Li et al v. Ichiro Sushi, Inc. et al
MEMORANDUM & ORDER denying 56 Motion to Dismiss; denying 57 Motion to Dismiss. For the foregoing reasons, Defendants' motion to dismiss is DENIED. Plaintiffs are ordered to effect service on Ichiro Sushi, Inc. and Hui Chen, and to file pr oof of service on the docket, within 30 days of the issuance of this Memorandum and Order. Once served, those defendants shall have 21 days to file an answer or otherwise respond to Plaintiffs' amended complaint. The remaining Defendants that have appeared are ordered to file an answer no later than 14 days from the issuance of this Memorandum and Order. Finally, an initial pretrial conference is hereby scheduled for May 6, 2016, at 2:00 p.m. That conference will include the parties i n this case and the parties in Hidalgo v. Ichiro Sushi, Inc., No. 15-CV-414, a related case in which the plaintiff has made similar allegations about the labor practices at Ichiro 2nd Avenue. This resolves Docket Nos. 56 and 57. (As further set forth in this Order.) (Signed by Judge Alison J. Nathan on 3/29/2016) (cf)
DOCUi\ I E:\T
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_ _ ___....,,.....,...,....,...,...
Ji Li, et al.,
Ichiro Sushi, Inc., et al.,
ALISON J. NATHAN, District Judge:
Plaintiffs in this action are former-and in one case, current-deliverymen at a sushi
restaurant located at 1694 2nd Avenue in Manhattan ("Ichiro 2nd Avenue"). They bring this
suit, on behalf of themselves and other delivery persons, against several individuals and
corporate entities (collectively, "Defendants") for violations of the Fair Labor Standards Act
("FLSA") and the New York Labor Law ("NYLL"). Plaintiffs allege, inter alia, that Defendants
failed to pay their employees the required minimum wage and did not pay overtime. Six
defendants have appeared thus far in the action, and they have moved to dismiss Plaintiffs'
amended complaint. They argue that Plaintiffs failed to adequately serve the summons and
complaint, and that Plaintiffs have failed to state a claim upon which relief can be granted. For
the reasons that follow, the motion to dismiss is DENIED.
The five named plaintiffs in this action are Ji Li, Jianhui Wu, Bin Zhang, De Ping Zhao,
and Kai Zhao. Amended Compl.
Each plaintiff has worked at Ichiro 2nd Avenue as a
deliveryman at some point within the past several years-Li, who stopped working at the
Unless otherwise noted, the following facts are taken from Plaintiffs' amended complaint. See Dkt. No.
restaurant in May 2013, was the first plaintiff to end his employment at Ichiro 2nd A venue, and
Kai Zhao is the only plaintiff who was still working at the restaurant when Plaintiffs filed their
amended complaint on April 9, 2015. Id. Plaintiffs have named four corporate defendants and
four individual defendants in their amended complaint. The four corporate entities-Ichiro
Restaurant, Inc., Ichiro Sushi, Inc., New Ichiro Sushi, Inc., and Ichiro Asian Fusion, Inc.-are all
alleged to be New York corporations with gross sales in excess of $500,000.
Plaintiffs allege that each corporation, except Ichiro Asian Fusion, Inc., has its principal place of
business at 1694 2nd Avenue (i.e., at Ichiro 2nd Avenue). Id.
16, 18. Ichiro Asian Fusion,
Inc., allegedly has its principal address at 80 Mamaroneck Avenue in White Plains, which
Plaintiffs refer to as "Ichiro White Plains." Id.
20. Plaintiffs maintain that Ichiro 2nd Avenue
and Ichiro White Plains are part of a restaurant chain known as "Ichiro Restaurant." Id.
The four named individual defendants are Jian Ping Chen, Jin Li, Hui Chen, and Juhang
Wang. Amended Compl.
28. Plaintiffs allege that all four serve as owners, operators, and/or
officers of the four corporate defendants. Id.
30, 33, 36, 37. Plaintiffs describe Jian Ping
Chen, known as "Boss," as the individual who used to oversee Ichiro 2nd A venue and now
manages Ichiro White Plains. Id.
His wife-Jin Li, known as "Lady Boss"-allegedly
works as a receptionist at Ichiro 2nd Avenue and oversees the restaurant.
29, 34. Hui
Chen is allegedly the Chief Executive Officer and Chairman of Ichiro Sushi, Inc., in addition to
serving as an owner, operator, CEO, and/or officer of the other three corporate entities. Id.
35-36. Plaintiffs do not make additional allegations about Juhang Wang, other than to reiterate
that he is an owner, operator, and/or officer of each of the four corporate defendants.
Plaintiffs allege that they consistently were paid wages below the required minimum
wage, denied proper overtime compensation, and not paid the "spread of hours" premium
required under New York law. Amended Compl.
53-118. Four plaintiffs maintain that
Defendants paid them only a flat fee every month, see id.
61-62, 72-73, 84-85, 113, and the
fifth claims that Defendants paid him a daily wage that varied slightly based on the number of
hours he worked, id.
Plaintiffs filed their initial complaint on December 31, 2014. 2 Dkt. No. 1. Plaintiffs'
counsel, John Troy, filed affidavits of service for all of the defendants named in the original
complaint, indicating that he served the summons and complaint on "Jane Doe, Manager" at
lchiro 2nd Avenue on January 17, 2015. Dkt. Nos. 4-13. No defendants appeared in the case,
however, and Plaintiffs filed an amended complaint on April 9, 2015. Dkt. No. 14. Plaintiffs
attempted service of their amended complaint on every defendant, with the exception of Jian
Ping Chen and Ichiro Asian Fusion, Inc., by leaving a copy of the complaint and summons with
"Yuki Zheng, Cashier" at lchiro 2nd Avenue on May 6, 2016. Dkt. Nos. 24-29. Plaintiffs
attempted service on Jian Ping Chen and Ichiro Asian Fusion, Inc. by leaving a copy of the
complaint and summons with "Tony Chen, Manager" at Ichiro White Plains on May 12, 2015.
Dkt. Nos. 23, 35, 49.
As of June 11, 2015, no defendant had yet appeared. Accordingly, Plaintiffs sought and
received a certificate of default from the Clerk of Court. Dkt. Nos. 38, 39. On June 18, 2015,
however, attorney David Yan filed a notice of appearance on behalf of six defendants: lchiro
Sushi, Inc., New lchiro Sushi, Inc., Ichiro Asian Fusion, Inc., Jian Ping Chen, Hui Chen, and
Juhang Wang (hereinafter, "Defendants"), i.e., each defendant named in the amended complaint
except lchiro Restaurant, Inc., and Jin Li. Dkt. No. 42. On August 20, 2015, Plaintiffs filed a
motion to conditionally certify a collective action under the FLSA. Dkt. No. 53. Magistrate
Judge Francis granted in part and denied in part that motion, limiting conditional certification to
delivery persons who worked at lchiro 2nd Avenue. Dkt. No. 79 at 12; see also Liv. lchiro Rest.
Inc., No. 14-CV-10242 (AJN) (JCF), 2015 WL 6828056 (S.D.N.Y. Nov. 5, 2015). On the same
date that Plaintiffs moved for conditional certification, Defendants filed this motion to dismiss
under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). Dkt. No. 56, 57. The motion is
fully briefed. See Dkt. No. 75.
Several of the defendants named in the original complaint were subsequently removed, or identified by a
different name, when Plaintiffs filed an amended complaint.
To resolve a Rule 12(b)(5) motion to dismiss for insufficient service of process, "a court
must look to matters outside the complaint." Rana v. Islam, 305 F.R.D. 53, 62 (S.D.N.Y. 2015)
(internal quotation marks and citation omitted). Once a defendant has filed such a motion, "the
plaintiff bears the burden of proving adequate service." Burda Media, Inc. v. Viertel, 417 F .3d
292, 298 (2d Cir. 2005). Generally, "[a] process server's affidavit of service constitutes prima
facie evidence of proper service." Rana, 305 F.R.D. at 63. But "[a] defendant's sworn denial of
receipt of service ... rebuts the presumption" and often "necessitates an evidentiary hearing."
Old Republic Ins. Co. v. Pac. Fin. Servs. ofAm., Inc., 301F.3d54, 57 (2d Cir. 2002). "[N]o
hearing is required," however, "where the defendant fails to swear to specific facts to rebut the
statements in the process server's affidavits." Id at 58 (internal quotation marks and citation
omitted). Similarly, "[ c]onclusory statements" on the part of the plaintiff "are insufficient to
overcome a defendant's sworn affidavit that he was not served." Darden v. DaimlerChrysler N
Am. Holding Corp., 191 F. Supp. 2d 382, 387 (S.D.N.Y. 2002).
In evaluating a motion to dismiss under Rule 12(b)(6), the Court must "accept as true all
facts alleged in the complaint" and should "draw all reasonable inferences in favor of the
plaintiff." Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). The Court
should not, however, "accept as true a legal conclusion couched as a factual allegation." Bell At!.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)). To survive a motion to dismiss, "a complaint 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 Twombly, 550 U.S. at 570). A claim is facially plausible "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. The "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. If a complaint "pleads facts that are 'merely consistent with' a defendant's
liability, it 'stops short of the line between possibility and plausibility of' entitlement to relief."'
Id. (quoting Twombly, 550 U.S. at 557).
Defendants advance several bases for dismissing the amended complaint. First, they
challenge the adequacy of service on all Defendants on the grounds that service was not effected
within 120 days of the filing of the original complaint. Second, they challenge the adequacy of
service on lchiro Sushi, Inc. and Hui Chen. Third, they argue that Plaintiffs fail to state any
claim against Juhang Wang. Fourth, they argue that New Ichiro Sushi, Inc. is not liable for any
labor law violations that occurred before September 17, 2014. And fifth, they contend that
Plaintiffs' claims against lchiro Asian Fusion, Inc. and Jian Ping Chen should be dismissed for
inadequate service and for failure to state a claim. 3 The Court considers each argument in turn.
A. Service of Process on all Defendants
Defendants claim that Plaintiffs failed to effect service "for more than 120 days after they
filed the Summons in a civil case," in violation of Federal Rule of Civil Procedure 4(m). 4 Defs.
Br. 3. As Defendants acknowledge, Plaintiffs claim they effected service on January 17, 2015,
for the original complaint and on May 6, 2015, and May 12, 2015, for the amended complaint.
Id. at 3-4. Given that the original complaint was filed on December 31, 2014, see Dkt. No. 1,
and that the amended complaint was filed on April 9, 2015, see Dkt. No. 14, these dates of
service are well within the 120-day period for service under Rule 4(m). Defendants' argument
appears to be, however, that service of the initial complaint was defective, and that the
subsequent service of the amended complaint therefore failed to comply with Rule 4(m). The
Defendants also contend that the Court should dismiss claims against "d/b/a lchiro or lchiro Sushi
Restaurant." Defs. Br. 9. But Plaintiffs have not named either entity as a defendant in their amended complaint.
See Dkt. No. 14. Plaintiffs have, however, named "lchiro Restaurant, Inc." as a Defendant, but that entity has not
yet appeared in this action and therefore has not moved to dismiss.
A 2015 amendment to the Federal Rules of Civil Procedure reduced the presumptive time for serving a
defendant under Rule 4(m) from 120 days to 90 days. The 120-day period applies to this action.
Plaintiffs' counsel, John Troy, filed affidavits of service for all of the Defendants named
in the original complaint indicating that he served the summons and complaint on "Jane Doe,
Manager" at Ichiro 2nd Avenue's address. Dkt. Nos. 4-13. New York law permits service on an
individual "by delivering the summons within the state to a person of suitable age and discretion
at the actual place of business ... of the person to be served," N.Y. C.P.L.R. 308(2), and on a
corporation 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," id. 31 l(a)(l). Defendants claim that Mr. Troy "failed to make reasonable inquiry
whether [the Jane Doe] Manager of Ichiro was authorized by these defendants to accept service"
and that Defendants did not, in fact, receive the summons or complaint. Defs. Br. 3. But
attempting to cast doubt on whether Mr. Troy in fact served an appropriate individual at Ichiro
2nd Avenue does not meet Defendants' burden to "swear to specific facts to rebut the statements
in the process server's affidavits." Old Republic, 301 F.3d at 58 (internal quotation marks and
citation omitted). In the materials accompanying Defendants' motion to dismiss, only Hui
Chen's affidavit, which pertains to himself and to Ichiro Sushi, Inc., expressly denies having
been properly served and avers to specific facts in support of that denial. See Dkt. 63 ("Hui
Chen Aff."). The Court discusses those specific defendants below. But the Court rejects
Defendants' broad contention that service on all Defendants was invalid and that Plaintiffs
therefore failed to comply with Rule 4(m). 5
Moreover, even if Defendants were correct that Plaintiffs had to serve their amended
complaint within 120 days of filing the original complaint, the Court would exercise its
discretion to permit service outside the 120-day period. See, e.g., Beauvoir v. US. Secret Serv.,
234 F.R.D. 55, 58 (E.D.N.Y. 2006) (holding that courts have "discretion to extend the deadline
for effecting service" under Rule 4(m), even if plaintiff has not shown good cause). The dates of
Plaintiffs' response on this point relies heavily on the case law interpreting Rule 15(c), which governs
when an amended pleading relates back to the date of the original pleading. See Opp. Br. 3-4; see also Fed. R. Civ.
P. 15(c). The Court need not address these arguments at this time, however, as Defendants have not raised a statute
of limitations defense.
service for the amended complaint-May 6, 2015, and May 12, 2015-are just six days and
twelve days, respectively, beyond the 120-day window from the filing of the original complaint.
No prejudice to Defendants would result from such an extension.
Service of Process on lchiro Sushi, Inc. and Hui Chen
Defendants next argue that neither Ichiro Sushi, Inc. nor Hui Chen were properly served.
Defendants claim that Ichiro Sushi, Inc. sold the Ichiro 2nd Avenue business on September 17,
2014, and that Hui Chen no longer works at the restaurant. Defs. Br. 3-4. In support of that
claim, Hui Chen avers that he is the sole shareholder and president oflchiro Sushi, Inc., that he
"sold the restaurant business on September 17, 2014," and that he has not returned to the Ichiro
2nd Avenue location since. Hui Chen Aff.
3-4. Chen claims that the decision to sell was
"caused by the construction of the Second Avenue Subway," which led to a slowdown in
6. He further avers that he sold the restaurant to New Ichiro Sushi, Inc., that
"Ichiro Sushi, Inc. and New Ichiro Sushi, Inc. are not related," and that he "do[ es] not own any
interest in ... New Ichiro Sushi, Inc." Id.
7. Finally, he alleges that he has not "been properly
served by the Plaintiffs the Summons, Complaint, and First Amended Complaint." Id.
Chen has thus sworn to "specific facts" that "rebut the presumption" of proper service.
Old Republic, 301 F.3d at 57-58. Plaintiffs, however, provide no response to Chen's claims,
other than to insist that "Hui Chen was properly served with the Original Complaint ... by the
service on Yuki Zheng, the cashier." Opp. Br. 4. This response appears to conflate service of
the original complaint with service of the amended complaint, compare Dkt. No. 7 ("Jane Doe,
Manager"), with Dkt. No. 25 ("Yuki Zheng, Cashier"), and ignores the thrust of Defendants'
argument: that Chen and Ichiro Sushi, Inc., could not have been properly served at the Ichiro 2nd
Avenue address because it is no longer their place of business. The affidavits submitted along
with Plaintiffs' opposition fare no better. Each affidavit repeats an identical allegation: that "Hui
Chen owns and operates Ichiro Restaurant Inc., New Ichiro Sushi Inc., and Ichiro Asian Fusion
Inc." Dkt. No. 70 ~ 12; Dkt. No. 71
12; Dkt. No. 72 ~ 12. Even if these statements could be
construed as allegations that Ichiro 2nd Avenue remained Chen's place of business, they are only
"[c]onclusory statements" that "are insufficient to overcome a defendant's sworn affidavit that he
was not served." Darden, 191 F. Supp. 2d at 387. Accordingly, the Court holds that service on
Hui Chen and Ichiro Sushi, Inc. was improper.
The Court declines, however, to dismiss Plaintiffs' claims against those defendants.
When service of process is insufficient, "the Comi has discretion to dismiss the action, but
dismissal is not mandatory." Darden, 191 F. Supp. 2d at 387; see also Primary Succession
Capital, LLC v. Schaeffler, KG, No. 09-CV-735 (LAP), 2010 WL 4236948, at *I (S.D.N.Y. Oct.
26, 2010). In light of the apparent confusion over which corporate entities and individuals were,
and are still, associated with Ichiro 2nd Avenue, the Court exercises its discretion to deny
Defendants' 12(b)(5) motion to dismiss with respect to Hui Chen and Ichiro Sushi, Inc. Instead,
Plaintiffs are ordered to serve those defendants, and file proof of service on the docket, within 30
days of the issuance of this Memorandum and Order.
Failure to State a Claim Against Juhang Wang
Defendants argue that the Court should dismiss Plaintiffs' claims against Juhang Wang
on the grounds that he "has not been described as any of the 'Defendants' in the plaintiffs' First
Amended Complaint, paragraphs 14 to 37." Defs. Br. 5. This is plainly incorrect. Plaintiffs
allege that "four individuals primarily determine their rates of pay, work schedule, work load and
employment: Jian Ping Chen, Jin Li, Hui Chen and Juhang Wang." Amended Compl. ii 28
(emphasis added). They also allege that "Wang is an owner, operator and/or officer oflchiro
Restaurant Inc., Ichiro Sushi Inc., New Ichiro Sushi Inc., and Ichiro Asian Fusion Inc." Id.
Defendants' motion to dismiss is therefore denied with respect to Juhang Wang.
Claims Against New Ichiro Sushi, Inc. Prior to September 17, 2014
Defendants contend that "New Ichiro Sushi, Inc. cannot be responsible for any possible
violation of FLSA and NYLL prior to September 17, 2014." Defs. Br. 6. Although Defendants
do not say so explicitly, this claim apparently relies on the allegations from Hui Chen's affidavit
indicating that he sold Ichiro 2nd Avenue to New Ichiro Sushi, Inc. on September 17, 2014. See
Hui Chen Aff.
ii 7; see also Dkt. No. 61
Ex. C (documents relating to the alleged sale). The
Court cannot consider these supplemental documents, however, in evaluating Defendants'
12(b)(6) motion to dismiss (as contrasted with their 12(b)(5) motion to dismiss). See Vaher v.
Town of Orangetown, NY, 916 F. Supp. 2d 404, 423 (S.D.N.Y. 2013) ("[I]n ruling on a motion
to dismiss pursuant to Rule 12(b)(6), a district court generally must confine itself to the four
corners of the complaint and look only to the allegations contained therein."). Defendants have
not identified any allegations in the amended complaint that would allow the Court to hold that
Plaintiffs have failed to state a claim against New Ichiro Sushi, Inc. for labor law violations prior
to September 17, 2014. And although courts will occasionally consider documents outside the
"four corners" of the complaint in resolving a 12(b)(6) motion to dismiss, those documents must
be "attached to the complaint, incorporated by reference or integral to the complaint," or they
must be documents "the plaintiff relied on." Id. at 423-24 (emphasis omitted). None of these
exceptions apply here. The Court therefore denies Defendants' motion to dismiss Plaintiffs'
claims against New Ichiro Sushi, Inc. prior to September 17, 2014.
Claims Against Ichiro Asian Fusion, Inc. and Jian Ping Chen
Finally, Defendants advance two grounds for dismissing Plaintiffs' claims against Ichiro
Asian Fusion, Inc., and Jian Ping Chen. First, they argue that service of process was invalid with
respect to both defendants. And second, they contend that Plaintiffs' claims against these
defendants do not survive a 12(b)(6) motion to dismiss. Both arguments are unavailing.
With respect to service of process, Defendants claim that Plaintiffs never served the
amended complaint on Ichiro Asian Fusion, Inc. Defs. Br. 7. Defendants are mistakenPlaintiffs have filed an affidavit of service indicating that Ichiro Asian Fusion, Inc. was served
on May 12, 2015. Dkt. No. 49. Defendants next argue that service on Jian Ping Chen was
invalid for essentially the same reason described previously with respect to all Defendantsnamely, that Plaintiffs failed to inquire whether the individual listed on the affidavit of service
(here, Tony Chen) was authorized to accept service. Defs. Br. 6-7. As the Court has made clear,
however, Defendants must "swear to specific facts to rebut the statements in the process server's
affidavits" in order to prevail on a 12(b)(5) motion to dismiss. Old Republic, 301 F.3d at 58
(internal quotation marks and citation omitted). Defendants submitted no affidavits pertaining
to Jian Ping Chen along with their motion to dismiss. Defendants did, however, submit an
affidavit from Jian Ping Chen along with their reply brief, in which Chen alleges that "he" is a
woman, does not know who Jin Li ("his" alleged wife) is, and has never met Plaintiffs. Dkt. No.
76 iii! 2, 4, 6. The Court declines to consider this affidavit because Defendants could, and
should, have submitted it along with their motion to dismiss. By waiting until they filed their
reply brief to introduce this information, Defendants have denied Plaintiffs the opportunity to
respond. They therefore cannot rely on the affidavit to support dismissal of Plaintiffs' claims.
See Matera v. Native Eyewear, Inc., 355 F. Supp. 2d 680, 687 (E.D.N.Y. 2005) ("The Defendant
failed to submit any affidavits in support of its motion and ... the Court will not consider the
affidavits submitted ... with its Reply brief."); see also Knipe v. Skinner, 999 F.2d 708, 711 (2d
Cir. 1993) ("Arguments may not be made for the first time in a reply brief.").
Second, Defendants argue that the Court should dismiss the claims against Ichiro Asian
Fusion, Inc. and Jian Ping Chen because "Plaintiffs have failed to set forth sufficient facts to
support [their] allegations that ... said defendants are employers under the FLSA." Defs. Br. 7.
Under the FLSA, an "employer" is "any person acting directly or indirectly in the interest of an
employer in relation to an employee." 29 U.S.C. § 203(d); see also Irizarry v. Catsimatidis, 722
F.3d 99, 103 (2d Cir. 2013) ("The statute nowhere defines 'employer' in the first instance.").
The Second Circuit treats "employment for FLSA purposes as a flexible concept to be
determined on a case-by-case basis," with an eye to "the 'economic reality' of a particular
employment situation." Barfield v. N. YC. Health & Hasps. Corp., 537 F.3d 132, 141-42 (2d
Cir. 2008). The court has applied a collection of different factors, depending on the
circumstances, to aid in assessing the "economic reality" of an employment relationship. See id
at 142-43 (reviewing applications of the "economic realities test" and concluding that "the
various factors relied upon by this court ... state no rigid rule for the identification of an FLSA
Here, Plaintiffs contend that Defendants are all employers because they "perform related
activities, are united in operation and function as a single integrated enterprise." Opp. Br. 8. In
other words, Plaintiffs contend that Defendants operate as a "single employer." "A 'single
employer' situation exists where two nominally separate entities are actually part of a single
integrated enterprise." Perez v. Westchester Foreign Autos, Inc., No. 11-CV-6091 (ER), 2013
WL 749497, at *7 (S.D.N.Y. Feb. 28, 2013). In assessing whether "multiple defendants
constitute a single employer, courts consider the following factors: (1) interrelation of
operations; (2) centralized control oflabor relations; (3) common management; and (4) common
ownership or financial control." Id. But the question of "whether a particular defendant can be
considered a plaintiff's 'employer' is a fact-specific inquiry." Id. (emphasis added).
Accordingly, courts have held that "on a motion to dismiss, the relevant inquiry is whether a
defendant has been put 'on notice of the theory of employer liability.'" Id. (quoting Addison v.
Reitman Blacktop, Inc., 283 F.R.D. 74, 84 (E.D.N.Y.2011)). In keeping with the requirements of
Twombly and Iqbal, however, "mere boilerplate allegations" that an individual or entity "meets
the various prongs" of one instantiation of the FLSA economic realities test are "insufficient to
survive a motion to dismiss." Bravo v. Established Burger One, LLC, No. 12-CV-9044 (CM),
2013 WL 5549495, at *6-7 (S.D.N.Y. Oct. 8, 2013) (internal quotation marks and citation
Turning to the specific allegations in the amended complaint, Plaintiffs have plausibly
alleged that Jian Ping Chen and lchiro Asian Fusion, Inc. are employers under the FLSA. As an
initial matter, Plaintiffs allege that Chen "is an owner, operator and/or officer" of the four
corporate defendants. Amended Compl.
30. Standing alone, that conclusory allegation might
be insufficient, but Plaintiffs also allege that Chen "is known as 'Boss'" to Plaintiffs, that he
"used to oversee lchiro 2nd Ave. and work at its sushi bar," and that he "currently manages and
oversees lchiro White Plains." Id.
31-32. Plaintiffs additionally claim that Chen and Jin Li
"are husband and wife" and that Li oversees Ichiro 2nd Avenue. Id.
31, 34. These allegations
make plausible both Chen's specific role as an employer with management authority over
Plaintiffs, as well as the "interrelation of operations," "common management," and "common
oversight or financial control" of Ichiro 2nd Ave and Ichiro White Plains. See Perez, 2013 WL
749497, at *7. That has particular import for Ichiro Asian Fusion, Inc., which is the only entity
that Plaintiffs allege is based at the address of Ichiro White Plains. See Amended Compl. ii 20.
Plaintiffs further allege that Ichiro White Plains and Ichiro 2nd Avenue are "members of a
restaurant chain known as Ichiro Restaurant." Id.
Accordingly, although Plaintiffs could
have included more detail in their amended complaint, they have put forward more than "mere
boilerplate allegations" that Ichiro Asian Fusion, Inc. and Jian Ping Chen acted as their
employer. Bravo, 2013 WL 5549495, at *7. Defendants' motion to dismiss the claims against
these defendants is therefore denied. 6
For the foregoing reasons, Defendants' motion to dismiss is DENIED. Plaintiffs are
ordered to effect service on Ichiro Sushi, Inc. and Hui Chen, and to file proof of service on the
docket, within 30 days of the issuance of this Memorandum and Order. Once served, those
defendants shall have 21 days to file an answer or otherwise respond to Plaintiffs' amended
complaint. The remaining Defendants that have appeared are ordered to file an answer no later
than 14 days from the issuance of this Memorandum and Order. Finally, an initial pretrial
conference is hereby scheduled for May 6, 2016, at 2:00 p.m. That conference will include the
parties in this case and the parties in Hidalgo v. Ichiro Sushi, Inc., No. 15-CV-414, a related case
Defendants suggest for the first time in their reply briefthat this Court lacks subject matter jurisdiction
over New lchiro Sushi, Inc. because the company's revenue in 2014 was less than $500,000. Reply Br. 1; see also
29 U.S.C. § 203(s)(l)(A)(ii) (requiring that enterprises subject to the FLSA have an "annual gross volume of sales
made or business done" of at least $500,000). Plaintiffs, however, have alleged that New Ichiro Sushi, Inc. 's annual
gross sales exceed $500,000, see Amended Comp!. if 19, and Defendants have put forward no evidence to counter
that allegation. Moreover, even if Defendants are correct in their unsubstantiated characterization of New lchiro
Sushi, Inc. 's revenue, courts in this circuit have consistently held that the annual revenue requirement goes to the
merits of a FLSA claim and is not jurisdictional. See Rocha v. Bakhter Afghan Halal Kababs, Inc., 44 F. Supp. 3d
337, 344 (E.D.N.Y. 2014) (collecting cases); see also Shu Lan Chen v. Gypsophila Nail & Spa Inc., No. 15-CV2520 (JPO), 2015 WL 3473510, at *1 (S.D.N.Y. June 2, 2015).
in which the plaintiff has made similar allegations about the labor practices at Ichiro 2nd
This resolves Docket Nos. 56 and 57.
New York, New York
United States District Judge
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