Ji v. Ichiro Sushi, Inc.
| Decision Date | 29 March 2016 |
| Docket Number | 14-cv-10242 (AJN) |
| Parties | Ji Li, et al., Plaintiffs, v. Ichiro Sushi, Inc., et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiffs in this action are former—and in one case, current—deliverymen at a sushi restaurant located at 1694 2nd Avenue in Manhattan ("Ichiro 2nd Avenue"). They bring this suit, on behalf of themselves and other delivery persons, against several individuals and corporate entities (collectively, "Defendants") for violations of the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"). Plaintiffs allege, inter alia, that Defendants failed to pay their employees the required minimum wage and did not pay overtime. Six defendants have appeared thus far in the action, and they have moved to dismiss Plaintiffs' amended complaint. They argue that Plaintiffs failed to adequately serve the summons and complaint, and that Plaintiffs have failed to state a claim upon which relief can be granted. For the reasons that follow, the motion to dismiss is DENIED.
The five named plaintiffs in this action are Ji Li, Jianhui Wu, Bin Zhang, De Ping Zhao, and Kai Zhao. Amended Compl. ¶¶ 9-13. Each plaintiff has worked at Ichiro 2nd Avenue as a deliveryman at some point within the past several years—Li, who stopped working at therestaurant in May 2013, was the first plaintiff to end his employment at Ichiro 2nd Avenue, and Kai Zhao is the only plaintiff who was still working at the restaurant when Plaintiffs filed their amended complaint on April 9, 2015. Id. Plaintiffs have named four corporate defendants and four individual defendants in their amended complaint. The four corporate entities—Ichiro Restaurant, Inc., Ichiro Sushi, Inc., New Ichiro Sushi, Inc., and Ichiro Asian Fusion, Inc.—are all alleged to be New York corporations with gross sales in excess of $500,000. Id. ¶¶ 14-21. Plaintiffs allege that each corporation, except Ichiro Asian Fusion, Inc., has its principal place of business at 1694 2nd Avenue (i.e., at Ichiro 2nd Avenue). Id. ¶¶14, 16, 18. Ichiro Asian Fusion, Inc., allegedly has its principal address at 80 Mamaroneck Avenue in White Plains, which Plaintiffs refer to as "Ichiro White Plains." Id. ¶ 20. Plaintiffs maintain that Ichiro 2nd Avenue and Ichiro White Plains are part of a restaurant chain known as "Ichiro Restaurant." Id. ¶ 22
The four named individual defendants are Jian Ping Chen, Jin Li, Hui Chen, and Juhang Wang. Amended Compl. ¶ 28. Plaintiffs allege that all four serve as owners, operators, and/or officers of the four corporate defendants. Id. ¶¶ 30, 33, 36, 37. Plaintiffs describe Jian Ping Chen, known as "Boss," as the individual who used to oversee Ichiro 2nd Avenue and now manages Ichiro White Plains. Id. ¶ 31-32. His wife—Jin Li, known as "Lady Boss"—allegedly works as a receptionist at Ichiro 2nd Avenue and oversees the restaurant. Id. ¶¶ 29, 34. Hui Chen is allegedly the Chief Executive Officer and Chairman of Ichiro Sushi, Inc., in addition to serving as an owner, operator, CEO, and/or officer of the other three corporate entities. Id. ¶¶ 35-36. Plaintiffs do not make additional allegations about Juhang Wang, other than to reiterate that he is an owner, operator, and/or officer of each of the four corporate defendants. Id. ¶ 37.
Plaintiffs allege that they consistently were paid wages below the required minimum wage, denied proper overtime compensation, and not paid the "spread of hours" premium required under New York law. Amended Compl. ¶¶ 53-118. Four plaintiffs maintain that Defendants paid them only a flat fee every month, see id. at ¶¶ 61-62, 72-73, 84-85, 113, and the fifth claims that Defendants paid him a daily wage that varied slightly based on the number of hours he worked, id. at ¶¶ 99-100.
Plaintiffs filed their initial complaint on December 31, 2014.2 Dkt. No. 1. Plaintiffs' counsel, John Troy, filed affidavits of service for all of the defendants named in the original complaint, indicating that he served the summons and complaint on "Jane Doe, Manager" at Ichiro 2nd Avenue on January 17, 2015. Dkt. Nos. 4-13. No defendants appeared in the case, however, and Plaintiffs filed an amended complaint on April 9, 2015. Dkt. No. 14. Plaintiffs attempted service of their amended complaint on every defendant, with the exception of Jian Ping Chen and Ichiro Asian Fusion, Inc., by leaving a copy of the complaint and summons with "Yuki Zheng, Cashier" at Ichiro 2nd Avenue on May 6, 2016. Dkt. Nos. 24-29. Plaintiffs attempted service on Jian Ping Chen and Ichiro Asian Fusion, Inc. by leaving a copy of the complaint and summons with "Tony Chen, Manager" at Ichiro White Plains on May 12, 2015. Dkt. Nos. 23, 35, 49.
As of June 11, 2015, no defendant had yet appeared. Accordingly, Plaintiffs sought and received a certificate of default from the Clerk of Court. Dkt. Nos. 38, 39. On June 18, 2015, however, attorney David Yan filed a notice of appearance on behalf of six defendants: Ichiro Sushi, Inc., New Ichiro Sushi, Inc., Ichiro Asian Fusion, Inc., Jian Ping Chen, Hui Chen, and Juhang Wang (hereinafter, "Defendants"), i.e., each defendant named in the amended complaint except Ichiro Restaurant, Inc., and Jin Li. Dkt. No. 42. On August 20, 2015, Plaintiffs filed a motion to conditionally certify a collective action under the FLSA. Dkt. No. 53. Magistrate Judge Francis granted in part and denied in part that motion, limiting conditional certification to delivery persons who worked at Ichiro 2nd Avenue. Dkt. No. 79 at 12; see also Li v. Ichiro Rest. Inc., No. 14-CV-10242 (AJN) (JCF), 2015 WL 6828056 (S.D.N.Y. Nov. 5, 2015). On the same date that Plaintiffs moved for conditional certification, Defendants filed this motion to dismiss under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). Dkt. No. 56, 57. The motion is fully briefed. See Dkt. No. 75.
To resolve a Rule 12(b)(5) motion to dismiss for insufficient service of process, "a court must look to matters outside the complaint." Rana v. Islam, 305 F.R.D. 53, 62 (S.D.N.Y. 2015) (internal quotation marks and citation omitted). Once a defendant has filed such a motion, "the plaintiff bears the burden of proving adequate service." Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005). Generally, "[a] process server's affidavit of service constitutes prima facie evidence of proper service." Rana, 305 F.R.D. at 63. But "[a] defendant's sworn denial of receipt of service . . . rebuts the presumption" and often "necessitates an evidentiary hearing." Old Republic Ins. Co. v. Pac. Fin. Servs. of Am., Inc., 301 F.3d 54, 57 (2d Cir. 2002). "[N]o hearing is required," however, "where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits." Id. at 58 (internal quotation marks and citation omitted). Similarly, "[c]onclusory statements" on the part of the plaintiff "are insufficient to overcome a defendant's sworn affidavit that he was not served." Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F. Supp. 2d 382, 387 (S.D.N.Y. 2002).
In evaluating a motion to dismiss under Rule 12(b)(6), the Court must "accept as true all facts alleged in the complaint" and should "draw all reasonable inferences in favor of the plaintiff." Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). The Court should not, however, "accept as true a legal conclusion couched as a factual allegation." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially 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." Id. The "plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. If a complaint "pleads facts that are 'merely consistent with' a defendant'sliability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (quoting Twombly, 550U.S. at 557).
Defendants advance several bases for dismissing the amended complaint. First, they challenge the adequacy of service on all Defendants on the grounds that service was not effected within 120 days of the filing of the original complaint. Second, they challenge the adequacy of service on Ichiro Sushi, Inc. and Hui Chen. Third, they argue that Plaintiffs fail to state any claim against Juhang Wang. Fourth, they argue that New Ichiro Sushi, Inc. is not liable for any labor law violations that occurred before September 17, 2014. And fifth, they contend that Plaintiffs' claims against Ichiro Asian Fusion, Inc. and Jian Ping Chen should be dismissed for inadequate service and for failure to state a claim.3 The Court considers each argument in turn.
Defendants claim that Plaintiffs failed to effect service "for more than 120 days after they filed the Summons in a civil case," in violation of Federal Rule of Civil Procedure 4(m).4 Defs. Br. 3. As Defendants acknowledge, Plaintiffs claim they effected service on January 17, 2015, for the original complaint and on May 6, 2015, and May 12, 2015, for the amended complaint. Id. at 3-4. Given that the original complaint was filed on December 31, 2014, see Dkt. No. 1, and that the amended complaint was filed on April 9, 2015, see Dkt. No. 14, these dates of service are well within the 120-day period for service under Rule 4(m). Defendants' argument appears to be, however, that service of the initial complaint was defective, and that the...
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