Jin et al v. Shanghai Original, Inc. et al

Filing 207

ORDER denying 202 Motion for Reconsideration. Ordered by Judge Allyne R. Ross on 10/7/2019. (Taitz, Sarah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

Jianmin Jin
Plaintiff

16-cv-5633 (ARR) (JO)

— against —
Shanghai Original, Inc. d/b/a Joe’s Shanghai et al
Defendants.

Opinion & Order

Not for electronic or print
publication

ROSS, United States District Judge:
On September 25, 2019, plaintiff moved under Federal Rule of Civil Procedure 60(b) for
reconsideration of my July 10, 2019 decision to decertify a class of workers employed by Joe’s
Shanghai restaurant in Flushing, Queens. Plaintiff’s motion is denied for the reasons described
below.
BACKGROUND
On October 7, 2016, Jinanmin Jin and Chunyou Xie filed suit against Joe’s Shanghai on
behalf of themselves and others similar situated under the Fair Labor Standards Act (“FLSA”)
and New York Labor Law (“NYLL”). Ultimately, only Jin’s FLSA and NYLL claims proceeded
to trial. After a bench trial, I ordered judgment for Jin. See Judgment, ECF No. 191. The case is
pending before the court solely on the issue of attorney’s fees, which was referred to Magistrate
Judge Orenstein. See Order Referring Mtn, ECF No. 199.
Previously, I had granted plaintiffs’ motion to certify a NYLL class of all non-managerial
employees at Joe’s Shanghai restaurant in Flushing, Queens (“Flushing restaurant”). See Jianmin
Jin v. Shanghai Original, No. 16-cv-5633 (ARR) (JO), 2018 WL 1597389, at *1 (E.D.N.Y. Apr.
2, 2018). However, I decertified that class in a July 10, 2019 decision. See Decertification Order,
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ECF No. 181.
The decertification decision was precipitated by various actions by counsel which led me
to conclude that that counsel was not able to provide adequate class representation. See id. at 5–
6. Notably, in January 2019, counsel raised concerns that defendants had inappropriately
contacted class members and interfered with the formation of the class. See ECF Nos. 140, 143–
44. I took these allegations seriously, and referred the issue to Judge Orenstein, who reopened
discovery to allow plaintiffs to conduct dozens of depositions. See Feb. 4, 2019 Order, ECF No.
146; Mar. 1, 2019 Minute Entry, ECF No. 155; Joint Discovery Plan, ECF No. 160. At a
conference at the close of discovery, on May 10, 2019, Judge Orenstein noted:
Over a month ago, after conducting just a few depositions of the defendants' managers
(and apparently none of the affected workers), and without notice to the court, the
plaintiffs' counsel decided not to complete the remaining depositions or to prosecute their
previously filed motion for sanctions and to annul class opt-outs. There is no motion
before me as to whether, in these circumstances, the plaintiffs' counsel can properly
advocate the interests of the class or whether the court should reconsider its decision to
certify a class, which necessarily rests on a finding, among others, that the class
representatives and their counsel are adequate.
May 10, 2019 Minute Entry, ECF No. 160. Subsequent “red flags” about counsel’s competency
continued to appear, including failure to adequately respond to the court’s orders regarding
witness lists, and apparent attempts to delay trial. See Decertification Order at 6 (discussing
plaintiff’s incomplete witness list, Pls.’s Revised Witness List I, ECF No. 169, and last-minute
motions to adjourn a status conference before Judge Orenstein, Mot. Adjourn, ECF No. 157;
Second Mot. Adjourn, ECF No. 159). In a second proposed witness list, counsel disclosed that
he planned to call only two class members as witnesses at trial. Pls. Revised Witness List II, ECF
No. 172. The witness list also proposed to call two non-class member witnesses who were never
even employed at the Flushing Restaurant. Id. Based on all of this evidence, “the class of
Flushing restaurant employees [wa]s decertified due to inadequacy of representation.”
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Decertification Order at 7.
Now, plaintiff purports to bring a Fed. R. Civ. P. 60(b) motion for reconsideration of my
decertification decision. See Pl.’s Mtn, ECF No. 202.
DISCUSSION
Federal Rule of Civil Procedure 60(b) allows a court to provide relief from an order for
any of the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
Plaintiff’s memorandum of law in support of his motion argues for relief under Rule
60(b)(3) fraud by opposing party and 60(b)(2) newly discovered evidence. See Pl.’s Br. 1–4. In
support of this motion, plaintiff submits affidavits by Joe’s Shanghai employees Aragon Cardoso
Cruz and Maximino Raymundo. See Troy Aff., Exs. 1–2;
The Cruz and Raymundo affidavits have no bearing on my determination that the class
decertification was, and remains, necessary because of inadequate representation. My decision to
decertify the class was based on my conclusion that requirements for a class action were no
longer met because class counsel was failing to “fairly and adequately represent the interests of
the class.” Fed. R. Civ. P. 23(g)(4). The new affidavits do not change the fact that counsel failed
to conduct a single deposition of an employee during the allotted discovery time and repeatedly
failed to respond to court orders. After decertification, counsel continued to ignore court orders,
and delayed in submitting a proposed decertification notice, an essential step for protecting the
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legal rights of individual class members. See Order dated July 22, 2019. My decision was based
not based on prejudice against small law offices, cf. Troy Aff. ¶ 49–50, but rather, counsel’s
actual conduct in this case.
CONCLUSION
For the foregoing reasons, plaintiff’s motion for relief from the decertification order is
denied. This decision is not a reflection on the merits of Cruz or Raymundo’s claims that they
were coerced to opt-out of litigation or otherwise subjected to unfair labor practices. Cruz and
Raymundo have the option of pursuing individual claims or class action litigation with other
counsel.
SO ORDERED.
_/s/___________________________
Allyne R. Ross
United States District Judge
Dated:

October 2, 2019
Brooklyn, New York

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