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Kim v. 167 Nail Plaza

July 7, 2008

DO YEA KIM, PLAINTIFF,
v.
167 NAIL PLAZA ET AL., DEFENDANTS.



The opinion of the court was delivered by: George B. Daniels, District Judge

MEMORANDUM DECISION AND ORDER

Plaintiff brought the instant action against her employers, 167 Nail Plaza, Inc., Sixty-Eight Nail Plaza, Inc., Dong Rim Park, and Mou San Rim (collectively, "defendants"), alleging that plaintiff was not paid her appropriate overtime wages in violation of the Fair Labor Standards Act ("FLSA") and New York State labor laws. Plaintiff further claimed that she was fired in retaliation for asserting her right to meal breaks, also in violation of New York labor laws. Plaintiff was employed for approximately sixteen years, from March 1989 until March 18, 2005. Plaintiff filed suit in this Court on October 5, 2005.

In her complaint, plaintiff alleged violations of state and federal labor laws by defendants throughout the entire period of her employment. However, in the instant action, plaintiff's FLSA claims were limited by a three-year statute of limitations to federal violations occurring within three years of plaintiff's filing the complaint. Plaintiff's state labor law claims were limited by a six-year statute of limitations.

The case proceeded to trial and on October 26, 2007, a jury rendered a verdict for plaintiff. As part of its verdict, the jury awarded plaintiff $26,408.76 in unpaid overtime wages for six years, $115,383 in lost earnings due to her retaliatory termination, and $34,000 in pain, suffering, and mental anguish. In addition, the jury found that defendants' failure to pay overtime was willful or committed with reckless disregard of the law, in support of a further award of liquidated damages.

Defendants now move for judgment notwithstanding the verdict, or in the alternative, a new trial. Defendants also move for remittitur, to either reduce or strike the jury's award of overtime, liquidated, and compensatory damages. This Court upholds the jury's finding of liability, but orders remittitur as to all damages, except the jury award of compensatory damages for pain, suffering, and mental anguish.*fn1

DEFENDANTS' RULE 50(B) MOTIONS

Defendants have moved, pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, for judgment notwithstanding the jury verdict. Defendants argue that the jury's verdict in favor of plaintiff, on her overtime and retaliation claims, was contrary to established law and the weight of the demonstrative and testimonial evidence. That part of defendants' motion is denied.

A party seeking to bring a Rule 50(b) post-verdict motion must have previously brought a prior Rule 50(a)(2) motion for judgment as a matter of law ("JMOL"). See Tolbert v. Queens College, 242 F.3d 58, 70 (2d Cir.). A JMOL allows the moving party to alert the opposition to a potential deficiency in her proof, "thereby affording the nonmoving party an opportunity to cure any deficiency in that party's proof that may have been overlooked until called to the party's attention by a late motion for judgment." Fed. R. Civ. P. 50 Advisory Committee Note (1991); see e.g., Kerman v. City of New York, 374 F.3d 93, 118 (2d Cir. 2004).

Rule 50(b)'s procedural requirements are inflexible and may not be changed at the parties' or the Court's discretion. "There is no provision for a JMOL motion to be made for the first time after trial. And even when a pre-verdict motion for JMOL has been made, the movant may not add new grounds after trial. The post-trial motion is limited to those grounds that were "specifically raised in the prior motion for [JMOL]." McCardle v. Haddad, 131 F.3d 43, 50-51 (2d Cir. 1977).*fn2

Moreover, a court may only set aside a jury verdict when there is "such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or . . . there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him." Cross v. New York City Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005) (citations omitted). When deciding a post-verdict motion pursuant to Rule 50(b), this Court "must view the evidence in a light most favorable to the non-movant and grant that party every reasonable inference that the jury might have drawn in its favor." Samuels v. Air Transp. Local 504, 992 F.2d 12, 16 (2d Cir. 1993).

Plaintiff's Overtime and Retaliation Claims

There was sufficient evidence presented at trial to support the jury's finding in favor of plaintiff on all claims. Plaintiff testified that defendants never discussed overtime with her and never paid her overtime wages. (Trial Tr. 50). Three current employees testified that they also had never been paid overtime, further supporting plaintiff's assertion that, as a general matter, defendants did not pay employees due overtime wages. (See Trial Tr. 172-73, 256-58, 271-73). Defendants did not produce any evidence, such as pay stubs or time sheets, to contradict plaintiff's claim that she was not paid proper overtime wages in violation of FLSA or New York State labor laws. Plaintiff also testified that defendants fired her after she asserted her right to meal breaks under New York State law. In contrast, defendants testified that plaintiff was never fired, but rather that she voluntarily left her employment. The jury considered the competing testimony, found plaintiff more credible, and decided in her favor.

Plaintiff's FLSA Liquidated Damages Claim

Defendants petition this Court to deny plaintiff an award of liquidated damages under FLSA. However, there was also sufficient evidence supporting the jury's finding that ...


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