representative action under the FLSA.” Symczyk I, 656 F.3d at 194. Rather, “[t]he
sole consequence of conditional certification is the sending of court-approved written notice to
employees, who in turn become parties to a collective action only by filing written consent with
the court.” Symczyk II, 133 S. Ct. at 1530 (internal quotations omitted). 7
B. Rule 23 Class Actions
Federal Rule of Civil Procedure 23 governs class actions. Marcus v. BMW of N. Am., LLC,
687 F.3d 583, 590 (3d Cir. 2012). “[E]very putative class action must satisfy the four requirements
of Rule 23(a) and the requirements of either Rule 23(b)(1), (2), or (3).” Id. at 590 (citing Fed. R.

7

The second step, which is not at issue here, usually occurs after the close of full discovery. At
the second step, courts apply a “stricter standard” to determine whether the plaintiffs are, in fact,
similarly situated. Zavala, 691 F.3d at 535-36. To make this determination, courts “consider[] all
the relevant factors and make[] a determination on a case-by-case basis.” Id. at 536. While case
specific, the relevant factors may include whether employees have the same job description, are
subject to the same compensation plan, received the same training, or whether they advance similar
claims and seek substantially the same form of relief. Id. at 536-37. Plaintiffs must establish by
a preponderance of the evidence that they are similarly situated. Id. at 537. In addition, just
because a class was conditionally certified at the first step does not mean that the class will also
be certified at the second step. See, e.g., Adami v. Cardo Windows, Inc., No. 12-2804, 2016 WL
1241798, at *5-11 (D.N.J. Mar. 30, 2016) (decertifying class at second step because plaintiff failed
to establish that he was similarly situated to other employees). If plaintiffs satisfy their burden at
the second step, “the case may proceed to trial as a collective action.” Symczyk I, 656 F.3d at 193.
6

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Civ. P. 23(a)-(b)). Plaintiffs first bear the burden of showing that the proposed class satisfies the
four requirements of Rule 23(a):
(1) the class is so numerous that joinder of all members is
impracticable;
(2) There are questions of law or fact common to the class;
(3) The claims or defenses of the representative parties are typical
of the claims or defenses of the class; and
(4) The representative parties will fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a); Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). These four prongs are
commonly referred to as numerosity, commonality, typicality, and adequacy. See, e.g., Erie Ins.
Exch. v. Erie Indem. Co., 722 F.3d 154, 165 (3d Cir. 2013).
Plaintiffs also must show that the proposed class satisfies Rule 23(b)(1), (b)(2), or (b)(3).
Marcus, 687 F.3d at 590. Here, Plaintiffs argue that the putative class meets the requirements of
Rule 23(b)(3). Under Rule 23(b)(3), plaintiffs must establish the following:
[T]he questions of law or fact common to class members
predominate over any questions affecting only individual members,
and that a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy. The matters
pertinent to these findings include: (A) the class members' interests
in individually controlling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation concerning the
controversy already begun by or against class members; (C) the
desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and (D) the likely difficulties in
managing a class action.
Fed. R. Civ. P. 23(b)(3).
Pursuant to Rule 23(c)(1)(A), a court “must determine by order whether to certify the action
as a class action.” Fed. R. Civ. P. 23(c)(1)(A). The decision to certify a class or classes is left to
the discretion of the court. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310 (3d Cir.
2008), as amended (Jan. 16, 2009). “The requirements set out in Rule 23 are not mere pleading

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rules.” Marcus, 687 F.3d at 591 (citing Hydrogen Peroxide, 552 F.3d at 316). “The party seeking
certification bears the burden of establishing each element of Rule 23 by a preponderance of the
evidence.” Id. (citing Hydrogen Peroxide, 552 F.3d at 307). “A party’s assurance to the court that
it intends or plans to meet the requirements is insufficient.” Hydrogen Peroxide, 552 F.3d at 318.
The Third Circuit emphasizes that “actual, not presumed, conformance with Rule 23
requirements is essential.” Marcus, 687 F.3d at 591 (citing Gen. Tel. Co. of Sw. v. Falcon, 457
U.S. 147, 160 (1982)) (internal quotations omitted). “To determine whether there is actual
conformance with Rule 23, a district court must conduct a ‘rigorous analysis’ of the evidence and
arguments put forth.” Id. (quoting Falcon, 457 U.S. at 161). This “rigorous analysis” requires a
district court to “resolve all factual or legal disputes relevant to class certification, even if they
overlap with the merits – including disputes touching on elements of the cause of action.” Id.
Therefore, a district court “may delve beyond the pleadings to determine whether the requirements
for class certification are satisfied.” Hydrogen Peroxide, 552 F.3d at 320.
III.

ANALYSIS
A. FLSA Collective Action
1. Conditional Certification
Under the first step as set forth by the Third Circuit, Plaintiffs seek to conditionally certify

a class of non-exempt, non-managerial employees at Baumgart Café. During the first step, courts
apply “a fairly lenient standard” to determine whether the employees are “similarly situated.”
Maddy, 59 F. Supp. 3d at 681. It is sufficient if Plaintiffs establish that they “bring the same claims
and seek the same form of relief.” Id. Plaintiffs are not required to show that their positions are
identical to the position of other potential class members. Rather, as noted, Plaintiffs must
“produce some evidence, beyond pure speculation, of a factual nexus between the manner in which

8

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the employer’s alleged policy affected them and the manner in which it affected other employees.”
Id. (internal bracket omitted) (quoting Symczyk I, 656 F.3d at 193). In considering whether to
conditionally certify a class, courts should consider “all relevant factors and make a factual
determination on a case-by-case basis.” Id. Courts, however, should not assess the merits of either
a plaintiff’s claims or a defendant’s defenses during the conditional certification stage. See
Goodman, 2012 WL 5944000, at *5-6.
In this instance, Plaintiffs demonstrate “a modest factual showing of a factual nexus”
between their work and of other deliverymen at Baumgart Café. Plaintiffs establish that they both
worked more than forty hours a week and were paid approximately $350 a week. Ding Aff. ¶¶ 623; Li Aff. ¶¶ 12-14, 17, 23. Moreover, Plaintiffs explain that at least two other deliverymen
worked the same hours beginning in 2017 and were paid the same amount as Plaintiffs. Ding Aff.
¶¶ 50-56; Li Aff. ¶¶ 58-63. Plaintiffs further demonstrate that they know these employees’ hours
because they worked together every day, and learned their pay through “employee chat.” See Ding
Aff. ¶¶ 36-37, 50; Li Aff. ¶ 63. This evidence is sufficient to satisfy Plaintiffs’ lenient burden to
conditionally certify a class as to deliverymen. See, e.g., Ying Yang v. Village Super Market, Inc.,
No. 18-10486, 2019 WL 1275059, at *3-4 (D.N.J. Mar. 20, 2019) (concluding that the plaintiff’s
declaration, which listed three other similarly situated employees, and an additional employee’s
declaration provided sufficient evidence to conditionally certify an FLSA class).
Plaintiffs, however, still fail to establish that they are similarly situated with all nonmanagerial employees at Baumgart Café. As with their first motion to certify, Plaintiffs state that
Defendants had a common policy to not pay employees overtime. Ding Aff. ¶ 105; Li Aff. ¶ 151.
In the January 30 Opinion, this Court explained that Ding could not rely solely on this conclusory
statement and needed to show that other employees’ FLSA rights were violated. Jan. 30 Opinion

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at 10. Now, Plaintiffs provide additional information about certain employees’ compensation, but
the evidence undermines Plaintiffs’ assertion of a common policy.
Plaintiffs state that employees that they refer to as “fry woks” made $31,000 per month
and that “oil woks” made $25,000 per month. Ding Aff. ¶ 37. Plaintiffs contend that they worked
similar hours to the fry and oil woks. Id. Plaintiffs maintain that the head chef also worked similar
hours and was paid $35,000 per month. Li Aff. ¶ 38. If accurate, the chef, fry woks employees,
and oil woks employees made substantially more than minimum wage and it appears that they
were paid overtime. Second, Plaintiffs assert that a number of other employees, including the wait
staff, sushi chefs, and phone attendants, also worked similar hours but neither Plaintiff knows how
much these employees were paid.

Plaintiffs only establish that they learned what other

deliverymen were paid. Li Aff. ¶ 129. Without this critical information about compensation for
some employees, and in light of Plaintiffs’ evidence demonstrating a substantial pay disparity with
other employees, the Court cannot determine whether all non-managerial employees were
similarly situated to Plaintiffs. Thus, because Plaintiffs only provide evidence demonstrating that
they were similarly situated to other deliverymen, the Court will only conditionally certify a class
of Baumgart Café deliverymen.
2. Class Notice
Turning to Plaintiffs’ request for Court facilitated notice, although there is no express
provision in the FLSA pertaining to court-facilitated notice to potential opt-in plaintiffs, district
courts have discretion, in appropriate Section 216(b) cases, to authorize and facilitate notice to
potential class members. Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 171 (1989). 8 In

8

Hoffman-La Roche involved an age discrimination class under the ADEA, “which incorporates
enforcement provisions of the FLSA.” 493 U.S. at 167 (internal citation omitted).
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Hoffman-La Roche, the Supreme Court stated that collective actions allow plaintiffs to pool their
resources and provide an efficient vehicle to resolve “common issues of law and fact arising from
the same alleged [wrongful] activity” in one proceeding. Id. at 170. “These benefits, however,
depend on employees receiving accurate and timely notice concerning the pendency of the
collective action.” Id. As a result, the Supreme Court concluded that trial courts are responsible
for ensuring that the joinder of additional plaintiffs is accomplished in an efficient manner. Id. at
170-71. In facilitating notice, however, “courts must be scrupulous to respect judicial neutrality”
as it pertains to the merits of the action. Id. at 174.
Plaintiffs argue that if the Court grants their motion to certify a class for the FLSA claims,
the Court should order Defendants to produce a list of all non-managerial Baumgart Café
employees from June 10, 2015 to the present. Plaintiffs also request that the Court order that
Defendants provide contact information for these employees. Plfs. Br. at 10-11. In FLSA
collective action cases, courts routinely order employers to produce a list of potential class
members to plaintiffs. See, e.g., Pearsall-Dineen v. Freedom Mortg. Corp., 27 F. Supp. 3d 567,
574 (D.N.J. 2014); Gervasio v. Wawa Inc., No. 17-245, 2018 WL 385189, at *5-6 (D.N.J. Jan. 11,
2018). Because Plaintiffs’ motion to certify a class is only granted as to deliverymen, the Court
will only order Defendants to provide a list of names and contact information for these employees.
Defendants must provide the employees’ names; the date(s) of employment; and last known
contact information, including all known telephone number(s), email address(es), and WhatsApp,
WeChat and/or Facebook username(s). To the extent the information exists in an electronic
format, Defendants shall provide it in such a format.

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Plaintiffs also contend that the opt-in period should extend to three years before the
Complaint was filed, rather than two, due to Defendants’ willfulness. 9 Plfs. Br. at 14-15. An
employer “willfully” violates the FLSA when it “either ‘knew’ its conduct was prohibited by the
FLSA or ‘showed reckless disregard for the matter.’” Souryavong v. Lackawanna County, 872
F.3d 122, 126 (3d Cir. 2017) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133
(1988)). If there is no finding of willfulness, a claim for unpaid overtime compensation under the
FLSA must be “commenced within two years after the cause of action accrued.” 29 U.S.C. §
255(a). If an employer willfully violates the FLSA, however, it “extends the FLSA’s limitations
period from two years to three, bringing another year of lost pay within the scope of the worker’s
claim.” Souryavong, 872 F.3d at 126 (citing 29 U.S.C. § 255(a)). “[W]illfulness under the FLSA
is established where ‘the employer either knew or showed reckless disregard for the matter of
whether its conduct was prohibited by the FLSA.” Stone v. Troy Constr., LLC, 935 F.3d 141, 150
(3d Cir. 2019). In this instance, Plaintiffs allege that Defendants failure to post legally required
notices and provide required wage statements demonstrates Defendants’ willfulness. Plfs. Br. at
14-15.

The Court agrees that these allegations sufficiently allege a reckless disregard.

Accordingly, the Court will extend the opt-in period from two to three years.
Defendants do not address Plaintiffs’ assertion that they failed to provide legally required
notices. Instead, Defendants counter that Plaintiffs have not established that an FLSA violation
even occurred. Defendants argue that once the Court factors in the value of the two meals that
tipped employees received during each workday, the Court must conclude that Plaintiffs were paid

9

To be clear, although Ding’s claims “are deemed commenced” for statute of limitations purposes
when the Complaint was filed, “[a]n opt-in plaintiff’s claim . . . is commenced only later, when
her written consent is filed.” Depalma v. Scotts Co. LLC, No. 13-7740, 2017 WL 1243134, at *2
(D.N.J. Jan. 20, 2017).
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in accordance with the FLSA. Defs. Opp. at 12. Defendants factual support for this argument
comes from a declaration from Ms. Lioe, a former waitress at Baumgart Café. Ms. Lioe states that
“the Restaurant provides us free meals.” Lioe Decl. ¶¶ 3-4, 9, D.E. 65-6. Ms. Lioe, however,
provides no further details such as how many meals, to whom the meals were provided, or the
value of these meals. Moreover, Ms. Lioe had a different job than Plaintiffs and did not have any
“effective communication” with either named Plaintiff due to a language barrier. Id. ¶ 8. As a
result, the Court cannot conclude based on this limited evidence that Plaintiffs were consistently
provided with two meals each workday, or that the value of these meals negated the alleged failure
to pay minimum wage. Moreover, Defendants’ argument addresses the merits of Plaintiffs’
claims, which the Court is not supposed to assess at the conditional certification stage. See
Goodman, 2012 WL 5944000, at *5-6.
Plaintiffs also contend that the Court should equitably toll the statute of limitations. 10 Plfs.
Br. at 15-16. Equitable tolling “can rescue a claim otherwise barred as untimely by a statute of
limitations.” Santos ex rel. Beato v. United States, 559 F.3d 189, 197 (3d Cir. 2009) (quoting
Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999)). “Equitable tolling is
appropriate ‘where the employer’s own acts or omissions have lulled the plaintiff into foregoing
prompt attempts to vindicate his rights.’” Kelly v. Borough of Union Beach, No. 10-4124, 2011
WL 551170, at *6 (D.N.J. Feb. 8, 2011) (quoting Meyer v. Riegel Prods. Corp., 720 F.2d 303, 309
(3d Cir. 1983)). A plaintiff has the burden to establish “that he exercised reasonable diligence and
that equitable tolling is appropriate.”

Id.

Tolling is appropriate if “some extraordinary

10

Defendants argue that Plaintiffs’ claims are barred by the statute of limitations because the
Individual Defendants closed the restaurant on September 30, 2017 so nobody who could be a
member of the collective action worked for Defendants within the statute of limitations. Defs.
Opp. at 12. Defendants, however, provide no evidence to support this assertion. Accordingly, the
Court will not deny Plaintiffs’ motion on these grounds.
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circumstance stood in [the plaintiff’s] way.” Depalma v. Scotts Co. LLC, No. 13-7740, 2017 WL
1243134, at *4 (D.N.J. Jan. 20, 2017).
Here, Plaintiffs seek to toll the statute of limitations because Defendants’ bankruptcy and
travel abroad “has rendered it difficult for Plaintiffs to conduct discovery,” which led to “a denial
of the preliminary certification.” Plf. Br. at 16. Plaintiffs allude to the fact that a single Defendant,
Gou-Fu Wang, filed for Chapter 13 bankruptcy in 2019, D.E. 42, and that Defendant Steve Wu
was in Taiwan, D.E. 54. Plaintiffs, however, fail to provide any further information or explanation
as to how this impacted Plaintiffs’ ability to vindicate their rights or otherwise amounts to an
extraordinary circumstance. As a result, the Court will not toll the statute of limitations at this
time.
Finally, Plaintiffs seek an order approving their proposed form of notice and consent to
join form. Plaintiffs provided a proposed form that addresses all non-exempt, non-managerial
employees. D.E. 65-2. Accordingly, because Plaintiffs’ motion is only granted for a subset of
Baumgart Café employees, the parties are required to meet and confer regarding the proposed
notice and consent form. The parties are further ordered to submit the proposed notice, with any
objections, to the Court for review and approval within thirty days.
B. Rule 23 Class Action
As discussed, Plaintiffs also seek to certify a Rule 23 class for the NJWHL claims. To do
so, Plaintiffs must first demonstrate that the proposed class satisfies the four requirements of Rule
23(a). Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013).
“Rule 23(a)(2) requires Plaintiffs to demonstrate that ‘there are questions of law or fact
common to the class.’” Mielo v. Steak ‘n Shake Operations, Inc., 897 F.3d 467, 487 (3d Cir. 2018)
(quoting Fed. R. Civ. P. 23(a)(2)). However, Rule 23(a)(2)’s “language is easy to misread, since

14

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any competently crafted class complaint literally raises common questions.” Id. at 487 (quoting
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011) (internal quotation omitted)). “A
complaint’s mere recital of questions that happen to be shared by class members” is insufficient;
instead, “‘[c]ommonality requires the plaintiff to demonstrate that the class members have suffered
the same injury.’” Id. (alterations in original) (quoting Dukes, 564 U.S. at 349-50) (internal
quotation omitted). “What matters . . . is not the raising of common ‘questions’ . . . but, rather the
capacity of a classwide proceeding to generate common answers apt to drive the resolution of the
litigation.” Dukes, 564 U.S. at 350 (citation omitted). In other words, Plaintiffs’ claims “must
depend upon a common contention” whereby “determination of its truth or falsity will resolve an
issue that is central to the validity of each one of the claims in one stroke.” Id. In analyzing
commonality, a court must focus on whether the defendants’ conduct is common as to all class
members. Reyes v. Netdeposit, LLC, 802 F. 3d 469, 486 (3d Cir. 2015).
Plaintiffs contend that they establish commonality because “Defendants have a
straightforward, centralized, uniform policy regarding the pay of employees’ compensation at flat
rates regardless of the hours worked.” Plf. Br. at 18. But as discussed, Li and Ding’s affidavits
actually establish that there are large discrepancies in how much different categories of employees
were paid. Thus, Plaintiffs fail to satisfy the commonality requirement for a class of all nonmanagerial Baumgart Café employees. Plaintiffs’ motion to certify a Rule 23 class, therefore, is
denied. 11

11

Unlike for their FLSA claims, Plaintiffs do not seek, in the alternative, to certify a Rule 23 class
only as to deliverymen. But even if Plaintiffs did, it seems unlikely that Plaintiffs could satisfy
the numerosity requirement under Rule 23(a)(1). “No single magic number exists” to meet the
numerosity requirement. Summerfield v. Equifax Info. Servs. LLC, 264 F.R.D. 133, 139 (D.N.J.
2009). Yet, “the Third Circuit has previously held that the numerosity requirement will generally
be satisfied ‘if the named plaintiff demonstrates that the potential number of plaintiffs exceeds
40.’” Id. (quoting Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001)). Plaintiffs argue that
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IV.

CONCLUSION
For the reasons stated above, and for good cause shown, Plaintiffs’ motion for class

certification, D.E. 64, is GRANTED in part and DENIED in part. The Court certifies a class of
deliverymen at Baumgart Café from June 10, 2015 to the present pursuant to 29 U.S.C. § 216(b).
Defendants shall provide a list of names and contact information for these employees to facilitate
class notice. In addition to these employees’ names, Defendants must also provide the date(s) of
employment; and last known contact information, including all known telephone number(s), email
address(es), and last known WhatsApp, WeChat and/or Facebook username(s). To the extent the
information exists in an electronic format, Defendants shall provide it in such a format. In addition,
the parties are required to meet and confer regarding the proposed notice and consent form, and
must submit the proposed notice, with any objections, to the Court for review and approval within
thirty days. Plaintiffs’ motion is otherwise denied. An appropriate Order accompanies this
opinion.
Dated: December 30, 2020
______________________________
John Michael Vazquez, U.S.D.J.

a class of all non-exempt, non-managerial employees consists of more than forty people, Plfs. Br.
at 17, but only identify five deliverymen who worked at Baumgart Café during the proposed class
period, see Ding Aff. ¶ 37.
16