Fu et al v. Mee May Corp. et al
Filing
47
OPINION AND ORDER re: 17 MOTION to Certify Class filed by Zhong Qi Lin, Bao Cheng Fu, Guang Li Zhang: For the reasons set forth herein, Plaintiffs' motion for conditional certification of the FLSA collective action is D ENIED. The parties are directed to appear before the Court for a status conference on Friday, May 6, 2016, at 10:30 a.m. in Courtroom 618 of the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New York, 10007. The Clerk of Court is directed to terminate Docket Entry 17. (Signed by Judge Katherine Polk Failla on 4/20/2016) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
BAO CHENG FU, et al.,
:
:
Plaintiffs,
:
:
:
v.
:
MEE MAY CORP., et al.,
:
:
Defendants. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: ______________
April 20, 2016
15 Civ. 4549 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
Plaintiffs Bao Cheng Fu, Guang Li Zhang, and Zhong Qi Lin (collectively,
“Plaintiffs”) bring this action against Mee May Corp., doing business as Mee
Noodle Shop & Grill (“Mee May”), along with individual Defendants Jiang Qing
Chen, Kuang Chi Wu, John (First Name Unknown) Wu, and Doe Defendants
#1-10 (collectively, “Defendants”), asserting claims under the Fair Labor
Standards Act of 1938, Pub. L. No. 75-718, 52 Stat. 1060 (the “FLSA”) (codified
as amended at 29 U.S.C. §§ 201-219), and the New York Labor Law, Consol.
Laws 1909, ch. 31 (the “NYLL”), for alleged failure to pay appropriate minimum
wage and overtime compensation, failure to pay spread of hours compensation,
violations of the notice and wage requirements of the NYLL and its associated
regulation, failure to reimburse employees for tools of the trade, and, for
Plaintiff Lin, wrongful termination. Plaintiffs now seek an order conditionally
certifying a collective action under the FLSA, authorizing Plaintiffs to send
notice to prospective collective action members, and requiring production of the
names, addresses, and social security numbers of prospective collective action
members. For the reasons set forth in this Opinion, the motion for conditional
certification and pendent requests is denied.
BACKGROUND 1
A.
Factual Background
Defendants operate a restaurant in Manhattan under the name Mee
Noodle Shop & Grill. (Am. Compl. ¶¶ 10-11). Plaintiffs are current and former
delivery workers who were paid a flat weekly rate and who allege that they were
not paid minimum wage or overtime compensation in accordance with federal
or state law. (Id. at ¶¶ 27, 30, 33, 38; Fu Decl. ¶¶ 3-5; Zhang Decl. ¶¶ 3-5; Lin
Decl. ¶¶ 3-4, 7). Plaintiffs each allege that they worked more than 40 hours
per week without being compensated at the required time-and-a-half rate for
the excess hours, and that they were not paid an additional hour’s pay for work
in excess of ten hours per day. (Fu Decl. ¶¶ 2, 5, 6; Zhang Decl. ¶¶ 2, 5, 6; Lin
Decl. ¶¶ 2, 7, 8). Plaintiffs also claim they were not provided notice of rates of
pay or wage statements. (Fu Decl. ¶¶ 8-9; Zhang Decl. ¶¶ 8-9; Lin Decl. ¶¶ 1011). Further, each Plaintiff states that he is aware of other Mee May employees
who were “victims of the same wage and hour practices,” and collectively, they
1
The facts in this Opinion are drawn from Plaintiffs’ Amended Complaint (“Am. Compl.”
(Dkt. #11)), as well as the declarations submitted by Zhong Qi Lin (Dkt. #20), Guang Li
Zhang (Dkt. #21), and Bao Cheng Fu (Dkt. #22), in support of the instant motion.
Plaintiffs’ declarations are referred to as “[Name] Decl.” For convenience, the parties’
briefs are referred to as “Pl. Br.” (Dkt. #18), “Def. Opp.” (Dkt. #23), and “Pl. Reply” (Dkt.
#26).
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list three other potential class members. (Fu Decl. ¶ 10; Zhang Decl. ¶ 10; Lin
Decl. ¶ 12).
B.
Procedural Background
Plaintiffs commenced this action alleging violations of federal and state
labor law on June 11, 2015 (Dkt. #1), and filed their First Amended Complaint
on August 12, 2015 (Dkt. #11). Plaintiffs bring claims for failure to pay the
applicable minimum wage rates under the FLSA, 29 U.S.C. §§ 206(a), 207(a),
and the NYLL, N.Y. Lab. Law § 652; willful violations of the overtime wage
provisions of the FLSA, 29 U.S.C. § 207(a)(1), and the NYLL’s associated
regulations; willful failure to pay an extra hour’s pay for each day during which
Plaintiffs worked over 10 hours in violation of the NYLL, N.Y. Comp. Codes R. &
Regs. tit. 12, § 142-2.4(a); willful failure to provide wage statements and
paystubs as required by the NYLL, N.Y. Lab. Law § 195(3); failure to reimburse
for tools of the trade under the FLSA, 29 C.F.R. § 778.217(a); and wrongful
termination under the FLSA, 29 U.S.C. § 215, and the NYLL, N.Y. Lab. Law
§ 215. (Am. Compl. ¶¶ 73-124).
On October 12, 2015, Plaintiffs filed a motion for the Court to
conditionally certify the FLSA collective action and allow notice to current and
former employees of Mee May. (Dkt. #17-22). Defendants opposed the motion
on November 11, 2015 (Dkt. #23-25), and Plaintiffs filed a reply brief on
December 6, 2015 (Dkt. #26), concluding briefing on the motion.
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DISCUSSION
A.
Applicable Law
Under the FLSA, an individual may file suit against his employer on
behalf of himself and “similarly situated” employees. 29 U.S.C. § 216(b).
“District courts have discretion to facilitate this collective action mechanism by
authorizing that notice be sent to potential plaintiffs informing them of ‘the
pendency of the action and of their opportunity to opt-in as represented
plaintiffs.’” Mark v. Gawker Media LLC, No. 13 Civ. 4347 (AJN), 2014 WL
4058417, at *2 (S.D.N.Y. Aug. 15, 2014) (quoting Myers v. Hertz Corp., 624
F.3d 537, 554 (2d Cir. 2010)).
“When deciding whether to certify a class under 29 U.S.C. § 216(b),
district courts in the Second Circuit apply a two-step process.” Ruiz v.
Citibank, N.A., 93 F. Supp. 3d 279, 297 (S.D.N.Y. 2015) (quoting Morano v.
Intercontinental Capital Grp., Inc., No. 10 Civ. 2192 (KBF), 2012 WL 2952893,
at *4 (S.D.N.Y. July 17, 2012)), reconsideration denied, 2015 WL 4629444
(S.D.N.Y. Aug. 4, 2015).
At the first step, a plaintiff bears the burden of demonstrating that he is
“similarly situated” to other members of the proposed collective action. See
Morales v. Plantworks, Inc., No. 05 Civ. 2349 (DC), 2006 WL 278154, at *2
(S.D.N.Y. Feb. 2, 2006). This requires “only a ‘modest factual showing’ that the
plaintiff and potential opt-in plaintiffs ‘together were the victims of a common
policy or plan that violated the law.’” Morano, 2012 WL 2952893, at *5
(quoting Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)).
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Even so, “certification is not automatic.” Romero v. H.B. Auto Grp., Inc.,
No. 11 Civ. 386 (CM), 2012 WL 1514810, at *10 (S.D.N.Y. May 1, 2012)
(internal quotation and citation omitted). This modest showing “must still be
based on some substance,” Guillen v. Marshalls of MA, Inc., 750 F. Supp. 2d
469, 480 (S.D.N.Y. 2010), and “[a] plaintiff must provide some actual evidence
of a factual nexus between him and the rest of the class he seeks to represent;
conclusory allegations will not suffice.” Reyes v. Nidaja, LLC, No. 14 Civ. 9812
(RWS), 2015 WL 4622587, at *2 (S.D.N.Y. Aug. 3, 2015); see also Mendoza v.
Casa de Cambio Delgado, Inc., No. 07 Civ. 2579 (HB), 2008 WL 938584, at *1
(S.D.N.Y. Apr. 7, 2008) (same). “Declarations submitted in connection with
motions for certification must allege facts showing such a nexus, not mere
statements that others are similarly situated.” Reyes, 2015 WL 4622587, at
*2.
More precisely, a plaintiff cannot simply state his belief that others are
similarly situated based on conversations with or observations of those other
potential opt-in members; rather, he must supply additional detail regarding
the particular conversations or observations substantiating that belief. There
is a “consensus in this district that where a plaintiff bases an assertion of a
common policy on observations of coworkers or conversations with them, he
must provide a minimum level of detail regarding the contents of those
conversations or observations.” Reyes, 2015 WL 4622587, at *3; see also
Sanchez v. JMP Ventures, L.L.C., No. 13 Civ. 7264 (KBF), 2014 WL 465542, at
*2 (S.D.N.Y. Jan. 27, 2014) (“Plaintiff does not, however, provide any detail as
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to a single such observation or conversation. As a result, the Court does not
know where or when these observations or conversations occurred, which is
critical in order for the Court to determine the appropriate scope of the
proposed class and notice process.” (emphases in original)).
“In the Second Circuit, courts routinely find employees similarly situated
‘despite not occupying the same positions or performing the same job functions
and in the same locations, provided that they are subject to a common
unlawful policy or practice.’” Guaman v. 5 M Corp., No. 13 Civ. 3820 (LGS),
2013 WL 5745905, at *4 (S.D.N.Y. Oct. 23, 2013) (quoting Summa v. Hofstra
Univ., 715 F. Supp. 2d 378, 390 (E.D.N.Y. 2010)). Nonetheless, courts may
deny conditional certification where a plaintiff “endeavors to represent an
overly broad class” or “includes no concrete facts evidencing a common scheme
or plan of wage and hour violations for employees engaged in different job
functions.” Mata v. Foodbridge LLC, No. 14 Civ. 8754 (ER), 2015 WL 3457293,
at *3 (S.D.N.Y. June 1, 2015) (internal citation and quotation omitted).
B.
Analysis
1.
Plaintiffs Seek Conditional Certification of an Overly Broad
Class
Here, all three Plaintiffs assert that they were employed by Mee May as
delivery workers (Fu Decl. ¶ 1; Zhang Decl. ¶ 1; Lin Decl. ¶ 1), and they seek
conditional certification of a class including “all non-exempt persons employed
by Defendants (‘Covered Employees’) within the last three years” (Pl. Br. 1). 2 As
2
At one point in their supporting memorandum, Plaintiffs state that all potential class
members “worked as delivery workers for Defendants” (Pl. Br. 4), but this fact is not
6
Plaintiffs further indicate, they “are aware of the following employees who are
subject to the same practices by Defendants, and may be interested in joining
this suit: ‘Senior’ (first name unknown) Lin, ‘Manyi’ (first name unknown)
Huang, [and] ‘Senior’ (first name unknown) Gao.” (Pl. Br. 3).
Defendants counter that Plaintiffs have “failed to put forth any specific
facts that would sufficiently allege other workers were subjected to a policy of
underpayment.” (Def. Br. 1-2 (emphasis in original)). Specifically, each
Plaintiff’s Declaration only states that he “know[s] of” approximately three other
potential class members based on his “conversations with [his] coworkers” and
“knowledge of their working hours and what they were paid.” (Fu Decl. ¶ 10;
Zhang Decl. ¶ 10; Lin Decl. ¶ 12).
As Defendants argue, “[t]o the extent Plaintiffs [ ] seek to represent a
collective of all ‘current and former employees of Mee May,” they “have utterly
failed to submit sufficient evidence that these other categories of workers have
any factual nexus similar to Plaintiffs as delivery workers.” (Def. Opp. 5).
Further, Defendants contend, Plaintiffs’ Declarations and papers lack “any
specificity as to the wages, hours, and policies that applied to the other
employees who allegedly worked for Defendants,” and they “do not disclose the
repeated at any point in the Amended Complaint or Plaintiffs’ Declarations. In fact, in
their reply memorandum, Plaintiffs state that “the prospective plaintiffs were engaged in
substantially the same tasks … [i.e.,] restaurant employees, all performing tasks
relating to the preparation and serving of food to customers.” (Pl. Reply 10-11). Thus,
the Court understands Plaintiffs to seek conditional certification of a broader class than
delivery workers.
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job titles and/or duties of these potential opt-ins.” (Id.). In reply, Plaintiffs
dispute that their allegations fall short, reasoning:
The complaint and the declarations of the named
Plaintiff[s] demonstrate that … the prospective
plaintiffs were engaged in substantially the same tasks
while employed by the Defendants while working in
substantially the same environment ([i.e.,] restaurant
employees, all performing tasks relating to the
preparation and serving of food to customers). Mee
May … is not a multi-branched, multi-national chain
restaurant — it is a relatively small organization, and
any putative class members would be subject to
essentially the same “factual and employment settings”
while at Mee May Corp.
(Pl. Reply 11). However, Plaintiffs’ Amended Complaint and individual
Declarations do not bear out these facts. Notably, neither the Amended
Complaint nor any Declaration includes the job titles or duties of other
employees, including those specifically named as prospective opt-in plaintiffs.
Put simply, Plaintiffs cannot rest on the claim that all potential opt-ins “would
be subject to essentially the same ‘factual and employment settings,’” when
this fact is unsupported by any filing to date.
Had Plaintiffs included a Declaration substantiating the alleged scheme
from any current or former employee engaged in a different type of work at Mee
May — or had the existing Declarations alleged with particularity the duties,
hours, or wages of non-delivery workers — Plaintiffs might clear the “modest
factual showing” required by the Second Circuit. See Morano, 2012 WL
2952893, at *3; see also Yap v. Mooncake Foods, Inc., No. 13 Civ. 6534 (ER),
2015 WL 7308660, at *8 (S.D.N.Y. Nov. 18, 2015) (denying collective
certification of a class broader than delivery workers and chefs where the
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“complaint and affidavits [did] not contain a single factual allegation specific to
other types of employees … such as the specific hours worked by, or the
amounts paid to, other employees” (internal quotation omitted)). 3
Instead, Plaintiffs’ broadly defined class presents no “actual evidence of a
factual nexus between [them] and the rest of the class [they seek] to represent.”
Reyes, 2015 WL 4622587, at *2. As a result, on the basis of the facts
presented, Plaintiffs fail to demonstrate that they were subject to the same
alleged wage and hour scheme as non-delivery employees.
2.
Plaintiffs Offer Insufficient Factual Support Regarding Other
Prospective Plaintiffs
Apart from the overbreadth of their proposed collective action, Plaintiffs’
factual allegations concerning potential opt-in class members fall short of the
detail required for the Court to conditionally certify the class. As Defendants
state, “Plaintiffs make the same lone, conclusory allegation in each of their
declarations with respect to allegedly similarly situated employees,” and they
“do not even proffer bare-boned allegations concerning the specific
conversations with the three potential opt-ins,” only repeating the same
“boilerplate language” in each Declaration. (Def. Opp. 4-5). 4 The Court agrees.
3
To be sure, additional declarations are not required under the law, though they might
have assisted Plaintiffs in demonstrating that non-delivery workers are similarly
situated. See Ramos v. Platt, No. 13 Civ. 8957 (GHW), 2014 WL 3639194, at *2
(S.D.N.Y. July 23, 2014) (“[C]ontrary to Defendants’ arguments, conditional certification
may be granted on the basis of the complaint and the plaintiff’s own affidavits.”); see
also Hernandez v. Bare Burger Dio, Inc., No. 12 Civ. 7794 (RWS), 2013 WL 3199292, at
*3 (S.D.N.Y. June 25, 2013) (“[C]ourts in this circuit have routinely granted conditional
collective certification based solely on the personal observations of one plaintiff’s
affidavit.”).
4
Defendants also argue that Plaintiffs fall short by failing to provide declarations from
these potential opt-in plaintiffs supporting the allegations. (Def. Br. 5). As noted above,
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Plaintiffs contend, in reply, that further detail is not necessary, as “the
task of the court at the notice stage is not to resolve factual disputes, but
merely to determine whether there are sufficient facts to demonstrate that the
putative plaintiffs are similarly situated.” (Pl. Reply 7-8). The Court agrees
that conditional certification has, at base, a “remedial purpose” intended to
rectify the parties’ information disparity. See, e.g., Mata, 2015 WL 3457293, at
*4. Nevertheless, Plaintiff’s factual assertions do not “provide [the] minimum
level of detail regarding the contents of [the] conversations or observations” as
required in this District. Reyes, 2015 WL 4622587, at *3. Because Plaintiffs
“provide[] no factual support demonstrating knowledge of a common scheme
impacting the diverse array of employees” referenced in the Amended
Complaint, Mata, 2015 WL 3457293, at *3, their motion for conditional
certification must fail.
such declarations are not required; had Plaintiffs proffered adequate factual support
regarding other employees, the existing Declarations might have sufficed. See, e.g.,
Khamsiri v. George & Frank’s Japanese Noodle Rest. Inc., No. 12 Civ. 265 (PAE), 2012
WL 1981507, at *1 (S.D.N.Y. June 1, 2012) (allowing conditional certification on the
basis of a single employee’s declaration).
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CONCLUSION
For the reasons set forth herein, Plaintiffs’ motion for conditional
certification of the FLSA collective action is DENIED. The parties are directed
to appear before the Court for a status conference on Friday, May 6, 2016, at
10:30 a.m. in Courtroom 618 of the Thurgood Marshall United States
Courthouse, 40 Foley Square, New York, New York, 10007.
The Clerk of Court is directed to terminate Docket Entry 17.
SO ORDERED.
Dated:
April 20, 2016
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
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