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Fu v. Red Rose Nail Salon Inc.

United States District Court, S.D. New York

March 13, 2017

XIAO DONG FU, individually and on behalf of all other employees similarly situated, and CHAU LAN NG, Plaintiffs,


          KATHERINE POLK FAILLA United States District Judge.

         Plaintiffs 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 are denied.


         A. Local Rule 56.1 Requirements

         Before 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.

         Defendants 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 fact”).

         Of 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 infra.

         B. Factual Background[2]

         Plaintiffs 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)).[3]

         Fu was 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 ¶ 38).

         Ng was 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 or week.

         Plaintiffs 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 ¶¶ 65-72).[4]

         C. Procedural Background

         Fu 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. (Dkt. #13-14).

         On 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).[5] As noted, Defendants failed to file a Local Rule 56.1 statement. On August 19, 2016, Plaintiffs filed an opposition brief, [6] 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.[7]


         A. Motions for Summary Judgment Under Rule 56

         Under 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.”[8] 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 Anderson).

         “[A] 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 marks omitted)).

         If the 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).

         “When 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)).

         B. Motions to Dismiss Under Rule 12(b)(6)

         When 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 ...

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