Rana v. Bismillah Gyro, Inc. et al
MEMORANDUM AND OPINION: For the reasons stated in the attached Memorandum and Order, this Court dismisses Plaintiff's FLSA claim as unsupported by credible evidence, and declines to exercise supplemental jurisdiction over Plaintiff's remain ing state law claims and Defendant Ahmed's counterclaims, which do not provide bases for federal jurisdiction. The Clerk of Court is requested to enter a judgment in Defendant Ahmed's favor on Plaintiff's FLSA claims and to dismiss the state law claims and counterclaims for lack of subject-matter jurisdiction. C/M pro se Plaintiff and pro se Defendant. Ordered by Magistrate Judge Vera M. Scanlon on 4/17/2017. (Gersovitz, Ryan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
BISMILLAH GYRO, INC.,
SHARMIN AHMED, personally and as managing :
agent of Bismillah Gyro, Inc.,
MEMORANDUM AND ORDER
15 Civ. 5104 (VMS)
Vera M. Scanlon, United States Magistrate Judge:
Plaintiff Faruk Rana (“Plaintiff”) brings this action pursuant to the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and the New York Labor Law (“NYLL”), N.Y. Lab.
Law § 650 et seq., as amended by the Wage Theft Prevention Act (“WTPA”), N.Y. Lab. Law §
195. See generally Complaint, ECF No. 1. Plaintiff names Bismillah Gyro, Inc. (“Defendant
Bismillah”) and Sharmin Ahmed (“Defendant Ahmed”) as Defendants (collectively
“Defendants”). Id. Plaintiff seeks to recover allegedly unpaid minimum wages and overtime
compensation, liquidated damages, attorneys’ fees and costs. Id. Defendant Ahmed brings a
counterclaim arguing, in substance, that Plaintiff owes her compensation for various items she
purchased for him. See Answer, ECF No. 5.
Plaintiff and Defendant Ahmed are both proceeding pro se. 1 Both Plaintiff and
Defendant Ahmed consented to this Court’s jurisdiction over the trial of their respective claims.
See Executed Consent Form, ECF No. 24. Defendant Bismillah has never been represented by
counsel. As a corporation cannot appear pro se, it is in default. Defendant Bismillah also is
unable to consent to this Court’s jurisdiction, so the Court will analyze the claims against it in a
separate Report and Recommendation.
The Court held a bench trial on October 16 and 26, 2016. See ECF Nos. 29-30. Plaintiff
and Defendant Ahmed both testified. See ECF No. 29. Plaintiff called a co-worker, Parbin
Bugun, as a witness, and Defendant Ahmed called as witnesses her two older daughters, Fairooz
Anica and Fairha Lemisha, and a former employee of Bismillah, Sanjana Danishks Kabida. See
ECF No. 30.
For the following reasons, this Court finds that Plaintiff failed to prove by a
preponderance of the evidence that Defendant Bismillah is an “enterprise engaged in
commerce,” an element of Plaintiff’s FLSA claim. See 29 U.S.C. § 203(s)(1)(A). Plaintiff’s
FLSA claim is therefore dismissed. The Court declines to exercise supplemental jurisdiction
over both Plaintiff and Defendant Ahmed’s respective state law claims. 2 See 28 U.S.C. § 1367
(“[d]istrict courts may decline to exercise supplemental jurisdiction over a claim”); Shahriar v.
Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234 (2d Cir. 2011) (the supplemental jurisdiction
statute provides that a district court may decline to exercise such jurisdiction in its discretion).
Plaintiff previously had representation, but this Court granted counsel’s motion to withdraw.
See Mot. to Withdraw, ECF No. 16; Order, ECF No. 19.
The parties may raise their New York claims in a New York State court, as permitted by state
law. See CPLR 205(a).
Federal Rule of Civil Procedure 52(a) provides, in relevant part, that a court conducting a
bench trial “must find the facts specially and state its conclusions of law separately,” and that
“[j]udgment must be entered under Rule 58.” Fed.R.Civ.P. 52(a)(1). Rule 52(a) further provides
that such “[f]indings of fact, whether based on oral or other evidence, must not be set aside
unless clearly erroneous, and the reviewing court must give due regard to the trial court’s
opportunity to judge the witnesses’ credibility.” Fed.R.Civ.P. 52(a)(6).
Part of the role of the trial court in creating a finding of fact is determining how much
weight to afford any given witness’s testimony, and whether or not witnesses are credible. See
Krist v. Kolombos Rest., Inc., 688 F.3d 89, 95 (2d Cir. 2012) (in a bench trial, “[i]t is within the
province of the district court as the trier of fact to decide whose testimony should be credited”);
Newman v. Herbst, No. 09 Civ. 4313 (TLM), 2011 WL 684165, at *1 (E.D.N.Y. Feb.15, 2011)
(“In any bench trial, the trial judge has to evaluate the credibility of the witnesses that testify, the
witnesses’ demeanor, any previous inconsistent statements by a witness, as well as the witness’s
explanation for any such inconsistent statements.”). If a plaintiff’s testimony is found to be
inconsistent with corresponding facts submitted to the court or is otherwise not credible, a court
must resolve the inconsistencies in favor of the defendant. See Diaz v. AJE Mgmt. Corp., No. 15
Civ. 1602 (AT) (JCF), 2017 WL 746439, at *3 (S.D.N.Y. Jan. 10, 2017), R&R adopted, No. 15
Civ. 1602 (TPG) (JCF), 2017 WL 748997 (S.D.N.Y. Feb. 23, 2017); Coulibaly v. Millennium
Super Car Wash, Inc., No. 12 Civ. 04760 (CBA) (CLP), 2013 WL 6021668, at *7 (E.D.N.Y.
Nov. 13, 2013).
The immediate relevant dispute for purposes of this Memorandum and Order is whether
Bismillah was “an enterprise engaged in commerce.” 29 U.S.C. § 203(s)(1)(A). If Plaintiff fails
to prove this fact, Plantiff’s FLSA claims must be dismissed, as the FLSA does not apply. This
question was addressed at several Court conferences prior to the trial. In a conference before this
Court while Plaintiff was still represented by counsel, Plaintiff stated that Defendant Bismillah
had made approximately $1,000 a day in revenue. Tr. 9:1-11, ECF No. 31. This would total
$365,000 in gross revenues a year. When the Court asked Plaintiff’s counsel how Plaintiff
would reach the $500,000 revenue threshold of the FLSA, Plaintiff’s counsel stated Plaintiff had
previously certified that the store did $1,500 in business a day, and that an inspection of
Defendant’s records would reveal sufficient revenues. See id. 13:9-11. The Court allowed
Plaintiff’s counsel time to review Defendants’ records, and the parties set a time for the
performance of the inspection. See id. 16:2-16. The inspection did not occur because Plaintiff’s
counsel filed a motion to withdraw, which this Court granted. Plaintiff, in a different pre-trial
conference, inconsistently asserted that the store did make more than $500,000 in revenue
annually. Tr. 14:20-25, 15:1-6.
FINDINGS OF FACT
A. Undisputed Facts
Defendant Bismillah was a small restaurant located at 473 McDonald Avenue, Brooklyn,
New York 11218. Tr. 18:7, ECF No. 29; Compl., ECF No. 1 ¶ 10.
The store closed in the second half of 2016. Tr. 57:12-24, ECF No. 29.
Defendant Bismillah served gyros, Indian foods, burgers and fried chicken, Tr. 18: 12-20,
74: 18-23, ECF No. 29, as well as tea and coffee during breakfast, Tr. 25:24-25, 26:1-8, ECF No.
Plaintiff testified that gyros cost $5 each. Tr. 26:13-26, 27:1-8, Tr. 28:9-14, ECF No.
29. Defendant Ahmed, and her non-party witnesses/daughters Fairooz and Fairha confirmed that
a gyro costs $5 alone and $6 if it came with rice. Tr. 87:5-6, ECF No. 29; Tr. 31:13-17, 55:2023, ECF No. 30.
Defendant Ahmed testified that Indian meals would cost $6 each, although sometimes
Bangladeshi community members would pay a dollar or two less. Tr. 87:7-14, ECF No. 29.
Defendant Ahmed and her daughter Fairooz testified that fried chicken was served by the
piece, for $1 per piece, and that the store would not usually sell more than 20 pieces a day. Tr.
88:1-10, ECF No. 29, Tr. 31:19-20, ECF No. 30.
Defendant Ahmed was the owner and primary manager of Defendant Bismillah and had
control over Defendant Bismillah’s operations, including over its employees. Tr. 74:6-8, ECF
No. 29; Compl., ECF No. 1 ¶ 27.
Plaintiff worked at Defendant Bismillah from approximately January 2014 through
March 2015. Tr. 18:2-3, ECF No. 29; Compl., ECF No. 1 ¶ 13.
Plaintiff cooked, cleaned and sometimes handled the cash register for Defendant
Bismillah. Tr. 18:21-25, 20:7-13, ECF No. 29.
The store utilized at least one spice manufactured by the Shan brand in Pakistan. Tr.
56:16-31, 98:18-22, ECF No. 29.
As to other facts related to revenue, the witnesses offered conflicting testimony, which is
B. Plaintiff’s Testimony
A significant portion of Plaintiff’s testimony concerned the amount of revenue earned by
Defendant Bismillah. Plaintiff testified that during breakfast, the store had approximately 20 to
30 customers who would order tea or coffee. Tr. 25:24-25, 26:1-8, ECF No. 29. Plaintiff
cooked approximately 50 gyros at $6 each, Tr. 26:13-26, 27:1-8, Tr. 28:9-14, ECF No. 29, as
well as Indian and American food (e.g. burgers, chicken nuggets) for five to seven customers per
day, Tr. 25:7-9, ECF No. 29. Plaintiff testified that dinner would have “[h]undred or worse” and
“[s]ometime (sic) 100 or more” customers. Tr. 31:18-23, ECF No. 29. On busier days—
Thursday through Saturday, according to Plaintiff—70 to 100 people would come for dinner. Tr.
34:15-25, ECF No. 29.
In the morning, Plaintiff typically found between $400 and $600 in the cash register
collected from customers during the dinner hours. Tr. 35:10-14, ECF No. 29.
During the trial, Plaintiff repeatedly increased these estimates. He later testified that on
Thursday through Saturday, the store made $1,500 per day, and that on Sunday through
Wednesday the store made $800 to $1,100 per day. Tr. 36:4-11, ECF No. 29. Plaintiff then
testified that Thursday through Saturday, the store did not make less than $1,700 or $1,800 per
day, on Tuesday and Wednesday it made $1,300 or $1,400, but no less than $1,200; only on
Monday did revenue sometimes drop below $1,000. Tr. 60:16-25, 61:1-17, ECF No. 29.
Plaintiff did not provide evidence for any of his contradictory revenue estimations beyond his
Plaintiff also testified that Defendants would occasionally cater community events, such
Plaintiff’s testimony on other issues was contradictory, specifically concerning how
much he was paid and when his shift began. For example, Plaintiff’s Complaint suggests that he
was not paid for any of his work and received no tips. See Compl. ECF No. 1 Ex. A. At one
Although Plaintiff could not provide corroborating evidence, he testified that he believed that in
one two-month period when schools were out, Defendants earned between $32,000 and $40,000
from these catering jobs. Tr. 36:20-25, 37:1-10, ECF No. 29. Plaintiff did not provide any basis
for his belief that community events brought in approximately $40,000 annually.
point, Plaintiff testified that he was given $50 at irregular intervals. Tr. 41:20-23, ECF No. 29.
Later, he testified Defendant Ahmed would give him varying amounts of money when he asked
her for it, ranging from $200 to $500 to $1,100. Tr. 43:18-24, ECF No. 29. Plaintiff testified
that he was given between $7,000 and $10,000 through the duration of his employment. Tr.
52:16-20, ECF No. 29. He also testified he received tips, although no more than $5 for a shift.
Tr. 54:10-13, ECF No. 29.
Although Plaintiff’s Complaint states that he consistently began work at 8:30 AM, see
Compl., ECF No. 1, Ex. A, at trial he testified that he began at 8:00 AM, see Tr. 20:20-21, ECF
C. Defendant Ahmed’s Testimony
Defendant Ahmed testified that Bismillah made far less revenue than Plaintiff claimed.
She testified that Friday and Saturday were Bismillah’s busiest days, and that on those days, the
store made between $600 and $800 a day. Tr. 84:4-11, 85:2-16, ECF No. 29. On other days of
the week, the store made $600 per day. Tr. 85:4-11, 86:1-4 ECF No. 29.
Defendant Ahmed testified that approximately 20 or 25 people would come for the lunch
hour on a busy day, and during dinner, the store would take in $200. Tr. 86:3-19, ECF No. 29.
She also testified consistently that 25 to 30 people would come to dinner. Tr. 86:20-25, 101:1214, ECF No. 29. Defendant Ahmed testified that the store made only $1,200 or $1,300 on a few
days when it was in operation, primarily when it first opened. Tr. 101:17-22, ECF No. 29.
Defendant Ahmed testified that she did cater events, but that those events earned
Defendants only $4,000 or $5,000 in a year. Tr. 101:4-8, ECF No. 29. When catering, the store
sold meals by the box, for $10 per box, and that Bismillah would usually sell 200 or 100 boxes
of food sold. On rare occasions Bismillah would sell 400 boxes of food. Tr. 100:16-25.
Defendant Ahmed stated that Plaintiff lied in his estimates of the store’s business, and
she argued that the store could not have handled the number of customers that Plaintiff claimed
said made purchases. Tr. 101:12-17, ECF No. 29.
D. Parbin Bugun’s Testimony
Plaintiff called Parbin Bugun, a co-worker at Defendant Bismillah, as a witness.
Bugun was primarily a chef at the store, and was unsure as to food prices. Tr. 18:7-10,
ECF No. 30.
Bugun testified that she believes approximately 30 to 40 people came to Bismillah each
day, Tr. 18:11-14, ECF No. 30, which is between the initial number cited by Plaintiff and the
number cited by Defendant Ahmed.
Bugun was unable to say how many people came for dinner because her shift ended
earlier in the day. Tr. 18:18-25, ECF No. 30.
E. Sanjana Danishks Kabida’s Testimony
Ms. Ahmed called Ms. Kabida, a former employer at Defendant Bismillah, as a witness.
Ms. Kabida testified that she worked at Bismillah for part of the same period as Plaintiff. Tr.
19:15-25, ECF No. 23.
Ms. Kabida testified that she believed the store made on average $500 or $600 in revenue
each day. She testified that Bismillah made $700 on especially good days and $300 on
especially bad days. Tr. 24:20-25, 25:1-12, ECF No. 23.
Ms. Kabida also testified that she was always paid, and that she was paid extra when she
worked over ten hours in a day. Tr. 28:21-25, 29:1-7. Ms. Kabida testified that she was
sometimes paid late. Tr. 31:18-23, ECF, ECF No. 23.
F. Fairooz Anica’s and Fairha Lemisha’s Testimony
Defendant Ahmed’s daughters Fairooz and Fairha both offered testimony. Neither had
meaningful knowledge about the number of customers or how much revenue the store made on a
daily basis as their exposure to the store was limited to the hours when they were not at school.
Fairha testified that on weekends, she saw approximately 10 customers in the store during the
lunch hour. Tr. 58:2-6, ECF No. 23.
G. Analysis of Testimony
The Court finds that Plaintiff’s self-serving and often contradictory testimony was not
credible, in contrast to the competing testimony from Defendant Ahmed and Ms. Kabida, which
Plaintiff’s initial and most modest testimony regarding Defendant Bismillah’s revenues,
when extrapolated, suggests daily revenues of close to the $1,000 amount he stated prior to trial.
If the store made on average $500 at dinner, $300 in gyro sales each day during lunch (50 gyros
at $6 each), approximately $50 through sales of coffee and tea to about 25 people during
breakfast,4 that accounts for $850 in daily revenues. See supra at 5-6. Plaintiff also testified that
five to seven people usually ordered Indian or American food at lunch and that the restaurant
sold soft drinks. Although he did not testify as to the price of these products, those amounts
would increase daily revenues to close to approximately $1,000.
Plaintiff provided three estimates of daily revenues: (1) $1,000 a day, Tr. 25:24-25, 26:18, 26:13-26, 27:1-8, 35:10-14, ECF No. 29; (2) $1,500 on the three busy days and $1,000 on the
four slow days, Tr. 36:4-11, ECF No. 29; and (3) $1,000 only on Mondays, $1,200 or $1,300 on
Plaintiff did not say how much Defendants charged for coffee or tea, but $2 is a generous
the three regular days, and $1,700 or $1,800 on the three busy days, Tr. 60:16-25, 61:1-17, ECF
No. 29. Of these three estimates, only Plaintiff’s final and largest estimate satisfies the FLSA’s
$500,000 annual revenue threshold.
In sum, before trial, Plaintiff stated that he believed the store made approximately $1,000
per day, Tr. 9:1-11, ECF No. 31, which would be a total amount below the $500,000 annual
threshold. His initial testimony during trial was consistent with these prior statements. Tr.
25:24-25, 26:1-8, 26:13-26, 27:1-8, 34:15-25, 35:10-14, ECF No. 29. His description of the
number of customers in a given day, what those customers would order and how much those
items cost, in addition to how much money he estimated would be in the register the next
morning produces a calculation of roughly $1,000 of business per day. If the store made $1,000
a day, it would only earn $400,000 annually, even when the alleged $40,000 from catering was
included. If the store made $1,500 three days a week, and $1,000 on the other four days, it
would earn approximately $443,219.50 annually. Adding the $40,000 Plaintiff alleges Bismillah
earned from catering to Plaintiff’s estimate of revenues would only total $483,219.50 annual
Throughout his testimony, though, Plaintiff repeatedly increased by significant margins
his estimation of how much business the store did. The revenue on busy days went from $1,500
to no less than $1,700 or $1,800, and the revenue on slow days increased from $1,000 to between
$1,300 and $1,400, with Monday being the only day revenue would drop to or below $1,000. Tr.
36:4-11, 60:16-25, 61:1-17, ECF No. 29. Plaintiff did not explain these differing amounts.
Plaintiff’s testimony on the issue of revenues was thus contradictory, self-serving and lacking in
detail. As noted above, Plaintiff’s testimony on Bismillah’s revenues was not the only area
where he contradicted himself.
Plaintiff’s testimony was also contradicted by the relatively consistent testimony of
Defendant Ahmed and Ms. Kabida.
Defendant Ahmed testified the revenues were much lower than Plaintiff stated, stating
$600 per day was a normal amount, with a maximum of $800 per day on busier days. Tr. 84:411, 85:2-16, ECF No. 29. She did not change these estimates during her testimony.
Ms. Kabida, one of Defendant’s witnesses, also testified that between $500 and $600
were normal daily revenues in her experience working at Bismillah. Tr. 24:20-25, 25:1-12, ECF
The Court observed each witness’s demeanor during the trial when each testified about
the business’s operations. Plaintiff appeared to be calculating as he measured his answers to the
Court’s questions to achieve his outcome, often pausing for significant periods before
responding. At key moments, Plaintiff seemed to feign confusion. See, e.g., Tr. 35:15-25, 36:16, ECF No. 29. In contrast, the other witnesses, including Plaintiff’s co-worker, testified without
hesitation and consistently.
Plaintiff’s demeanor demonstrated significant anger directed at Defendant Ahmed. There
was testimony on the record to suggest a failed personal relationship between Plaintiff and
Defendant Ahmed, Tr. 70:1-11, 78:4-11, 21-25, 80:24-25, ECF No. 29, which may account in
part for the self-serving quality and indignant tone of some of Plaintiff’s testimony. Tr. 105:325, 106:1-9, ECF No. 29.
Based on the above testimony and analysis, the Court also finds that:
Defendant Bismillah had revenues of no more than $1,000 per day for almost its entire
Defendant Bismillah thus had less than $500,000 in annual revenues.
CONCLUSIONS OF LAW
It is well established that the plaintiff “bear[s] the burden of proof to establish all claims
and damages by a preponderance of the evidence.” Choudry v. Durrani, No. 14 Civ. 4562 (SIL),
2016 WL 6651319, at *5 (E.D.N.Y. Nov. 10, 2016); Zerega Ave. Realty Corp. v. Hornbeck
Offshore Transp., LLC, 571 F.3d 206, 212 (2d Cir. 2009).
In order to establish a claim under the FLSA for minimum wage or overtime
compensation, a plaintiff must demonstrate that: (1) he is an “employee” of the defendant; and
(2) the defendant is an “enterprise engaged in commerce” during the relevant period. See 29
U.S.C. §§ 206(a), 207(a); 29 U.S.C. § 203(s)(1)(A); Chen v. Major League Baseball, 6 F. Supp.
3d 449, 453-54 (S.D.N.Y. 2014). The FLSA delineates an enterprise as one with “employees
engaged in commerce . . . [or] handling, selling, or otherwise working on goods or materials that
have been moved in or produced for commerce by any person,” and an “annual gross volume of
sales made or business done is not less than $500,000.” 29 U.S.C. § 203(s)(1)(A)(i)-(ii). As
noted above, Plaintiff failed to prove that Defendant Bismillah earned $500,000 or more in
revenues annually, as is required to establish an FLSA claim. See 29 U.S.C. § 203(s)(1)(A). 5
Plaintiff thus fails to establish an FLSA claim.
STATE LAW CLAIMS
A court “may decline to exercise supplemental jurisdiction,” if, among other things, it has
already “dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c).
The decision to exercise supplemental jurisdiction is within the sound discretion of the
district court. See Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 116 (2d Cir.
Plaintiff testified and Defendant Ahmed confirmed that at least one spice used by the restaurant
is manufactured in Pakistan. Tr. 56:16-31, 98:18-22, ECF No. 29. There was no other testimony
to establish any other interstate commerce on the part of the business.
2013). “Once all federal claims have been dismissed, a balance of factors will usually point
toward a declination.” Id. at 118; see Bustillos v. Acad. Bus, LLC, No. 13 Civ. 565 (AJN), 2014
WL 116012, at *5 (S.D.N.Y. Jan. 13, 2014).
Plaintiff has not provided a reason for this Court to preside over his state claims, and this
Court believes that a New York State Court will be as capable of adjudicating the merits of
Plaintiff’s NYLL claim and Defendant Ahmed’s counterclaim. See Purgess v. Sharrock, 33 F.3d
134, 138 (2d Cir. 1994) (“[T]he exercise of supplemental jurisdiction is left to the discretion of
the district court . . . .”) (citation omitted).
The Court declines to exercise supplemental jurisdiction.
For the reasons stated herein, this Court dismisses Plaintiff’s FLSA claim as unsupported
by credible evidence, and declines to exercise supplemental jurisdiction over Plaintiff’s
remaining state law claims and Defendant Ahmed’s counterclaims, which do not provide bases
for federal jurisdiction. The Clerk of Court is requested to enter a judgment in Defendant
Ahmed’s favor on Plaintiff’s FLSA claims and to dismiss the state law claims and counterclaims
for lack of subject-matter jurisdiction. Plaintiff’s claims made against Defendant Bismillah are
addressed in a separate Report and Recommendation.
Dated: Brooklyn, New York
April 17, 2017
Vera M. Scanlon
VERA M. SCANLON
United States Magistrate Judge
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