Opinion
18-CV-0528 (GBD) (OTW)
11-15-2023
TINGYAO LIN, et al., Plaintiffs, v. YURI SUSHI INC., et al., Defendants.
REPORT AND RECOMMENDATION TO THE HONORABLE GEORGE B. DANIELS
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE
Discovery has been closed in this matter since 2019. Defendants' prior counsel sought to file a motion for summary judgment on behalf of Ling Tao Lian (“Mr. Lian”) in January 2020, see ECF 56, and was provided a schedule to do so; however, shortly thereafter, he withdrew from the case. Moving DefendantsMr. Lian and Sophia Lian (“Ms. Lian”), acting pro se, now move for summary judgment, relying principally on Plaintiffs' sworn statements at their respective depositions. (ECF 171). For the reasons below, I respectfully recommend that the motion for summary judgment be GRANTED as to Ling Tao Lian and DENIED as to Sophia Lian.
The remaining defendants, Yuri Sushi House, LLC (d/b/a Yuri Sushi) and Yixiang Cao either have not been served or are in default. Yuri Sushi and Mr. Cao have not appeared in this case, and Moving Defendants represent that they do not know Mr. Cao's whereabouts and have not had contact with Mr. Cao for several years. See ECF 146. Questions also remain about whether Yuri Sushi and Mr. Cao were properly served by Plaintiffs in this action, as both were served through a representative identified only as “Lin” and by mail. See ECF 143 at 1-2.
Because Moving Defendants are pro se, and because Moving Defendants have shown that Plaintiffs' counsel, John Troy, has not previously complied with any of my directions regarding treating pro se Defendants with civility, I have not required the parties to submit Joint Local Rule 56.1 Statements. See ECF 187.
Plaintiffs Tingyao Lin and Tingjia Xie were employed at Yuri Sushi restaurant, Plaintiff Lin from approximately June 30, 2015, to December 31, 2017, and Plaintiff Xie from approximately May 1, 2015 to January 7, 2018, as deliverymen. (ECF 100 at ¶¶ 9-10; ECF 171 at 2). They allege, among other things, that while they were employed there, they were not paid proper minimum wage and overtime compensation, in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and the New York Labor Law (“NYLL”).
Plaintiffs had worked in the same location under different management, until Moving Defendants began working at Yuri Sushi in the summer of 2016. Ms. Lian was involved in hiring, payroll, food preparation, and answering the phone. (ECF 188-6 at 50, 51, 131, 132; ECF 188-7 at 44). Ms. Lian's younger brother, Mr. Lian, worked primarily as a sushi chef although he also answered the phone when Ms. Lian was not present and calculated tips. (ECF 188-6 at 55, 56, 63, 132). Mr. Lian also performed “side work” and “cleaning.” (ECF 143-2 at 10). Mr. Lian was not involved in hiring and firing decisions. (ECF 188-6 at 86; ECF 143-2 at 10-11).
II. LEGAL STANDARD
Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs. L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).
“In resolving a motion for summary judgment, a court must resolve all ambiguities and draw all reasonable inferences against the moving party.” Perez v. Stanley, No. 17-CV-5200 (JGK), 2019 WL 6467495, at *2 (S.D.N.Y. Dec. 2, 2019) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). If the moving party meets its burden, the nonmoving party must produce evidence in the record and “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible.” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993).
Courts should afford pro se litigants “special solicitude” on motions for summary judgment. See Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988); Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994) (per curiam). Courts should “read the pleadings of a pro se plaintiff liberally and interpret them ‘to raise the strongest arguments that they suggest.' ” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Federal Rule of Civil Procedure 56(c) requires that a party must cite to particular parts of the record to support their factual assertions. Local Rule 56.1 sets out the requirement for parties seeking and opposing summary judgment to submit statements (“56.1 Statements”) of undisputed facts with citations to admissible evidence. Here, movants are the parties representing themselves, and Plaintiffs (who are represented by counsel) are the parties opposing summary judgment. Nothing in the rules themselves requires that summary judgment be denied for the parties' failure to submit 56.1 Statements. See L.R. 56.1(a) (“Failure to submit such statement may constitute grounds for denial of the motion.”) (emphasis added).
Indeed, under Local Rule 12.1, when a represented defendant moves to dismiss a pro se complaint and introduces “matters outside the pleadings” in support, the Court has the power to treat it as a motion for summary judgment, even without 56.1 Statements, so long as the pro se party opposing the motion to dismiss is permitted to introduce evidence in opposition. L.R. 12.1.
Here, the Moving Defendants referred to the record when they had counsel, although their recent filings have reiterated many of those statements without citations to the record. The represented Plaintiffs opposing summary judgment have filed their 56.1 Statement at ECF 175. The cases cited by Plaintiffs support the proposition that the Court has “broad discretion about how to enforce local rules.” See, e.g., Ciapetta v. Snyder, No. 15-CV-4427, 2020 WL 1503381, at *1 (E.D.N.Y. Jan. 9, 2020) (internal quotation omitted), report and recommendation adopted, 2020 WL 6318923. Nor has Moving Defendants' lack of a 56.1 Statement rendered it impossible for the Court to “adequately assess whether there exist any genuine issues of material fact, which would preclude entry of summary judgment in favor of Defendant.” Cf. Chiarelli v. Nissan North America, Inc., No. 14-CV-4327, 2017 WL 2982974, at *2 (E.D.N.Y. July 12, 2017).
III. ANALYSIS
In January 2020, Moving Defendants' counsel sought summary judgment on behalf of Mr. Lian, arguing that he was not an employer as defined by the FLSA. See ECF 56. Under the “economic reality” test, courts should consider the following factors to determine whether individual is an employer under the FLSA:
1. Power to hire and fire employees;
2. Supervision and control of employees' work schedules or conditions of employment;
3. Determination of rate and method of payment; and
4. Maintenance of employment records.
See Herman v. RSR Security Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (citing Carter v. Dutchess Community College, 735 F.2d 8, 12 (2d Cir. 1984)). As the Second Circuit has explained, however, “neither Carter nor Herman supports the application of a rigid four-part test .... In those cases, we held only that the four factors applied by the District Court in this case can be sufficient to establish employer status. We did not hold . . . that a positive finding on those four factors is necessary to establish an employment relationship.” Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61, 69 (2d Cir. 2003).
After considerable back and forth,the Court now has the depositions of all four individuals who have appeared: Plaintiffs Tingyao Lin, see ECF 188-6, and Tingjia Xie, see ECF 188-7; and Moving Defendants Ling Tao Lian, see ECF 143-2, and Sophia Lian, see ECF 143-1.
On September 21, 2023, I ordered Plaintiffs to file, by September 29, 2023, complete copies of their deposition transcripts, and directed Plaintiffs and their counsel not to shift any fees to Moving Defendants. See ECF 179. On September 22, 2023, Plaintiffs filed a motion to compel Moving Defendants to file copies of Plaintiffs' deposition transcripts or turn them over to Plaintiffs. See ECF 180. On September 25, 2023, I once again directed Plaintiffs to obtain and file their deposition transcripts, leaving open the possibility of a future motion by Plaintiffs to recover costs from Moving Defendants. See ECF 181. On September 27, 2023, Plaintiffs prematurely filed a motion to recover costs from Moving Defendants for the transcripts, even though they had not yet obtained their transcripts. See ECF 182. After several letters back and forth between Plaintiffs and Moving Defendants regarding the costs of obtaining the deposition transcripts, including correspondence with Moving Defendants' former counsel, see ECF Nos. 184, 185, 186, I ordered Plaintiffs on October 13, 2023, to show cause why they should not be sanctioned for repeatedly violating the September 21, 2023 Order by not filing their deposition transcripts and filing their motion to compel without appropriate notice to Moving Defendants. See ECF 187. On October 16, 2023, Plaintiffs filed their deposition transcripts. See ECF 188.
A. Genuine Issues of Material Fact Exist as to Ms. Lian's Status as an Employer
Ms. Lian did not hire either Plaintiff. See ECF 188-6 at 37, 42-43; ECF 188-7 at 32-33. She testified that she started working at the restaurant around September 2016, and that both Plaintiffs were already working at the restaurant when she started. (ECF 143-1 at 13, 29). This does not end the analysis, however. Ms. Lian admitted to hiring and firing other employees, see id. at 28, as well as setting their pay and hours and keeping records of the same. (id. at 31-32). See also ECF 175. Plaintiff Lin also testified that at times he was unable to take breaks because he was directed by Ms. Lian to help the sushi chefs (including Mr. Lian) put the ginger and wasabi into small cups “when the restaurant was very, very busy the chef actually have no time to do that sort of thing.” (ECF 188-6 at 129-32).
While she did testify that she was hired by Defendant Cao and that he was her “boss” and a likely shareholder, this testimony does not preclude her from also being an “employer” under the FLSA. See Zheng, 355 F.3d at 70 (distilling holding that “in certain circumstances,” a person or entity can be a joint employer under the FLSA when they exercise the prerogatives of an employer). As to Ms. Lian's alleged ownership, Plaintiff Xie testified that he was told by the prior unnamed manager that “Sophia purchased the store” and that “the real owner was Sophia and Ling Tao Lian.” (ECF 188-6 at 39, 41).
See supra n.1.
Absent the testimony of the prior unnamed manager, questions remain about whether Mr. Xie's testimony about Ms. Lian's ownership is inadmissible hearsay if Plaintiffs seek to offer these statements as evidence to prove the truth of the matter asserted in the statement.
Accordingly, I respectfully recommend that Sophia Lian's motion for summary judgment be DENIED. To be clear, this recommendation does not constitute a “finding” that Ms. Lian is or is not an employer. At this time, denying summary judgment as to Ms. Lian is appropriate because genuine issues of material fact exist as to whether Ms. Lian is an employer under the FLSA.
B. Mr. Lian Should Be Dismissed Because Mr. Lian is Not an Employer Under the FLSA's “Economic Reality” Test
Although Plaintiffs submitted a 56.1 Statement relating to Sophia Lian's status as an employer, their 56.1 Statement is devoid of any reference to Ling Tao Lian. (ECF 175). Their Memorandum of Law (ECF 174) is similarly devoid of any citations to the record, and merely repeats the factors in Herman and Carter and states in conclusory fashion that Mr. Lian satisfies them. That is not enough to avoid summary judgment, see Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993), particularly where Plaintiffs' own depositions belie those assertions. There is no credibility determination to be made for Mr. Lian's role: All four deponents' sworn statements are consistent in that Mr. Lian had minimal, if any, interaction at all with Plaintiffs, let alone interactions where he acted as an employer or supervisor.
To the extent Plaintiffs' interrogatory responses indicated that both Mr. Lian and Ms. Lian were employers, Plaintiff Lin clarified at deposition that the only basis for those interrogatory responses was Plaintiffs' knowledge that Mr. Lian and Ms. Lian are siblings. (ECF 188-6 at 84-86).
1. Hiring and firing
Plaintiff Lin testified that he had worked at the same location through several changes of name and/or ownership, until the restaurant became Yuri Sushi with “new owners.” (ECF 188-6 at 33-38). He further testified that he was asked to stay on by a male, and that he never saw or met either Moving Defendant until one year after Yuri Sushi opened in approximately the summer of 2016. (ECF 188-6 at 37-39, 41, 42-43). Plantiff Xie testified, as well, that he started at Yuri Sushi before either of the Lians had started working there, he had not met either of them before, and that he had been hired and been given the task of distributing menus by a “Mr. Lin,” first name unknown. (ECF 188-7 at 28). Both Plaintiffs testified that Ms. Lian (“Sophia”) fired them outside the restaurant, and that Mr. Lian was not present. (CITE 188-6 at 120-21). Mr. Lian's testimony was consistent with the Plaintiffs' testimony on this point: he had neither hired nor fired anyone. (ECF 143-2 at 10, 15-16).
2. Payment and scheduling
Plaintiff Lin testified that when he was paid, Ms. Lian handed him envelopes of cash that were sometimes labeled with his name, and that “maybe once or twice” Mr. Lian handed him the envelope when Sophia was not at the restaurant. (ECF 188-6 at 88-89). Mr. Lin had “no idea how they arranged the payment.” (Id. at 89). Mr. Lian testified that he was also paid by Ms. Lian, and that he did not “have that right to distribute” other employees' pay. (ECF 143-2 at 9). By way of contrast, Ms. Lian admitted at her deposition to having access to the corporate bank account and to signing checks on behalf of Yuri Sushi. (ECF 143-1 at 5).
Mr. Lin also testified that Ms. Lian told him to perform additional tasks at the restaurant but “the chef never would be able to instruct us what to do. We only listen[ed] to Sophia's instruction. We would not listen to the instruction of the chef.” (ECF 188-6 at 133).
Mr. Xie testified that his duties and schedule were set by “Mr. Lin,” and they only changed near the end of his employment. (ECF 188-7 at 34). Mr. Xie also testified that around 2016, Mr. Lintold him that “Sophia was the boss” and that “she would be responsible for the management.” id. at 36. Ms. Lian was the one who paid Xie in check or cash. (ECF 188-7 at 37, 56). Mr. Xie further testified that only Mr. or Ms. Lian would ever answer the restaurant phone, that that was the number he was to call if he was going to be late or sick, and that he did not remember whether either Moving Defendant talked to him about his pay, schedule, hours, or “anything like that.” (ECF 188-7 at 38).
Here, again, this statement is likely inadmissible hearsay if Plaintiffs offer the statement for the truth of the matter asserted.
3. Maintenance of employment records
Plaintiff Lin was shown employee time records that the attorneys agreed had been produced by the defendants, but he persistently maintained that they were “fake,” stating that he had never seen them before. (ECF 188-6 at 102-04). Plaintiff Xie similarly testified that he had never seen the employee time records before. (ECF 188-7 at 71-72). Nothing in Mr. Lian's testimony (or Ms. Lian's testimony, for that matter) suggests that Mr. Lian had any access or knowledge of employee time records or who maintained them. See ECF 143-2 at 12-13.
There are no genuine issues of material fact as to Mr. Lian's status as an employer. Plaintiffs' and the Moving Defendants' sworn statements consistently show that Mr. Lian did not have the power to hire or fire anyone, nor did he hire or fire Plaintiffs. Similarly, the potential dispute of fact - whether Mr. Lian may have handed an envelope of cash to Plaintiff Lin once or twice when Sophia was not present - is not a material dispute where neither Plaintiff testified that Mr. Lian dictated any circumstances of their employment. Indeed, Plaintiff Lin testified that they would not have listened to the Mr. Lian or the other sushi chefs and “only listen[ed] to Sophia's instruction.” (ECF 188-6 at 133). Accordingly, I respectfully recommend that Ling Tao Lian's motion for summary judgment be GRANTED.
IV. CONCLUSION
For the reasons stated above, I respectfully recommend that Moving Defendants' motion for summary judgment be GRANTED IN PART and DENIED IN PART. Specifically, summary judgment should be GRANTED in favor of Defendant Ling Tao Lian because there is no genuine issue of material fact whether he could be considered an “employer” of Plaintiffs under the economic reality test as articulated by the Second Circuit in Herman and Zheng. He is not. Summary judgment should be DENIED, however, in favor of Defendant Sophia Lian. As discussed earlier, genuine issues of material fact exist whether Ms. Lian is an employer. At a minimum, she paid and then terminated both Plaintiffs, so it would be up to the factfinder to determine whether her activities are sufficient to confer individual liability under the FLSA and NYLL.
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also FED. R. CIV. P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable George B. Daniels, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Daniels.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. (See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983)).