Liu v. Little Saigon Cuisine Inc.

• Decision Date: 30 September 2021
• Docket Number: 18-CV-2181 (RPK) (VMS)
• Parties: ZHENDONG LIU, individually and on behalf of all other employees similarly situated, Plaintiff, v. LITTLE SAIGON CUISINE INC., d/b/a Little Saigon Cuisine, and CHRISTY ZHANG, Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

ZHENDONG LIU, individually and on behalf of all other employees similarly situated, Plaintiff, v. LITTLE SAIGON CUISINE INC., d/b/a Little Saigon Cuisine, and CHRISTY ZHANG, Defendants.

No. 18-CV-2181 (RPK) (VMS)

United States District Court, E.D. New York

September 30, 2021

MEMORANDUM AND ORDER

RACHEL P. KOVNER, UNITED STATES DISTRICT JUDGE

Plaintiff Zhendong Liu brings claims under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”) against Little Saigon Cuisine Inc., a restaurant where he worked, and Christy Zhang, the owner of that restaurant. See Compl. (Dkt. #1). I held a one-day bench trial on August 10, 2020, at which plaintiff and the individual defendant testified. At the conclusion of plaintiff's case, I entered judgment for defendants on plaintiff's FLSA claims, but I retained supplemental jurisdiction over the state-law claims. See Minute Entry and Order (Aug. 10, 2020); Trial Tr. 63:4-70:19. I reserved judgment on two evidentiary issues and on plaintiff's motion for a directed verdict on the state-law claims. See Trial Tr. 103:22-105:13; 107:21-109:16. The parties submitted post-trial briefing on the remaining issues. See Defs.' Post-Trial Br (Dkt. #60); Pl.'s Post-Trial Br. (Dkt. #61).

After considering the evidence introduced at trial, the arguments of counsel, and the controlling law on the issues presented I set forth below findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52. I resolve the two outstanding evidentiary issues in defendants' favor. Having dismissed plaintiff's claims under the FLSA during trial (Counts I III, and VIII), I now conclude that plaintiff has not sustained his burden on his claims under the NYLL for unpaid minimum wages (Count II), unpaid overtime compensation (Count IV), and spread-of-hours pay (Count V). Plaintiff has shown however, that defendants failed to provide him with a time-of-hire wage notice and wage statements per pay period as required by NYLL § 195 (Counts VI and VII). Plaintiff is therefore entitled to judgment and awarded damages for Counts VI and VII. Defendants are entitled to judgment on the remaining claims.

EVIDENTIARY ISSUES

At trial, plaintiff relied on his own testimony and on the corporate defendant's tax returns from 2016 through 2018. Defendants relied on Ms. Zhang's trial testimony, the same tax returns, and several pages of pay receipts that carry what appears to be plaintiff's signature. Partway through the trial, defendants' counsel realized that he had made a clerical error concerning the pay-receipts exhibit, and moved to substitute the slightly longer version that he had intended to submit. Trial Tr. 103:22-105:13. Defendants also sought to introduce plaintiff's complaint. Trial Tr. 107:21-109:16. Plaintiff objected to both requests. The parties filed post-trial letters outlining their arguments about the admissibility of the complaint. See Pl.'s Ltr. (Dkt. #59); Defs.' Ltr. (Dkt. #58). I resolve both disputes before turning to the findings of fact.

A. Pay Receipts

During the trial, defendants introduced into evidence Exhibit DX-C. As introduced, the exhibit contains four pages of pay receipts. Defendants also shared that four-page exhibit with the Court and plaintiff's counsel several days before trial in compliance with a pretrial order. See Order (Aug. 5, 2020) (Dkt. #56). Partway through the trial, however, defendants' counsel realized that he had inadvertently left out several pages of pay receipts from that exhibit. Defendants sought leave to replace Exhibit DX-C with an eight-page version of the pay receipts document that was previously filed on the docket in late May 2020. See Trial Tr. 103:22-24; Defs.' Response to Mot. in Limine (Dkt. #47). Plaintiff objected because the longer version was not included in the exhibits that defendants submitted to the Court a few days before the trial. See Trial Tr. 104:21-23. I grant defendants' request and replace the previously admitted Exhibit DX-C with the longer version of the pay receipts document filed at Dkt. #47.

Trial courts have “broad discretion in managing a trial.” HBE Leasing Corp. v. Frank, 22 F.3d 41, 45 (2d Cir. 1994) (citation omitted). That discretion “includes a certain amount of latitude to deviate from the terms of a pretrial order.” Ibid. (citation omitted); see 6A C. Wright, A. Miller, M. Kane, & A. Spencer, Federal Practice & Procedure § 1527 (3d ed. 2021); Fed.R.Civ.P. 16(e) (governing final pretrial orders). In determining whether to modify or depart from a pretrial order under Federal Rule of Civil Procedure 16(e), for example, courts in this circuit consider “the prejudice or surprise” to the opposing party, “the ability of the party to cure the prejudice, ” and the “[p]rejudice to the party seeking amendment” of the order, among other factors. Potthast v. Metro-North R.R. Co., 400 F.3d 143, 153 (2d Cir. 2005); see Maehr v. NRG Home Solar, No. 16-CV-3897, 2019 WL 1559423, at *4 (E.D.N.Y. Apr. 10, 2019).

The dispute here does not directly implicate Rule 16(e) because defendants made a clerical error that can be corrected without modification of the joint pretrial order. See Joint Pretrial Order (Dkt. #36). Moreover, in May 2020, defendants filed all eight pages of pay receipts on the docket in response to plaintiff's assertion in a motion in limine that defendants never shared the pay receipts they intended to introduce as an exhibit at trial. See Defs.' Response to Mot. in Limine; see also Pl.'s Mot. in Limine (Dkt. #45); Joint Pretrial Order. Nevertheless, I look to the factors bearing on modification of pretrial orders as relevant to the analogous change in trial plans that is presented here, when a party seeks to modify its proposed exhibits. Considering those factors, I permit defendants' substitution.

First, plaintiff cannot claim to be particularly surprised by the introduction of the longer version of the exhibit. Plaintiff was on notice for many months that defendants intended to offer at least some pay receipts at trial, and he had access to all eight pages of pay receipts since at least the end of May 2020. In fact, it appears that the eight-page version of the pay receipts document was the only version of the document that plaintiff had access to until just a few days before trial, when defendants submitted their erroneous exhibit to the Court. See Callari v. Blackman Plumbing Supply, Inc., No. 11-CV-3655, 2016 WL 1273237, at *7 (E.D.N.Y. Mar. 31, 2016) (granting modification where the movant sought to add nine witnesses to the pretrial order, because plaintiffs “ha[d] been on notice” of their identities from supplemental disclosures for almost a year).

In addition, plaintiff cannot demonstrate prejudice. Plaintiff knew what information was contained in the additional pages of the pay receipts, and plaintiff's counsel referred to the eight-page version during his cross-examination of defendant Zhang. Trial Tr. 90:21-91:19; see Maehr, No. 16-CV-3897, 2019 WL 1559423, at *5 (allowing plaintiff to add exhibits and witnesses to the joint pretrial order because the defendant “knew the evidence might exist well before the close of discovery”). Indeed, if anything, it would be unfair to defendants if plaintiff were permitted to refer to portions of the eight-page document that were helpful to plaintiff, while defendants were prevented from admitting the rest of the exhibit. I therefore grant defendants' request to substitute the pay receipts documents. Any reference to the pay receipts or Exhibit DX-C below shall refer to the longer version of that exhibit.

B. Complaint

Defendants seek to introduce into evidence plaintiff's unsigned complaint. Defendants point to discrepancies between certain of the allegations in the complaint and plaintiff's testimony at trial, and they argue that those inconsistent statements undermine plaintiff's credibility as a witness. See Defs.' Post-Trial Br. at 3-5; Defs.' Ltr. at 1. Plaintiff opposes introduction of the complaint on the grounds that the complaint is hearsay and that use of the complaint as evidence against him would be inconsistent with Federal Rule of Civil Procedure 8. See Pl.'s Ltr. at 1-2.

A party's pleadings are admissible as that party's admissions to the facts alleged in the pleadings. See Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (stating that the allegations in plaintiff's operative complaint were “judicial admissions” by which plaintiff was “bound throughout the course of the proceeding” (quotations omitted)). Indeed, even where a pleading has been superseded or amended, the original pleading may be admitted as an admission of the party who filed it. See United States v. McKeon, 738 F.2d 26, 31 (2d Cir. 1984) (“The law is quite clear that [superseded] pleadings constitute the admissions of a party-opponent and are admissible in the case in which they were originally filed as well as in any subsequent litigation involving that party.”); see also Andrews v. Metro N. Commuter R. Co., 882 F.2d 705, 707 (2d Cir. 1989) (“The amendment of a pleading does not make it any the less an admission of the party.”). Plaintiff's operative complaint is admissible against him.

Along the same lines, plaintiff's complaint is not hearsay because Federal Rule of Evidence 801(d)(2) excludes from the definition of hearsay a party's own statement offered against him. See Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 829 (6th Cir. 2000) (collecting cases in the Fifth, Sixth, and Ninth Circuits observing the same). I therefore consider the complaint as part of the record in making the findings of fact set forth below.

FINDINGS OF FACT

I. The Parties

Defendant Little Saigon...