Gu et al v. T.C. Chikurin Inc. et al
Filing
32
ORDER granting in part and denying in part 15 Motion to Certify Class. Plaintiffs' motion for authorization to send notice of the pendency of a collective action is denied without prejudice to renewal. Plaintiffs' motion to compel disc losure of the names and addresses of other employees of defendants is granted, but the extent of the discovery to be permitted will be discussed at the conference scheduled for April 25, 2014 at 11:00 a.m. Ordered by Magistrate Judge Marilyn D. Go on 4/17/2014. (Proujansky, Josh)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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QING GU, et al., on behalf of
themselves and all others similarly
situated,
ORDER
Plaintiffs,
CV 2013-2322 (SJ)(MDG)
- against T.C. CHIKURIN, INC., et al.,
Defendants.
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GO, United States Magistrate Judge:
Plaintiffs Qing Gu, Jun Chen, Hong Dao Huang, Gui Bao Guo,1
Zhi Qiang Zhang, Young Xin Yang and Jian He Xu bring this action
against defendants T.C. Chikurin Inc., Chikurin Sake LLC, Chikurin
236 LLC, HC Chikurin Inc., Fortune Chikurin Inc., Adam Chikurin
Inc., Queens Chikurin Inc. and related stores d/b/a Chikurin or
Sake, Gee Wei Chin and Gee On Chin asserting claims under federal
and state law for unpaid overtime wages, minimum wages and
penalties and interest.
Seeking to bring a collective action
pursuant to section 216(b) of the Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 201 et seq., plaintiffs allege that they and
other similarly situated employees have been denied minimum wages
and overtime compensation as required by the FLSA.
1
Framing their
Plaintiffs submitted the declaration of Guo Gui Bao. See
ct. doc. 16-3. I deem the complaint and caption amended to
reflect plaintiff's correct name.
motion as a motion for "conditional certification" under the FLSA,2
plaintiffs move to compel defendants to provide contact information
of their current and former employees and for permission to notify
these employees of the pendency of this action.
For the reasons set forth below, plaintiffs' motion for leave
to send a collective action notice3 is denied without prejudice and
the motion to compel is granted in part.
BACKGROUND
In their Complaint ("Compl."), plaintiffs allege that they
were employed by defendants as restaurant deliverymen and assisted
with food preparation in the kitchen.
See Compl. at ¶ 44.
The
defendants own and operate a chain of at least ten Japanese
restaurants in Brooklyn and Queens.
See id. at ¶ 35.
All but two
of the restaurants operate under the name Japanese Chikurin; the
Coney Island location operated under the name Sake (Chikurin
2
As the Second Circuit noted in Myers v. Hertz Corp., 624
F.3d 537 (2d Cir. 2010), although "courts speak of 'certifying' a
FLSA collective action, ... the 'certification' ... is only the
district court's exercise of the discretionary power, upheld in
Hoffmann-LaRoche, to facilitate the sending of notice to
potential class members. Section 216(b) does not by its terms
require any such device . . ." Id. at 555 n. 10. The
"certification" sought is simply a "useful 'case management' tool
for district courts to employ in 'appropriate cases'" and not
necessary for the maintenance of a FLSA collective action. Id.
(citing Hoffmann-LaRoche, 493 U.S. at 169).
3
Because a motion for a collective action notice is
separate and distinct from a motion for class certification under
Rule 23 of the Federal Rules of Civil Procedure, Myers, 624 F.3d
at 555-56, the motion is a pretrial matter within this Court's
pretrial reference authority. See 28 U.S.C. § 636(b)(1)(A)
(excepting class certification motions as a pretrial matter
within a magistrate judge's authority).
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Branch) and the Rego Park location operated under the name Sake
Sushi Japanese Cuisine.
See id. at ¶ 36.
Plaintiff Qing Gu worked 72 hours per week at the Coney Island
location from approximately June 15, 2011 through September 15,
See id. at ¶¶ 37, 49(a); Gu Decl. (ct. doc. 16-1) at ¶¶ 2,
2012.
6.
Jun Chen worked 74 hours at the Coney Island location from
August 1, 2010 through September 15, 2012.
See Compl. at ¶¶ 38,
49(b); Chen Decl. (ct. doc. 16-2) at ¶¶ 2, 6.
Guo Gui Bao worked
72 hours per week at the restaurants located on Quentin Road, Ocean
Avenue, 86th Street, Coney Island and 1702 Avenue Z, depending on
the defendants' needs, from approximately August 21, 2006 through
August 19, 2012.
16-3) at ¶¶ 2, 7.
See Compl. at ¶ 39, 49(d); Bao Decl. (ct. doc.
At each of the restaurants for which Mr. Bao
worked, "the employment arrangements were the same in terms of pay
and scheduling."
Bao Decl. at ¶ 4.
Hong Dao Huang worked 72 hours
per week at the location on Quentin Road since approximately June
1, 2007 until August 31, 2011 and 60 hours per week thereafter.
See Compl. at ¶¶ 40, 49(c).
Jian He Xu worked 72 hours per week at
the Coney Island location from approximately February 10, 2008
through the beginning of 2009 and at the Quentin Road location
thereafter with his hours reduced to 60 hours per week from
approximately July 1, 2011 through September 21, 2012.
¶¶ 41, 49(g); Xu Decl. (ct. doc. 16-4) at ¶¶ 2, 8.4
4
See id. at
Mr. Xu states
The allegations in the complaint conflict with Mr. Xu's
declaration as to when he was transferred to the Quentin Road
facility. For purposes of this motion, I credit the statements
in Mr. Xu's declaration.
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that "the employment arrangements were the same in terms of pay and
scheduling" at both restaurants at which he worked.
3.
Xu Decl. at ¶
Yong Xin Yang has worked 70 hours per week at the Ocean Avenue
location since approximately April 1, 2011.
49(f).
See Compl. at ¶¶ 42,
Zhi Qiang Zhang worked 74 hours per week at the 1702 Avenue
Z location from approximately April 1, 2006 until November 30, 2006
and at the Coney Island location from approximately August 1, 2010
through September 15, 2012.
See id. at ¶¶ 43, 49(e).
Plaintiffs were all paid in cash at the rate of $50 per day
except that Zhi Qiang Zhang was paid $1,800 per month in 2006 and
Gui Bao Guo was paid $2,000 per month throughout his employment.
See id. at ¶ 50.
Plaintiffs seek an order permitting them to send notice to
all current and former non-managerial restaurant staff employed by
defendants who worked for any of defendants' locations at any time
after August 19, 2010.
Four of the plaintiffs submitted
declarations in support of this motion.
The declarations submitted
by the plaintiffs are identical in many respects, including that
each plaintiff was paid the same amount of money regardless of the
number of hours worked, received payments in cash and did not
receive a record of his pay.
Each plaintiff also stated he
received tips from deliveries but defendants never discussed a "tip
credit."
In addition, each plaintiff states in his declaration
that he spoke to other employees and he "found out that they were
paid weekly salaries that were less than the minimum and that they
did not receive extra pay for working overtime or for working more
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than 10 hours in a day."
See Gu Decl. at ¶ 15; Jun Decl. at ¶ 15;
Bao Decl. at ¶ 16; Xu Decl. at ¶ 17.
However, none of the
affidavits identify by name any of the co-workers who the
plaintiffs spoke with nor describe the job titles, duties or
restaurant locations of those employees.
In opposition, defendants argue that plaintiffs' allegations
are too conclusory to carry their burden.
Defendants further argue
that if the court authorizes plaintiffs to send notice, notice
should be limited to employees who worked at the Coney Island
location.
In support of their opposition, defendants submit the
declaration of Gee Wai Chan, a partial owner of the corporate
defendants and manager of the 1702 Avenue Z location.
Decl. (ct. doc. 19-1) at ¶ 2.
See Chan
Mr. Chan states that the corporate
defendants are separate corporate entities, albeit with overlapping
ownership structures.
See id. at ¶ 3.
Furthermore, each
restaurant is under the control of a different manager and the
policies, practices and procedures of each restaurant are varied.
See id. at ¶ 5.
Finally, Mr. Chan states that plaintiff Guo Gui
Bao was a manager of the delivery staff at the Coney Island
location and did not work at any other location.
See id. at ¶¶ 6,
7.
DISCUSSION
Section 216(b) of the FLSA provides that employees may proceed
collectively against an employer:
An action . . . may be maintained against any employer .
. . by any one or more employees for and in behalf of
himself or themselves and other employees similarly
situated. No employee shall be a party plaintiff to any
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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).
In determining whether to authorize the
sending of notice to potential plaintiffs of the pendency of a
collective action brought pursuant to section 216(b) of the FLSA,
courts should engage in a two-step inquiry.
See Myers, 624 F.3d at
554-55; Morales v. Plantworks, Inc., No. 05 CIV. 2349, 2006 WL
278154, at *2 (S.D.N.Y. Feb. 2, 2006).
First, courts should make
an initial determination whether there are "potential opt-in
plaintiffs who may be 'similarly situated' to the named plaintiffs
with respect to whether a FLSA violation has occurred."
Myers, 624
F.3d at 554 (citations omitted); see Ahmed v. T.J. Maxx Corp., No.
CV 10-3609, 2013 WL 2649544, at *7 (E.D.N.Y. June 8, 2013).
After
discovery has been completed, courts should engage in a second and
more heightened stage of scrutiny to determine whether the case
should proceed to trial as a collective action or the class should
be decertified.
See Myers, 624 F.3d at 555; Greene v. C.B. Holding
Corp., No. 10-CV-1094, 2010 WL 3516566, at *2-*3 (E.D.N.Y. Aug. 12,
2010); Summa v. Hofstra Univ., 715 F. Supp. 2d 378, 385 (E.D.N.Y.
2010).
At this initial stage, "the court will look at the pleadings
and affidavits" to analyze whether plaintiff and putative class
members are similarly situated.
Iglesias-Mendoza v. La Belle Farm,
Inc., 239 F.R.D. 363, 368 (S.D.N.Y. 2007); Flores v. Osaka Health
SPA, Inc., No. 05 CIV. 962, 2006 WL 695675, at *2 (S.D.N.Y. Mar.
16, 2006); Morales, 2006 WL 278154, at *1.
If the "plaintiffs make
a 'modest factual showing' that they and potential opt-in
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plaintiffs 'together were victims of a common plan or policy that
violated the law,'" the court may authorize that notice be sent.
Myers, 624 F.3d at 555 (citation omitted).
However, the "modest
factual showing" that plaintiff must make at the conditional
certification stage "cannot be satisfied simply by 'unsupported
assertions,' but it should remain a low standard of proof because
the purpose of this first stage is merely to determine whether
'similarly situated' plaintiffs do in fact exist."
citations omitted).
Id. (internal
Although plaintiffs' burden is not onerous,
they must provide actual evidence of a factual nexus between their
situation and those that they claim are similarly situated rather
than mere conclusory allegations.
See Flores, 2006 WL 695675, at
*3; Morales, 2006 WL 278154, at *3; Levinson v. Primedia Inc., No.
02 CIV. 2222, 2003 WL 22533428, at *1 (S.D.N.Y. Nov. 6, 2003).
Plaintiffs make only general allegations that other employees
of defendants were denied minimum wage and overtime compensation.
Plaintiffs fail to provide any factual detail about the other
employees, such as names of fellow employees whom they observed or
with whom and when they had conversations about not receiving
minimum wage or overtime compensation.
Nor do they identify the
job titles or duties performed by their fellow employees.
The
plaintiffs who worked at more than one location did not specify to
which location their observations pertained.
They did not state
whether these other employees also received tips and whether they
were advised of a "tip credit."
Plaintiffs have not provided a
factual basis for the court to consider whether the employees
plaintiffs refer to are similarly situated to them.
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Courts in this Circuit have commonly authorized the sending of
collective action notices where plaintiff includes some probative
information regarding similarly situated employees such as their
names, their duties and their hours worked or where plaintiff
provides affidavits from such employees setting forth the pertinent
facts.
See, e.g., Hanchard-James v. Brookdale Family Care Ctrs.,
No. 12 CIV. 1922, 2012 WL 328810, at *3 (E.D.N.Y. Aug. 9, 2012);
Salomon v. Adderley Indus., Inc., 847 F. Supp. 2d 561, 565
(S.D.N.Y. 2012) (plaintiffs identified co-workers who told them
that they were not paid overtime); Wraga v. Marble Lite, Inc., No.
05-CV-5038, 2006 WL 2443554, at *2 (E.D.N.Y. Aug. 22, 2006)
(plaintiff demonstrated knowledge of conversations with other
employees and conversations between employees and defendant in
which they complained that they were not paid properly); Patton v.
Thomson Corp., 363 F. Supp. 2d 263, 267 (E.D.N.Y. 2005) (plaintiff
stated that the potential plaintiffs had her same job duties and
were paid in the same manner as plaintiff).
However, where plaintiffs fail to provide specific factual
allegations, courts routinely deny leave to send a collective
action notice.
See, e.g., Zheng v. Good Fortune Supermarket Group
(USA), Inc., No. 13-CV-60, 2013 WL 5132023, at *5-*6 (E.D.N.Y.
Sept. 12, 2013) (denying collective action notice where plaintiff
failed to identify a single employee); Khan v. Airport Mgt. Servs.,
LLC, No. 10 CIV. 7735, 2011 WL 5597371, at *4 (S.D.N.Y. Nov. 16,
2011) (noting that plaintiff "claims to have personal knowledge
that 'defendants hired at least 40 . . . similar [employees],' but
he does not identify these 40 workers by name or specify the source
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for this claim"); Lin v. Benihana Nat'l Corp., 755 F. Supp. 2d 504,
510-11 (S.D.N.Y. 2010) (adopting recommendation that allegations
are "too conclusory to establish the requisite factual nexus");
Mendoza v. Casa de Cambio Delgado, Inc., No. 07 CV 2579, 2008 WL
938584, at *2 (E.D.N.Y. Apr. 7, 2008) ("virtually identical
affidavits" fail to show factual nexus with similarly situated
employees); Prizmic v. Armour, Inc., No. 05-CV-2503, 2006 WL
1662614, at *3 (E.D.N.Y. June 12, 2006) (plaintiff did not submit
any evidence or "identif[y] a single potential plaintiff").
The
absence of factual support regarding similarly situated potential
plaintiffs is particularly relevant when plaintiff has had the
benefit of some discovery.
See, e.g., Romero v. H.B. Automotive
Group, Inc., No. 11 CIV. 386, 2012 WL 1514810, at *10 (S.D.N.Y. May
1, 2012); Khan, 2011 WL 55597371, at *4; Prizmic, 2006 WL 1662614,
at *3.
Besides failing to submit sufficient specific factual
information to meet their modest burden to show that plaintiffs and
other potential plaintiffs were victims of an unlawful common
policy or plan, plaintiffs seek to define an overly broad class -stating that the collective includes all restaurant employees.
Absent further explanation or information from plaintiffs, this
Court cannot find that all of these employees are similarly
situated to plaintiffs.
Similarly, plaintiff's proposed notice
does not include any description of the job duties of the relevant
collective.
Courts ordinarily will allow notice of a fairly broad
class of employees at this stage.
See, e.g., Hanchard-James, 2012
WL 3288810, at *3-*4 (all current and former employees of defendant
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who worked in the same position as plaintiff included); IglesiasMendoza, 239 F.R.D. at 368 (declining to limit class to employees
with the same specific job duties as plaintiff).
However, "[w]here
the named plaintiff is unable to state clearly and specifically to
whom it is that she contends she is similarly situated, it is not
possible for the Court to conclude that a collective action
certification is warranted."
Flores, 2006 WL 695675, at *3;
see also Prizmic, 2006 WL 1662614, at *3.
In addition, plaintiffs fail to show why notice should be sent
to employees of five restaurants for which plaintiffs provide no
information other than to allege generally that the restaurants are
operated as chain restaurants under common names.
While all the
plaintiffs identify Gee Wei Chin and Gee On Chin as their bosses at
the five restaurants where they worked, the plaintiffs do not state
that these two individuals had any role in the management or
operation of the five other restaurants or that any of the
restaurants had a common policy or practice.
See Hamadou v. Hess
Corp., 915 F. Supp. 2d 651, 662 (S.D.N.Y. 2013).
For the foregoing reasons, plaintiff's motion for leave to
send a collective action notice is denied without prejudice to
renewal in the future.
See Myers, 624 F.3d at 557-58 (noting that
motions to facilitate opt-in notices may be renewed after a denial
and that "a district court may continually evaluate, as the case
progresses, whether such notice should be provided, whether an
existing class should be modified, or whether the action should be
'de-certified'”).
In the interest of efficiency, the Court
encourages plaintiffs, if they file a future motion, to confer with
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defendants in a good faith attempt to resolve disputes over a
revised proposed Notice.
Also, the parties should confer as to
whether some of the issues are best addressed after a collective
action notice is sent -- in "the second phase" of the collective
action.
See Salomon v. Adderley Indus., Inc., 847 F. Supp. 2d 561,
565 (S.D.N.Y. 2012); Sobczak v. AWL Indus., Inc., 540 F. Supp. 2d
354, 363-64 (E.D.N.Y. 2007) (describing defendants' argument that
the need for individualized inquiry should defeat conditional
certification as "putting the cart before the horse").
CONCLUSION
For the foregoing reasons, plaintiffs' motion for
authorization to send notice of the pendency of a collective action
is denied without prejudice to renewal.
Plaintiffs' motion to
compel disclosure of the names and addresses of other employees of
defendants is granted, but the extent of the discovery to be
permitted will be discussed at the conference scheduled for April
25, 2014 at 11:00 a.m.
SO ORDERED.
Dated:
Brooklyn, New York
April 17, 2014
/s/___________________________
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE
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