Chaohui Tang v. Wing Keung Enters., Inc., 14-CV-390

• Decision Date: 28 September 2016
• Docket Number: 14-CV-390
• Citation: 210 F.Supp.3d 376
• Parties: CHAOHUI TANG, Jianlin Li, Jian Liu, and Qingze Liu, on behalf of themselves and all others similarly situated, Plaintiffs, v. WING KEUNG ENTERPRISES, INC. & Keung Chan, Defendants.
• Court: U.S. District Court — Eastern District of New York

210 F.Supp.3d 376

CHAOHUI TANG, Jianlin Li, Jian Liu, and Qingze Liu, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
WING KEUNG ENTERPRISES, INC. & Keung Chan, Defendants.

14-CV-390

United States District Court, E.D. New York.

Signed September 28, 2016

210 F.Supp.3d 380

Plaintiffs: Heng Wang, Heng Wang & Associates, P.C., 7 Mott Street, Suite 600, New York, NY 10013

Defendants: Gail Ellen Spindler, Trop and Spindler, Esqs, 19-02 Whitestone Exp, Suite 202, Whitestone, NY 11357

MEMORANDUM AND ORDER

JACK B. WEINSTEIN, Senior United States District Judge:

Table of Contents

I. Introduction ...381

II. Facts ...381

A. Defendants ...381

B. Plaintiff Drivers ...382

1. Plaintiff J. Liu ...382

2. Plaintiff Li ...383

C. Plaintiff Loaders ...383

1. Plaintiff Tang ...383

2. Plaintiff Q. Liu ...384

III. Procedural History ...385

A. Defendants' Motion for Summary Judgment ...385

B. Denial of Collective Action Certification; No Falsification of Documents ... 385

C. Plaintiffs' Motion for Summary Judgment ...386

D. Magistrate Judge Referral: MCA Exemption ...386

IV. Law ...387

A. Standard of Review ...387

1. Magistrate Judge Order and Report and Recommendation ...387

2. Summary Judgment ...388

B. Minimum Wage and Overtime ...388

1. Fair Labor Standards Act ("FLSA") ...388

2. New York Labor Law ("NYLL") ...389

3. Motor Carrier Act ("MCA") ...389

4. Statute of Limitations ...394

V. Application of Law to Facts ...395

A. FLSA and NYLL Overtime Claims: Extent of MCA Exemption ...396

1. Magistrate Judge Report and Recommendation ...397

2. Plaintiffs' Objections ...398

3. Defendants' Objections ...405

4. Magistrate Judge Conclusions Adopted ...406

B. FLSA and NYLL Minimum Wage Claims ...407

210 F.Supp.3d 381

C. Lack of 56.1 Statement ...408

D. Plaintiffs' Motion for Reconsideration ...408

E. Statute of Limitations ...409

1. FLSA Claims ...410

2. NYLL Claims ...410

VI. Conclusion ...410

VII. Appendix ...411

I. Introduction

This case concerns wage and overtime claims brought by truck drivers and loaders who ride with them. Their claims turn, in part, on exemptions from state and federal overtime requirements applicable to employees who work on vehicles engaged in interstate transportation of products. The fact that some routes are intrastate complicated fact finding. Assisting the jury will require breaking down of the case into many discrete time periods. See infra Part VII.

Plaintiffs Chaohui Tang, Jianli Li, Jian Liu, and Qingze Liu ("plaintiffs") are delivery truck drivers and loaders formerly employed by defendant Wing Keung Enterprises, Inc. ("Wing Keung"), a wholesale food business located in Queens, New York.

Alleged are minimum wage and overtime payment violations under both the Fair Labor Standards Act ("FLSA") and New York State Labor Law ("NYLL"), and failure to provide required notices pursuant to the New York Wage Theft Prevention Act ("WTPA"). Defendants claim exemption under the federal Motor Carriers Act ("MCA").

Defendants move for summary judgment. They argue that (1) they are exempt from the FLSA and NYLL overtime requirements under the MCA; and, in any event, (2) they paid plaintiffs the required minimum wages and other benefits under state and federal law. Mem. in Supp. of Defs.' Mot. for Summ. J., Oct. 24, 2014, ECF No. 13-2 ("Defs.' Summ. J. Mem.").

Plaintiffs cross-move for summary judgment. They claim that (1) they are entitled to "shortfall and liquidation damages" because defendants falsified or failed to keep "proper and accurate employment records" in violation of the FLSA and NYLL; (2) defendants were not exempt under the MCA; and (3) plaintiffs were not paid in accordance with applicable labor laws. See Mem. in Supp. of Pls.' Mot. for Summ. J., Oct. 19, 2015, ECF No. 54 ("Pls.' Summ. J. Mem."); see also Affirmation of Bo Chen in Supp. of Pls.' Mot. for Summ. J., Oct. 22, 2015, ECF No. 56 ("Chen Affirmation").

The question of whether and to what extent plaintiff employees were covered by the MCA exemption to the overtime requirements of the FLSA and NYLL was referred to the magistrate judge. For the reasons stated in this memorandum and orally on the record, the magistrate judge's findings are adopted in full. See generally Hr'g Tr., Sept. 7, 2016, ECF No. 87. Objections to the report and recommendations are dismissed. Defendants' summary judgment motion is granted in part and denied in part. Plaintiffs' summary judgment motion is denied. Plaintiffs' motion for reconsideration is denied. The case is set down for trial.

II. Facts

A. Defendants

Corporate defendant Wing Keung is engaged in distributing fresh produce, refrigerated food and restaurant supplies to restaurants located primarily in New York, New Jersey, and Connecticut. See Affirmation of Gail E. Spindler in Supp. of Defs.' Mot. for Summ. J., Oct. 24, 2014, ECF No. 13-1 ("Spindler Affirmation"), at ¶ 5; see also Defs.' Summ. J. Mot. at Ex. C, ECF No. 13-8. It is a carrier registered with the United States Department of Transportation.

210 F.Supp.3d 382

See Defs.' Summ. J. Mot. at Ex. C, ECF No. 13-8. Wing Keung owns approximately eighteen large trucks, see Spindler Affirmation at ¶ 6, and employs twenty-three drivers, see Defs.' Summ. J. Mot. at Ex. C, ECF No. 13-8.

Individual defendant Keung Chan is the Chief Executive Officer of Wing Keung. Am. Compl., Mar. 7, 2014, ECF No. 5 ("Am. Compl."), at ¶ 2; Answer to Am. Compl., May 22, 2014, ECF No. 8, at ¶ 2.

B. Plaintiff Drivers

Plaintiffs Jian Liu ("J. Liu") and Jian Lin Li ("Li") were employed by defendants as truck drivers. Decl. of J. Liu in Opp'n to Defs.' Mot. for Summ. J., Nov. 17, 2014, ECF No. 16 ("J. Liu First Decl."), at ¶¶ 2-3; Decl. of Li in Opp'n to Defs.' Mot. for Summ. J., Nov. 14, 2014, ECF No. 18 ("Li First Decl."), at ¶¶ 2-3. They drove trucks delivering to destinations within and outside the State of New York. Am. Compl. at ¶ 4.

Plaintiffs J. Liu and Li contend that all drivers employed by Wing Keung drove fixed routes. J. Liu First Decl. at ¶ 7; Li First Decl. at ¶ 7. Defendants first asserted that J. Liu's and Li's routes were not fixed, and that they were likely to be called on to perform interstate travel at any time regardless of their current assignment. Affirmation in Reply of Gail E. Spindler, Nov. 26, 2014, ECF No. 22 ("Spindler Reply Affirmation"), at ¶¶ 19-22; Decl. of Simon Chan in Reply, Nov. 26, 2014, ECF No. 22-2 ("S. Chan Reply Decl."), at ¶¶ 14-18; Decl. of Fen Zhen Chen in Reply, Nov. 26, 2014, ECF No. 22-3 ("F. Zhen Reply Decl."), at ¶¶ 15-18. They then conceded that "[t]he drivers, driver's helpers and loaders were not randomly assigned to the out of state routes as it was beneficial for each driver, helper and loader to be familiar with the routes, and once trained for the route was kept on that route ." Defs.' Resps. to Ct.'s Questions, Jan. 12, 2016, ECF No. 74 (emphasis added) (further stating that "once trained for a particular route the same driver and loader was usually assigned that route").

1. Plaintiff J. Liu

J. Liu states he was employed by defendant Wing Keung from October 2010 to July 2011 and then from October 2012 to October 2013. J. Liu First Decl. at ¶ 2; Decl. of J. Liu in Supp. of Pls.' Mot. for Summ. J., Oct. 16, 2015, ECF No. 54-3 ("J. Liu Second Decl."), at ¶ 2. He claims to have worked approximately six days a week for a total of 70 hours or more per week and to have been paid a flat wage of $2,800 a month, with no overtime. J. Liu First Decl. at ¶¶ 3-4; J. Liu Second Decl. at ¶ 8.

According to his first declaration, from July 2011 to October 2012, J. Liu worked for a different company in Las Vegas. J. Liu First Decl. at ¶ 2. Defendants have produced paystub records for J. Liu covering part of this time period—from August 2011 to December 2011. See Defs.' Summ. J. Mot. at Ex. G3, ECF No. 13-23. Defendants have also produced paystubs for the periods from November 2010 to July 2011 and October 2012 to September 2013. Id. None were submitted for the period from October 2010 to November 2010 and September 2013 to October 2013. Id.

J. Liu first stated that from October 2012 to October 2013 he exclusively made deliveries within the State of New York. J. Liu First Decl. at ¶ 8. He then stated that, from October 2010 to July 2011 and then from October 2012 to April 2013, he delivered groceries and frozen foods from Wing Keung's Queens warehouse to restaurants in Connecticut, upstate New York, and New Jersey. J. Liu Second Decl. at ¶¶ 3-4. He said he made deliveries only within New York State from April 2013 to October 2013. Id. at ¶ 4.

210 F.Supp.3d 383

Plaintiff J. Liu has no records of his hours worked and...