United States District Court, S.D. New York
XIAO DONG FU, individually and on behalf of all other employees similarly situated, and CHAU LAN NG, Plaintiffs,
RED ROSE NAIL SALON INC. d/b/a RED ROSE NAIL & SPA, WEN CHEN, YING ZHOU, and JOHN DOES and JANE DOES #1-10, Defendants.
OPINION AND ORDER
KATHERINE POLK FAILLA United States District Judge.
Xiao Dong Fu and Chau Lan Ng bring this employment action
against Defendants Red Rose Nail Salon Inc. (“Red
Rose”), Wen Chen, Ying Zhou, and affiliated John and
Jane Does, alleging that Defendants have failed, inter
alia, to pay Plaintiffs required minimum and overtime
wages in violation of the Fair Labor Standards Act (the
“FLSA”), 29 U.S.C. §§ 201-219, and the
New York Labor Law (the “NYLL”), N.Y. Lab. Law
§§ 650-665. Defendants have moved for summary
judgment under Federal Rule of Civil Procedure 56(a) on the
grounds that Red Rose is not a qualifying enterprise under
the FLSA and therefore is not subject to its provisions.
Defendants have also moved to dismiss the Complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to plead
plausibly an FLSA claim. For the reasons set forth below,
Defendants' motions for summary judgment and to dismiss
Local Rule 56.1 Requirements
turning to the facts of this case, a word about summary
judgment practice in this District is in order: Rule 56.1 of
the Local Civil Rules of the United States District Courts
for the Southern and Eastern Districts of New York
(“Local Rule 56.1”) requires a party moving for
summary judgment to submit a statement of the allegedly
undisputed facts on which the movant relies, together with
citation to the admissible record evidence supporting each
such fact. See Local Rule 56.1(a), (d); see also
Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir.
2003). The Local Rule “further puts litigants on notice
that ‘failure to submit such a statement may constitute
grounds for denial of the motion.'” Suares v.
Cityscape Tours, Inc., 603 F. App'x 16, 17 (2d Cir.
2015) (summary order) (quoting Local Rule 56.1(a)). What is
more, this Court's Individual Rule 5.C reminds parties
that compliance with Local Rule 56.1 is required.
have flouted the Court's Local and Individual Rules in
moving for summary judgment without a Local Rule 56.1
statement. The Court is thus authorized to, and chooses to,
deny their motion for summary judgment on this basis. See
MSF Holding Ltd. v. Fiduciary Tr. Co. Int'l, 435
F.Supp.2d 285, 304 (S.D.N.Y. 2006) (denying “[the]
defendant's cross-motion [for summary judgment] on the
ground that it has not complied with the requirements of
Local Rule 56.1”); Searight v. Doherty Enters.,
Inc., No. 02 Civ. 0604 (SJF), 2005 WL 2413590, at *1
(E.D.N.Y. Sept. 29, 2005) (denying summary judgment motion
where the defendant “failed to submit the required 56.1
statement [because] the Court is unable to adequately assess
whether there exist any genuine issues of material
course, the Court retains “broad discretion … to
overlook a party's failure to comply with local court
rules.” Holtz v. Rockefeller & Co., 258
F.3d 62, 73 (2d Cir. 2001). Even were the Court to exercise
this discretion, however, after having “conduct[ed] an
assiduous review of the record, ” id., the
Court would nonetheless deny Defendants' motion for
summary judgment for the independent reasons described
Fu and Ng, residents of Queens, New York, were employed as
nail technicians at Red Rose, a New York-incorporated nail
salon and beauty spa located in Manhattan. (Compl.
¶¶ 8-9, 32-34; Ans. ¶¶ 5-8, 34; Fu Decl.
¶¶ 1-2; Ng Decl. ¶¶ 1-2). Red Rose is
owned and managed by Defendants Chen and Zhou. (Compl.
¶¶ 10-11; Ans. ¶¶ 10-11; Fredericks
Decl., Ex. 1 at 7 (Red Rose's 2014-15 Form 1120, Schedule
G, Voting Stock Ownership)).
employed at Red Rose from about May 2007 to July 2015, and Ng
was employed there from about December 2005 to July 2015. (Fu
Decl. ¶ 2; Ng Decl. ¶ 2). The Complaint alleges
that Fu worked the following schedule: From May 2007 through
September 2008, she worked about 52 to 55 hours per week,
comprising shifts on Tuesdays through Fridays from 11:00 a.m.
to 9:30 p.m., and occasionally to 10:00 p.m.; and on Sundays
from 11:00 a.m. to 9:00 p.m., and occasionally to 9:30 p.m.
(Compl. ¶ 36). During this period, Fu was off twice a
week, on Mondays and Saturdays. (Id.). Then from
October 2008 through July 2015, Fu worked about 54 to 56
hours per week, comprising shifts on Tuesdays, Wednesdays,
Fridays, and Saturdays, from 9:00 a.m. to 8:00 p.m., and
occasionally to 8:30 p.m.; and on Sundays from 10:00 a.m. to
8:00 p.m., and occasionally to 8:30 p.m. (Id. at
¶ 37). During this period, Fu was off twice a week, on
Mondays and Thursdays. (Id.). Overall, Fu “was
frequently not allowed to take a full 30 minute uninterrupted
lunch break during her shift.” (Id. at ¶
40). The Complaint further alleges that during her
employment, Fu was paid a fixed daily rate, irrespective of
the number of hours worked each day: $65 per day from May
2007 to May 2009; $70 per day from June 2009 to May 2011; and
$75 per day from June 2011 to July 2015. (Id. at
added as a Plaintiff on September 22, 2015. (Dkt. #5). No
amended complaint was subsequently filed, and the Court's
primary source of information about Ng's work schedule is
her declaration in opposition to Defendants' motions. (Ng
Decl. ¶¶ 2, 6). There, Ng represents the period of
time she worked at Red Rose (December 2005 to July 2015) and
her daily wage ($55 to $60). (Id.). There is no
specific information in the Complaint, or in the record
presented to the Court in connection with the instant
motions, that reflects the number of hours Ng worked per day
sue on behalf of themselves and those similarly situated,
seeking, inter alia, unpaid minimum wages, overtime
wages, and spread-of-hour wages under the FLSA (Compl.
¶¶ 52-64) and the NYLL (id. at
filed the Complaint on September 21, 2015; the following day,
Ng consented to join her as a named plaintiff. (Dkt. #1, 5).
Defendants filed their Answer on October 26, 2015. (Dkt. #7).
After a January 7, 2016 Initial Pretrial Conference, the
Court entered a Case Management Plan and Scheduling Order
that, inter alia, set the deadline for the close of
fact discovery as May 13, 2016. (Dkt. #11). After a May 19,
2016 Pretrial Conference, the parties attempted
unsuccessfully to settle this matter and, on June 20, 2016,
the Court granted Defendants leave to file a motion for
summary judgment and also set forth a briefing schedule.
August 2, 2016, Defendants filed their motions for summary
judgment under Rule 56(a) and to dismiss the Complaint under
Rule 12(b)(6), as well as a supporting brief, declaration,
and exhibits. (Dkt. #16-18). As noted, Defendants failed to
file a Local Rule 56.1 statement. On August 19, 2016,
Plaintiffs filed an opposition brief,  affirmation, and
exhibits. (Dkt. #19-20). Given the absence of a Local Rule
56.1 statement, Plaintiffs filed no Local Rule 56.1
counter-statement. Although the Court's June 20, 2016
scheduling order had contemplated the filing of a reply
brief, Defendants opted not to file one.
Motions for Summary Judgment Under Rule 56
Rule 56(a), summary judgment may be granted only if the
record “show[s] that there is no genuine issue as to
any material fact and the movant is entitled to judgment as a
matter of law.” See Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); accord Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). A fact is
“material” if it “might affect the outcome
of the suit under the governing law, ” and is genuinely
at issue “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248; see also Jeffreys v.
City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005) (citing
party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex, 477 U.S. at 323
(internal quotation marks omitted). The movant may carry this
burden by showing that the nonmovant has not produced
sufficient evidence “to establish the existence of an
element essential to [the nonmovant's] case, and on which
[the nonmovant] will bear the burden of proof at
trial.” Id. at 322; see also Selevan v.
N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013)
(finding summary judgment appropriate where the nonmovant
fails to “come forth with evidence sufficient to permit
a reasonable juror to return a verdict in his or her favor on
an essential element of a claim” (internal quotation
movant meets this burden, the nonmovant cannot rely on the
“mere allegations or denials” contained in the
pleadings, Anderson, 477 U.S. at 248, and
“must do more than simply show that there is some
metaphysical doubt as to the material facts, ”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986) (internal quotation marks omitted).
Instead, the nonmovant must “set forth specific facts
showing a genuine issue for trial” using affidavits or
other evidentiary materials. Anderson, 477 U.S. at
250 (citing Fed.R.Civ.P. 56(e)); see also Celotex,
477 U.S. at 323-24; Wright v. Goord, 554 F.3d 255,
266 (2d Cir. 2009).
ruling on a summary judgment motion, the district court must
construe the facts in the light most favorable to the
non-moving party and must resolve all ambiguities and draw
all reasonable inferences against the movant.”
Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d
775, 780 (2d Cir. 2003). Still, a court “should not
weigh evidence or assess the credibility of witnesses.”
Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 619
(2d Cir. 1996) (citing United States v. Rem, 38 F.3d
634, 644 (2d Cir. 1994)).
Motions to Dismiss Under Rule 12(b)(6)
considering a motion to dismiss under Rule 12(b)(6), a court
should “draw all reasonable inferences in [the
plaintiff's] favor, assume all well-pleaded factual
allegations to be true, and determine whether they plausibly
give rise to an entitlement to relief.” Faber v.
Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011)
(internal quotation marks omitted) (quoting Selevan,
584 F.3d at 88). Thus, “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief ...