Qiu v. Shanghai Cuisine, Inc.

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, OPINION & ORDER

18 Civ. 5448 (ER)

Plaintiffs,

-against-

SHANGHAI 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.:

Ting Qui Qui, Jian Wei Deng, Yu Bo Su, Zhaobang Bai, and Shaohong Zeng

(collectively, “Named Plaintiffs” or “Plaintiffs”) bring this putative collective action on behalf of

themselves and all similarly situated employees against Shanghai 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 (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

(“Complaint”). Plaintiffs also allege violations of New York Labor Law (“NYLL”). Id.

Before the Court is Plaintiffs’ unopposed motion for conditional collective certification.

Doc. 46. In this motion, Plaintiffs seek (a) a conditional certification of a FLSA collective action

composed of all non-exempt and non-managerial employees; (b) an order requiring Defendants

to provide Plaintiffs with information about potential class members; (c) an order granting

Plaintiffs leave to disseminate notice to potential class members; (d) an order requiring

Defendants to post the proposed notice; and (e) an order tolling the statute of limitations for

ninety days until the expiration of the opt-in period. For the reasons set forth below, the motion

is GRANTED in part and DENIED in part.

I. BACKGROUND

Named Plaintiffs were employed by Defendants as kitchen, wait, and other staff: Qiu

was employed as a Chef from June 2016 to April 2018; Deng was employed as a Miscellaneous

Worker from April 2014 to April 2018; Su was employed as a Fry Wok from December 2016 to

April 2018; Bai was employed as a waiter from August 2017 to April 2018; and Zeng was

employed as a waiter from June 2017 to April 2018. Complaint ¶¶ 7–11, 95. As relevant to the

instant motion, Plaintiffs allege that while employed in these various roles, Defendants did not

compensate them for all hours worked and did not pay them overtime, as required by FLSA. Qiu

alleges that he worked sixty-six hours a week during the course of his employment without a

fixed time for lunch or dinner. Id. ¶¶ 49–51. He was paid a flat compensation rate and was not

paid overtime for overtime work. Id. ¶ 52–54. Deng’s and Su’s experiences were similar. Id. ¶¶

61–66; 73–78. Bai alleges that he worked an average of forty-eight and a half hours each week

without a fixed time for lunch or dinner and was not paid overtime for overtime work. Id. ¶¶ 84–

88. Zeng alleges that he worked 100-hour weeks under the same conditions. Id. ¶¶ 96–100.

Both Bai and Zeng also performed non-waitering tasks, such as cleaning the restroom, floor, and

glass, and they both had meal credit deducted from their pay without their knowledge. Id. ¶¶ 90–

91, 102–103.

On July 10, 2018, Plaintiffs commenced the instant action, seeking to vindicate their

rights and those of similarly situated employees under FLSA and New York Labor Law. Doc. 5.

Defendants filed an Answer on October 22, 2018. Doc. 28. On July 6, 2019, Plaintiffs filed the

instant motion. Doc. 46.

II. CONDITIONAL CERTIFICATION OF FLSA COLLECTIVE ACTION

A. Legal Standard

Pursuant to the FLSA, an individual may file suit against an employer on behalf of

himself and “other employees similarly situated” who give “consent in writing” to become party

plaintiffs. 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)).

The Second Circuit has endorsed a two-step framework for determining whether a court

should certify a case as a collective action under § 216(b). See Myers, 624 F.3d at 554–55. This

process entails an analysis of whether prospective plaintiffs are “similarly situated” at two

different stages: an early “notice stage,” and again after discovery is largely complete. See

McGlone v. Contract Callers, Inc., 867 F. Supp. 2d 438, 442 (S.D.N.Y. 2012) (citing Bifulco v.

Mortg. Zone, Inc., 262 F.R.D. 209, 212 (E.D.N.Y. 2009)). At stage one, the court makes “an

initial determination to send notice to potential opt-in plaintiffs who may be ‘similarly situated’

to the named plaintiffs with respect to whether a[n] FLSA violation has occurred.” Myers, 624

F.3d at 555 (citations omitted). At stage two, after additional plaintiffs have opted in, “the

district court will, on a fuller record, determine whether a so-called ‘collective action’ may go

forward by determining whether the plaintiffs who have opted in are in fact ‘similarly situated’

to the named plaintiffs.” Id. If the court concludes that they are not similarly situated, the

action may be “de-certified,” and the opt-in plaintiffs’ claims “may be dismissed without

prejudice.” Id.

Here, Plaintiffs seek a step-one, conditional certification of this collective action under

the FLSA, and a determination that the proposed notice to putative opt-in plaintiffs is proper.

“Because minimal evidence is available” at this early stage of the proceedings, and because the

Court “retain[s] the ability to reevaluate whether the plaintiffs are similarly situated at the second

sta[g]e,” Plaintiffs face a “‘relatively lenient evidentiary standard.’” McGlone, 867 F. Supp. 2d

at 442 (internal quotation marks and citations omitted). They must only make “a ‘modest factual

showing’ that they and potential opt-in plaintiffs ‘together were victims of a common policy or

plan that violated the law.’” Myers, 624 F.3d at 555 (quoting Hoffmann v. Sbarro, Inc., 982 F.

Supp. 249, 261 (S.D.N.Y. 1997)). “The ‘modest factual showing’ cannot be satisfied simply by

‘unsupported assertions,’ but it should remain a low standard of proof because the purpose of this

first stage is merely to determine whether ‘similarly situated’ plaintiffs do in fact exist.” Id.

(internal citations omitted). “Accordingly, in deciding whether to grant the Plaintiffs’ motion,

the Court must merely find ‘some identifiable factual nexus which binds the named plaintiffs and

potential class members together as victims’ of a particular practice.” Guzelgurgenli v. Prime

Time Specials Inc., 883 F. Supp. 2d 340, 346 (E.D.N.Y. 2012) (quoting Sbarro, 982 F. Supp. at

261). To demonstrate that such a factual nexus exists, “plaintiffs can rely on the pleadings, but

only as supplemented by other evidence, such as affidavits from named plaintiffs, opt-in

plaintiffs, or other putative collective action members.” Guan Ming Lin v. Benihana Nat’l Corp.,

275 F.R.D. 165, 173 (S.D.N.Y. 2011) ((citing Fasanelli v. Heartland Brewery, Inc., 516 F. Supp.

2d 317, 321 (S.D.N.Y. 2007) (noting that “the appropriate inquiry at this pre-discovery stage is

whether the putative class alleged by Plaintiffs is similarly situated based on the pleadings and

any affidavits”)).

In considering Plaintiff’s motion, “the court does not resolve factual disputes, decide

substantive issues going to the ultimate merits, or make credibility determinations.” Lynch v.

United Servs. Auto. Ass’n., 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007). It merely “examines the

pleadings and affidavits to determine whether the named plaintiffs and putative class members

are similarly situated.” McGlone, 867 F. Supp. 2d at 442 (internal quotation marks and citations

omitted). If the court finds that they are, it will conditionally certify the class and order that

notice be sent to potential class members. Id.

B. Discussion

Plaintiffs ask the Court to conditionally certify this FLSA collective action, composed of

“current and former non-exempt and non-managerial employees employed at any time from June

17, 2015 to the present within 21 days of the entry of the order.” Doc. 46 at 2. Plaintiffs contend

that the putative collective action members are similarly situated because they were “subjected to

Defendants’ common policy of not paying (i) at least the minimum wage for all hours worked;

(ii) overtime for all hours worked over 40; [and] (iii) Meal Credit violation[s].” Doc. 48 at 11.

They argue that “the manner in which [Named Plaintiffs] were compensated was and remains

standard operating procedure with regard to other tipped (waiters) and non-tipped workers (Chef,

Pastry Chef, Cashiers, Oil workers, Fry workers).” Id. All five Named Plaintiffs have submitted

affidavits showing that they know of and have spoken with other non-exempt, non-managerial

employees who were also subjected to this policy. Doc. 47, Exs. 4–7, 10.

The Court notes at the outset that the proposed collective, which consists of both tipped

and non-tipped workers, is extremely broad. See, e.g., Kim v. 511 E. 5th St., LLC, 985 F. Supp.

2d 439, 451 (S.D.N.Y. 2013) (narrowing FLSA collective where the proposed members’ claims

would likely proceed under different legal and factual theories). “However, [D]efendants’

decision not to oppose the motion for conditional certification, even in part, is persuasive reason

to authorize notice as requested.” Johnson v. Carlo Lizza & Sons Paving, Inc., 160 F. Supp. 3d

605, 611 (S.D.N.Y. 2016); see also Tate v. WJL Equities Corp., No. 13 Civ. 8616 (JLC), 2014

WL 2504507, at *1–2. Furthermore, Plaintiffs’ proposed collective is relatively self-contained.

For example, there are no allegations that Plaintiffs are seeking a nationwide collective. Rather,

it appears likely that the collective action will center on the restaurant known as Shanghai

Cuisine Bar & Restaurant located at 89-91 Bayard Street, New York, NY 10013. Doc. 5 ¶¶ 7–

33. Therefore, “the risks presented by notifying a broader set of potential plaintiffs than might

ultimately prove justified are minimal, in contrast to cases in which plaintiffs seek certification

of a dramatically broader collective (e.g., a nationwide class) than the proffered evidence

supports.” Johnson, 160 F. Supp. 3d at 611. Of course, Defendants will still be able to move for

de-certification at a later stage, if it appears that not all collective members are in fact similarly

situated. “If it appears upon the close of discovery that any Opt-In Plaintiffs are not in fact

similarly situated, then, at that juncture, Defendants will have the opportunity to move for de-

certification.” Valerio v. RNC Indus., LLC, 314 F.R.D. 61, 68–69 (E.D.N.Y. 2016) (citing

Myers, 624 F.3d at 555).

However, the Court will limit the collective action only to those non-exempt, non-

managerial employees that worked for Defendants within the last three years in light of the

FLSA’s three-year statute of limitations for willful violations. 29 U.S.C. § 255(a). Currently,

the collectively includes all employees that worked for Defendants from “June 17, 2015 to the

present within 21 days of the entry of the order.” Doc. 46 at 2. However, this case was not

properly filed until July 10, 2018. Doc. 5. Because of the statute of limitations for FLSA

actions, this action will be limited to non-exempt, non-managerial employees that worked for

Defendants from July 10, 2015 to the present, within 21 days of the entry of the order.

III. DISCLOSURE OF EMPLOYEE INFORMATION

Plaintiffs next request an order requiring Defendants to produce the names and contact

information for putative collective members. They request that Defendants produce “an Excel

spreadsheet containing first and last name, [] last known address with apartment number (if

applicable), the last known telephone numbers, last known e-mail addresses, WhatsApp, WeChat

ID and/or Face[b]ook usernames (if applicable), and work location, dates of employment and

position” for these individuals. Doc. 46 at 2. “Courts in this District commonly grant requests

for the production of names, mailing addresses, email addresses, telephone numbers, and dates of

employment in connection with the conditional certification of a[n] FLSA collective

action.” Benavides v. Serenity Spa NY Inc., 166 F. Supp. 3d 474, 488 (S.D.N.Y. 2016) (internal

quotation marks omitted) (quoting Martin v. Sprint/United Mgmt. Co., No. 15 Civ. 5237 (PAE),

2016 WL 30334, at *19–20 (S.D.N.Y. Jan. 4, 2016)). The Court will therefore grant Plaintiffs’

request for information for all non-exempt, non-managerial employees who worked for

Defendants from July 10, 2015 to the present, within 21 days of the entry of the order.

IV. PROPOSED NOTICE

To determine whether a proposed notice is appropriate, “[c]ourts consider the

overarching policies of the collective suit provisions and whether the proposed notice provides

‘accurate and timely notice concerning the pendency of the collective action, so that [an

individual receiving the notice] can make an informed decision about whether to participate.’”

Delaney v. Geisha NYC, LLC, 261 F.R.D. 55, 59 (S.D.N.Y. 2009) (internal quotation marks

omitted) (quoting Fasanelli, 516 F. Supp. 2d at 323). Courts have broad discretion in approving

the contents of the proposed notice. Fasanelli, 516 F. Supp. 2d at 323 (citing Hoffmann-

LaRoche, Inc. v. Sperling, 493 U.S. 165, 170 (1989)).

The Court approves the notice, with the following changes, indicated in bold:

• The “To” line should read “Current and former non-exempt, non-managerial

employees employed at any time from July 10, 2015 to the present by:”.

• All references to June 17, 2015 will be changed to July 10, 2015.

• There is a typographical error on Page 2. “Medal deductions” should read “meal

deductions.”

• There is a typographical error on Page 3. “[A]ll hour worked” should read “all

hours worked.”

• On Page 4, the paragraph beginning “If you select an attorney other than

Plaintiffs’ counsel to represent you in this action,” (currently under Question 10)

should be moved to after the last paragraph in Question 7. Plaintiffs are directed

to include the address for the Clerk of Court in this paragraph.

Additionally, the consent form must permit recipients to indicate whether they agree to be

represented by Plaintiffs’ counsel or whether they have decided to retain separate counsel. See

Tate, 2014 WL 2504507, at *3. It must also indicate that parties can mail the consent form to the

Clerk of Court and include the Clerk of Court’s address.

Once the Court has approved the revised notice and consent forms, Plaintiffs will be

authorized to disseminate the notice. Additionally, within seven days of approval, Defendants

are directed to post the approved notice in all relevant languages in a conspicuous and

unobstructed location likely to be seen by all currently employed collective members throughout

the opt-in period. “Posting notice in the workplace maximizes potential plaintiffs’ opportunities

to be informed of the pendency of the litigation and consider whether to opt in.” Mendoza v.

Ashiya Sushi 5, Inc., No. 12 Civ. 8629 (KPF), 2013 WL 5211839, at *9 (S.D.N.Y. Sept. 16,

2013); see also Whitehorn v. Wolfgang’s Steakhouse, Inc., 767 F. Supp. 2d 445, 449 (S.D.N.Y.

2011) (“Courts routinely approve requests to post notice on employee bulletin boards and in

other common areas, even where potential members will also be notified by mail.”).

V. TOLLING STATUTE OF LIMITATIONS

Finally, Plaintiffs ask that the statute of limitations on this suit be tolled for 90 days until

the expiration of the opt-in period. Equitable tolling is only appropriate “only in rare and

exceptional circumstances, where a plaintiff has been prevented in some extraordinary way from

exercising his rights.” Vasto v. Credico (USA) LLC, No. 15 Civ. 9298 (PAE), 2106 WL

2658172, at *16 (S.D.N.Y. May 5, 2016) (internal quotation marks and citations omitted). The

Court does not find that this case currently presents any such circumstances. Accordingly,

Plaintiffs’ request is denied.

VI. CONCLUSION

For the foregoing reasons, the Court GRANTS in part and DENIES in part Plaintiffs’

motion. The Court will conditionally certify a FLSA collective of non-exempt, non-managerial

employees that worked for Defendants from J uly 10, 2015 to the present, within 21 days of the

entry of the order. Plaintiffs are directed to submit an edited notice and consent form by

November 22, 2019. Defendants are directed to provide Plaintiffs with the requested contact

information for all putative collective members by the same date. The Court will not toll the

applicable statute of limitations at this time.

The Clerk of Court is respectfully directed to terminate the motion, Doc. 46.

SO ORDERED.

Dated: | November 14, 2019

New York, New York

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