Zhang et al v. Wen Mei Inc. et al
MEMORANDUM & ORDER granting in part and denying in part 10 Motion to Dismiss for Lack of Jurisdiction; granting 11 Motion for Leave to File Amended Complaint; Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. It is DENI ED insofar as Defendants assert that the Court lacks subject matter jurisdiction or that the Court should decline supplemental jurisdiction, but GRANTED insofar as Defendants assert a failure to state a claim. In addition, however, Plaintiffs' cross-motion to amend is also GRANTED. The Clerk of the Court is directed to docket the PAC at Docket Entry 11-1 as the Amended Complaint. So Ordered by Judge Joanna Seybert on 10/27/2014. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JIE ZHANG a/k/a JIMMY ZHANG, XIU
QIN LIN, RU HAO LIU a/k/a JASON
LIU, HSIA SHENG CHENG, CHIEN WEN
HSIEH a/k/a KEVIN HSIEH, on behalf
of themselves and others similarly
MEMORANDUM & ORDER
-againstWEN MEI INC. d/b/a HUNAN DYNASTY,
HUNAN DYNASTY AT LEVITTOWN, INC.
d/b/a HUNAN DYNASTY, and XIANG
RONG CHEN a/k/a KEVIN CHEN,
John Troy, Esq.
Troy & Associates, PLLC
41-25 Kissena Blvd., Suite 119
Flushing, NY 11355
Ying Liu, Esq.
Liu & Shields LLP
41-60 Main Street, Suite 208A
Flushing, NY 11355
SEYBERT, District Judge:
Currently pending before the Court is: (1) defendants
Wen Mei Inc., d/b/a Hunan Dynasty; Hunan Dynasty at Levittown,
(collectively “Defendants”) motion to dismiss the Complaint, and
(2) plaintiffs Jie Zhang a/k/a Jimmy Zhang, Xiu Qin Lin, Ru Hao
Liu a/k/a Jason Liu, Hsia Sheng Cheng, and Chien Wen Hsieh a/k/a
Kevin Hsieh’s (collectively “Plaintiffs”) cross-motion to amend
For the following reasons, Defendants’ motion to
dismiss is GRANTED IN PART and DENIED IN PART and Plaintiffs’
motion to amend is GRANTED.
class action on March 12, 2014 against Defendants pursuant to
the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”);
the New York Minimum Wage Act, N.Y. Stat. § 650 et seq.; and New
York Labor Law (“NYLL”).
worked as waiters and a “non-tipped packer assistant” at Hunan
Dynasty restaurant during various periods.
(Compl. ¶¶ 8-15.)
Plaintiffs allege that they were paid “a cash payment of $400
every semi-month, regardless of hours worked.”
(Compl. ¶ 7.)
forty hours per week, but did not receive overtime compensation
or spread-of-hours pay.
(Compl. ¶¶ 35-37, 41, 46.)
also claim that Defendants “willfully failed to keep records
required by the FLSA” and “did not provide Plaintiffs and the
Although Plaintiffs docketed their submission solely as an
opposition to Defendants’ motion, the Court has deemed it a
cross-motion to amend.
The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for purposes of Defendants’ motion
pursuant to Rule 12(b)(6).
members of the Class with the notices required by N.Y. Lab. Law
(Compl. ¶¶ 36, 49.)
Defendants now move to dismiss for lack of subject
matter jurisdiction and failure to state a claim.
have cross-moved to amend the Complaint.
The Court will first
I. Legal Standards
Rule 12(b)(1) Standard
matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
See Morrison v. Nat’l Australia Bank, Ltd., 547 F.3d
167, 170 (2d Cir. 2008).
The Court must accept as true the
factual allegations contained in the complaint, but it will not
subject matter jurisdiction must be shown affirmatively.
id.; Atlanta Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968
F.2d 196, 198 (2d Cir. 1992); Shipping Fin. Servs. Corp. v.
asserting subject matter jurisdiction has the burden of proving
by a preponderance of the evidence that it exists.”
201 F.3d at 113.
B. Rule 12(b)(6)Standard
“[t]wo working principles.”
Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v.
Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).
First, although the
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
accord Harris, 572 F.3d at 72.
Iqbal, 556 U.S. at 678;
Second, only complaints that
state a “plausible claim for relief” can survive a Rule 12(b)(6)
motion to dismiss.
Iqbal, 556 U.S. at 679.
a complaint does so is “a context-specific task that requires
Id.; accord Harris, 572 F.3d at 72.
C. Rule 15 Standard
Courts should grant leave to amend “when justice so
FED. R. CIV. P. 15(a)(2).
Leave to amend should be
granted unless there is evidence of undue delay, bad faith,
undue prejudice to the non-movant, or futility.
See Milanese v.
determine whether an amended claim is futile, courts analyze
dismiss under Federal Rule of Civil Procedure 12(b)(6).
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeal, 282 F.3d
83, 88 (2d Cir. 2002).
II. Subject Matter Jurisdiction
Defendants move to dismiss the Complaint, asserting
that Plaintiffs allege only that Defendants had an annual gross
volume of sales in excess of $500,000, but do not allege other
jurisdictional requirements pursuant to the FLSA.
Plaintiffs have filed a cross-motion to amend the Complaint,
seeking to add particular allegations.
The Court disagrees with
Defendants that this is a jurisdictional issue.
The FLSA provides coverage for “employees who in any
workweek [are] engaged in commerce or in the production of goods
for commerce, or [are] employed in an enterprise engaged in
commerce or the production of goods for commerce.”
Thus, an employer is only subject to the FLSA’s
commerce” (known as “individual coverage”) or (2) the employer
is an “enterprise engaged in commerce” (known as “enterprise
Id. and § 207(a)(2);
see also Padilla v. Manlapaz,
643 F. Supp. 2d 298, 299-300 (E.D.N.Y. 2009).
Here, it appears
that Plaintiffs are attempting to plead enterprise coverage.
(i) has employees engaged in commerce3 or in
the production of goods for commerce, or
that has employees handling, selling, or
otherwise working on goods or materials that
have been moved in or produced for commerce
by any person; and
(ii) is an enterprise whose annual gross
volume of sales made or business done is not
less than $500,000.
Rather, they argue that Plaintiffs have not sufficiently
Defendants further assert a “factual” challenge, relying upon
the declaration of defendant Xiang Rong Chen, to demonstrate
production of goods for interstate commerce and did not handle,
“Commerce” is defined as “trade, commerce, transportation,
transmission, or communication among the several States or
between any State and any place outside thereof.” 29 U.S.C.
sell, or work on goods or materials moved in or produced for
(See Defs.’ Br. to Dismiss, Docket Entry 10, at 104.)
Plaintiffs’ purported failure does not deprive this Court of
subject matter jurisdiction.
See Jia Hu Qian v. Siew Foong Hui,
No. 11-CV-5584, 2012 WL 1948820, at *2 (S.D.N.Y. May 30, 2012);
Velez v. Vassallo, 203 F. Supp. 2d 312, 332 (S.D.N.Y. 2002).
Rather, enterprise coverage is an element of an FLSA claim.
Jian Long Li v. Li Qin Zhao, --- F. Supp. 2d ----, 2014 WL
3887860, at *3 (E.D.N.Y. Aug. 8, 2014); Velez, 203 F. Supp. 2d
seeks dismissal for lack of subject matter jurisdiction, it is
Likewise, to the extent that Defendants assert that
state law claims because the Court lacks jurisdiction, this is
III. Failure to State a Claim
Defendants raise the same arguments regarding lack of
essentially alleges only annual gross volume sales (Compl. ¶ 5)-
The page numbers for Defs.’ Br. to Dismiss refer to those
provided by the Electronic Case Filing System.
The original Complaint is wholly deficient of
Defendants’ motion to dismiss in this regard is GRANTED.
employees engaged in commerce or in the production of goods for
material that have been moved in or produced for commerce by any
person . . . .”
(PAC ¶ 5.)
Notably, the PAC does not contain
any additional factual allegations in this regard.5
Nonetheless, the Court can infer from the nature of
handling, selling, or otherwise working on goods or materials
that have been moved in or produced for commerce.
(E.D.N.Y. July 31, 2014) (“[S]everal courts in this district
have inferred FLSA enterprise coverage based on the nature of
pleading deficiencies.” (collecting cases)); Gomez v. El Rancho
Oddly, Plaintiffs provide a declaration from plaintiff Xiu Qin
Lin asserting that she served and handled goods that moved in
interstate commerce, including chopsticks, soy sauce, wasabi,
fish, thai rice, and imported beers. (Lin Decl., Pls.’ Opp.
Br., Docket Entry 11, Ex. B ¶¶ 7-10.) It is unclear why
Plaintiffs did not include such factual allegations in their
de Andres Carne de Tres Inc., No. 12-CV-1264, 2014 WL 1310296,
engaged in interstate commerce where the plaintiff alleged “that
the defendants operated a restaurant, Andres Carne, which served
Columbian cuisine and made gross sales of at least $500,000”),
adopted by 2014 WL 1310299 (E.D.N.Y. Mar. 31, 2014); but see
Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 85-86 (E.D.N.Y.
2012) (declining to infer interstate commerce from a general
description of the business).
Where, as here, employees handle
foods and cooking materials, there is enough to show the first
prong of enterprise coverage, despite Defendants’ assertion that
(Defs.’ Reply Br., Docket Entry 12, at 2-66.)
See Rodriguez v.
Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 121 (E.D.N.Y.
2011) (“Because even local business activities fall within the
reach of the FLSA when an enterprise employs workers who handle
gross volume of sales, which Defendants do not dispute.
As Defendants did not provide pagination for their reply brief,
the Court refers to the page numbers provided by the Electronic
Case Filing System.
Shim v. Millennium Grp., No. 08-CV-4022, 2009 WL 211367, at *3
(E.D.N.Y. Jan. 28, 2009) (“[W]hile plaintiffs’ complaint does
requisite dollar volume of business is covered by the FLSA.’”
(quoting Archie v. Grand Cent. P’ship, Inc., 997 F. Supp. 504,
530 (S.D.N.Y. 1998) (emphasis omitted)).
Accordingly, Plaintiffs’ proposed amendments would not
be futile and are sufficient--albeit ever-so-slightly--to allege
enterprise coverage pursuant to the FLSA.
As such, Plaintiffs’
cross-motion to amend is GRANTED.
[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]
Defendants’ motion to dismiss is GRANTED IN PART and
DENIED IN PART.
It is DENIED insofar as Defendants assert that
the Court lacks subject matter jurisdiction or that the Court
should decline supplemental jurisdiction, but GRANTED insofar as
Defendants assert a failure to state a claim.
however, Plaintiffs’ cross-motion to amend is also GRANTED.
Clerk of the Court is directed to docket the PAC at Docket Entry
11-1 as the Amended Complaint.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
27 , 2014
Central Islip, New York
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?