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Li v. Chinatown Take-Out Inc.

United States District Court, S.D. New York

February 21, 2018

SHANFA LI and GUIMING SHAO, on behalf of themselves and others similarly situated, Plaintiff,
CHINATOWN TAKE-OUT INC., d/b/a/ China Town Take Out; and YECHIEL MEITELES, Defendants.



         On September 29, 2016, Shanfa Li and Guiming Shao (the “Plaintiffs”) brought this action under the Fair Labor Standards Act (“FLSA”) and New York Labor Laws against Chinatown Take-Out Inc. and Yechiel Meiteles (the “Defendants”) in the Northern District of New York. (Docket No. 1). On October 5, 2016, the case was transferred to the Southern District. (Docket No. 4). Plaintiffs allege that the Defendants failed to pay the applicable minimum wage and overtime compensation for hours worked in excess of forty hours per week. (Docket No. 1 at 1-2). Presently before the Court is Plaintiffs' motion for (1) conditional certification as a collective action under 29 U.S.C. § 216(b); (2) approval of Plaintiffs proposed notice and consent form; (3) tolling of the FLSA statute of limitations; and (4) production by Defendants of contact information for all of Defendants' “former non-managerial employees.” (Docket No. 41 at 1-2). Defendants opposed the motion on September 11, 2017, (Docket No. 44), and Plaintiffs filed their reply on September 15, 2017, (Docket No. 46). For the reasons that follow, Plaintiffs' motion is denied without prejudice.

         I. BACKGROUND

         Defendant CHINATOWN TAKE-OUT INC. d/b/a/ Chinatown Take-Out (“Chinatown”) is a New York corporate entity located in Wesley Hills, New York. (Compl.[1] at ¶ 9). Defendant Yechiel Meiteles is the owner and operator of China Town Take Out. (Id. at ¶¶ 13-15).

         Plaintiff Shanfa Li (“Li”) asserts that he was employed as a “miscellaneous worker” at Chinatown from August 25, 2015 to August 31, 2016. (Pls.' Br.[2] at 2). He maintains that his work included “cleaning the floors and tables, washing dishes, stirring and cutting in the kitchen, and whatever else [he] was instructed to do.” (Li. Aff.[3] at ¶ 3). While at Chinatown, Li alleges that he worked eleven hours each day from Sunday through Thursday and three hours on Friday, totaling fifty-eight hours each week. (Id. at ¶¶ 7, 8). He also alleges that he was never given a fixed meal break for lunch or dinner. (Id. at ¶ 9). According to Li, he was told that he would be paid $650 each week; however, he was “frequently paid every other week or paid less” than what he was owed. (Id. at ¶ 10). In total, he alleges that he was paid $5500 less than what he was promised and never received overtime or spread of hours' wages. (Id. at ¶¶ 11, 13). Finally, Li asserts that he never received notice of his wages in either English or Mandarin, his native language, and was never informed of his hourly rate. (Id. at ¶¶ 12, 14).

         Plaintiff Guiming Shao (“Shao”) alleges that he worked as a fry wok at Chinatown from November 2008 until November 3, 2016. (Shao Aff.[4] at ¶ 3). While employed at Chinatown, Shao asserts that he worked the same hours as Plaintiff Li (totaling fifty-eight hours each week). (Id. at ¶¶ 7-9). He maintains that he took approximately twenty to thirty minutes each day as a break for meals. (Id. at ¶ 11). Shao alleges that he was paid $3000 each month in three $1000 installments, usually in cash. (Id. at ¶¶ 12, 13). However, he also states that he would sign for his pay two times a year, but “did not understand the contents of the documents” because “they were exclusively in English.” (Id. at ¶ 18). Like Li, Shao asserts that he was never told his hourly rate, that he never received a wage notice in English or Mandarin, his native language, and that he never received overtime or spread of hours' wages. (Id. at ¶¶ 14-17).

         Regarding other similarly situated employees, Li alleges that he knows other employees were underpaid because he had “conversations about pay with one of the previous bosses” who “did not tell [him] what other employees made, but said that he had received complaints from other people as well.” (Li. Aff. at ¶ 15).


         Plaintiffs seek to conditionally certify a collective that includes all non-managerial employees who worked for Defendants dating back to April 15, 2012.[5] (Pls. Br. at 9-10). Defendants, however, argue that that Plaintiffs inappropriately seek to expand the scope of this action based on “vague and wholly conclusory” allegations. (Defs. Opp.[6] at 4). As such, Defendants maintain that Plaintiffs have failed to meet their burden of demonstrating that they are similarly situated to the potential opt-in plaintiffs. (Id.).

         A. Conditional Collective Action Certification Standard

         Under the FLSA, a plaintiff may seek certification to proceed as a collective action, thus providing other “similarly situated” employees the opportunity to join the litigation. 29 U.S.C. § 216(b); see also Benavides v. Serenity Spa NY Inc., 166 F.Supp.3d 474, 478 (S.D.N.Y. 2016). Courts in the Second Circuit employ a two-step certification process for an FLSA collective action. See, e.g., Johnson v. Carlo Lizza & Sons Paving, Inc., 160 F.Supp.3d 605, 610 (S.D.N.Y. 2016). The first step, which is presently at issue, is commonly referred to as conditional certification. See Morris v. Lettire Const. Corp., 896 F.Supp.2d 265, 269 (S.D.N.Y. 2012). During this stage, “the court mak[es] an initial determination to send notice to potential opt-in plaintiffs who may be ‘similarly situated' to the named plaintiffs with respect to whether a FLSA violation has occurred.” Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010). Plaintiffs bear the burden of making a “modest factual showing” that the named plaintiffs and the potential opt-in plaintiffs “together were victims of a common policy or plan that violated the law.” Id. (quoting Hoffman v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y. 1997) (Sotomayor, J.)).

         “The modest factual showing cannot be satisfied simply by unsupported assertions . . . but it should remain a low standard of proof because the purpose of this first stage is merely to determine whether similarly situated plaintiffs do in fact exist.” Id. (citations and internal quotation marks omitted); Johnson, 160 F.Supp.3d at 610 (explaining that the low standard is appropriate because conditional certification is merely a useful case management tool to facilitate notice to potential class members). “Nevertheless, while a plaintiff's burden of proof is low, it is not non-existent [and] certification is not automatic.” Sanchez v. JMP Ventures, L.L.C., No. 13 Civ. 7264(KBF), 2014 WL 465542, at *1 (S.D.N.Y. Jan. 27, 2014) (internal quotation marks omitted). Plaintiffs must offer “substantial allegations” demonstrating a “factual nexus” between themselves and the potential opt-in plaintiffs. Diaz v. S & H Bondi's Dep't Store, No. 10 Civ. 7676(PGG), 2012 WL 137460, at *3 (S.D.N.Y. Jan. 18, 2012) (internal quotation marks omitted). Plaintiffs may rely on their own pleadings, affidavits, and declarations, as well as the affidavits of other potential class members to meet their burden. See Warman v. Am. Nat'l Standards Inst., 193 F.Supp.3d 318, 323 (S.D.N.Y. 2016). Importantly, the court will not weigh the merits of the plaintiffs' underlying claims, resolve factual disputes, or evaluate credibility during this stage. See Morris, 896 F.Supp.2d at 269.

         During the second stage, “the district court will, on a fuller record, determine whether a so-called ‘collective action' may go forward by determining whether the plaintiffs who have opted in are in fact ‘similarly situated' to the named plaintiffs.” Myers, 624 F.3d at 555. If the record reveals that the opt-in plaintiffs are not “similarly situated” to the named plaintiffs, Defendants may move for decertification and the opt-in plaintiffs' claims may be dismissed without prejudice. See id.

         “Where . . . a conditional certification motion is made after some, but not all, discovery has occurred, it remains an open question whether some kind of ‘intermediate scrutiny' should apply.” Korenblum v. Citigroup, Inc., 195 F.Supp.3d 475, 480-82 (S.D.N.Y. 2016) (finding a “modest plus” standard appropriate because review “may properly grow more exacting as discovery proceeds”). In general, district courts in this Circuit decline to apply increased scrutiny until discovery closes in full. See Id. at 481 (collecting cases). Here, discovery closed in full on January 31, 2018, (see December 18, 2017 Minute ...

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