Liu v. Wing Keung Enterprises, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JIAN CHENG LIU AND FUQIANG GAO, on

behalf of themselves and all others

similarly situated, MEMORANDUM AND ORDER

Plaintiffs, 18-cv-5044(KAM)(SJB)

-against-

KEUNG CHAN, MAY TONG, SIMON CHAN, FEN

ZHEN CHEN a/k/a FENG ZHEN CHEN, WING

KEUNG ENTERPRISES, INC. d/b/a WK FOODS,

AND WK TRUCKING LLC d/b/a WK FOODS,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiffs Jian Cheng Liu (“Liu”) and Fuqiang Gao (“Gao”

and together, “Plaintiffs”) initiated the instant action (“Liu

I”) on September 6, 2018, on behalf of themselves and other

similarly situated current and former employees of Defendants

Keung Chan, May Tong, Simon Chan, Fen Zhen Chen a/k/a Feng Zhen

Chen, Wing Keung Enterprises, Inc. d/b/a WK Foods, and WK Trucking

LLC d/b/a WK Foods (“Defendants”), alleging violations of the Fair

Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and the

New York Labor Law (“NYLL”), §§ 190 et seq. and 650 et seq. (ECF

No. 1, Complaint (“Compl.”).)

Presently before the Court is Plaintiffs’ motion for

leave to amend the complaint, for the fifth time, to add a pay

frequency claim under NYLL § 191. (ECF No. 110, Memorandum of Law

in Support of Plaintiffs’ Motion to Amend Complaint (“Pls. Br.”),

at 2.) According to Plaintiffs, they filed the instant motion

“[a]fter unsuccessfully seeking consent from Defendants to amend

their pleading.” (Id.) On January 26, 2022, Magistrate Judge

Sanket Bulsara issued a Sua Sponte Report and Recommendation (the

“R. & R.”), recommending that this Court deny Plaintiffs’ motion

as frivolous and time barred. (Order dated January 26, 2022.) On

February 7, 2022, Plaintiffs filed objections to Judge Bulsara’s

R. & R., (ECF No. 116, Plaintiffs’ Objections to the R. & R.

(“Pls. Objs.”)), and Defendants filed a response to Plaintiffs’

objections on February 22, 2022. (ECF No. 116, Defendants’

Response to Plaintiffs’ Objections (“Defs. Resp.”).) On June 2,

2022, Plaintiffs filed an additional submission related to their

pending motion, outside the 14-day period for filing objections,

(see ECF No. 118), and Defendants submitted a letter in response

on June 7, 2022. (See ECF No. 119.)

For the reasons set forth below, the Court OVERRULES

Plaintiffs’ objections, ADOPTS Judge Bulsara’s well-reasoned R. &

R., and DENIES Plaintiffs’ motion for leave to amend.

BACKGROUND

Plaintiff Liu began his employment with Defendants in

November 2009, first performing miscellaneous work, and then

driving trucks. (Compl. ¶ 36.) Liu “worked 7 days a week until

about February, 2017, then 6 days a week thereafter.” (Id. ¶ 40.)

During Liu’s employment, he worked in excess of 85 hours per week

during weeks in which he worked all seven days, and worked over 75

hours per week during weeks in which he worked six days. (Id. ¶

41.) Plaintiff Gao began working for Defendants as a truck driver

in March 2017, working 6 days a week, over 75 hours a week. (Id.

¶¶ 42, 45.)

Plaintiffs commenced this action on September 6, 2018,

alleging that Defendants deprived Plaintiffs and others similarly

situated of their overtime and minimum wages, in violation of the

FLSA and the NYLL, and spread-of-hours wages, in violation of the

NYLL. (Id. ¶¶ 5‒6.) Plaintiffs also allege that Defendants failed

to provide them with the required pay rate notices and wage

statements. (Id. ¶¶ 93‒97.)

On September 13, 2018, Plaintiffs filed an amended

complaint, naming an additional defendant, Fen Zhen Chen a/k/a

Feng Zhen Chen, and including allegations related to Chen, and

additional causes of action, namely, a generic fraudulent

conveyance claim and claims for fraudulent conveyance under the

New York Debtor and Creditor Law. (ECF No. 6, Amended Complaint

(“Amended Compl.”) ¶¶ 20, 37‒40, 103‒24.) On February 15, 2019,

Plaintiffs filed a second amended complaint. (ECF No. 29, Second

Amended Complaint (“SAC”).) The SAC, the operative complaint in

this action, eliminated Plaintiffs’ minimum wages claims under the

FLSA and the NYLL, and included additional allegations related to,

inter alia, Defendant WK Trucking, LLC, prior litigations in this

District against some of the Defendants, and the daily management

activities of Defendants Keung Chan, Tong, Simon Chan, and Chen

(the “Individual Defendants”). (See generally id.)

On August 30, 2019, Defendants, with one exception,

collectively moved to dismiss the SAC pursuant to Federal Rule of

Civil Procedure 12(b)(6). (ECF No. 41.) Defendant Simon Chan

filed a separate motion to dismiss. (ECF No. 38.) On February

28, 2020, this Court granted in part and denied in part Defendants’

motions to dismiss. (ECF No. 59, Memorandum and Order on

Defendants’ Motions to Dismiss, dated February 28, 2020.) The

Court denied Defendants’ motions to dismiss Claims Six through

Nine (fraudulent conveyance claims under the New York Debtor and

Creditor Law), dismissed Claim Five as superfluous and duplicative

of Claims Six through Nine, and dismissed Claims One through Four

with respect to Defendant Chen only. (Id. at 35‒36.) The Court

also dismissed Claims One, Two, and Three to the extent Plaintiffs

asserted any FLSA violations predating September 6, 2015, or NYLL

violations predating September 6, 2012. (Id.) The Court denied

Defendants’ motions to dismiss Claim Four to the extent Plaintiffs

asserted violations of NYLL § 195(1) for Plaintiff Liu in the years

2013, 2014, and 2015, and for Plaintiff Gao in the year 2017, and

for violations arising under NYLL § 195(3), on or after 2017.

(Id.)

Without leave of Court or consent of Defendants,

Plaintiffs filed a third amended complaint on March 11, 2020, (ECF

No. 60, Third Amended Complaint (“TAC”)), and on April 13, 2020,

the parties filed a stipulation to withdraw the TAC, which was

stricken from the record. (ECF Nos. 64, 64-1, 65.) On November

19, 2020, Plaintiffs commenced an entirely new action (“Liu II”),

20-cv-5651, asserting nine causes of action: overtime wages claims

under the FLSA and the NYLL (Claims One and Two); a spread-of-

hours claim under the NYLL (Claim Three); a Wage Theft Protection

Act claim under the NYLL (Claim Four); four fraudulent conveyance

claims under New York Debtor and Creditor Law sections 273 to 276

(Claims Five to Eight); and a claim for unpaid wages under the

NYLL. (20-cv-5651, ECF No. 1, Complaint (“Liu II Compl.”) ¶¶ 112–

60.) In other words, the complaint in the new action asserted the

same eight causes of action alleged in the operative complaint in

the instant action, the SAC, with the addition of Claim Nine, the

unpaid wages claim under the NYLL, and a new defendant, WKFC LLC

d/b/a WK Foods. (Id. ¶¶ 25‒28, 34‒38, 50‒52, 79‒83, 112–60.)

On May 12, 2021, Judge Bulsara issued a Report and

Recommendation in Liu II, recommending that the Court dismiss the

case, noting that it “is a duplicative lawsuit that is an improper

end run around Federal Rules of Civil Procedure 15 and 16.” (20-

cv-5651, ECF No. 14, Liu II Report and Recommendation (“Liu II R.

& R.”), at 2.) On June 4, 2021, the Court adopted the Liu II R.

& R. in its entirety and dismissed the case. (20-cv-5651, Order

dated June 4, 2021.)

On January 19, 2022, over 40 months after the filing of

the original complaint, Plaintiffs filed the instant motion for

leave to amend, for the fifth time, to add a frequency of pay claim

under the NYLL. (ECF No. 110, Motion to Amend the SAC (“Motion”).)

On January 26, 2022, Judge Bulsara issued the R. & R., recommending

that the Court deny Plaintiffs’ motion as frivolous and time

barred. (Order dated January 26, 2022.) On February 7, 2022,

Plaintiffs filed objections to Judge Bulsara’s R. & R., (Pls.

Objs.), and Defendants filed a response to Plaintiffs’ objections

on February 22, 2022. (Defs. Resp.) On June 2, 2022, Plaintiffs

filed an additional submission related to their pending motion,

outside the 14-day period for filing objections, (see ECF No. 118),

and Defendants submitted a letter in response on June 7, 2022.

(See ECF No. 119.)

LEGAL STANDARD

The Court “may accept, reject, or modify, in whole or in

part, the findings or recommendations made by the magistrate

judge.” 28 U.S.C. § 636(b)(1). If a party makes specific and

timely written objections to a magistrate judge’s findings and

recommendations, the Court conducts a de novo review of “those

portions of the report . . . to which objection is made.” Id.;

see also Fed. R. Civ. P. 72(b)(3). “Where no objection to a Report

and Recommendation has been timely made, the district court ‘need

only satisfy itself that there is no clear error on the face of

the record.’” Minto v. Molloy Coll., Nos. 16-cv-276(KAM), 16-cv-

278(KAM), 16-cv-279(KAM), 2021 WL 804386, at *1 (E.D.N.Y. Mar. 3,

2021) (quoting Urena v. New York, 160 F. Supp. 2d 606, 609‒10

(S.D.N.Y. 2001)). “Moreover, where the objecting party makes only

conclusory or general objections, or simply reiterates the

original arguments, the Court will review the Report and

Recommendation strictly for clear error.” Id. (internal quotation

marks and citations omitted).

The Second Circuit, in Sacerdote v. New York University,

9 F.4th 95, 115 (2d Cir. 2021), recently has clarified the three

standards for amending pleadings under Federal Rules 15 and 16 of

the Civil Procedure:

The ability of a plaintiff to amend the complaint is

governed by Rules 15 and 16 of the Federal Rules of Civil

Procedure which, when read together, set forth three

standards for amending pleadings that depend on when the

amendment is sought. At the outset of the litigation,

a plaintiff may freely amend her pleadings pursuant to

Rule 15(a)(1) as of right without court permission.

After that period ends—either upon expiration of a

specified period in a scheduling order or upon

expiration of the default period set forth in Rule

15(a)(1)(A)—the plaintiff must move the court for leave

to amend, but the court should grant such leave “freely

. . . when justice so requires” pursuant to Rule

15(a)(2). This is a “liberal” and “permissive”

standard, and the only “grounds on which denial of leave

to amend has long been held proper” are upon a showing

of “undue delay, bad faith, dilatory motive, [or]

futility.” The period of “liberal” amendment ends if

the district court issues a scheduling order setting a

date after which no amendment will be permitted. It is

still possible for the plaintiff to amend the complaint

after such a deadline, but the plaintiff may do so only

up a showing of the “good cause” that is required to

modify a scheduling order under Rule 16(b)(4).

Thus, under Rule 15(a)(1)(2), motions to amend

complaints are to be “liberally granted absent a good reason to

the contrary,” Assam v. Deer Park Spring Water, 163 F.R.D. 400,

404 (E.D.N.Y. 1995), and “should be denied only because of undue

delay, bad faith, futility or prejudice to the non-moving party.”

Henriquez v. Kelco Landscaping Inc., 299 F.R.D. 376, 378 (E.D.N.Y.

2014) (citing Aetna Cas. and Sur. Co. v. Aniero Concrete Co., Inc.,

404 F.3d 566, 603‒04 (2d Cir. 2005); Zahra v. Town of Southold, 48

F.3d 674, 685 (2d Cir. 1995)). “However, ‘[m]ere delay, . . .

absent a showing of bad faith or undue prejudice, does not provide

a basis for a district court to deny the right to amend.’”

Pasternack v. Shrader, 863 F.3d 162, 174 (2d Cir. 2017) (quoting

Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993))

The party that opposes the motion to amend “bears the

burden of establishing that an amendment would be prejudicial or

futile.” Eberle v. Town of Southampton, 985 F. Supp. 2d 344, 346

(E.D.N.Y. 2013) (citing Blaskiewicz v. Cnty. of Suffolk, 29 F.

Supp. 2d 134, 137‒38 (E.D.N.Y. 1998)). “A proposed amendment may

be prejudicial if new claims would ‘(i) require the opponent to

expend significant additional resources to conduct discovery and

prepare for trial; (ii) significantly delay the resolution of the

dispute; or (iii) prevent the plaintiff from bringing a timely

action in another jurisdiction.’” Jipeng Du v. Wan Sang Chow, No.

18-cv-1692(ADS), 2019 WL 3767536, at *4 (E.D.N.Y. Aug. 9, 2019)

(quoting Block, 988 F.2d at 350).

The proposed amended complaint must “contain enough

allegations of fact to state a claim for relief that is ‘plausible

on its face.’” Mendez v. U.S. Nonwovens Corp., 2 F. Supp. 3d 442,

451 (E.D.N.Y. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). “An amendment is futile if it cannot survive a

Rule 12(b)(6) motion to dismiss.” Porter v. Mooregroup Corp., No.

17-cv-7405(KAM), 2020 WL 32434, at *5 (E.D.N.Y. Jan. 2, 2020)

(citing Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir. 2002));

see also Fed. R. Civ. P. 12(b)(6). The court is “required to

accept the material facts alleged in the amended complaint as true

and draw reasonable inferences in the plaintiff’s favor.” Porter,

2020 WL 32434, at *5.

Notwithstanding Rule 15, however, where a court has set

a scheduling order with a deadline for amended pleadings “the

lenient standard under Rule 15(a) . . . must be balanced against

the requirement under Rule 16(b) that the Court’s scheduling order

‘shall not be modified except upon a showing of good cause.’”

Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003)

(quoting Fed. R. Civ. P. 16(b)). If only Rule 15(a) were

considered “without regard to Rule 16(b), [courts] would render

scheduling orders meaningless and effectively would read Rule

16(b) and its good cause requirement out of the Federal Rules of

Civil Procedure.” Parker v. Columbia Pictures Indus., 204 F.3d

326, 340 (2d Cir. 2000).

In respect to the Rule 16(b) standard, “‘good cause’

depends on the diligence of the moving party.” Id. (quoting Fed.

R. Civ. P. 16(b)); see also Kassner v. 2nd Ave. Delicatessen Inc.,

496 F.3d 229, 243 (2d Cir. 2007). However, “[t]he Second Circuit

has ‘left open the possibility that amendments could be permitted

even where a plaintiff has not been diligent in seeking an

amendment,’ absent a showing of undue prejudice for the non-moving

party.” Porter, 2020 WL 32434, at *5 (quoting Fresh Del Monte

Produce, Inc. v. Del Monte Foods, Inc., 304 F.R.D. 170, 175

(S.D.N.Y. 2014); Olaf Sööt Design, LLC v. Daktronics, Inc., 299 F.

Supp. 3d 395, 399 (S.D.N.Y. 2018)).

DISCUSSION

Plaintiffs argue that Judge Bulsara erred in: (1)

finding that there was no good cause to amend the complaint; (2)

recommending that leave be denied based on the procedural posture

of the case, namely, after the close of discovery and the deadline

to amend; (3) not considering the undue prejudice factor; and (4)

finding Plaintiffs’ motion frivolous. (Pls. Objs. at 4‒13.) Each

of these objections are addressed in turn below.

First, the Court must determine, as a threshold matter,

which standard applies to Plaintiffs’ motion for leave to amend—

Rule 16(b)’s “good cause” standard, or “the lenient standard” under

Rule 15(a)(2), Grochowski, 318 F.3d at 86, pursuant to which “leave

shall be freely given when justice so requires.” Fed. R. Civ. P.

15(a).1 Defendants contend that Rule 15(a) is inapplicable here

and that Rule 16(b) controls. The Court agrees.

It is simply without a question that the deadline to

file amended pleadings has passed. On January 7, 2019, the parties

jointly filed the “Rule 26(f) Plan,” which included, on the second

page, Plaintiffs’ proposed discovery schedule setting forth April

9, 2019 as the deadline to amend pleadings. (See ECF No. 28.)

Subsequently, at the Initial Conference on January 8, 2019, Judge

1 Plaintiffs amended the complaint “once as a matter of course” by filing the

Amended Complaint, (see Amended Compl.), and as such, Rule 15(a)(1) is

inapplicable to the instant motion.

Bulsara did not adopt Plaintiffs’ proposed discovery deadlines but

advised the parties that he would not “change the amended complaint

deadline” of April 9, 2019. (FTR Recording of the Initial

Conference dated January 8, 2019.)

In addition, the procedural history of this almost-four-

year-old case, described at length supra, leaves no room for doubt

that Plaintiffs’ time to amend has long passed. For example, at

the October 4, 2019 status conference before Judge Bulsara, after

Defendants’ motions to dismiss the SAC had been fully briefed,

counsel for Plaintiffs intimated potentially adding “two

additional claims,” to which Judge Bulsara advised that

“[Plaintiffs had] already amended a number of times” and that “[i]t

seem[ed] a little late to be raising amendment unless there’s

something that [Plaintiffs] can establish was unknown to

[Plaintiffs] and [Plaintiffs] discovered well after the motion to

dismiss was briefed.” (ECF No 76, October 4, 2019 Status

Conference Transcript, at 16‒17.) And in foreclosing Plaintiffs’

fourth attempt to amend their complaint in Liu I, by circumventing

Rules 15 and 16 and initiating a new action (Liu II), Judge Bulsara

clearly articulated in his Report and Recommendation, which was

adopted by this Court in its entirety, that the deadline to amend

in Liu I had passed. (See Liu II R. & R. at 4‒5.)

Judge Bulsara “explicitly limited [Plaintiffs’] ability

to amend [their] complaint, which is what is required to invoke

Rule 16(b).” Nairobi Holdings Ltd. v. Brown Bros. Harriman & Co.,

No. 02-cv-1230(LMM), 2006 WL 2242596, at *2 (S.D.N.Y. Aug. 3, 2006)

(internal quotation marks and citation omitted). See Point 4 Data

Corp. v. Tri-State Surgical Supply & Equip., Ltd., No. 11–cv–

726(CBA), 2012 WL 2458060, at *5 (E.D.N.Y. June 27, 2012) (“Rule

16 will apply, even absent a specific deadline in a scheduling

order, where the record contains some indication that the court

and the parties understood that the pleadings would not be further

amended.”) (citations omitted); In re Wireless Tel. Servs.

Antitrust Litig., No. 02-cv-2637(DLC), 2004 WL 2244502, at *5 n.6

(S.D.N.Y. Oct. 6, 2004) (although “[p]laintiffs deny that the prior

scheduling order set a deadline for amendments to the pleadings[,]”

the court held that its various orders, “and the conferences which

proceeded them, left no doubt” that there would be no further

amendments). Accordingly, the Court applies Rule 16(b)’s good

cause standard to Plaintiff’s motion for leave to amend.2

I. “Good Cause” Standard under Rule 16

Plaintiffs assert that their 2.5-year delay in adding

the pay frequency claim to this action was not due to lack of

diligence because they have only recently become aware of the

change of law, post Vega v. CM & Assocs. Constr. Mgmt., LLC, 107

2 Indeed, Plaintiffs do not dispute that Rule 16(b) applies and argue that their

motion for leave to amend should be granted under either Rule 16(b) or Rule

15(a)(2). (Pl. Objs. at 5 (Plaintiffs’ good cause analysis); id. at 7‒13

(Plaintiffs’ Rule 15(a)(2) analysis).)

N.Y.S.3d 286 (1st Dep’t 2019), which allowed individual employees

to bring frequency of pay claims against employers under NYLL §

191. (Pls. Objs. at 4.) “Naturally,” Plaintiffs argue, “it took

time for the plaintiffs’ bar to become aware of the Vega case, and

to start to litigate this claim in wage-and-hour lawsuits,” and

Judge Bulsara thus should have found good cause for Plaintiffs’

proposed amendment and deemed the instant motion reasonably

timely. (Id. at 4.)

Defendants disagree and argue that Plaintiffs “cannot

explain away” their delay, “particularly because it is undisputed

that the New York Appellate Division’s decision in Vega was

publicly available since September 2019.” (Defs. Resp. at 8.)

The Court finds Defendants’ argument persuasive. Vega was decided

on September 10, 2019, and the fact that Plaintiffs’ counsel did

not learn of the change in law until much later does not amount to

good cause.

At least seven courts in this Circuit, between the

issuance of the Vega decision and January 19, 2022, when Plaintiffs

filed the instant motion to amend, have recognized that a private

right of action exists for NYLL § 191 claims. See Scott v. Whole

Foods Mkt. Grp., Inc., No. 18-cv-86(SJF), 2020 WL 9814095 (E.D.N.Y.

Feb. 5, 2020); Duverny v. Hercules Med. P.C., No. 18-cv-7652(DLC),

2020 WL 1033048 (S.D.N.Y. Mar. 3, 2020); Sorto v. Diversified

Maint. Sys., LLC, No. 20-cv-1302(JS), 2020 WL 7693108 (E.D.N.Y.

Dec. 28, 2020); Beh v. Cmty. Care Companions Inc., No. 19-cv-

1417(JLS), 2021 WL 3914297 (W.D.N.Y. Feb. 1, 2021), R. & R.

adopted, 2021 WL 3914320 (W.D.N.Y. June 23, 2021); Mabe v. Wal-

Mart Assocs., Inc., No. 20-cv-591(TJM), 2021 WL 1062566 (N.D.N.Y.

Mar. 18, 2021); Rodrigue v. Lowe’s Home Ctrs., No. 20-cv-1127(RPK),

2021 WL 3848268 (E.D.N.Y. Aug. 27, 2021); Caul v. Petco Animal

Supplies, Inc., No. 20-cv-3534(RPK), 2021 WL 4407856 (E.D.N.Y.

Sept. 27, 2021); Carrera v. DT Hosp. Grp., No. 19-cv-4235(RA),

2021 WL 6298656 (S.D.N.Y. Nov. 1, 2021), R. & R. adopted, 2021 WL

6298654 (Dec. 7, 2021). Though these decisions, as Plaintiffs

point out, are unpublished and thus not binding, they nonetheless

demonstrate that the existence of a private right of action under

NYLL § 191 has been presented to courts in this Circuit at least

as early as 2020, if not earlier.

Furthermore, and respectfully, Plaintiffs’ counsel is

not entitled to speak of the knowledge of the plaintiffs’ bar writ

large with respect to the Vega development in the law. He may

speak to his own efforts to diligently update himself on

developments in the law and to pursue his clients’ claims. “[A]

party is not diligent where the information motivating the request

to file an amended complaint was previously available to the

public.” Int’l Techs. Mktg., Inc. v. Verint Sys., Ltd., No. 15-

cv-2457(GHW), 2019 WL 1245013, at *4 (S.D.N.Y. Mar. 18, 2019).

See Nunez v. Shinobi NY LLC, No. 12-cv-5313(LTS), 2013 WL 12107728,

at *4 (S.D.N.Y. Sept. 13, 2013) (“[C]ase law is unequivocal that

‘attorney neglect, carelessness, or oversight is not a sufficient

basis for a court to amend a Scheduling Order pursuant to Rule

16(b).’” (quoting Multi-Juice, S.A. v. Snapple Beverage Corp.,

No. 02-cv-4635(RPP), 2005 WL 1138470, at *2 (S.D.N.Y. May 12,

2005)); Scott v. N.Y.C. Dep’t of Corr., 445 F. App’x. 389, 391 (2d

Cir. 2011) (summary order) (apparent negligence of plaintiff’s

former attorney not sufficient to establish good cause for amending

the scheduling order under Rule 16(b)); In re Fosamax Prods. Liab.

Litig., No. 06-cv-9959(JFK), 2009 WL 137087, at *5 (S.D.N.Y. Jan

21, 2009) (the “failure of an attorney to investigate his or her

client’s claims diligently will not constitute good cause”). Thus,

the Court finds that Plaintiffs have failed to demonstrate that

there is good cause for the belated amendment.

Plaintiffs argue that even if the Court were to find

that they have not been diligent in pursuing the pay frequency

claim, the Court should nonetheless grant the motion because “there

is no undue prejudice for Defendants.” (Pls. Objs. at 5.)

Plaintiffs cite to Fresh Del Monte Produce, Inc., 304 F.R.D. at

175, and Olaf Sööt Design, LLC, 299 F. Supp. 3d at 399, to support

their assertion that “the Second Circuit has ‘left open the

possibility that amendments could be permitted even where a

plaintiff has not been diligent in seeking an amendment,’ absent

a showing of undue prejudice for the non-moving party.” (Pls.

Objs. at 5 (emphasis in original.) First, as discussed infra,

Defendants would be unduly prejudiced by the belated amendment.

Second, though district courts, in exercising their Rule 16(b)

discretion, “may consider other relevant factors including, in

particular, whether allowing the amendment of the pleading at this

stage of the litigation will prejudice defendants,” Kassner, 496

F.3d at 244 (emphasis added), “the primary consideration is whether

the moving party can demonstrate diligence.”3 Id. Because

Plaintiffs have failed to exercise diligence in pursuing their

frequency of pay claim under the NYLL, the motion for leave to

amend is respectfully denied.

II. Rule 15(a)(2) Standard

Even if the Court were to apply the liberal Rule 15(a)(2)

standard, Plaintiffs’ motion for leave to amend would still fail.

Assuming, arguendo, that the frequency of pay claim might survive

3 The Court overrules Plaintiffs’ objection that Judge Bulsara erred in not

considering undue prejudice, for the same reason. The R. & R. applied Rule

16(b)’s good cause standard in denying Plaintiffs’ motion for leave to amend.

(See Order dated January 26, 2022 (“. . . it could not be more apparent that in

this case, Liu I, the time to amend the pleadings has long passed. . . . The

motion also makes no attempt to explain why the motion to amend and add a claim

for pay frequency under New York Labor Law § 191 . . . could not have been made

years ago. All the motion says is that in September 2019, over two and one-

half years ago, counsel was alerted by a state court decision that such a claim

was viable. There is quite obviously no good cause to wait until now—several

amendments later, after the close of discovery, and years after the deadlines

to amend have passed--to add a claim that is based on facts that were undoubtedly

known or discoverable well before now.”).) Hence, though the undue prejudice

factor “may [have been] consider[ed],” Kassner, 496 F.3d at 244 (emphasis

added), Judge Bulsara recommended that this Court deny the motion based on

Plaintiffs’ lack of diligence, which is “the primary consideration” for whether

the moving party can demonstrate good cause. Id. For the foregoing reasons,

Plaintiffs’ objection is overruled.

a motion to dismiss,4 the undue delay and prejudice factors weigh

against granting the amendment.

A. Undue Delay

Plaintiffs argue that Judge Bulsara erred in denying

their motion based on the procedural posture of this case because

the parties are still conducting discovery, no summary judgment

motion has been filed, and no trial date has been set. (Pls. Objs.

at 3, 6.) To show that discovery is still ongoing, Plaintiffs

point to Judge Bulsara’s rulings on “multiple discovery disputes

on January 26, 2022,” and the fact that Plaintiff Gao’s deposition

had not been taken at the time the objections were filed. Fact

discovery has been closed since June 30, 2021, (Order dated June

8, 2021), with the narrow exception of the deposition of Plaintiff

Gao, who was in China and had to be compelled to appear after

failing to appear for his deposition for eight months. (See ECF

No. 101.) Judge Bulsara’s January 26, 2022 orders to which

Plaintiffs allude were related to Defendants’ motion to compel

Plaintiff Gao’s deposition, which was granted, (see ECF No. 112),

4 The Court also overrules Plaintiffs’ objection that Judge Bulsara erred in

finding the instant motion frivolous. Judge Bulsara did precisely what

Plaintiffs contend that he failed to do; he determined, based on the applicable

standard for amending pleadings—here, the Rule 16(b) standard which requires

that the moving party show good cause—that Plaintiffs have failed to demonstrate

good cause because they did not provide a sufficient explanation for waiting

two-and-half years to add a claim the viability of which was publicly known

since September 2019. Irrespective of whether the pay frequency claim may have

potential merit, to add a new claim after the deadline to amend has passed and

this late into the litigation, Plaintiffs were required to make a showing of

good cause—which they have not done. Accordingly, Plaintiffs’ objection is

overruled.

and a separate motion by Defendants to conduct limited discovery

of Plaintiff Liu’s identity, (see ECF No. 102), which the Court

denied. (Order dated January 26, 2022.) For the foregoing

reasons, the Court finds that Judge Bulsara correctly found that

Plaintiff’s motion to amend in this near-four-year-old case is

long overdue—“several amendments later, after the close of

discovery, and years after the deadlines to amend have passed.”

(Order dated January 26, 2022.) See United States ex rel.

Raffington v. Bon Secours Health Sys., Inc., 567 F. Supp. 3d 429,

438 (S.D.N.Y. 2021) (“When a motion ‘is made after an inordinate

delay, no satisfactory explanation is offered for the delay, and

the amendment would prejudice’ the non-movant, such undue delay

should weigh against granting leave to amend.”) (quoting Cresswell

v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990)).

B. Undue Prejudice

The Second Circuit has “allow[ed] amendments, even if

there were substantial delay in seeking the same, unless the movant

has acted in bad faith, the amendment will prejudice the nonmovant,

or the amendment is futile.” Hall v. Potter, No. 06-cv-5003(JFB),

2008 WL 11420080, at *2 (E.D.N.Y. Feb. 14, 2008) (citing State

Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981)

(“Mere delay, however, absent a showing of bad faith or undue

prejudice, does not provide a basis for a district court to deny

the right to amend.”)).

“[T]he longer the period of an unexplained delay,”

however, “the less will be required of the nonmoving party in terms

of a showing of prejudice.” Id. (internal quotation marks omitted)

(quoting Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d

Cir. 1983)); Block, 988 F.2d at 350. See Gause v. Suffolk Cnty.,

No. 02-cv-4600(SJF), 2007 WL 330241, *1‒*2 (E.D.N.Y. Jan. 25, 2007)

(denying plaintiff leave to amend the complaint to “expand on the

facts and allegations of one of the claims asserted,” reasoning

that “the long period of unexplained delay between the filing of

the original complaint and this motion for leave to amend

require[d] a minimal showing of prejudice,” the case was “not in

its infancy; it was commenced over four (4) years ago,”

“[d]iscovery [was] complete” and would “have to be reopened because

the proposed amendment asserts additional facts and allegations,”

“the Court [was] ready to entertain dispostive [sic] motions in

this case or set the case down for trial,” and “[f]urther delay in

ultimately resolving this dispute [would] prejudice the

defendants.”). Here, as discussed supra, Plaintiffs have failed

to present any acceptable explanation for their 2.5-year delay;

accordingly, “less will be required of the nonmoving party in terms

of a showing of prejudice.” Hall, 2008 WL 11420080, at *2

Plaintiffs contend that Defendants would not be

prejudiced because the pay frequency claim is “closely related to”

the other wage-and-hour claims asserted in the SAC, no further

discovery is needed because complete payroll records for both

Plaintiffs, which “conclusively confirmed the merit of this new

claim,” have already been produced, and “Defendants themselves

have certainly always been fully aware of the frequency of pay

that applied to Plaintiffs, which is closely related to Plaintiffs’

other wage-and-hour claims.” (Pls. Objs. at 9.)

Defendants argue that they would suffer undue prejudice

if the proposed amendment were to be granted because discovery

would have to be reopened regarding the claim elements. The Court

agrees. Though Plaintiffs assert that the frequency of pay claim

is “conclusively established” by Defendants’ payroll records, for

NYLL § 191(1)(a) to apply, Plaintiff would have to demonstrate

their status as manual workers. NYLL § 190(4) defines “manual

worker” to mean “a mechanic, workingman or laborer,” NYLL § 190(4),

and the New York Department of Labor has interpreted the term to

include “employees who spend more than 25 percent of their working

time performing physical labor.” N.Y. Dep’t of Labor Opinion

Letter, No. RO-09-0066 (May 21, 2009). Thus, whether Plaintiffs

qualify as manual workers is a fact-intensive inquiry that would

require discovery to be reopened in this near-four-year-old

action.5 And reopening discovery would involve, at the very least,

re-deposing three Defendants and Plaintiff Liu, and production of

additional documents to determine whether Plaintiffs spent more

than 25 percent of their working time performing physical labor.

See Gonzales v. Gan Israel Pre-School, No. 12–cv–6304(MKB), 2014

WL 1011070, at *12 (E.D.N.Y. Mar. 14, 2014) (“[T]he New York State

Department of Labor looks at the duties performed by an employee

in order to determine whether he or she is a ‘manual worker’ and

makes a case-by-case determination”). See also United States ex

rel. Raffington, 567 F. Supp. 3d at 438 (“Normally, mere

allegations that an amendment will require the expenditure of

additional time, effort, or money do not themselves constitute

undue prejudice. However, the prejudice calculus changes when the

motion to amend is made following the conclusion of discovery and

the amendment would require the re-opening of discovery.”)

(internal quotation marks and citations omitted); Bromfield v.

Bronx Lebanon Special Care Ctr., Inc., No. 16-cv-10047(ALC), 2019

5 In response to Defendants’ assertion that the pay frequency claim would require

additional discovery, Plaintiffs contend that the prejudice to Defendants is

mitigated because discovery has already, in their view, established part of the

claim they seek to newly add: that “[Defendants] paid Plaintiff Liu on a monthly

basis for a substantial period of time, which is simply not allowed by the NYLL,

regardless of whether [Liu] worked more than 25% of his working time performing

physical labor.” (See ECF No. 118, at 2.) However, even if Defendants’ payroll

records demonstrate that Plaintiff Liu was paid on a monthly basis during some

portion of the relevant period, additional discovery is still required to

further establish that Plaintiffs (as they assert) were manual workers and thus

should have been paid on a weekly basis—a new factual issue raised by the pay

frequency claim. (See Pls. Br. at 2 (“Both plaintiffs performed manual work,

and thus should have been paid on a weekly basis pursuant to the NYLL.”).)

WL 1873156, at *3 (S.D.N.Y. Apr. 26, 2019) (denying motion to amend

and add new defendant after discovery had closed where “proposed

amendment would require the reopening of discovery . . . and the

re-deposition of plaintiff, the individual defendants and perhaps

other witnesses as well”). Accordingly, because Defendants would

suffer undue prejudice, Plaintiffs’ motion for leave to amend is

respectfully denied even under Rule 15(a)(2).

CONCLUSION

For the reasons stated above, the Court OVERRULES

Plaintiffs’ objections, ADOPTS Judge Bulsara’s well-reasoned R. &

R. in its entirety, and respectfully DENIES the motion for leave

to amend.

SO ORDERED

Dated: July 22, 2022

Brooklyn, New York

/s/

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York