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Zhang v. Ichiban Group, LLC

United States District Court, N.D. New York

July 26, 2018

XUE HUI ZHANG, Plaintiff,
v.
ICHIBAN GROUP, LLC, et al., Defendants.

          JOHN TROY & ASSOCIATES, PLLC Kissena Boulevard Attorney for Plaintiff

          MANN LAW FIRM, PC Attorney for Defendants

          MATTHEW J. MANN, ESQ., JOHN TROY, ESQ.

          MEMORANDUM-DECISION AND ORDER

          Mae A. D'Agostino, U.S. District Judge.

         I. INTRODUCTION

         On February 9, 2017, Plaintiff Xue Hui Zhang filed the complaint in this putative class action against Defendants Ichiban Group, LLC, Ichiban Food Services, Inc., Chen & Ju, Inc., David Ip, Shiow Fei Ju, Shin Shii Ju, Chwon Tzu Ju, Liping Ju, and Tyng Quh Ju. See Dkt. No. 1. Plaintiff alleges multiple violations of the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL"). See id. at ¶¶ 70-120. Presently before the Court are Plaintiff's motion for leave to file an amended complaint and Defendants' motion to dismiss for lack of service. See Dkt. Nos. 45, 57. Additionally, on July 2, 2018, counsel for Defendant Chen & Ju, Inc., filed a letter brief notifying the Court that Chen & Ju, Inc., has filed for bankruptcy and that the action must therefore be stayed. See Dkt. 59. For the following reasons, Defendants' motion to dismiss is granted, Plaintiff's motion to amend is granted in part and denied in part, and the action is stayed as to Chen & Ju, Inc.

         II. BACKGROUND

         The Court presumes the parties' familiarity with the background of this case, as detailed in the December 1, 2017 Memorandum-Decision and Order ("December Order"). See Dkt. No. 8. Defendants previously filed a motion to dismiss, which was granted in part and denied in part. See Dkt. No. 18 at 16-17. The Court dismissed counts nine and ten of the complaint-Plaintiff's claims under 26 U.S.C. § 7434 and NYLL § 162. See id. at 16. Defendants' motion to dismiss was denied as to all other claims. See id. But the Court found that service was not proper as to Defendants David Ip, Shiow Fei Ju, Shin Shii Ju, and Chwon Tzu Ju, and the Court granted Plaintiff a thirty-day extension to re-serve those Defendants. See id. Plaintiff filed affidavits of service within the prescribed time. See Dkt. No. 25.

         Plaintiff also seeks to amend the complaint to include allegations relating to Yue Hua Chen ("Ms. Chen") and Gui Yong Zhang ("G.Y. Zhang"). See Dkt. No. 49 at 1. Plaintiff alleges that Ms. Chen worked as a waitress at a restaurant owned by Defendants. See id. at ¶ 65. From November 1, 2009 until December 31, 2015, Ms. Chen worked approximately 72.5 hours per week at the restaurant. See Id. at ¶¶ 66, 68. She made a flat salary of $300 per month from November 1, 2009 until December 31, 2013, and a flat salary of $500 per month from January 1, 2014 until December 31, 2015. See id. at ¶¶ 69-70. Additionally, Ms. Chen was never provided with any overtime compensation. See Id. at ¶ 72.

         Plaintiff alleges that G.Y. Zhang worked as a fry wok at a restaurant owned by Defendants. See id. at ¶ 76. G.Y. Zhang worked at the restaurant from March 1, 2013, until June 30, 2013, and again from September 1, 2014 until December 31, 2014. See id. G.Y. Zhang worked approximately 70.5 hours per week. See Id. at ¶¶ 78-79. From March 1, 2013 until June 30, 2013, he received a flat salary of $2, 700 per month, and from September 1, 2014 until December 31, 2014, he received a flat salary of $2, 900 per month. See id. at ¶¶ 79-80. G.Y. Zhang was also not provided with overtime compensation. See id. at ¶ 83.

         III. DISCUSSION

         A. Plaintiff's Motion to Amend

         1. Legal Standard

         Under Rule 15(a) of the Federal Rules of Civil Procedure, when a party may not amend its pleading as of right, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2). "The Second Circuit has held that a Rule 15(a) motion 'should be denied only for such reasons as undue delay, bad faith, futility of the amendment, and . . . resulting prejudice to the opposing party." Aetna Cas. and Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 603-04 (2d Cir. 2005) (citations omitted). "An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6)." Lucente v. Int. Bus. Mach. Corp., 310 F.3d 243, 258 (2d Cir. 2002). "[A]n amended complaint is futile when it does not contain enough allegations of fact to state a claim for relief that is 'plausible on its face.'" Henriquez v. Kelco Landscaping Inc., 299 F.R.D. 376, 379 (2014) (citing Bell Atl. Corp. v. ...


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