Zhou v. Slim Grass Beauty Corp. et al
ORDER denying 28 defendants' motion to dismiss. Defendants are directed to file an answer to the amended complaint within 14 days of the date of this Order. Ordered by Judge I. Leo Glasser on 1/6/2021. (Kessler, Stanley)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
BING QING ZHOU, individually and on behalf of all
other employees similarly situated,
SLIM GRASS BEAUTY CORP. d/b/a Slim Grass
Beauty, SLIM HERBAL BEAUTY CORP. d/b/a Slim
Grass Beauty, JIN XIA a/k/a Tracy Xia, and KE HUI JIN,:
GLASSER, Senior United States District Judge:
18-CV-5761 (ILG) (SJB)
Plaintiff Bing Qing Zhou, individually and on behalf of all other employees similarly
situated, 1 brings this action against defendants Slim Grass Beauty Corp. d/b/a Slim Grass Beauty,
Slim Herbal Beauty Corp. d/b/a Slim Grass Beauty, Jin Xia a/k/a Tracy Xia, and Ke Hui Jin,
alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and New
York Labor Law (“NYLL”) §§ 190 et seq. Am. Compl., Dkt. 21. Before the Court is defendants’
motion to dismiss pursuant to Rules 12(b)(2), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil
Procedure. Mot. to Dismiss, Dkt. 28. For the reasons set forth below, the motion is DENIED in
Plaintiff alleges that Jin Xia and her mother Ke Hui Jin are owners/managers of two spa
businesses—Slim Grass Beauty Corp. and Slim Herbal Beauty Corp.—that operate under the
common trade name “Slim Grass Beauty” and are located at 40-20 Main Street, 2/F and 2/A,
Plaintiff has not yet moved for conditional certification of a collective action under the FLSA.
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Flushing, New York, 11354. Am. Compl. ¶¶ 9, 11, 17, 18, 31. Specifically, plaintiff alleges that
both Jin Xia and Ke Hui Jin participate in “the day-to-day operations” of the two entities, have
“the authority to hire and fire employees,” and make all business decisions, including, but not
limited to, “determining wages and compensation of the employees . . . , establishing the schedules
of the employees, [and] maintaining employee records.” Id. ¶¶ 15, 19. Plaintiff alleges that she is
entitled to unpaid minimum and overtime wages, statutory damages, liquidated damages, pre- and
post-judgment interest, and attorneys’ fees and costs for her work as a masseuse at Slim Grass
Beauty from February 15, 2014, to June 23, 2018. Id. ¶¶ 4, 5, 32.
On October 15, 2018, plaintiff commenced this action against Slim Grass Beauty Corp.
and Jin Xia. Compl., Dkt. 1. A summons was issued as to these defendants, Summons, Dkt. 3,
but the docket reflects that it was not returned executed. Nevertheless, plaintiff’s counsel and
defendants’ counsel appeared at an in-person initial conference on December 7, 2018, and
defendants filed an answer with a counterclaim on January 18, 2019. Ans., Dkt. 12.
On August 6, 2019, plaintiff moved to amend the complaint to add new defendants Slim
Herbal Beauty Corp. and Ke Hui Jin. Not. of Mot. to Amend, Dkt. 20; Mem. in Supp., Dkt. 20-1.
The Court granted the motion as unopposed. Order dated Aug. 28, 2019; see Am. Compl., Dkt.
21. On September 25, 2019, plaintiff filed affidavits of service indicating that Vanessa “Smith,”
an individual who refused to provide her real last name, accepted service on behalf of Slim Herbal
Beauty Corp. and Ke Hui Jin at 40-20 Main Street, 2/F and 2/A, Flushing, New York 11354. The
affidavit of service with respect to Slim Herbal Beauty Corp. states that the process server “knew
[Vanessa Smith] to be the GENERAL AGENT” of the corporation. Slim Herbal Beauty Corp.
Aff. of Service, Dkt. 23. The affidavit of service with respect to Ke Hui Jin states that Vanessa
“Smith” is a co-worker. Ke Hui Jin Aff. of Service, Dkt. 24.
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Defendants thereafter moved to dismiss the amended complaint against all defendants for
insufficient service of process pursuant to Rule 12(b)(5), against Ke Hui Jin for lack of personal
jurisdiction pursuant to Rule 12(b)(2), and against Slim Herbal Beauty Corp. and Ke Hui Jin for
failure to state a claim pursuant to Rule 12(b)(6). Mot. to Dismiss, Dkt. 28. Plaintiff opposed.
Pl.’s Mem. in Opp., Dkt. 31. Defendants have not submitted a reply.
Service of Process on Slim Herbal Beauty Corp. and Ke Hui Jin
A. Legal Standard
To defeat a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5), the
plaintiff bears the burden of proof that defendant was adequately served with process. Dickerson
v. Napolitano, 604 F.3d 732, 752 (2d Cir. 2010). In deciding a Rule 12(b)(5) motion, the court
“must look to matters outside the complaint to determine whether it has jurisdiction,” Cassano
v. Altshuler, 186 F. Supp. 3d 318, 320 (S.D.N.Y. 2016), and must consider “the parties’ pleadings
and affidavits in the light most favorable to the non-moving party,” Krape v. PDK Labs Inc., 194
F.R.D. 82, 84 (S.D.N.Y. 1999); see New York v. Mountain Tobacco Co., 55 F. Supp. 3d 301, 308–
09 (E.D.N.Y. 2014).
“In New York, a process server’s affidavit of service establishes a prima facie case of the
account of the method of service.” Old Republic Ins. Co. v. Pac. Fin. Servs. of Am., Inc., 301 F.3d
54, 57 (2d Cir. 2002); see Cablevision Sys. New York City Corp. v. Okolo, 197 F. App’x 61, 62
(2d Cir. 2006). “In the absence of facts to the contrary, there is a presumption that service was
properly effected.” CSC Holdings, Inc. v. Fung, 349 F. Supp. 2d 613, 616 (E.D.N.Y. 2004). “A
defendant’s sworn denial of receipt of service . . . rebuts the presumption of proper service
established by the process server’s affidavit and necessitates an evidentiary hearing.” Old
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Republic Ins. Co., 301 F.3d at 57. Such a hearing is not required “where the defendant fails to
swear to specific facts to rebut the statements in the process server’s affidavits.” Id. (internal
quotation marks and citation omitted).
The Second Circuit has held that Rule 4 of the Federal Rules of Civil Procedure is to be
construed liberally “to further the purpose of finding personal jurisdiction in cases in which the
party has received actual notice.” Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir.
1986) (internal quotation marks and citation omitted). In such circumstances, a court may dismiss
an action for incomplete or improper service “unless it appears that proper service may still be
obtained.” Id. (internal quotation marks, alterations, and citation omitted).
B. Service of Process on Slim Herbal Beauty Corp.
Defendants do not argue that Slim Herbal Beauty Corp. never received service of process.
Rather, defendants argue that personal delivery of the summons and amended complaint to a
person named Vanessa “Smith” failed to effectuate legal service on Slim Herbal Beauty Corp.
because Vanessa “Smith” is not an officer or agent authorized by appointment or by law to receive
service of process on behalf of the corporation. Mot. to Dismiss at 5–6.
Service of process may be effectuated by “following state law for serving a summons in an
action brought in courts of general jurisdiction in the state where the district court is located or
where service is made,” subject to exceptions not applicable here. Fed. R. Civ. P. 4(e)(1). Because
this action was commenced in the Eastern District of New York, service is governed by New York
Under New York law, service upon “any domestic or foreign corporation” is made by
delivering the summons to “an officer, director, managing or general agent, or cashier or assistant
cashier or to any other agent authorized by appointment or by law to receive service” or “pursuant
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to [§§ 306 or 307] of the business corporation law.” CPLR § 311(a)(1). Section 306 of the
Business Corporation Law, in turn, provides that service on a domestic corporation may be
satisfied by personally delivering duplicate copies of the process, together with the statutory fee,
to the Secretary of State. N.Y. Bus. Corp. Law § 306(b)(1). “Service of process on such
corporation shall be complete when the secretary of state is so served.” Id. The Secretary of State
then sends one of the copies by certified mail, return receipt requested, to the corporation. Id.
Here, defendants, in support of their motion, submit an affidavit by Min Tan, also known
as “Vanessa,” attesting that she “previously interned at SLIM HERBAL BEAUTY CORP.” and
“now work[s] for Joshua S. Friedman at the same location.” Vanessa Aff. ¶¶ 1, 2, Dkt. 28-2. She
affirms that she “do[es] not understand much English,” but that, at the time of service, she “could
understand the words ‘SLIM GRASS BEAUTY’ and ‘TRACY’ said by the Process Server” and
“explained to the best of [her] abilities . . . that Slim Grass Beauty, Slim Herbal Beauty, and Tracy
w[ere] no longer at the location and that [she] had a new boss.” Id. ¶ 4. “However,” she attests,
“the process server dropped off the documents anyway and left.” Id. Defendants also submit a
letter signed by Yan Rivera, CPA, stating that “both ‘Slim Grass Beauty Corp’ (EIN: 45-4828954)
and ‘Slim Herbal Beauty Corp’ (EIN: 81-4332500) ceased operation already and are in the
progress of obtaining consent to dissolution.” Rivera Ltr., Dkt. 28-1.
The affidavit by Vanessa and the letter by Yan Rivera raise the question of whether service
pursuant to CPLR § 311(a)(1) was properly effected on Slim Herbal Beauty Corp. However,
plaintiff submits, as part of her opposition papers, an affidavit of service attesting that plaintiff
served the summons and amended complaint on Slim Herbal Beauty Corp. on September 13, 2019,
by delivering two copies of each, along with the required fee, to a clerk authorized to accept service
at the Secretary of State’s office in Albany, New York. Aff. of Service on Sec. of State, Dkt. 31-
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1. 2 Plaintiff is not required to submit evidence that the Secretary of State mailed a copy of the
summons and amended complaint to Slim Herbal Beauty Corp. because service was deemed
complete when copies of the process were delivered to the Secretary of State according to the
statutorily approved method, “regardless of whether the Secretary then complied with her own
statutory duty to mail the relevant documents” to Slim Herbal Beauty Corp. United Specialty Ins.
Co. v. Table Run Estates Inc., No. 18-CV-5848 (JPO), 2019 WL 2327699, at *3 (S.D.N.Y. May
30, 2019); see Shanker v. 119 E. 30th, Ltd., 63 A.D.3d 553, 554 (1st Dep’t 2009) (“Jurisdiction
[is] obtained over [a] corporate defendant by service of process on the Secretary of State
irrespective of whether the process ever actually reache[s] [that] defendant.”). Moreover, as
plaintiff points out, Slim Herbal Beauty Corp. was still active and had not yet dissolved at the time
of service in September 2019. Pl.’s Mem. in Opp. at ECF pg. 9; see New York State, Department
https://appext20.dos.ny.gov/corp_public (indicating that Slim Herbal Beauty Corp. dissolved on
January 31, 2020).
Defendants did not submit a reply and therefore do not challenge the facts alleged in the
affidavit of service on the Secretary of State. In addition, because all defendants are represented
by the same attorney, the Court finds that Slim Herbal Beauty Corp. also had actual notice of this
litigation. “Though not dispositive of the question of adequacy of service of process, such notice
is evidence that the legislative goal of fair notice, which underlies the rules of service of process,
has been fulfilled.” DCH Auto Grp. (USA), Inc. v. Fit You Best Auto., Inc., No. 05-CV-2973
(NG)(JMA), 2007 WL 2693848, at *4 (E.D.N.Y. Sept. 12, 2007) (quoting Velez v. Vassallo, 203
F. Supp. 2d 312, 323 (S.D.N.Y. 2002)).
Plaintiff did not file this affidavit of service on ECF prior to the submission of her opposition papers.
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Accordingly, the Court finds that Slim Herbal Beauty Corp. was properly served pursuant
to New York Business Corporation Law § 306(b)(1) and, hence, Federal Rule of Civil Procedure
4(e)(1). See Trustees of Empire State Carpenters Welfare, Pension Annuity, Apprenticeship,
Charitable Tr., Labor Mgmt. Co-op., & Scholarship Funds v. Protrac Const., Inc., No. 11-CV2288 (ADS)(GRB), 2013 WL 991616, at *4 (E.D.N.Y. Feb. 10, 2013), report and
recommendation adopted, 2013 WL 991589 (E.D.N.Y. Mar. 12, 2013).
C. Service of Process on Ke Hui Jin
Defendants argue that personal delivery of the summons and amended complaint on
Vanessa “Smith” was insufficient service on Ke Hui Jin because she is a citizen and permanent
resident of China and should have instead been served in accordance with the Hague Convention.
Mot. to Dismiss at 7.
Under New York law, service upon a “natural person” is completed (1) “by delivering the
summons within the state to the person to be served” or (2) “by delivering the summons within the
state to a person of suitable age and discretion at the actual place of business, dwelling place or
usual place of abode of the person to be served” and then mailing the summons to the last known
address or actual place of business of the person to be served. CPLR §§ 308 (1), (2). “New York
courts have construed actual place of business to include (1) a place where defendant regularly
transacts business, or (2) an establishment that the defendant owns or operates, where there is a
clear identification of the work performed by [him or] her with that place of business.” Ting Qiu
Qiu v. Shanghai Cuisine, Inc., No. 18-CV-5448 (ER), 2020 WL 2115409, at *3 (S.D.N.Y. May 4,
2020) (internal quotation marks and citation omitted).
Here, although Vanessa does affirm that at the time of service, “Slim Grass Beauty, Slim
Herbal Beauty, and Tracy [a/k/a Jin Xia] w[ere] no longer at the location” and that Vanessa “was
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no longer the co-worker of Tracy nor an employee of Slim Grass Beauty Corp.,” Vanessa Aff. ¶¶
4, 5, she failed to specifically deny the sworn statements by the process server that Vanessa
“Smith” identified herself as Ke Hui Jin’s co-worker or that the “premises [wa]s [Ke Hui Jin’s]
actual place of business within the state.” Aff. of Service on Ke Hui Jin, Dkt. 28-3. Therefore,
the Court finds that Vanessa’s affidavit does not rebut the presumption of proper service
established by the process server’s affidavit and does not necessitate an evidentiary hearing.
Moreover, as stated above, the Court notes that there is no question that Ke Hui Jin had actual
notice of this action, particularly since the same attorney represents all defendants and Ke Hui Jin
is the mother of original defendant Jin Xia. Cf. Cao Xue Fen v. Yu Choi Wan, No. 09-CV-1336
(SJ)(SMG), 2009 WL 10712997, at *1 (E.D.N.Y. Dec. 23, 2009) (noting that personal delivery on
an unidentified, alleged co-worker of defendant, who refused to tell the process server her name,
“leaves open the issue of whether service was properly effected, particularly when the defendant
has failed to answer the complaint”), report and recommendation adopted, 2010 WL 11651768
(E.D.N.Y. Feb. 1, 2010).
Therefore, the Court finds that Ke Hui Jin was properly served pursuant to CPLR § 308(2)
and, hence, Federal Rule of Civil Procedure 4(e)(1). 3 Defendants’ motion to dismiss under Rule
12(b)(5) against Slim Herbal Beauty Corp. and Ke Hui Jin is denied. 4
Because Ke Hui Jin was properly served pursuant to CPLR § 308(2), plaintiff is not required to also serve Ke Hui
Jin in accordance with the Hague Convention.
Plaintiff was not required to serve the summons and amended complaint on original defendants Slim Grass Beauty
Corp. and Jin Xia.
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Personal Jurisdiction over Ke Hui Jin
A. Legal Standard
“[T]he plaintiff bears the burden of establishing personal jurisdiction over the defendant.”
MacDermid, Inc. v. Deiter, 702 F.3d 725, 727 (2d Cir. 2012) (internal citation omitted); see Metro.
Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). Prior to discovery, a
plaintiff need only make a prima facie showing of jurisdiction by “pleading in good faith, legally
sufficient allegations of jurisdiction.” Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81,
84 (2d Cir. 2013) (quoting Ball v. Metallurgie Hoboken–Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.
1990)). The court must “construe the pleadings and affidavits in the light most favorable to
plaintiffs, resolving all doubts in their favor.” Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d
158, 163 (2d Cir. 2010) (internal quotation marks and citation omitted).
“To determine personal jurisdiction over a non-domiciliary in a case involving a federal
question,” the court must first “apply the forum state’s long-arm statute.” Id. If the long-arm
statute permits personal jurisdiction, the court then analyzes “whether personal jurisdiction
comports with the Due Process Clause of the United States Constitution.” Id. at 164.
B. CPLR § 302(a)(1)
To establish personal jurisdiction under New York’s long-arm statute, “two requirements
must be met: (1) The defendant must have transacted business within the state; and (2) the claim
asserted must arise from that business activity.” Sole Resort, S.A. de C.V. v. Allure Resorts Mgmt.,
LLC, 450 F.3d 100, 103 (2d Cir. 2006); see CPLR § 302(a)(1). Under New York law, “[a]
defendant need not physically enter New York State in order to transact business, ‘so long as the
defendant’s activities here were purposeful.’” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL,
673 F.3d 50, 61 (2d Cir. 2012) (quoting Deutsche Bank Sec., Inc. v. Montana Bd. of Investments,
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7 N.Y.3d 65, 71 (2006)); see Fischbarg v. Doucet, 9 N.Y.3d 375, 380 (2007). Indeed, “[t]o meet
the transacting business element under N.Y. C.P.L.R. § 302(a)(1), it must be shown that a party
purposely availed [himself or herself] of the privilege of conducting activities within New York
and thereby invoked the benefits and protections of its laws.” D.H. Blair & Co. v. Gottdiener, 462
F.3d 95, 104 (2d Cir. 2006) (internal quotation marks and citations omitted). In making a
determination as to whether a party transacted business in New York, “courts must look at the
totality of circumstances concerning the party’s interactions with, and activities within, the state.”
Id. at 105 (internal quotation marks and citation omitted).
To meet the “arising out of”
requirement, “there must be a substantial nexus between the transaction of business and the claim.”
Id. (internal quotation marks and citation omitted).
Here, the amended complaint alleges that, upon information and belief, “Ke Hui Jin is the
mother of Defendant Jin Xia” and operates Slim Grass Beauty Corp. and Slim Herbal Beauty Corp.
as a joint owner and/or manager with Jin Xia. Am Compl. ¶¶ 17, 18. The amended complaint
further alleges that, upon information and belief, Ke Hui Jin “participate[s] in the day-to-day
operations of Defendant Corporations, manages and makes all business decisions including but
not limited to determining wages and compensation of the employees of Defendants (including
Plaintiff), establishing the schedules of the employees, maintaining employee records, and has the
authority to hire and fire employees.” Id. ¶ 19. However, defendants argue that Ke Hui Jin did
not purposefully avail herself of the privilege of doing business in New York because she, among
other things, 5 never conducted a business in New York, had an office or employees in New York,
Defendants also argue that “Ke Hui Jin has never resided in New York; never had or applied [for] any professional
license or driver’s license in New York; never been required to file a New York income tax return; never registered
to vote or voted here; . . . never advertised in New York; never had a telephone listing in New York; . . . [and] never
had any agent for service of process in New York.” Mot. to Dismiss at 10.
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or owned, managed, worked, or had any monetary interest or shares in Slim Grass Beauty Corp.
and Slim Herbal Beauty Corp. Mot. to Dismiss at 10. According to defendants, “Ke Hui Jin had
only been to New York on [a] B2 tourist visa a few times” for social visits and “was only
introduced by Defendant Jin Xia to Plaintiff when Defendant Ke Hui Jin visited Defendant Jin
Xia’s businesses.” Id. at 11. Defendants suggest that plaintiff named Ke Hui Jin in this action
only to “cause harassment to . . . Jin Xia.” Id.
Although the Court may rely on materials beyond the pleadings in considering a 12(b)(2)
motion, defendants have not provided a “controverting presentation” through anything other than
the argument set forth in the motion papers, and even if they had, the Court must construe the
amended complaint in plaintiffs’ favor. Werst v. Sarar USA Inc., No. 17-CV-2181 (VSB), 2018
WL 1399343, at *4 (S.D.N.Y. Mar. 16, 2018) (quoting Phillips v. Reed Grp., Ltd., 955 F. Supp.
2d 201, 225 (S.D.N.Y. 2013)); see Martin v. Designatronics Inc., No. 17-CV-4907 (DRH)(AKT),
2019 WL 482202, at *5 (E.D.N.Y. Feb. 7, 2019) (holding that defendants “do not provide
sufficient information in their moving papers for the Court to determine that [the individual
defendants] were not working for Defendant Dyson.”). Accordingly, plaintiff has sufficiently
alleged that Ke Hui Jin transacted business in New York, and that her claims against Ke Hui Jin
arise out of her business in New York (e.g., control over employment practices with respect to
plaintiff, including, among other things, day-to-day operations, wages and compensation,
employee schedules, employee records, and the firing and hiring of employees). See Werst, 2018
WL 1399343, at *4; Machkour v. Espices W. 70th Corp., No. 11-CV-688 (JPO), 2011 WL
6288006, at *4 (S.D.N.Y. Dec. 14, 2011).
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C. Due Process Considerations
An analysis of whether the exercise of a state’s long-arm statute offends the Due Process
Clause has two related components: an inquiry into whether the defendants have the “minimum
contacts” with the forum state necessary to invoke such jurisdiction, and a broader
“reasonableness” test. See Chloé, 616 F.3d at 164. To satisfy the reasonableness test, a plaintiff
seeking to invoke a state’s specific jurisdiction “must still demonstrate that [it] does not offend
traditional notions of fair play and substantial justice” to do so. Id. at 173 (internal quotation marks
and citation omitted).
Here, the minimum contacts portion of the analysis is satisfied for the same reasons that
New York’s long-arm statute is applicable: Ke Hui Kin purposely availed herself of the privileges
of conducting day-to-day operations and making business decisions as an owner and/or manager
of two New York corporate entities. Furthermore, the exercise of jurisdiction in this case does not
offend traditional notions of fair play and substantial justice.
Therefore, plaintiff has established personal jurisdiction over Ke Hui Jin. Defendants’
motion to dismiss the amended complaint against Ke Hui Jin under Rule 12(b)(2) is denied.
Failure to State a Claim against Slim Herbal Beauty Corp. and Ke Hui Jin
A. Legal Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a
short and plain statement of the claim showing that the pleader is entitled to relief.” To survive a
motion to dismiss pursuant to Rule 12(b)(6), the plaintiff’s pleading must contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Although detailed factual allegations are not necessary, the pleading must include more
than an “unadorned, the-defendant-unlawfully-harmed-me accusation”; mere legal conclusions, “a
formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” by the plaintiff
will not suffice. Id. (internal quotation marks and citations omitted). This plausibility standard
“is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Determining whether
a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Id. at 679. However, “where the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id.
(quoting Fed. R. Civ. P. 8(a)(2)).
“[I]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to
facts stated on the face of the complaint, in documents appended to the complaint or incorporated
in the complaint by reference, and to matters of which judicial notice may be taken.” Serdarevic
v. Centex Homes, LLC, 760 F. Supp. 2d 322, 328 (S.D.N.Y. 2010) (quoting Leonard F. v. Israel
Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)).
B. Sufficiency of the Complaint
Defendants argue that the amended complaint does not provide sufficient detail to support
a claim against Slim Herbal Beauty Corp. and Ke Hui Jin, as “[t]he entire statement of facts
contained in [p]laintiff’s amended complaint only references . . . her employment with defendant
Slim Grass Beauty.” Mot. to Dismiss at 14.
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The FLSA broadly defines “employer” as “any person acting directly or indirectly in the
interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). Federal regulations
clarify that “under the FLSA, individuals such as corporate officers acting in the interest of an
employer are individually liable for any violations.” 29 C.F.R. § 825.104(d) (quotation marks
omitted). The Second Circuit uses an “economic reality” test to analyze the “employer-employee
relationship” under the FLSA. Velez v. Sanchez, 693 F.3d 308, 326 (2d Cir. 2012) (citing
Rutherford Food Corp. v. McComb, 331 U.S. 772, 730 (1947)). Although the existence of the
employment relationship under the FLSA is a “flexible concept to be determined on a case-bycase basis by review of the totality of the circumstances,” Barfield v. New York City Health &
Hosps. Corp., 537 F.3d 132, 141–42 (2d Cir. 2008), courts frequently apply a four-part test, also
known as the Carter test: “[W]hether the alleged employer ‘(1) had the power to hire and fire the
employees, (2) supervised and controlled employee work schedules or conditions of employment,
(3) determined the rate and method of payment, and (4) maintained employment records.’” Velez,
693 F.3d at 326 (quoting Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984)).
Here, plaintiff alleges sufficient facts in the amended complaint to satisfy the Carter test
for Slim Herbal Beauty Corp. and Ke Hui Jin. Plaintiff claims that Slim Grass Beauty Corp. and
Slim Herbal Beauty Corp. do business under the same trade name “Slim Grass Beauty” and that
both entities are located at 40-20 Main Street, Flushing, New York, 11354 but in different suites—
2/F and 2/A. Am. Compl. ¶¶ 9, 11. Plaintiff further claims that, “[f]rom February 15, 2014 to June
23, 2018, [she] was hired by [d]efendants to work as a Masseuse for ‘Slim Grass Beauty’ located
at 40-20 [M]ain [S]treet 2/F and 2A, Flushing, New York, 11354.” Id. ¶ 32. Moreover, plaintiff
alleges, as stated above, that Ke Hui Jin “participated in the day-to-day operations of Defendant
Corporations, manages and makes all business decisions including but not limited to determining
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wages and compensation of the employees of Defendants (including Plaintiff), establishing the
schedules of the employees, maintaining employee records, and has the authority to hire and fire
employees.” Id. ¶ 19. Although defendants claim that plaintiff added Ke Hui Jin “primarily for
the purposes of harassing defendant Jin Xia” and that both corporate entities “were owned,
registered, and managed by defendant Jin Xia only,” Mot. to Dismiss at 14, this is a factual dispute
that cannot be resolved at the motion to dismiss stage. Rather, this “is a matter to be determined
on summary judgment or at trial.” Michalek v. Amplify Sports & Entm’t LLC, No. 11-CV-508
(PGG), 2012 WL 2357414, at *3 (S.D.N.Y. June 20, 2012) (internal quotation marks and citation
omitted). Plaintiff has sufficiently pleaded factual content allowing the Court to draw the
reasonable inference that the two corporate entities are acting as the same business, that plaintiff
worked as a masseuse at both entities, and that Ke Hui Jin is an owner and/or manager of both
corporate entities. Therefore, defendants’ motion to dismiss the amended complaint against Slim
Herbal Beauty Corp. and Ke Hui Jin under Rule 12(b)(6) is denied.
Defendants’ motion to dismiss pursuant to Rules 12(b)(2), 12(b)(5), and 12(b)(6) of the
Federal Rules of Civil Procedure is DENIED in its entirety. Defendants are hereby directed to
file an answer to the amended complaint within 14 days of the date of this Order.
I. Leo Glasser, U.S.D.J.
Brooklyn, New York
January 6, 2021
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