Kim v. Lee

Decision Date20 December 2021
Docket Number21-cv-3552 (LJL)
Parties Moonsung KIM, Plaintiff, v. Diane H. LEE, The Law Offices of Diane H. Lee, P.C., The Korea Central Daily News, Inc. dba The Korea Daily New York, Joong-Ang Daily News California, Inc., Defendants.
CourtU.S. District Court — Southern District of New York

Ryan J. Kim, Ryan Kim Law, P.C. Ryan Kim Law, Fort Lee, NJ, for Plaintiff.

Louis Pechman, Galen C. Baynes, Pechman Law Group PLLC, New York, NY, for Defendant Joong-Ang Daily News California, Inc.

OPINION AND ORDER

LEWIS J. LIMAN, United States District Judge:

Two motions are pending before the Court. Defendants Diane H. Lee and The Law Offices of Diane H. Lee, P.C. (collectively, the "Lee Defendants") move, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the complaint for failure to state a claim for relief. Dkt. No. 25. Defendants The Korea Central Daily News, Inc. ("KCD") and Joong-Ang Daily News California ("Joong-Ang," together with KCD, the "KCD Defendants," and together with KCD and the Lee Defendants, "Defendants") move, pursuant to Federal Rule of Civil Procedure 12(b)(3) and 12(b)(6) to dismiss the complaint for failure to properly allege venue and failure to state a claim for relief. Dkt. No. 28.

For the following reasons, the motions to dismiss are granted.

BACKGROUND

The Court accepts as true for purposes of this motion the well-pleaded allegations of the complaint and the documents incorporated by reference, as well as those of which the Court can take judicial notice.1

This case grows out of a lawsuit filed in June 2018 by Plaintiff Moonsung Kim ("Plaintiff" or "Kim") and others in the United States District Court for the Eastern District of New York, asserting violations of the Fair Labor Standards Act of 1947 ("FLSA") and New York Labor Law ("NYLL"). Dkt. No. 1 ¶ 10 ("Compl.") (citing Lee v. Korea Central Daily News, Inc. , 18-cv-3799 (E.D.N.Y.)) (the "Wage Case").

In the Wage Case, Plaintiff alleges that he was employed by the KCD Defendants from 1999 to June 30, 2018, including as manager of the printing department since 2012. Wage Case, Dkt. No. 12. He also alleges that he regularly and customarily worked in excess of eight hours a day and forty hours a week without being paid overtime. The defendants in the Wage Case include KCD and its parent corporation Joong-Ang. Lee and her firm were counsel in the Wage Case for KCD and Joong-Ang.

During the course of the Wage Case, Plaintiff produced certain documents of the KCD Defendants that he retained during the course of his employment with the KCD Defendants. Compl. ¶¶ 9–11. These documents included emails Plaintiff wrote to his coworkers regarding the work his department was required to do, as well as daily and weekly logs of the printing department showing how many sections of the newspaper are printed and at what time each day and each week. Id. ¶¶ 29–30. He kept these documents after the termination of his employment in order to demonstrate the hours he worked for the KCD Defendants in his Wage Case. Id. ¶ 30. After the Wage Case was filed, Plaintiff produced the documents during the discovery process in response to the document demands of the KCD Defendants; he had not disclosed them to anyone else. Id. ¶¶ 11, 28–29.

Plaintiff was deposed in the Wage Case on August 21, 2020. Id. ¶ 32; Dkt. No. 25-4. During the deposition and over his counsel's objection, Plaintiff testified that he had copied records from the KCD Defendants’ computer. Dkt. No. 25-4, Ex. B at 159. The examination was conducted by Defendant Lee who asked him questions about the documents he copied and retained after his employment ended. Compl. ¶ 32; Dkt. No. 25-4, Ex. B at 161–62. Specifically, Lee asked Plaintiff whether he knew or understood that copying files from his employer was considered illegal, improper, or to be theft. Compl. ¶ 32; Dkt. No. 25-4, Ex. B at 161–62. Plaintiff testified that he did not know it was illegal or improper. Dkt. No. 25-4, Ex. B at 161–62. When asked whether he had permission to copy the records, Plaintiff's attorney advised him to invoke his Fifth Amendment privilege against self-incrimination, and Plaintiff did so. Id. at 163–64. He also invoked his Fifth Amendment privilege in response to other questions regarding the copying of the documents, including whether he copied files from the defendant's computer for the purposes of the litigation. Id. at 162–65, 168. The questioning continued on other subjects.

Thereafter, on December 30, 2020, the defendants in the Wage Case filed an answer to the Second Amended Complaint and filed counterclaims against Plaintiff in the Wage Case. Compl. ¶¶ 40–41; Dkt. No. 25-4, Ex C.2 The Answer and Counterclaims were signed by Lee, from the Law Office of Diane H. Lee, and contained three causes of action against Plaintiff arising from his deposition testimony. See Dkt. No. 25-4, Ex. C at 11–13. The first cause of action for breach of fiduciary duty alleges that Plaintiff falsely reported the hours that he and his subordinates worked during the relevant time period to benefit himself and did not disclose the false reporting until his deposition.3 The second cause of action is for theft and misappropriation of KCD's confidential and proprietary information and documents. Id. at 11–12. It alleges that starting on or about June 18, 2018 and continuously thereafter, Plaintiff obtained confidential information belonging to KCD by copying and forwarding its confidential information to his own device, without disclosing such conduct to KCD. Id. The third cause of action, for breach of contract, alleges that the same conduct was in violation of a confidentiality and non-disclosure agreement between Plaintiff and KCD. Id. at 12. This counterclaim alleges that such confidential information includes "personnel information, suppliers, costs of production, financial information, business plans, customer lists and their contact information." Id.

In this lawsuit, Plaintiff alleges that Defendants retaliated against him for his filing and prosecution of the Wage Case in violation of Section 15(a)(3) of the FLSA and in violation of the NYLL. Compl. ¶¶ 27, 46–49. Plaintiff alleges that Defendants were not damaged by his actions and that the counterclaims were filed "solely to retaliate against him" because he filed a FLSA lawsuit. Id. ¶ 42. He also alleges that Lee's conduct during Plaintiff's deposition constituted retaliatory "threats" and "intimidating accusations." Id. ¶ 44.

PROCEDURAL HISTORY

Plaintiff filed the Wage Case on June 29, 2018, in the United States District Court for the Eastern District of New York, asserting various wage-related claims under FLSA and the NYLL. Compl. ¶ 10; Wage Case, Dkt. No. 1.

Defendants filed an Answer and Counterclaims to the Second Amended Complaint on December 30, 2020, asserting the counterclaims for breach of fiduciary duty, theft and misappropriation, and breach of contract. Dkt. No. 25-4, Ex. C at 11–13; Wage Case, Dkt. No. 22. On March 5, 2021, Plaintiff filed a Third Amended Complaint ("TAC"). Dkt. No. 25-4, Ex. D; Wage Case, Dkt. No. 23. The TAC added claims for retaliation under the FLSA and NYLL nearly identical to the claims asserted here and added the Lee Defendants as defendants there. Dkt. No. 25-4, Ex. D; Wage Case, Dkt. No. 23; see also Compl. On April 1, 2021, the Honorable Robert M. Levy held a status conference in the Wage Case. Dkt. No. 25-4, Ex. A. During the conference, the KCD Defendantscounsel (Lee) raised with the Court the timeliness of the TAC and the appropriateness of its claims against her and her firm. Id. at 2–7. Judge Levy initially expressed skepticism about whether the alleged conduct constituted retaliation, id. at 14–15, but allowed the parties to move, within three weeks or by April 22, 2021, for leave of court for the plaintiffs to file an amended complaint and for the defendants to add the counterclaims asserted in their December 2020 filing, id. at 26–32.4 The amended pleadings were deemed withdrawn pending decisions on the motions to amend.

Plaintiff filed the instant action on April 21, 2021. Dkt. No. 1. The complaint contains two causes of action. The first asserts a claim for retaliation against all defendants under the FLSA. The second asserts a claim for retaliation against all defendants under the NYLL.

On April 22, 2021, the parties in the Wage Case filed their respective letter motions to amend their pleadings. Wage Case, Dkt. Nos. 34, 35. In their letter motion, the defendants contended that in June 2018, before his employment was terminated, Plaintiff forwarded to his personal email account the minutes of management meetings he participated in as part of the management team—minutes which allegedly contained confidential information—as well as emails he had exchanged with the payroll department. Dkt. No. 25-4, Ex. E at 3; Wage Case, Dkt. No. 34 at 3. The defendants, through their counsel Lee, also stated that Plaintiff had forwarded misappropriated corporate documents to his counsel three days after his deposition in the Wage Case and that Plaintiff's counsel thereafter produced to these documents to the defendants in response to the defendants’ document requests. Dkt. No. 25-4, Ex. E at 2–3; Wage Case, Dkt. No. 34 at 2–3. The letter also accused Plaintiff of sharing the confidential and proprietary information with other plaintiffs in the Wage Case in violation of his obligations under his employment agreement to maintain the confidentiality of such information for five years after the termination of his employment. Dkt. No. 25-4, Ex. E at 3–4; Wage Case, Dkt. No. 34 at 3–4. The plaintiffsletter motion reported that plaintiffs had chosen not to amend the complaint by adding retaliation claims and to instead amend only by adding two additional individual defendants to the substantive wage and hour claims. Dkt. No. 25-4, Ex. F; Wage Case, Dkt. No. 35.

On June 18, 2021, the Lee Defendants filed their motion to dismiss the instant...

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