Qi v. Bayside Chicken Lovers Inc.

UNITED STATES DISTRICT COURT EYAOSRTKERN DISTRICT OF NEW

EASTERN DISTRICT OF NEW YORK BROOKLYN OFFICE

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XINSHENG QI and JIAJUN ZHAO, on behalf of

themselves and all other similarly situated

employees,

MEMORANDUM & ORDER

Plaintiffs, 21-CV-6018 (MKB)

v.

BAYSIDE CHICKEN LOVERS INC. d/b/a

CHICKEN LOVERS and SELINA LAU,

Defendants.

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MARGO K. BRODIE, United States District Judge:

Plaintiffs Xinsheng Qi and Jiajun Zhao, on behalf of themselves and other similarly

situated employees, commenced the above-captioned collective action on October 29, 2021,

against Bayside Chicken Lovers Inc., doing business as Chicken Lovers (“Chicken Lovers”), and

Selina Lau. (Compl., Docket Entry No. 1.) Plaintiffs filed an Amended Complaint on December

28, 2021, alleging that Defendants violated the minimum wage and overtime provisions of the

Fair Labor Standards Act, 29 U.S.C. §§ 206, 207, (“FLSA”); and violated the minimum wage,

overtime, spread-of-hours, wage notice, and pay stub provisions of the New York Labor Law §§

190 et seq. and 650 et seq. (“NYLL”). (Am. Compl., Docket Entry No. 10.) On February 17,

2022, with consent of the parties, the Court dismissed Qi’s FLSA minimum wage claims.1

(Order dated February 17, 2022; see also Pls.’ Resp. in Opp’n to Defs.’ Req. for a Pre-Mot.

Conference (“Pls.’ PMC Opp’n”), Docket Entry No. 16.)

1 Zhao’s and Qi’s FLSA overtime claims and Zhao’s FLSA minimum wage claim are

still pending before the Court.

Defendants now move to dismiss the Amended Complaint for lack of subject matter

jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to

state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and Plaintiffs

oppose the motion.2 For the reasons set forth below, the Court dismisses the Amended

Complaint for failure to state a claim. The Court grants Plaintiffs leave to file a second amended

complaint within thirty days of the filing of this Memorandum and Order.

I. Background

The Court assumes the truth of the factual allegations in the Amended Complaint for the

purposes of this Memorandum and Order.

a. The parties

Chicken Lovers, a domestic corporation organized under New York state law, owns and

operates a restaurant in Queens, New York and annually exceeds $500,000 in gross revenue.

(Am. Compl. ¶¶ 10–11.) During the times relevant to Plaintiffs’ allegations, “Chicken Lovers

purchased and handled goods [that] moved in interstate commerce.” (Id. ¶ 12.) Qi worked as a

chef at Chicken Lovers from October 17, 2016 until March 17, 2020, and again from July 1,

2020 until March 30, 2021. (Id. ¶¶ 8, 28.) Qi’s “duties involved cooking food, setting up [the]

kitchen and preparing ingredients.” (Id. ¶ 29.) Zhao worked as a delivery person at Chicken

Lovers from November 20, 2017 until January 17, 2020. (Id. ¶ 9.) Zhao’s “duties involved

providing deliver[y] take-out food orders and preparing ingredients.” (Id. ¶ 42.) Lau is Chicken

Lovers’ sole owner. (Id. ¶ 14.) Lau has power over personnel decisions at Chicken Lovers,

2 (Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), Docket Entry No. 19; Defs.’ Mem. in Supp. of

Defs.’ Mot. (“Defs.’ Mem.”), Docket Entry No. 20; Pls.’ Mem. in Opp’n to Defs.’ Mot. (“Pls.’

Opp’n”), Docket Entry No. 22; Defs.’ Reply Mem. in Supp. of Defs.’ Mot. (“Defs.’ Reply”),

Docket Entry No. 23.)

including the hiring, firing, supervision, and payment of employees, determining employees’

work schedules, and maintaining Chicken Lovers’ employment records. (Id. ¶ 15.)

b. Plaintiffs’ compensation

Plaintiffs contend that Defendants did not pay them their proper wages and overtime

compensation. (Id. ¶ 21.) They allege that Defendants did not “provide Plaintiffs with [a] Time

of Hire Notice detailing [their] rates of pay and payday[s]” or “paystub[s] that list[] [an]

employee’s name, employer’s name, employer’s address and telephone number, employee’s rate

or rates of pay, any deductions made from employee’s wages, and the employee’s gross and net

wages for each pay day.” (Id. ¶ 23.) Defendants also “failed to keep full and accurate records of

Plaintiffs’ hours and wages,” (id. ¶ 25), “in order to mitigate liability for their wage violations,”

(id. ¶ 26).

Qi contends that he worked six days per week “from 8:00 A.M. until 7:30 P.M. without

an adequate break.” (Id. ¶ 30.) Defendants paid Qi in biweekly installments at flat monthly rates

for the following periods: (1) $2,300 per month from October 17, 2016 until November 30, 2016,

(id. ¶ 32); (2) $2,600 per month from December 1, 2017 until November 30, 2018, (id. ¶ 33); (3)

$2,700 per month from December 1, 2018 until November 30, 2019, (id. ¶ 34); (4) $2,800 per

month from December 1, 2019 until March 17, 2020, (id. ¶ 35); and (5) $3,000 per month from

August 1, 2020 until March 30, 2021, (id. ¶ 36). Qi further contends that Chicken Lovers did not

pay him in accordance with New York’s minimum wage laws, (id. ¶ 37), and did not compensate

him at a rate of time-and-a-half for the hours he worked above forty each workweek, (id. ¶ 38).3

3 New York’s hourly minimum wage was $9 in 2016, (Am. Compl. ¶ 32), $10.50 in

2017, (id. ¶ 33), $12.00 in 2018, (id. ¶ 34), $13.50 in 2019, (id. ¶¶ 34, 35), and $15 in 2020 and

2021, (id. ¶ 36).

Defendants also did not compensate Qi in accordance with “New York’s ‘spread of hours’

premium for shifts that lasted longer than ten (10) hours.” (Id. ¶ 40.)

Zhao worked six days per week “from 10:00 A.M. until 8:30 P.M. without an adequate

break.” (Id. ¶ 43.) Defendants paid Zhao weekly at a rate of $60 per day for the duration of his

employment. (Id. ¶ 45.) Zhao contends that Defendants did not compensate him (1) in

accordance with New York’s minimum wage laws, (id. ¶ 46); (2) for “at least one-and-one-half

of the minimum wage or his calculated hourly wage” for the hours he worked above forty each

workweek, (id. ¶ 47); or (3) in accordance with “New York’s ‘spread of hours’ premium for

shifts that lasted longer than ten (10) hours,” (id. ¶ 49).

Plaintiffs contend that their experiences working for Defendants were not uncommon.

They contend that Defendants had “a policy of not paying Plaintiffs and other similarly situated

employees” the overtime wages mandated by FLSA and the NYLL, (id. ¶ 50); and “a policy of

not paying the New York State ‘spread of hours’ premium to Plaintiffs and other similarly

situated employees,” (id. ¶ 51).

II. Discussion

a. Standards of review

i. Rule 12(b)(1)

A district court may dismiss an action for lack of subject matter jurisdiction pursuant to

Rule 12(b)(1) of the Federal Rules of Civil Procedure when the court “lacks the statutory or

constitutional power to adjudicate it.” Huntress v. United States, 810 F. App’x 74, 75 (2d Cir.

2020) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); Cortlandt St.

Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 416–17 (2d Cir. 2015) (quoting

Makarova, 201 F.3d at 113); Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir. 2013) (per curiam)

(quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)).

“‘[C]ourt[s] must take all facts alleged in the complaint as true and draw all reasonable

inferences in favor of [the] plaintiff,’ but ‘jurisdiction must be shown affirmatively, and that

showing is not made by drawing from the pleadings inferences favorable to the party asserting

it.’” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citation omitted) (first

quoting Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006); and then quoting

APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)), aff’d, 561 U.S. 247 (2010). Ultimately, “the

party asserting subject matter jurisdiction ‘has the burden of proving by a preponderance of the

evidence that it exists.’” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239,

243 (2d Cir. 2014) (quoting Makarova, 201 F.3d at 113); see also Suarez v. Mosaic Sales Sols.

US Operating Co., 720 F. App’x 52, 53 (2d Cir. 2018) (citing Morrison, 547 F.3d at 170);

Clayton v. United States, No. 18-CV-5867, 2020 WL 1545542, at *3 (E.D.N.Y. Mar. 31, 2020)

(quoting Tandon, 752 F.3d at 243); Fed. Deposit Ins. Corp. v. Bank of N.Y. Mellon, 369 F. Supp.

3d 547, 552 (S.D.N.Y. 2019) (quoting Tandon, 752 F.3d at 243).

ii. Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a court “must construe [the complaint] liberally, accepting all factual allegations

therein as true and drawing all reasonable inferences in the plaintiffs’ favor.” Sacerdote v. N.Y.

Univ., 9 F.4th 95, 106–07 (2d Cir. 2021) (citing Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d

Cir. 2019); see also Vaughn v. Phoenix House N.Y. Inc., 957 F.3d 141, 145 (2d Cir. 2020)

(same). A complaint must plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Bacon v. Phelps, 961 F.3d 533,

540 (2d Cir. 2020) (quoting Twombly, 550 U.S. at 570). A claim is 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.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); Cavello Bay Reinsurance Ltd. v. Shubin

Stein, 986 F.3d 161, 165 (2d Cir. 2021) (quoting Iqbal, 556 U.S. at 678). Although all

allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal

conclusions.” Iqbal, 556 U.S. at 678; Vaughn, 957 F.3d at 145 (quoting Iqbal, 556 U.S. at 678).

b. Plaintiffs’ FLSA claims

Defendants argue that Plaintiffs’ minimum wage and overtime claims pursuant to the

FLSA should be dismissed for failure to state a claim because Plaintiffs do not sufficiently allege

in the Amended Complaint (1) individual coverage, (Defs.’ Reply 1); or (2) enterprise coverage

under the FLSA, (Defs.’ Mem. 1). In support, Defendants contend that Plaintiffs fail to allege

individual coverage because “[P]laintiffs’ nexus with commerce is inadequately alleged,” (id. at

2), since Zhao does not claim to have “delivered to any out-of-state destinations” and Qi does not

allege that his work as a chef for Defendants involved him having contact with out-of-state

customers, (id. at 3). With respect to enterprise coverage, Defendants argue that the allegations

in the Amended Complaint are deficient and often merely “track[s] statutory language” while

“provid[ing] no facts to show that the requirements of the FLSA are satisfied.” (Id. at 5.)

Defendants further argue that Plaintiffs’ FLSA claims should be dismissed for lack of subject

matter jurisdiction because “the failure of the amended complaint to satisfy individual or

enterprise coverage is jurisdictional.” (Id. at 6.)

Defendants proffer several alternative arguments for dismissal of Plaintiffs’ FLSA

minimum wage claims. First, Defendants contend that Zhao’s FLSA minimum wage claims

should be dismissed for failure to state a claim because the Amended Complaint’s “allegations of

a federal minimum wage claim are . . . nonexistent.” (Id. at 8.) Second, Defendants contend that

even if the Amended Complaint could be construed to state a FLSA minimum wage claim with

respect to Zhao, he “was paid more than the federal minimum wage,” defeating his claim. (Id. at

10.) Defendants note that Zhao’s weekly pay of “$360 is more than $290,” the weekly pay of an

individual who worked for forty hours per week at the federal minimum wage of $7.25 an hour.

(Id. at 9.) Third, Defendants argue that the collective action FLSA minimum wage claims should

be dismissed for failure to state a claim because the Amended Complaint “contain[s] no

allegation[] that members of the putative collective . . . are similarly situated to the named

[P]laintiffs with respect to minimum wage claims.” (Id. at 10.) Lastly, Defendants assert that

the collective action cannot be maintained because neither named Plaintiff has individual

standing to pursue their FLSA minimum wage claims, as Qi’s claim has been dismissed and

Zhao’s claim is defective, (id. at 13–14), and Plaintiffs “restate the law in conclusory fashion

without supporting facts,” (id. at 12).

Defendants also note that Zhao’s contention that he worked an average of sixty hours

each week means that he is ineligible for spread of hours compensation, which requires an excess

of ten work hours on a given day. (Id. at 15–16.) Defendants also argue that the Court should

decline to exercise supplemental jurisdiction over Plaintiffs’ state law claims if Plaintiffs’ FLSA

claims are held deficient. (Id. at 6.)

Plaintiffs argue that their claims satisfy FLSA’s pleading requirements with respect to

enterprise coverage because the allegations in the Amended Complaint include “the nature of the

enterprise”; “the location of the enterprise”; “the business organization of the enterprise”; and

“the qualification of the enterprise under FLSA.” (Pls.’ Opp’n 4.) Plaintiffs also suggest that

“enterprise coverage eligibility is subject to discovery” and should “be resolved at trial.” (Id. at

5.) Further, Plaintiffs contend that asking them “to identify and prove each and every element”

of their claims is “inherently unfair and unjust.” (Id. at 6.) In addressing Defendants’ FLSA

minimum wage arguments with respect to Zhao, Plaintiffs note that Zhao alleges that Defendants

paid him $6 per hour, which “clearly showed that he is entitled to relief under FLSA and [he]

gave Defendants more than fair notice of what his claim is and the grounds upon which it rests.”

(Id. at 8.) Plaintiffs also argue that they “have adequately pleaded claims for a collective action”

and “have [] standing to assert such claims individually or on behalf of” a class. (Id. at 9.) As to

Defendants’ spread of hours arguments, Plaintiffs state that Zhao may attest to his work hours on

the basis of his memory and note that Defendants have not produced documentation contesting

Zhao’s claims. (Id. at 10–11.)

“The FLSA contains two primary worker protections: first, it guarantees covered

employees a federal minimum wage; and second, it provides covered employees the right to

overtime pay at a rate of one-and-a-half their regular rate for hours worked above forty hours a

week.” Mei Xing Yu v. Hasaki Rest., Inc., 944 F.3d 395, 402 (2d Cir. 2019). To qualify as a

covered employee, an employee must be either (1) “engaged in commerce or in the production of

goods for commerce” (individual coverage) or (2) “employed in an enterprise engaged in

commerce or in the production of goods for commerce” (enterprise coverage). 29 U.S.C. §§

206(a), 207(a)(1); Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 86 n.2 (2d Cir. 2013); Jacobs

v. N.Y. Foundling Hosp., 577 F.3d 93, 96 (2d Cir. 2009) (“The FLSA requires that employers

pay a premium or overtime wage . . . if an employee either: 1) ‘is engaged in commerce or in the

production of goods for commerce,’ or 2) ‘is employed in an enterprise engaged in commerce or

in the production of goods for commerce.’ The two categories are commonly referred to as

‘individual’ and ‘enterprise’ coverage.” (quoting 29 U.S.C. § 207(a)(1))); see also Liu v. Little

Saigon Cuisine Inc., No. 18-CV-2181, 2021 WL 4487839, at *10 (E.D.N.Y. Sept. 30, 2021)

(defining coverage under the FLSA); Santacruz v. Blok Chocolatier LLC, No. 19-CV-0544, 2021

WL 4340963, at *1 (E.D.N.Y. Sept. 23, 2021) (same).

The FLSA defines “enterprise engaged in commerce or in the production of goods for

commerce,” as a business that (1) has employees “engaged in commerce or in the production of

goods for commerce, or that has employees handling, selling, or otherwise working on goods or

materials that have been moved in or produced for commerce by any person” and (2) has an

annual gross revenue of at least $500,000. 29 U.S.C. § 203(s)(1)(A); see Cardenas v. Edita’s

Bar & Rest., Inc., No. 17-CV-5150, 2021 WL 4480570, at *4–5 (E.D.N.Y. Sept. 30, 2021)

(finding that enterprise coverage applied where a business sold alcohol that moved in commerce

and grossed sales over $500,000 a year); Mendez v. MCSS Rest. Corp., 564 F. Supp. 3d 195,

205–206 (E.D.N.Y. 2021) (defining the conditions for enterprise coverage). “[A]t the pleading

stage, [p]laintiff[s] . . . need[] to provide sufficiently specific facts to allow the Court to infer

that” goods handled by defendants’ employees “originated outside of New York.” Soto v. Miss

Laser Inc., No. 19-CV-4745, 2023 WL 319547, at *4 (E.D.N.Y. Jan. 19, 2023); see also

Santacruz v. Blok Chocolatier LLC, No. 19-CV-544, 2021 WL 4341103, at *4 (E.D.N.Y. June

23, 2021) (finding no enterprise coverage where a complaint “lack[ed] the necessary factual

detail necessary to support a finding that Defendants are engaged in interstate commerce”),

report and recommendation adopted, 2021 WL 4340963, at *1. As to the annual sales

requirement, “virtually every enterprise in the nation doing the requisite dollar volume of

business is covered by the FLSA.” Soto, 2023 WL 319547, at *4; see also Quito v. Zheng, 710

F. App’x 28, 29 (2d Cir. 2018) (noting that “annual sales exceeding $500,000 . . . is required for

relief under the FLSA”); Balderas v. Barmadon Mgmt. LLC, No. 17-CV-7489, 2019 WL

1258921, at *3 (S.D.N.Y. Mar. 19, 2019) (“[B]y showing that the enterprise does the requisite

dollar volume of business, i.e., $500,000 every year, the plaintiff is virtually guaranteed to satisfy

the first prong.” (internal quotation marks and citation omitted)).

Individual coverage requires “personal engagement in interstate commerce,” meaning

“work ‘involving or related to the movement of persons or things (whether tangibles or

intangibles, and including information and intelligence) among the several States or between any

State and any place outside thereof.’” Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 353–

54 (E.D.N.Y. 2015) (quoting 29 C.F.R. § 779.103). For individual coverage to be established,

the employee’s work involving interstate commerce must be substantial, Jones v. SCO Family of

Services, 202 F. Supp. 3d 345, 351 (S.D.N.Y. 2016), and occur regularly, Kim v. Kum Gang,

Inc., No. 12-CV-6344, 2015 WL 2222438, at *22 n.48 (S.D.N.Y. March 19, 2015). Employees

“bear[] the burden of establishing [their] individual coverage.” Owusu v. Corona Tire Shop,

Inc., No. 09-CV-3744, 2013 WL 1680861, at *3 (E.D.N.Y. Apr. 17, 2013). Assessing whether

an employee has met the burden requires “a fact-specific inquiry into the employment actions of

each and every employee asserting a claim under the Act.” Jacobs v. N.Y. Foundling Hosp., 483

F. Supp. 2d 251, 257 (E.D.N.Y. 2007), aff’d, 577 F.3d 93 (2d Cir. 2009).

i. Plaintiffs fail to allege individual coverage

Plaintiffs have not adequately alleged that they were engaged in commerce or in the

production of goods for commerce.4 Qi claims that his duties as a chef at Chicken Lovers

required him to “cook[] food, set[] up [the] kitchen[,] and prepar[e] ingredients.” (Am. Compl. ¶

4 In opposing Defendants’ Motion to Dismiss, Plaintiffs do not allege individual

coverage under the FLSA. (See Pls.’ Opp’n 3–5 (alleging only enterprise coverage).) However,

Plaintiffs disputed Defendants’ individual coverage arguments in their opposition to Defendants’

Motion for a Pre-Motion Conference. (See Pls.’ PMC Opp’n 1–2.)

29.) Zhao claims that his “duties involved providing [and] delivering take-out food orders and

preparing ingredients.” (Id. ¶ 42.) Neither Qi’s nor Zhao’s duties, as currently alleged, establish

that they were personally engaged in commerce for purposes of the FLSA because Plaintiffs

have not alleged a sufficient connection to interstate activity. See Manning v. Boston Med. Ctr.

Corp., 725 F.3d 34, 43 (1st Cir. 2013) (observing that “work involv[ing] interstate activity” is a

“basic element[] of a FLSA claim”); Reagor v. Okmulgee Cnty. Family Res. Ctr., 501 F. App’x

805, 810 (10th Cir. 2012) (rejecting assertion of individual coverage where there was “no

indication that out-of-state clients regularly or recurrently” were patrons of the plaintiff’s

employer); Alvarado v. J.A. Vasquez Landscaping Corp., No. 20-CV-4005, 2022 WL 17775252,

at *2 (E.D.N.Y. Feb. 9, 2022) (noting that plaintiffs who “did not have any contact with out-of-

state customers or business . . . cannot be individually covered under the FLSA”).

Plaintiffs claim that “Chicken Lovers has employees who perform duties including

purchasing and handling equipment and supplies originated or produced outside of the State of

New York.” (Am. Compl. ¶ 12.) Even if the Court were to assume for purposes of individual

coverage that Qi and Zhao handled equipment and supplies that originated or were produced

outside New York State, their localized use of objects which moved in interstate commerce does

not constitute engagement in interstate commerce. See Gonzalez v. Victoria G’s Pizzeria LLC,

No. 19-CV-6996, 2022 WL 842666, at *3 (E.D.N.Y. Mar. 22, 2022) (“Plaintiff cannot be found

to be engaged in interstate commerce based on handling goods in interstate commerce as

‘employees who handle goods after acquisition by a merchant for general local disposition are

not engaged in commerce.’” (quoting Mcleod v. Threlkeld, 319 U.S. 491, 494 (1943))); see also

Eduoard v. Nikodemo Operating Corp., No. 18-CV-5554, 2019 WL 13219570, at *4 (E.D.N.Y.

Oct. 22, 2019) (finding no individual coverage where a plaintiff “regularly handled” supplies and

products “that originated outside of New York”); Jones, 202 F. Supp. 3d at 351 (finding no

individual coverage where the plaintiff made “allegations of regular use of items ordered from

outside of New York”).

ii. Plaintiffs fail to allege enterprise coverage

Plaintiffs also fail to allege enterprise coverage. Plaintiffs sufficiently allege that

Chicken Lovers has “gross sales in excess of [f]ive [h]undred [t]housand [d]ollars . . . per year,”

(Am. Compl. ¶ 11), thus, they have satisfied one of the two elements of enterprise coverage.

However, Plaintiffs fail to plead facts demonstrating that goods handled by Defendants’

employees moved in interstate commerce. Plaintiffs only allege that “Chicken Lovers purchased

and handled goods moved in interstate commerce,” without specifying any such goods. (Id. ¶

12.) These claims lack the specificity required to establish enterprise coverage. See Singh v.

Mowla, No. 19-CV-4687, 2022 WL 17820099, at *7 (E.D.N.Y. Sept. 30, 2022) (finding no

enterprise coverage where “[p]laintiffs merely allege[d] that defendant occasionally purchased

out-of-state goods and materials”); Siemieniewicz v. CAZ Contracing Corp., No. 11-CV-0704,

2012 WL 5183375, at *7 (E.D.N.Y. Sept. 21, 2012) (finding no enterprise coverage where

plaintiff alleged that defendant “was an employer engaged in interstate commerce and/or

production of goods for commerce” because plaintiff had only made a “formulaic and conclusory

allegation” which tracked FLSA’s text (internal quotation marks and citation omitted)); cf.

Campbell v. Canarsie Plaza Liquor Warehouse Corp., No. 19-CV-7125, 2022 WL 4539027, at

*3 (E.D.N.Y. July 28, 2022) (finding enterprise coverage where a plaintiff gave “numerous

specific examples of the items he handled that were part of interstate commerce”).

Because Qi and Zhao have failed to establish either individual or enterprise coverage,

their individual and collective FLSA action claims are deficient. See Plumber & Steamfitters

Local 773 Pension Fund v. Danske Bank A/S, 11 F.4th 90, 102 (2d Cir. 2021) (“If none of the

named plaintiffs may maintain this action on their own behalf, they may not seek such relief on

behalf of a class.” (quoting Britt v. McKenney, 529 F.2d 44, 45 (1st Cir. 1976))).

Accordingly, the Court dismisses Plaintiffs’ individual and collective FLSA minimum

wage and overtime claims for failure to state a claim.

c. NYLL claims

As a result of the Court’s dismissal of Plaintiffs’ FLSA claims, the Court declines to

exercise supplemental jurisdiction over Plaintiffs’ NYLL claims. Fernandez v. Zoni Language

Ctrs., Inc., 858 F.3d 45, 46 n.1 (2d Cir. 2017) (affirming district court’s decision declining to

exercise supplemental jurisdiction over state law claims after dismissing plaintiffs’ FLSA

minimum wage and overtime claims); All. of Auto. Mfrs., Inc. v. Currey, 610 F. App’x 10, 14 (2d

Cir. 2015) (holding it was “not improper for the court to decline to exercise its supplemental

jurisdiction” after it properly dismissed the plaintiff’s constitutional claims); One Commc’ns

Corp. v. J.P. Morgan SBIC LLC, 381 F. App’x 75, 82 (2d Cir. 2010) (“If all of a plaintiff’s

federal claims are dismissed, a district court is well within its discretion to decline to assert

supplemental jurisdiction over any state law claims.” (citing WWBITV, Inc. v. Vill. of Rouses

Point, 589 F.3d 46, 52 (2d Cir. 2009))); Payamps v. M & M Convenience Deli & Grocery Corp.,

No. 16-CV-4895, 2018 WL 3742696, at *11 (E.D.N.Y. May 18, 2018) (“Courts have generally

found that where an FLSA claim is dismissed, declining to exercise supplemental jurisdiction

over remaining state-law claims is appropriate.”).

III. Conclusion

For the reasons stated above, the Court grants Defendants’ motion and dismisses

Plaintiffs’ FLSA claims and declines to exercise supplemental jurisdiction over Plaintiffs’ state

law claims. The Court grants Plaintiffs leave to file a second amended complaint with respect to

their FLSA claims. Any second amended complaint must be filed within thirty days from the

filing of this Memorandum and Order. Plaintiffs can replead their state law claims if they refile

their FLSA claims. If a second amended complaint is not timely filed, the Court will direct the

Clerk of Court to enter judgment and close this case.

Dated: March 24, 2023

Brooklyn, New York

SO ORDERED:

s/ MKB

MARGO K. BRODIE

United States District Judge