LEE v. DONG BANG CORPORATION et al

Filing 74

OPINION AND ORDER denying 50 Defendants' Motion for Partial Summary Judgment. Signed by Judge Michael E. Farbiarz on 11/22/2024. (qa, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

YU JUNG LEE, individually, and
on behalf of others similarly
situated,

No. 22-cv-01336(MEF)(SDA)

OPINION and ORDER

Plaintiff,
v.
DONG BANG CORPORATION, et al.,

Defendants.

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For the purposes of this brief Opinion and Order, the Court
assumes full familiarity with the facts and procedural history
of this case.
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The relevant undisputed facts, for now, are as follows.
An employee worked at a restaurant1 as a server. See Defendants’
Statement of Undisputed Material Facts ¶ 1; Plaintiff’s Response
to Defendants’ Statement of Facts (“Plaintiff’s Response”) ¶ 1.
The employee was paid wages, which she received every other
week. See, e.g., Ju Hi Kim Deposition at 57:4-9; Yu Jung Lee
Deposition (Jan. 19, 2023) at 30:9-15.
She also received both credit card based tips and cash tips at
the end of each day she worked. See Defendants’ Statement of
Undisputed Material Facts ¶ 40; Plaintiff’s Response ¶ 40; see
also Ju Hi Kim Deposition at 85:12-15; Yu Jung Lee Deposition
(Jan. 19, 2023) at 49:18.

1

Dong Bang Grill.

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The employee, referred to from here as “the Plaintiff,”2 sued the
restaurant, plus several individuals in ownership and management
roles, “the Defendants.”3
The Plaintiff brought claims under the Fair Labor Standards Act
(“FLSA”) and New Jersey Wage and Hour Law (“NJWHL”) for failure
to pay minimum wage and also for unpaid overtime. See Complaint
¶¶ 45-73. And she also pressed common law claims, for
conversion and unjust enrichment. See id. ¶¶ 74-80.
Discovery has been completed, and the Defendants now move for
partial summary judgment as to the Plaintiff’s claims.4
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Motions for summary judgment should be granted if “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Dupree v. Younger, 598 U.S. 729,
737 (2023); Cellco P’ship v. White Deer Twp. Zoning Hearing Bd.,
74 F.4th 96, 100 (3d Cir. 2023).
In assessing a summary judgment motion, “a district court may
not make credibility determinations or engage in any weighing of
the evidence[.]” Marino v. Indus. Crating Co., 358 F.3d 241,
247 (3d Cir. 2004). Rather, the court must “view the facts in
the light most favorable to the non-moving party and [draw] all
reasonable inferences in that party’s favor.” Canada v. Samuel
Grossi & Sons, Inc., 49 F.4th 340, 345 (3d Cir. 2022); accord
Tolan v. Cotton, 572 U.S. 650, 660 (2014).
2

Yu Jung Lee.

The corporate defendant, Dong Bang Corporation, operates Dong
Bang Grill. See Defendants’ Statement of Undisputed Material
Facts ¶ 1. The individual defendants are Mi Ja Kim, Ju Hi Kim,
and Sang Kyu Kim.
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Two things. First, the Plaintiff has also moved to certify a
class action under Federal Rule of Civil Procedure 23 as to her
state law claims. The Court does not consider that motion here.
Second, the Defendants’ motion does not pertain to five weeks
during which they concede the Plaintiff was underpaid. See
Motion for Summary Judgment at 4-5.
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The Plaintiff’s claims are premised on two main factual
assertions.
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First, that the Defendants did not pay the Plaintiff enough.
particular, the Plaintiff argues she was paid less than is
required under both the FLSA and NJWHL’s minimum wage and
overtime provisions. See Complaint ¶¶ 45-73.

In

The Defendants’ response: the Plaintiff was adequately paid,
and therefore they are entitled to summary judgment. See Motion
for Summary Judgment at 8-10. As the basis of this argument,
the Defendants point to “Wage Receipt Sheets,” along with other
documents, which purport to show the Plaintiff’s hours and pay
during the relevant period. See id. at 9; Docket Entry 51;
Docket Entry 52, Exhibit 1.
But the Plaintiff testified that one of the Defendants
physically covered the referenced wage receipts when she signed
them, so that she could not see the hours and wages listed to
verify they were correct. See Yu Jung Lee Deposition (Jan. 19,
2023) at 87:12 to 88:15. And she testified that one of the
Defendants also directed her to sign fraudulent time sheets that
were “made up records.” See Yu Jung Lee Declaration ¶ 4.
The Plaintiff’s testimony creates a genuine dispute of material
fact. This precludes summary judgment. See Dupree, 598 U.S. at
737. The accuracy of the Defendants’ wage records is critical
to determining whether the Plaintiff was paid proper wages. See
Canada, 49 F.4th at 345 (“A factual dispute is material if it
might affect the outcome of the suit under the governing law.”)
(cleaned up). But the records’ accuracy is disputed.
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Second, the Plaintiff’s claims as to conversion and unjust
enrichment rely on the contention that the Defendants improperly
misappropriated a portion of the tips that the Plaintiff was
owed. See Complaint ¶¶ 74-80. She asserts that, at certain
points, the Defendants retained between 3% and 25% of the tips
paid by restaurant customers on credit cards and intended for
servers. See Yu Jung Lee Declaration ¶ 10; Yu Jung Lee
Deposition (Jan. 19, 2023) at 88:16 to 90:20.

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