Gao v. Shi
| Decision Date | 30 April 2021 |
| Docket Number | 18 CV 2708 (ARR)(LB) |
| Parties | BIN GAO, Plaintiff, v. JIAN SONG SHI and JIAN LING LIN, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
REPORT AND RECOMMENDATION
Plaintiff brings this action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et. seq., and the New York Labor Law ("NYLL"), N.Y. LAB. LAW § 190 et. seq., alleging that defendants failed to pay him minimum wage, to provide overtime wages, to provide spread-of-hours pay, and to provide required wage statements. Second Am. Compl. ("SAC") ¶¶ 1-6, ECF No. 22. This case was vigorously litigated until defendants, despite attempts to contact them, ceased communicating with counsel in 2020. Brand Dec. ¶ 3, ECF No. 48. The Court then granted plaintiff leave to apply for an entry of default, ECF No. 68, and the Clerk of Court noted defendants' default, ECF No. 72. Plaintiff now moves for a default judgment. ECF No. 73. The Honorable Allyne Ross referred plaintiff's motion to me for a Report and Recommendation in accordance with 28 U.S.C. § 636(b). For the reasons set forth below, it is respectfully recommended that plaintiff's motion for a default judgment should be granted.
The Court assumes the reader's familiarity with the facts and history of this case, and references Judge Ross' opinion granting in part and denying in part defendants' motion for summary judgment. Summary judgment was granted to defendants on the issues of "(1) unpaid minimum wage prior to December 31, 2013, (2) violations of the New York Labor Law's gratuities requirements, and (3) violations of the New York Labor Law's time of hire wage notice requirement." Summ. J. Op. & Order 23. Summ. J. Op. & Order 23, ECF No. 46.
Plaintiff Bin Gao worked as a hand pull noodle cook at Wong Good Hand Pull Noodle Restaurant in Brooklyn, New York from approximately June 2010 until March 19, 2018. SAC ¶ 4. Plaintiff alleges that the restaurant was owned by defendant Yifudi Lin (now deceased) or was a partnership operated jointly by the named defendants. Id. ¶ 5. Plaintiff alleges the restaurant's sales exceeded $500,000 a year and it was engaged in interstate commerce because it "provided services [and] purchased and handled goods moved in interstate commerce." Id. ¶¶ 6-7. Plaintiff thus alleges that the restaurant meets FLSA's definition of an "enterprise" and that plaintiff's work was essential to the business. Id. ¶¶ 8-9.
Defendant Jian Song Shi was an owner and manager of the restaurant and participated in its day-to day operations. Id. ¶ 10. Plaintiff knew him as "Boss." Id. ¶ 11. Defendant Shi "(1) had the power to hire and fire employees, (2) supervised and controlled employee work schedulesand conditions of employment, (3) determined employee rates and methods of payment, and (4) maintained employee records." Id. Similarly, defendant Jian Ling Lin2 was an owner and manager of the restaurant, participated in its day-to day operations, "(1) had the power to hire and fire employees, (2) supervised and controlled employee work schedules and conditions of employment, (3) determined employee rates and methods of payment, and (4) maintained employee records." Id. ¶¶ 12-13. Plaintiff knew her as "Lady Boss." Id. ¶ 13. Defendant Yifudi Lin was an owner and manager of the restaurant, participated in its daily operations, and determined employee rates of pay, work schedules, and employment. Id. ¶¶ 14-15. Plaintiff alleges the defendants knowingly and willfully did not pay plaintiff minimum wage, overtime wages, spread of hours pay, and failed to provide time of payment wage notices. Id. ¶ 16.
Between June 2010 and June 2015, plaintiff worked seven days a week from 10:30 a.m. to 12:00 a.m.3 Id. ¶ 27; Gao Dep. 43:5-10; 63:3-8. Plaintiff did not have a lunch break and was required to be on call during his work hours. Compl. ¶ 27. He worked approximately 94.5 hours per week and his responsibilities included "kneading dough, pulling noodles by hand, and preparing noodles." Id. ¶¶ 28-29. Instead of receiving minimum wage for all hours worked, plaintiff was paid a fixed rate of $3,000 in cash once per month. Id. ¶¶ 30-32. He never received overtime pay for each hour he worked over 40 hours each week. Id. ¶ 33. He also never received spread of hours pay, or one additional hour of pay at the minimum hourly rate, when he worked over ten hours in one day. Id. ¶ 34. Defendants never provided plaintiff with written wagenotices and statements and plaintiff was not required to record his own hours or use a time tracking device. Id. ¶¶ 37.
Between July 2015 and March 19, 2018, plaintiff worked seven days a week. Id. ¶ 39. He worked twelve- and one-half hours, from 10:30 a.m. to 11:00 p.m., six days a week and on the remaining day, Friday, he worked five (sic) hours, from 12:00 p.m. to 6:00 p.m.4 Id. During these shifts, although he was permitted to eat in the restaurant's kitchen, he did not receive a meal break and was always on call. Id. In total, he worked approximately eighty hours each week. Id. ¶ 41.
Plaintiff received only $3,000 once per month, regardless of the total amount of hours he worked. Id. ¶ 42. He was never paid overtime and did not receive spread of hours pay. Id. ¶¶ 44-45. Defendants did not require plaintiff to record the hours he worked and never provided time of payment wage notices. Id. ¶¶ 47-48. Plaintiff alleges that defendants' failure to pay proper wages was knowing, intentional, and willful. Id. ¶ 49.
Plaintiff commenced this action on May 7, 2018, ECF No. 1, and filed an amended complaint on June 11, 2018, First Am. Compl. ("FAC"), ECF No. 9. Defendants answered the amended complaint on July 2, 2018.5 Ans., ECF No. 13. Plaintiff filed a second amendedcomplaint ("SAC") on August 23, 2018 removing defendant ABC Corp., which had been named in the two prior complaints.6 SAC, ECF No. 22. Magistrate Judge Orenstein then shepherded the case through discovery and held a settlement conference. ECF Nos. 21, 29-30. At the close of discovery, defendants announced their intention to file a motion for summary judgment. ECF No. 31. On August 20, 2019, the Court granted in part and denied in part defendants' motion for summary judgment. Summ. J. Op. & Order. As previously mentioned, the motion was granted on the issues of liability for unpaid minimum wages prior to December 31, 2013, violations of NYLL's gratuities provisions, and violations of NYLL's time of hire wage notice requirements. Id. at 23. The motion was denied as to all other claims. Id.
On December 2, 2019, defendants' counsel filed a suggestion of death on the record, stating that defendant Yifudi Lin had passed away. ECF No. 56. The Court directed plaintiff to file a motion for substitution as required by Federal Rule of Civil Procedure 25(a), however, plaintiff never sought substitution and the case was dismissed against defendant Yifudi Lin. ECF No. 58; Electronic Order dated April 6, 2020. Defendants' counsel later informed the Court that he had "not communicated with his [remaining] clients in a number of months, and he...made multiple unsuccessful attempts to make contact with" them. Electronic Order dated Sept. 30, 2020. Plaintiff stated his intention to seek a default judgment, ECF No. 59, and the Court directed defendants' counsel to respond, see Electronic Order dated Oct. 13, 2020. Defendants' counsel stated he opposed a default judgment, ECF No. 60, but later moved to withdraw as counsel for defendants,7 ECF Nos. 61-62. The Court denied defendants' counsel's motion towithdraw, citing the risk of prejudice to defendants if they wished to resume contact with counsel and litigate this case. See Electronic Order dated Oct. 27, 2020.
Given the stage of this litigation, the Court directed the parties to brief the issue of whether defendants' default should be entered. See Electronic Order dated Oct. 30, 2020. After reviewing the parties' submissions, ECF Nos. 65-67, the Court granted plaintiff leave to seek entry of the defendants' default, ECF No. 68.8 The Clerk of Court then noted defendants Jian Ling Lin and Jian Song Shi's default, ECF No. 72, and plaintiff filed the instant motion for a default judgment, ECF No. 73-75. In support of his motion, plaintiff provides the following: plaintiff's counsel's affirmation (ECF No. 74); the First Amended Complaint9 (ECF No. 74-1); plaintiff's deposition transcript ("Gao Dep.," ECF No. 74-2); defendant Yifudi Lin's deposition transcript ("Yifudi Lin Dep.," ECF No. 74-3); an Affidavit of Service regarding Jian Song Shi (ECF No. 74-4); an Affidavit of Due Diligence regarding Jian Ling Lin (ECF No. 74-5); a Certificate of Default10 (ECF No. 74-6); plaintiff's damages calculations (ECF No. 74-7); plaintiff's counsel's time and billing records (ECF Nos. 74-8, 76); a proposed order (ECF No. 74-9); and a Memorandum of Law ("Pl.'s Mot.") (ECF No. 75).
The Court first addresses the issues of personal jurisdiction and service of process, both of which are prerequisites to the entry of a default judgment. See Sheldon v. Plot Commerce, No. 15-CV-5885(CBA)(CLP), 2016 WL 5107072, at *6 (E.D.N.Y. Aug. 26, 2016) Report and Recommendation adopted by 2016 WL 5107058 (E.D.N.Y. Sept. 19, 2016). The defense of insufficient service was raised in defendants' answer, Ans. ¶¶ 135-38, ECF No. 13, and plaintiff addresses the issue in the instant motion for a default judgment, Pl.'s Mot. 3-4.
Defendants must promptly raise the issue of lack of jurisdiction based on insufficient service of process, either in an answer or a motion, or risk waiver. See Ahern v. Neve, 285 F. Supp. 2d 317, 320-21 (E.D.N.Y. 2003) (citing Santos v. State Farm Fire and Cas. Co., 902 F.2d 1092, 1095 (2d Cir. 1990)). However, even in cases where insufficient service is raised in an answer, it may still be...
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