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Guo v. Tommy's Sushi Inc.

United States District Court, S.D. New York

October 16, 2014

SHE JIAN GUO, RUN GUO ZHANG, and HONG JUN ZHANG, on behalf of themselves and others similarly situated, Plaintiffs,
v.
TOMMY'S SUSHI INC., d/b/a Oriental Cafe; XU GIAN DONG, a/k/a Danny Dong; HUANG NA; JOHN DOE; and JANE DOE, Defendants.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge.

She Jian Guo, Run Guo Zhang, and Hong Jun Zhang (collectively, "plaintiffs") bring this action on behalf of themselves and other similarly situated persons, alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and New York Labor Law ("NYLL") §§ 191 et seq. Plaintiffs allege that defendants' restaurant, Oriental Cafe, engaged in various unlawful employment practices, including failing to pay minimum wage and overtime compensation at the required rate.

Before the Court is plaintiffs' motion for: (1) conditional certification of their FLSA claim as a collective action pursuant to 29 U.S.C. § 216(b); (2) production by defendants of contact information for employees; (3) approval of their notice and consent forms; (4) equitable tolling of the statute of limitations for potential class members pending the expiration of the opt-in period; and (5) posting of the notice and consent forms at defendants' restaurant. For the following reasons, plaintiffs' motion is granted in part and denied in part.

I. Background

A. Factual Allegations[1]

Plaintiffs were employed as deliverymen at Oriental Cafe at various times in 2013 and 2014. Pl. Decl. Ex. 3 ¶ 4, Ex. 4 ¶ 4, Ex. 5 ¶ 4. Each worked approximately 60 to 80 hours per week, depending on which shifts he was assigned that week. See Pl. Decl. Ex. 3 ¶¶ 7-10, Ex. 4 ¶¶ 7-10, Ex. 5 ¶¶ 7-10. Regardless of the number of hours worked, each plaintiff was paid, twice per month, either $480 or $500. See Pl. Decl. Ex. 3 ¶ 11, Ex. 4 ¶ 11, Ex. 5 ¶¶ 11-12. Defendants may have claimed a tip credit toward the minimum wage, see Compl. ¶¶ 28-30, but plaintiffs spent more than two hours per day performing untipped work including making salad dressing and sauce, ordering ingredients, and opening and closing the restaurant, Pl. Decl. Ex. 3 ¶¶ 16-17, Ex. 4 ¶¶ 16-17, Ex. 5 ¶¶ 17-18. Plaintiffs also allege that defendants failed to maintain accurate records and did not provide required notices to employees. Pl. Decl. Ex. 3 ¶¶ 12-15, Ex. 4 ¶¶ 12-15, Ex. 5 ¶¶ 13-16.

Plaintiffs discussed their wages with other employees and learned that their co-workers also did not receive the minimum and overtime wages required by law. Pl. Decl. Ex. 3 ¶¶ 20-21, Ex. 4 ¶¶ 20-21, Ex. 5 ¶¶ 21-22. Plaintiffs are "aware of about six (6) kitchen workers, five (5) deliverymen, and two (2) Hispanic workers who were not compensated" properly. Pl. Decl. Ex. 3 ¶ 22, Ex. 4 ¶ 22, Ex. 5 ¶ 23.

B. Procedural History

On June 3, 2014, plaintiffs filed the Complaint. Dkt. 2. It alleges that defendants failed to pay minimum and overtime wages in violation of the FLSA. Compl. ¶¶ 88-95, 100-07. It also alleges various violations of the NYLL. Id. ¶¶ 96-99, 108-28. On August 1, 2014, defendants filed an Answer. Dkt. 13.

On August 29, 2014, plaintiffs moved to conditionally certify a collective action pursuant to 29 U.S.C. § 216(b). Dkt. 25, 26 ("Pl. Br."), 29 ("Pl. Decl."). On September 5, 2014, defendants submitted their opposition. Dkt. 33 ("Def. Br."), 32 ("Def. Decl."). On September 16, 2014, plaintiffs moved to strike certain portions of defendants' brief and declaration. Dkt. 35, 37, 38. On September 24, 2014, defendants filed an opposition to that motion. Dkt. 39. On October 1, 2014, plaintiffs submitted a reply memorandum. Dkt. 40.

C. Motion to Strike

Plaintiffs have moved to strike the portions of defendants' brief and supporting declaration that address the circumstances in which the three named plaintiffs were terminated. See Dkt. 35, 37, 38. Plaintiffs contend that this material is "irrelevant" and "highly prejudicial." Dkt. 38, at 2. Under Federal Rule of Civil Procedure 12(f), the Court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f) (emphasis added). The Rules define a "pleading" as a complaint, answer, or court-ordered reply to an answer. Fed.R.Civ.P. 7(a). However, "[m]otions, declarations and affidavits" - such as the submissions at issue here - "are not pleadings." Granger v. Gill Abstract Corp., 566 F.Supp.2d 323, 335 (S.D.N.Y. 2008); see also Dekom v. New York, No. 12 Civ. 1318 (JS) (ARL), 2013 WL 3095010, at *6 (E.D.N.Y. June 18, 2013) (collecting cases).

Moreover, plaintiffs' concern is the effect this potentially prejudicial information would have "[i]f presented to the jury." Dkt. 38, at 3. At this stage of the litigation, a jury is a distant hypothetical. The Court is perfectly capable of disregarding irrelevant or inflammatory material in resolving the instant motion, and its decision here has no bearing on what materials will be admitted at trial or exposed to a jury. The Court ...


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