Qiu et al v. Shanghai Cuisine, Inc. et al

Filing 96

ORDER granting in part and denying in part 90 Motion for Reconsideration. For the foregoing reasons, Sun and Ho's motion for reconsideration is GRANTED in part and DENIED in part. Te Clerk of Court is respectfully directed to terminate th e motion, Doc. 90. A Show Cause hearing will be held on July 31, 2020 at 11:00 AM. At that time, counsel for Sun and Ho is directed to show cause why he should not be sanctioned for his representations that he could not respond to the Court's June 4, 2020 order because his oces were closed. The hearing will be held via teleconference. The parties are directed to call [phone]; access code 3029857. SO ORDERED.. (Signed by Judge Edgardo Ramos on 7/13/2020) (va)

Case 1:18-cv-05448-ER Document 96 Filed 07/13/20 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TING QIU QIU, JIAN WEI DENG, YU BO SU, ZHAOBANG BAI, and SHAOHONG ZENG, individually and
on behalf of others similarly situated,
Plaintiffs,

ORDER
18 Civ. 5448 (ER)

-againstSHANGHAI CUISINE, INC. d/b/a Shanghai Cuisine Bar
& Restaurant, R & M CENTURY, INC. d/b/a Shanghai
Cuisine Bar & Restaurant, JOHN DOE CORPORATION,
JONATHAN HO, NA SUN, JIJIE HONG, WING JING
LAU, JOSEPHINE FENG, and CHENWEN HO,
Defendants.
Ramos, D.J.:
Before the Court is Defendants Sun and Ho’s motion for reconsideration of the
Court’s June 26, 2020 Order compelling them to provide their residencies and domiciles
and granting Plaintiffs an extension of time to serve, brought pursuant to Local Civil Rule
6.3 and Federal Rule of Civil Procedure 60(b)(1). Doc. 90. For the following reasons,
the motion is GRANTED in part and DENIED in part.
I.

BACKGROUND
Te Court assumes familiarity with the facts in its previous Opinions and Orders

in this case, Qiu Qiu v. Shanghai Cuisine, Inc., No. 18 Civ. 5448 (ER), 2019 WL 6002371
(S.D.N.Y. Nov. 14, 2019), and Qui Qui v. Shanghai Cuisine, No. 18 Civ. 5448 (ER), 2020
WL 2115409 (S.D.N.Y. May 4, 2020). Te following facts are only those necessary to
resolving the motion at hand.
Ting Qui Qui, Jian Wei Deng, Yu Bo Su, Zhaobang Bai, and Shaohong Zeng
(collectively, “Plaintiffs”) brought this putative collective action on behalf of themselves
and all similarly situated employees against Shanghai Cuisine, Inc. d/b/a Shanghai

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Cuisine Bar & Restaurant, R & M Century, Inc. d/b/a Shanghai Cuisine Bar &
Restaurant, John Doe Corporation, Jonathan Ho, Na Sun, Jijie Hong, Wing Jing Lau,
Josephine Feng, and Chenwen Ho (collectively, “Defendants”), alleging unpaid wages
and failure to pay overtime in violation of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201 et seq. Doc. 5. Plaintiffs also allege violations of New York Labor Law
(“NYLL”). Id. On February 13, 2020, the Court entered default judgment against
Defendants Shanghai Cuisine, Inc., R & M Century, Inc., Jijie Hong, Wing Jing Lau, and
Josephine Feng. Doc. 78. Accordingly, at that time, only Defendants John Doe
Corporation, Na Sun, and Jonathan Ho, a/k/a Chenwen Ho, remained in the action.
On January 13, 2020, Defendants Sun and Ho moved to dismiss for insufficient
service of process. Doc. 66.1 Tey argued that service at Shanghai Cuisine was improper
because, in part, Shanghai Cuisine was not their actual place of business. According to
Ho, his actual place of business was the Hudson Club, located in Manhattan. On January
14, 2020, while Sun and Ho’s motion was pending, Plaintiffs served Sun and Ho with a
demand to disclose their residencies and domiciles pursuant to Local Civil Rule 26.1. At
a conference held on February 14, 2020, the Court stayed discovery, including Plaintiffs’
Rule 26.1 requests, pending resolution of Sun and Ho’s motion to dismiss. Minute Entry
for Feb. 14, 2020.
In mid-March, Mayor de Blasio issued a state of emergency in New York City due
to the COVID-19 pandemic. Many businesses, including presumably the Hudson Club,
were forced to close as the City shut down. According to Plaintiffs, “the Hudson Club
has been, is, and as a service business will until the implementation of Phase 3 reopening
in Manhattan remain closed due to COVID-19.” Doc. 86 at 1 n.1.

1

In their opposition, Plaintiffs cross-moved to amend their complaint pursuant to Rule 15(a), having only
learned through Sun and Ho’s briefing that John Doe Corporation was United Restaurant Group, Inc. Doc.
77.

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On May 4, the Court denied Sun and Ho’s motion to dismiss, and granted
Plaintiffs’ motion to amend, directing them to serve Sun and Ho by June 4. Doc. 80.
Between May 29 and June 2, Plaintiffs emailed counsel for Sun and Ho four times, urging
that they respond to their Local Rule 26.1 inquiries and proposing that counsel accept
service on behalf of their clients. Doc. 91, Ex. B. Defense counsel maintains that they
did not respond to these inquiries because their offices were closed due to the COVID-19
pandemic. However, on June 2, 2020, defense counsel’s office did respond to Plaintiffs’
emails, refusing to either accept service on Sun and Ho’s behalf or to provide their
residential addresses so that they might be served. Id. at 1.
On June 3, 2020, Plaintiffs wrote the Court to request a one-month extension of
time to serve Sun and Ho and requested that the Court compel Sun and Ho to produce
their residential information pursuant to Local Civil Rule 26.1. Doc. 81. On June 4, the
Court directed Sun and Ho to respond by June 8, 2020. Doc. 82. Tey failed to do so.
Defense counsel again claims that this was because his office was not reopened until June
26, 2020. Doc. 90 at 2-3. However, as Plaintiffs point out and Sun and Ho do not
dispute, defense counsel’s office was able to file at least two cases during the time its
offices were supposedly closed. See Yang v. Cuccinelli, No. 20 Civ. 2532 (E.D.N.Y. June
5, 2020); Xu et al. v. Cuccinelli, No. 20 Civ. 2607 (E.D.N.Y. June 11, 2020). On June 24,
2020, Plaintiffs again wrote the Court to request an order compelling Sun and Ho to
provide their residences and domiciles pursuant to Local Civil Rule 26.1, and for an
extension of time to serve Sun and Ho. Doc. 86. Teir previous motion having been
unopposed, the Court granted these requests. Doc. 88.
Sun and Ho filed the instant motion for reconsideration of the June Order on July
1, 2020, pursuant to Local Civil Rule 6.3 and Federal Rule of Civil Procedure 60(b)(1).
Doc. 90. Plaintiffs filed their opposition on July 3, 2020, Doc. 91, and Sun and Ho filed
their reply on July 6, 2020, Doc. 94.

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II.

LEGAL STANDARD
Rule 6.3 of the Local Civil Rules for this District provides for reconsideration of a

court’s order on a motion only where the court has overlooked controlling decisions of
law or factual matters that were “put before it on the underlying motion . . . and which,
had they been considered, might have reasonably altered the result before the
court.” Mikol v. Barnhart, 554 F. Supp. 2d 498, 500 (S.D.N.Y. 2008) (quoting Greenwald
v. Orb Commc’ns & Mktg., Inc., No. 00 Civ. 1939 (LTS), 2003 WL 660844, at *1
(S.D.N.Y. Feb. 27, 2003)); see also S.D.N.Y. Local Civ. R. 6.3. Under such
circumstances, a motion for reconsideration may be granted “to correct a clear error or
prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL
Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (internal quotation marks and citation
omitted). “Reconsideration of a court’s previous order is an ‘extraordinary remedy to be
employed sparingly in the interests of finality and conservation of scarce judicial
resources.’” Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003) (quoting In
re Health Mgmt. Sys. Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)). Local
Rule 6.3 is “narrowly construed and strictly applied so as to avoid repetitive arguments
on issues that have been considered fully by the Court.” Mikol, 554 F. Supp. 2d at 500
(internal quotation marks omitted) (quoting Dellefave v. Access Temps., Inc., No. 99 Civ.
6098 (RWS), 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001)). “Where the movant
fails to show that any controlling authority or facts have actually been overlooked, and
merely offers substantially the same arguments he offered on the original motion or
attempts to advance new facts, the motion for reconsideration must be denied.” Id.
(citing Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
Similarly, the Second Circuit has instructed that Rule 60(b) provides
“extraordinary judicial relief” and can be granted “only upon a showing of exceptional
circumstances.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir.1986). In pertinent part,
Federal Rule of Civil Procedure 60(b) provides for reconsideration of an order if there

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has been “mistake, inadvertence, surprise, or excusable neglect,” see Fed. R. Civ. P.
60(b)(1). “Tough Rule 60(b)(1) may provide relief from judicial mistake, it should not
provide a movant an additional opportunity to make arguments or attempt to win a point
already carefully analyzed and justifiably disposed.” Serrano v. Smith, No. 05 Civ. 1849
(KTD), 2009 WL 1390868, at *2 (S.D.N.Y. May 13, 2009) (internal quotation marks and
citations omitted).
Whether to grant or deny a motion for reconsideration is “within ‘the sound
discretion of the district court.’” Premium Sports Inc. v. Connell, No. 10 Civ. 3753
(KBF), 2012 WL 2878085, at *1 (S.D.N.Y. Jul. 11, 2012) (quoting Aczel v. Labonia, 584
F.3d 52, 61 (2d Cir. 2009)). Under the strict standard applied by courts in this Circuit,
“reconsideration will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked—matters, in other words, that might
reasonably be expected to alter the conclusion reached by the court.” Shrader, 70 F.3d at
257.
III.

DISCUSSION
Sun and Ho do not contest that they have yet to respond to Plaintiffs’ Local Rule

26.1 requests. Rather, they argue that because Plaintiffs intend to use this information for
the purpose of serving them with process, rather than for jurisdictional purposes, “there
are no legal grounds or precedents for the Court to grant the Plaintiffs’ motion to
compel.” Doc. 90 at 5. Tey further argue that the Court should not have granted
Plaintiffs an extension of time to serve because Plaintiffs failed to serve them at their
actual place of business before mid-March, when service businesses were required to
closed due to the COVID-19 pandemic.
As an initial matter, the Court admonishes Sun and Ho for their failure to respond
to Plaintiffs’ initial motion, as per the Court’s June 4, 2020 Order. Doc. 82. Although
they purport that their office was closed during this time-period, this does not excuse their
obligation to monitor their dockets. Furthermore, counsel for Sun and Ho clearly had
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access to email during this time period, as evidenced by the June 2, 2020 email declining
to accept service on their behalf. Doc. 91, Ex. B at 1. And, as Plaintiffs have pointed
out—and Sun and Ho do not contest—defense counsel’s office has managed to file two
cases during the time their office was supposedly closed. See Yang v. Cuccinelli, No. 20
Civ. 2532 (E.D.N.Y. June 5, 2020); Xu et al. v. Cuccinelli, No. 20 Civ. 2607 (E.D.N.Y.
June 11, 2020). Plaintiffs argue that the Court should sanction defense counsel for this
behavior. Doc. 91 at 6–8. Defense counsel’s apparent misrepresentations to the Court
are greatly concerning. While the pandemic has imposed a great burden on our economy,
many sectors, including the legal profession, have had the good fortune to continue their
operations by having employees work from home. Defense counsel surely had that
ability. He cannot therefore choose which Court orders he will respond to and which he
will ignore, and then blame the pandemic. Accordingly, the Court orders counsel for Sun
and Ho to show cause on July 31, 2020 and 11:00 AM why he should not be sanctioned
for his representations that he was unable to respond to the Court’s June 4 order because
his offices were closed.
However, Sun and Ho’s argument that the Court’s June 26, 2020 Order
inappropriately turns Local Rule 26.1 into a tool for obtaining prelitigation discovery is
meritorious. Sun and Ho have vociferously contested personal jurisdiction and proper
service in this Court, and there is no reason to assume that they have waived these
defenses now. “To waive or forfeit a personal jurisdiction defense, a defendant must give
a plaintiff a reasonable expectation that it will defend the suit on the merits or must cause
the court to go to some effort that would be wasted if personal jurisdiction is later found
lacking.” Corporacion Mexicana De Mantenimiento Integral, S. De R.L. De C.V. v.
Pemex-Exploracion y Produccion, 832 F.3d 92, 102 (2d Cir. 2016) (internal quotation
marks and citations omitted). Like most Federal Rules of Civil Procedure, Rule 26—and
by extension Local Rule 26.1—“only applies when there is a lawsuit pending between
parties.” Wetzelberger v. M & T Bank Corp., No. 12 Civ. 3685 (BMC), 2012 WL
6

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4328398, at *2 (E.D.N.Y. Sept. 20, 2012) (applying this axiom to Federal Rule of Civil
Procedure 34); see also ACE Am. Ins. Co. v. Keiicmiro, No. 08 Civ. 476 (PHX) (MHM),
2008 WL 2264241, at *1 (D. Ariz. May 30, 2008) (“Te Court is unaware of any
authority that would permit it to order prelitigation discovery other than in relation to
issues of jurisdiction and venue, including jurisdiction over the person and the legal
sufficiency of service of process.”). Because Defendants have not yet been served, there
is no such proceeding here. It would be clear error to find otherwise. Te Court therefore
grants Defendants’ motion for reconsideration of the motion to compel compliance with
Plaintiffs’ Local Rule 26.1 requests.
Sun and Ho’s arguments with regards to the Court’s decision to grant Plaintiffs an
extension of time to effectuate service are less convincing. Essentially, Sun and Ho argue
that because Plaintiffs failed to serve them at their place of business before the Hudson
Club temporarily closed due to the COVID-19 pandemic, there can be no good cause for
further extensions of time to serve.2 However, in its May 4, 2020 Opinion and Order, the
Court implicitly rejected this argument when it found that good cause existed to extend
Plaintiffs’ time to serve until June 4, 2020.3 Defendants do not challenge that Opinion
and Order—indeed, any motion to reconsider that Opinion and Order would be
considered untimely at this juncture. Defendants have therefore pointed the Court to no
new evidence or caselaw that granting Plaintiffs an extension of time to serve was
inappropriate. Indeed, as it appears that Sun and Ho have made it very difficult for
Plaintiffs to serve them anywhere other than their place of business, the Court anticipates
that Plaintiffs may well need further extensions of time to serve if the Hudson Club is not

2

Although only Ho admits to having worked at the Hudson Club, Defendants’ briefing argues that both Sun
and Ho may be served here. See Doc. 94 at 6–7.

3

Moreover, it would be unreasonable to have expected Plaintiffs to predict the coronavirus pandemic, as
well as Sun and Ho’s sheer refusal to accept alternate modes of service when the pandemic did reach New
York City.

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able to reopen soon.4 As such, the Court denies Sun and Ho’s motion to reconsider this
portion of its June 26, 2020 Order.
IV.

CONCLUSION
For the foregoing reasons, Sun and Ho’s motion for reconsideration is GRANTED

in part and DENIED in part. Te Clerk of Court is respectfully directed to terminate the
motion, Doc. 90. A Show Cause hearing will be held on July 31, 2020 at 11:00 AM. At
that time, counsel for Sun and Ho is directed to show cause why he should not be
sanctioned for his representations that he could not respond to the Court’s June 4, 2020
order because his offices were closed. Te hearing will be held via teleconference. Te
parties are directed to call [phone]; access code 3029857.
SO ORDERED.
Dated:

July 13, 2020
New York, New York
EDGARDO RAMOS, U.S.D.J.

4

However, the Court also encourages Plaintiffs to look for other ways of obtaining the information they
need so as to promptly serve Sun and Ho.

8