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Roger Alvarez, On Behalf of Himself and Others Similarly Situated v. 40 Mulberry Restaurant

October 3, 2012


The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:


Plaintiff Roger Alvarez ("Alvarez") brings suit against his purported former employers, defendants 40 Mulberry Restaurant, Inc., Asia Roma, Inc., Peter Chin, Mei Chan, and David Lee, pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the New York Labor Law, asserting claims for unpaid overtime and unpaid spread of hours wages. All five defendants were served with the complaint, but only defendants 40 Mulberry Restaurant, Inc. ("40 Mulberry") and Peter Chin ("Chin") have answered the complaint and appeared in this lawsuit. For the purposes of this Opinion and Order, the Court will refer to 40 Mulberry and Chin as "defendants." Defendants move for partial summary judgment, claiming that they never employed Alvarez, that they are not successors in interest to any entity or person that did, and that, in any event, they are not suable under the FLSA. For the following reasons, defendants' motion is denied.

I.Background and Undisputed Facts*fn1

Alvarez was employed, until July 2010, as a dishwasher at a restaurant named "Asia Roma," located at 40 Mulberry Street in lower Manhattan. Defs.' 56.1 ¶ 9; Pl.'s 56.1 ¶ 9. Defendant Asia Roma, Inc., which has not appeared in this action, owned and operated that restaurant. Defs.' 56.1 ¶ 3; Pl.'s 56.1 ¶ 3. Defendant Mei Chan, who has also not appeared in this action, held an ownership interest in Asia Roma, Inc., and operated Asia Roma restaurant. Pl.'s 56.1 ¶ 3.

Defendant 40 Mulberry now operates a restaurant, called "AR Restaurant," on the 40 Mulberry Street premises where the "Asia Roma" restaurant once operated. Defs.' 56.1 ¶ 1; Pl.'s 56.1 ¶ 1. Defendant Peter Chin is the owner and a member of 40 Mulberry, which operates AR Restaurant. Chin Aff. ¶ 1. 40 Mulberry was incorporated in January 2010, Defs.' 56.1 ¶ 4; Pl.'s 56.1 ¶ 4, and took possession of the 40 Mulberry Street premises in or about August 1, 2010, Defs.' 56.1 ¶ 5; Pl.'s 56.1 ¶ 5, but its 2010 tax return reflects that the corporation did no business during that calendar year. Defs.' 56.1 ¶ 6; Pl.'s 56.1 ¶ 6. AR Restaurant opened for business in or about January 2011. Defs.' 56.1 ¶ 7; Pl.'s 56.1 ¶ 7.

On the record before the Court, the relationship between the current AR Restaurant and the former Asia Roma restaurant is murky. Chin, the owner of 40 Mulberry and operator of the current AR Restaurant, worked for Mei Chan, an owner of Asia Roma, Inc. and operator of Asia Roma restaurant, as a carpenter, electrician, and plumber at Asia Roma. Chin Dep. 12. The kitchen equipment at the current AR Restaurant is the same equipment that was present at the former Asia Roma, Chin Dep. 31--32, although Chin claims that this is because the landlord who owns the building includes kitchen equipment with the lease. Chin Reply Aff. ¶ 3. The current AR Restaurant and the former Asia Roma also share numerous employees, including the head chef and several servers. Chin Dep. 27. AR Restaurant and Asia Roma have the exact same menu. Chin Dep. 26. Chin states that Mei Chan, the owner of the former Asia Roma restaurant, is not formally affiliated with AR Restaurant, Chin Aff. ¶¶ 11, 13, but concedes that she is a "frequent patron and loyal customer" who, "on occasion, will lend a helping hand." Chin Reply Aff. ¶ 4. However, Adrienne Jang, a paralegal for plaintiff's counsel's law firm, had lunch at AR Restaurant in February 2012, and was told by her server that the manager was a woman named "Mei" or "Mae." Jang Aff. ¶¶ 2--3. Additionally, the Facebook page for the current AR Restaurant, although displaying a logo which says "AR," contains a large title holding itself out as "Asia Roma." Seelig Decl. Ex. F. The website of the current AR Restaurant is "" and displays a "© 2011," notwithstanding the fact that Asia Roma, Inc. is purported to have ceased operations in 2010. Seelig Decl. Ex. E.

As for AR Restaurant's amenability to suit under the FLSA, Chin asserts that the restaurant has never met the statutory threshold of $500,000 in gross annual sales, Chin Aff. ¶ 19; Chin Reply Aff. ¶ 7, does not do business outside New York, and purchases restaurant supplies from New York vendors, id. at ¶¶ 17, 18, 20. Alvarez disputes the assertion that AR Restaurant does not do $500,000 or more in business, noting that 40 Mulberry produced in discovery its 2010 tax return detailing that it did no business during that year, but has not produced the best evidence as to its sales-its 2011 tax return. However, Alvarez, for his part, has not adduced any evidence tending to show that AR Restaurant did $500,000 or more of sales during 2011.

II.Procedural History

On December 13, 2011, Alvarez filed this lawsuit. Dkt. 1. On April 25, 2012, counsel for Alvarez and for defendants 40 Mulberry and Chin appeared for a pretrial conference, at which the appearing defendants took the position that they were not properly in the case, because: (1) they had not employed Alvarez and were not successors in interest to Alvarez's actual employer, Asia Roma; and (2) 40 Mulberry and Chin are not covered by the FLSA because AR Restaurant did not have sufficient annual sales to fall within the ambit of the statute. To resolve these threshold issues, the Court set an expedited schedule for limited discovery and a motion for partial summary judgment limited to these two issues. Dkt. 8.

On April 30, 2012, Alvarez filed an amended complaint. Dkt. 12.

On June 8, 2012, defendants 40 Mulberry and Chin filed the instant motion. Dkt. 17--20. On July 23, 2012, Alvarez submitted an opposition. Dkt. 22--24.

On July 30, 2012, defendants filed a reply. Dkt. 25--26.

In support of their motion, 40 Mulberry and Chin argue that: (1) they are not successors in interest to Asia Roma, Mei Chan, or David Lee, because they did not acquire the business from its prior owners and there is no overlap in ownership or management; and (2) the FLSA is inapplicable here, because AR Restaurant does not have sufficient annual sales to qualify as an "enterprise engaged in commerce," see 29 U.S.C. § 203(s)(l)(A)(i)--(ii), and because Alvarez's position as a dishwasher does not afford him individual coverage under the FLSA.*fn2

In opposition, Alvarez argues that he has raised a genuine dispute of material fact as to whether AR Restaurant is a successor in interest to Asia Roma. Alvarez also contends that the FLSA does apply. Even if it does not, he notes, his claims under the New York Labor Law survive, and he asks the Court to ...

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