United States District Court, S.D. New York
ORNRAT KEAWSRI, SACHINA NAGAE, TAKAYUKI SEKIYA, SIWAPON TOPON, and PIMPARAT KETCHATROT, Plaintiffs,
RAMEN-YA INC., Y&S INTERNATIONAL CORP. d/b/a RAMEN-YA, MIHO MAKI, MASAHIKO NEGITA, TOSHIHITO KOBAYASHI, and KENJI KORA Defendants.
ORDER AND OPINION
VALERIE CAPRONI, UNITED STATES DISTRICT JUDGE.
five servers who formerly worked at a pair of ramen
restaurants, allege a series of labor violations under
federal and state law. Defendants have moved to dismiss the
claims as insufficiently pled, while the Plaintiffs seek
conditional certification as a collective. The parties also
contest what should be included in the notice and order
regarding prospective plaintiffs if the Court grants
Plaintiffs' motion. For the reasons stated below,
Defendants' motion to dismiss is denied, and
Plaintiffs' motion for collective certification is
to the Complaint, Plaintiffs are former servers at two
jointly-operated cash-only restaurants, owned by different
corporate entities but doing business together under the name
“Ramen-Ya.” First Amended Complaint
(“FAC”) [Dkt. 34] ¶¶ 10, 13, 18, 40-41,
51-55. Defendant Miho Maki served as a manager for both
locations on behalf of the corporate owners; Ms. Maki
determined compensation arrangements and work assignments.
Id. ¶¶ 19-20, 44-45, 63-66. Plaintiffs
allege that Defendant Masahiko Negita is the actual or
beneficial owner of one of the restaurants through Ramen-Ya
Inc. (“RYI”) and that he managed RYI's
affairs jointly with Maki. Id. ¶¶ 11, 21,
46. Negita allegedly regularly visited the location owned by
RYI, held meetings with Maki, and took control of cash from
the cash registers at the restaurant. Id. ¶ 47.
Plaintiffs allege that on any given day they were scheduled
to work at one or both restaurants. Id. ¶¶
allege that Maki informed them when they were hired that they
would be paid solely from tips, with a 20% deduction to pay
the kitchen workers and a deduction for whatever food and
drink they consumed during the shift. FAC ¶¶ 67,
69-70. They further allege that Maki actually deducted more
than 20% and used the tip money to cover cash register
shortages. Id. ¶ 68. Plaintiffs allege that
Negita knew or approved of this compensation arrangement.
Id. ¶ 71. Additionally, Plaintiffs allege that
their employers sought to conceal the improper compensation
arrangements by providing four of the named Plaintiffs
falsified payroll checks for a portion of the tip earnings
described above, with the remainder of their tip earnings
being paid in cash. Id. ¶¶ 79-84. One of
the named Plaintiffs received only the cash tips; she did not
receive a falsified paycheck. Id. ¶ 87.
Plaintiffs allege that they sometimes worked in excess of
forty hours per week without receiving overtime pay, and
that, on some days, they worked more than ten hours without
receiving spread-of-hours compensation as required by the New
York Labor Law (“NYLL”). Id.
¶¶ 97-98, 101-02.
allege various violations of federal and state labor laws,
including failure to pay minimum wages, failure to provide
pay-rate notices, failure to establish tip sharing and
pooling arrangements, failure to maintain accurate and
complete records, failure to provide complete and accurate
wage statements, and failure to pay overtime and
spread-of-hours compensation. FAC ¶¶ 74-78, 85-86,
88-89, 98, 102.
MOTION TO DISMISS
Negita and RYI move to dismiss the Complaint. See
Defendants' Partial Motion to Dismiss Plaintiffs'
Amended Complaint (“MTD”) [Dkt. 81]. Negita
argues that the FAC's allegations are boilerplate and
insufficiently specific, and thus fail to state a claim
against him. MTD at 6-9; Reply Memorandum in Support of
Defendants' Partial Motion to Dismiss Plaintiffs'
Amended Complaint (“MTD Reply”) [Dkt. 126] at
1-4. RYI contends that the FAC insufficiently alleges joint
operation of the two restaurants, and, in effect, that the
FAC fails to tie Maki's conduct to the corporate entity
that employed her, thus failing to state a claim. MTD at
9-12; MTD Reply at 4-5.
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must allege sufficient facts, taken as true, to
state a plausible claim for relief.” Johnson v.
Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555-56 (2007)). “Although for the purposes of a motion
to dismiss we must take all of the factual allegations in the
complaint as true, we ‘are not bound to accept as true
a legal conclusion couched as a factual
allegation.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
“[T]o survive a motion under Rule 12(b)(6), a complaint
does not need to contain detailed or elaborate factual
allegations, but only allegations sufficient to raise an
entitlement to relief above the speculative level.”
Keiler v. Harlequin Enters., Ltd., 751 F.3d 64, 70
(2d Cir. 2014) (citation omitted). When considering a Rule
12(b)(6) motion to dismiss, the Court accepts all factual
allegations in the pleadings as true and draws all reasonable
inferences in the light most favorable to the plaintiff.
See Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir.
2013) (citation omitted).
liable under the Fair Labor Standards Act
(“FLSA”), one must be an “employer, ”
which is broadly defined as “any person acting directly
or indirectly in the interest of an employer in relation to
an employee . . . .” 29 U.S.C. § 203(d). To limit
the broad language of the statute, which “taken
literally would support liability against any agent or
employee with supervisory power over [other] employees,
” Diaz v. Consortium for Worker Educ., Inc.,
No. 10 CIV. 01848 (LAP), 2010 WL 3910280, at *2 (S.D.N.Y.
Sept. 28, 2010) (internal quotation marks omitted), courts
have examined “whether the alleged employer possessed
the power to control the workers in question . . . with an
eye to the ‘economic reality' presented by the
facts of each case.” Herman v. RSR Security
Services Ltd., 172 F.3d 132, 139 (2d Cir. 1999)
(citations omitted), holding modified on other grounds by
Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61 (2d Cir.
2003). In particular, courts consider: “whether the
alleged employer (1) had the power to hire and fire the
employees, (2) supervised and controlled employee work
schedules or conditions of employment, (3) determined the
rate and method of payment, and (4) maintained employment
records.” Id. (internal quotation marks and
citations omitted). No single factor is dispositive, and
courts view these factors in the context of the
“totality of circumstances.” Id.
The Complaint Sufficiently Alleges a Claim Against
an individual to be an ‘employer, ' . . . there
must be more than just evidence that the individual is an
owner or officer of a company . . . .” Salomon v.
Adderly Indus., Inc., 960 F.Supp.2d 502, 509 (S.D.N.Y.
2013) (citation omitted). Instead, the “individual
defendant must possess control over a company's actual
operations in a manner that relates to a plaintiff's
employment.” Id. (citation omitted).
FAC includes a variety of allegations against Defendant
Negita. He allegedly is an actual or beneficial owner of RYI,
which operates one of the restaurants, and exercised
authority to create and enforce personnel decisions on behalf
of RYI. FAC ¶¶ 10, 11, 21. He allegedly managed the
affairs of RYI jointly with Maki, including determining the
compensation arrangements. Id. ¶ 46. And, more
specifically, the FAC alleges that he visited his restaurant
on a regular basis, held meetings with Maki, and took money
from the cash registers. Id. ¶ 47. Negita
allegedly “had knowledge of, approved of, and/or
required Maki to establish and maintain [the] method of
compensating Plaintiffs, and acting through Maki, established
and maintained the same method of compensation for all
servers employed by Defendants for RYI.” Id.
is correct that boilerplate allegations that simply recite
the elements of the economic reality test are insufficient to
state a claim. See, e.g., Tracy v. NVR,
Inc., 667 F.Supp.2d 244, 247 (W.D.N.Y. 2009)
(“[M]ere boilerplate allegations that an individual
meets the various prongs of the economic reality test . . .
without any supporting details-essentially ‘a formulaic
recitation of the elements of a cause of action'-are
insufficient to raise plaintiffs' right to relief
‘above a speculative level' with respect to that
individual's liability as an employer under the
FLSA.”) (citing Twombly, 550 U.S. at 555).
Several of the allegations against Negita are also made
verbatim against other Defendants, and some appear to track
the elements of the economic reality test. See,
e.g., FAC ¶¶ 20-23, 71-72.
Complaint, however, also contains specifics that adequately,
albeit barely, support a claim at this stage of litigation,
namely that Negita manages the restaurant jointly with Maki,
and that he visits the restaurant regularly, holds meetings
with Maki, and takes money from the registers. FAC
¶¶ 46-47. The Complaint does not repeat these
allegations as to the other Defendants. Courts in this
Circuit have recognized that such additional facts are
sufficient to defeat a motion to dismiss. See, e.g.,
Leal v. Masonry Services, Inc., No. 12CY588
(DLI)(VVP), 2013 WL 550668, at *2-3 (E.D.N.Y. Feb. 12, 2013)
(denying a motion to dismiss where, in addition to alleging
the bare elements of the economic reality test, the plaintiff
alleged that the individual defendants were “owners,
principal shareholders, and directors” of the corporate
defendants; they “made major personnel decisions and
dominated day-to-day operations” and that the plaintiff
worked at their direction). Defendants attempt to obscure the
relationships amongst them, arguing that Maki, the alleged
manager, is a purported owner, and Negita, the alleged
owner-manager, was merely exercising bookkeeping duties in
visiting to the restaurant and in removing money from ...