United States District Court, N.D. New York
TROY & ASSOCIATES, PLLC Kissena Boulevard Attorney for
LAW FIRM, PC Attorney for Defendants
MATTHEW J. MANN, ESQ., JOHN TROY, ESQ.
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge.
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.
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.
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 ¶
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.
Plaintiff's Motion to Amend
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. ...