Liang v. Master Wok, Inc. et al

Filing 75

ORDER denying without prejudice to renewal 56 MOTION for Attorney Fees and Costs. For the foregoing reasons, the motions for a default judgment and for attorneys' fees and costs are DENIED without prejudice to renew within thirty days. P laintiff is directed to serve a copy of this Order on each Defendant and file proof of service on the docket by October 3, 2021. The Clerk of the Court is respectfully directed to terminate sequence pending at Doc. 56. SO ORDERED. (Signed by Judge Philip M. Halpern on 9/28/2021) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JUN LIANG, on his own behalf and on behalf of
others similarly situated,
Plaintiff,
-against-

ORDER
20-CV-03904 (PMH)

MASTER WOK, INC., et al.,
Defendants.
PHILIP M. HALPERN, United States District Judge:
Jun Liang (“Plaintiff”) filed this putative class action against Master Wok, Inc. f/k/a Master
Wok Kings Plaza, Inc. d/b/a Master Wok (“Master Wok”), Crystal Run Express, Inc. d/b/a Master
Wok (“Crystal Run”), Feng Yao (“Feng”), Kai Zhang Yao (“Kai”), Ru Yan Yao (“Ru”), Donald
C. Wong (“Wong”), and “John” Yao (“John,” and collectively, “Defendants”), alleging nine
claims for relief regarding purported violations of both the New York State Labor Law (“NYLL”)
and the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. in connection with his time
working as a cook at the Master Wok location at 1 Galleria Drive, Suite 79, Middletown, New
York 10941. (Doc. 1, “Compl.”). Specifically, Plaintiff alleged that Defendants failed to: (1) pay
minimum wage, in violation of the FLSA; (2) pay minimum wage, in violation of the NYLL; (3)
pay overtime wages, in violation of the FLSA; (4) pay overtime wages, in violation of the NYLL;
(5) provide spread of time pay, in violation of the NYLL; (6) provide meal periods, in violation of
the NYLL; (7) keep payroll records, in violation of the NYLL; (8) provide time of hire wage notice,
in violation of the NYLL; and (9) provide accurate wage statements, in violation of the NYLL.
(Id. ¶¶ 77-120).
Plaintiff purportedly served each Defendant in this action by: (1) personally serving a copy
of the Summons and Complaint on Feng, a person of suitable age and discretion at the Master Wok

location in Middletown, New York, on July 21, 2020; and (2) mailing copies of the Summons and
Complaint to Defendants at the Master Wok location in Middletown, New York, within twenty
days thereafter (Doc. 24 (Crystal Run); Doc. 25 (Ru); Doc. 26 (Wong); Doc. 27 (Kai); Doc. 28
(Master Wok); Doc. 29 (John); Doc. 30 (Feng); Doc. 53 ¶¶ 6-8; Doc. 53-9 ¶¶ 4-6).1 Plaintiff
secured Certificates of Default as to each Defendant on November 30, 2020. (Doc. 40 (Master
Wok); Doc. 41 (Crystal Run); Doc. 42 (Feng); Doc. 43 (Kai); Doc. 44 (Ru); Doc. 45 (Wong); Doc.
46 (John)). There was no activity on the docket thereafter until, on January 19, 2021, the Court
issued an Order directing Plaintiff to “either: (1) seek a default judgment in accordance with this
Court’s Individual Practices; or (2) voluntarily discontinue this action.” (Doc. 47).
On February 5, 2021, Plaintiff filed a motion seeking an Order stating that he “completely
and effectively served Summons with Complaint upon Defendants . . . or in the alternative . . . an
Order extending time and permitting service by alternative means permitted by Court.” (Doc. 48
at 1; see also Doc. 49; Doc. 50). On February 10, 2021, the Court issued an Order terminating the
motion and informing Plaintiff that “[n]either of the Federal Rules of Civil Procedure cited in
Plaintiff’s Notice of Motion authorize the Court to give an advisory opinion on the sufficiency of
service on Defendants. (Doc. 51). The Court then directed Plaintiff to: “(1) seek a default judgment
in accordance with this Court’s Individual Practices; (2) voluntarily discontinue this action; or (3)
should he be so advised following a review of applicable service rules, seek an extension of time
to serve the five individual and/or two corporate Defendants.” (Id.).
Approximately one week later, on February 19, 2021, Plaintiff: (1) sought a default
judgment against Defendants by way of an Order to Show Cause, in accordance with this Court’s
Individual Practices (Doc. 52 (Proposed Order to Show Cause); Doc. 53 (Counsel’s Affidavit in
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Plaintiff has not explained how, inter alia, it served Master Wok by virtue of serving individuals at the
franchisee location operated by another entity.

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Support); Doc. 54 (Statement of Damages, with Exhibits); Doc. 55 (Proposed Default Judgment));
and (2) moved for attorneys’ fees and costs (Doc. 56; Doc. 57; Doc. 58).
On February 22, 2021, the Court issued an Order to Show Cause directing Defendants to
show cause “why an Order for Default Judgment should not be entered . . . in favor of Plaintiff . .
. granting default judgment against Defendants . . . .” (Doc. 59 at 1-2). The Order to Show Cause
provided also that “IT IS FURTHER ORDERED that Defendants’ opposition papers, if any, shall
be filed and served on Plaintiff by March 19, 2021, and Plaintiff shall file and serve . . . reply
papers, if any, by March 26, 2021.” (Id.). Plaintiff served the Order to Show Cause on each
Defendant on that same day. (Doc. 60 (Master Wok); Doc. 61 (Crystal Run); Doc. 62 (Feng); Doc.
63 (Kai); Doc. 64 (Ru); Doc. 65 (Wong); Doc. 66 (John)). Two days later, February 24, 2021, the
Court—in an abundance of caution, given individual Defendants’ possible pro se status—issued
an Order instructing that the briefing schedule associated with Plaintiff’s motion for attorneys’
fees and costs would “mirror” that set in connection with the Order to Show Cause. (Doc. 67).
Plaintiff served that Order on each Defendant that same day. (Doc. 68 (Master Wok); Doc. 69
(Crystal Run); Doc. 70 (Feng); Doc. 71 (Kai); Doc. 72 (Ru); Doc. 73 (Wong); Doc. 74 (John)).
Apart from Plaintiff’s filing affidavits of service following the February 24, 2021 Order,
there has been no activity on the docket and no Defendant has yet appeared in this action.
Upon review of Plaintiff’s filings, both his request for a default judgment and his motion
for attorneys’ fees and costs are denied without prejudice to renew. Plaintiff may, should he be so
advised, renew his request for a default judgment and motion for attorneys’ fees in accordance
with this Court’s Individual Practices. Should Plaintiff wish to renew his applications, the filings
must address the specific issues outlined below.

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First, Plaintiff must explain, with factual specificity and citations to applicable statutes and
precedent, the sufficiency of service on each Defendant.
Second, Plaintiff must rectify the apparent discrepancies between the facts pled and the
Damage Calculation Spreadsheet. These discrepancies include, for example, differences in the
value of his dorm costs. Plaintiff pled that “[t]he fair value of the dorm for the first six months of
his employer-provided dorm is Four Hundred Dollars ($400) per person per month.” (Compl. ¶
58). The Damage Calculation Spreadsheet reflects dorm costs at $400 for only two months (i.e.,
November 2016 and December 2016). (Doc. 53-10).
Third, Plaintiff must explain, with factual specificity and citations to applicable statutes
and precedent, the basis for the claimed value of the dorm costs. It appears that the values Plaintiff
identifies—$400, $500, and $750—vary from what is permitted under applicable law. See N.Y.
Labor Law § 193(1)(a); N.Y. Comp. Codes R. & Regs. Tit. 12, § 142-2.5(a)(2).
Fourth, Plaintiff must offer an explanation—with examples and by a person with personal
knowledge—of how the value of each column in the Damage Calculation Spreadsheet (e.g., “Hrly
Rate,” “# of Wks,” etc.) was determined.
For the foregoing reasons, the motions for a default judgment and for attorneys’ fees and
costs are DENIED without prejudice to renew within thirty days. Plaintiff is directed to serve a
copy of this Order on each Defendant and file proof of service on the docket by October 3, 2021.
The Clerk of the Court is respectfully directed to terminate sequence pending at Doc. 56.
SO ORDERED:
Dated:

White Plains, New York
September 28, 2021
PHILIP M. HALPERN
United States District Judge

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