CHEN v. DIANA ORIENTAL NAILS LLC et al, No. 1:2015cv05037 - Document 54 (D.N.J. 2017)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 11/27/2017. (dmr)
Download PDF
<![CDATA[
CHEN v. DIANA ORIENTAL NAILS LLC et al Doc. 54 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY HUA ZHU CHEN, : : : : : : : : : : Plaintiff, v. DIANA’S ORIENTAL NAILS, LLC AND DIANA TRAM, Defendants. Hon. J oseph H. Rodriguez Civil Action No. 15-50 37 OPINION This m atter com es before the court on Motion of Defendants Diana’s Oriental Nails and Diana Tram for sum m ary judgm ent pursuant to Fed. R. Civ. P. 56. The Court has considered the written subm issions of the parties as well as the argum ents advanced at the hearing on Novem ber 14, 20 17. For the reasons stated on the record that day, as well as those that follow, Defendants’ m otion is granted. I. Background Plaintiff Hua Zhu Chen filed a six count Com plaint alleging violations of the Fair Labor Standards Act for failure to pay m inim um wages, failure to pay overtim e wages and im proper diversion of tips, pursuant to 29 U.S.C. §§20 6 (a), 20 3 (d), and 216 (b). Chen also alleges sim ilar violations of the New J ersey Labor Laws pursuant to 34:1156a1(h). Defendant m oves for sum m ary judgm ent only as to the federal claims as plead in Count I, II, and VI, on grounds that Chen is not entitled to the protections of the FLSA because the nail salon did not generate gross volum e of $ 50 0 ,0 0 0 .0 0 annually and/ or because Plaintiff and Defendants did not engage in interstate com m erce. 1 Dockets.Justia.com II. Sum m ary J udgm ent Standard “Sum m ary judgm ent is proper if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law.” Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). Thus, the Court will enter sum m ary judgm ent in favor of a m ovant who shows that it is entitled to judgm ent as a m atter of law, and supports the showing that there is no genuine dispute as to any m aterial fact by “citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, stipulations . . . adm issions, interrogatory answers, or other m aterials.” Fed. R. Civ. P. 56 (c)(1)(A). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonm oving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “m aterial” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the nonm oving party m ust identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a 2 properly supported m otion for sum m ary judgm ent, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. “A nonm oving party m ay not ‘rest upon m ere allegations, general denials or . . . vague statem ents . . . .’” Trap Rock Indus., Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 50 0 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. That is, the m ovant can support the assertion that a fact cannot be genuinely disputed by showing that “an adverse party cannot produce adm issible evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2). III. Analysis The FLSA regulates, inter alia, wages, hours, and overtim e com pensation and provides both individual and enterprise coverage. Genarie v. PRD Mgm t., No. 0 4– 20 82, 20 0 6 WL 436733, at *5 (D.N.J . Feb.17, 20 0 6). During oral argum ent, Plaintiff conceded that the type of coverage at issue here is enterprise coverage. Enterprise coverage protects em ployees who are “em ployed in an enterprise engaged in com m erce or the production of goods for com m erce.” Genarie, 20 0 6 WL 436733, at *5. As a threshhold m atter, enterprise coverage applies to em ployers that “[have an] annual volum e of sales m ade or business [that] is not less than $ 50 0 ,0 0 0 .” 29 U.S.C. § 20 3(s) (1) (A)(i)-(ii); 3 J uan Su v. Guang Yang Li, No. CIV.A. 10 -5268 MLC, 20 11 WL 3329882, at *1– 2 (D.N.J . Aug. 1, 20 11). Defendants subm it an Affidavit of Defendant Diana Tram , the relevant tax returns of Diana’s Oriental Nails, and a Certification from the tax return preparer Kenny Pham in support of its position that the annual gross revenue of the nail salon fails to m eet the $ 50 0 ,0 0 0 .0 0 threshhold for enterprise coverage. The record reflects that the nail salon’s gross revenue for the tax years 20 12, 20 13, 20 14, and 20 15 barely exceeded $ 10 0 ,0 0 0 .0 0 during Plaintiff’s em ploym ent. Plaintiff fails to identify any evidence in the record to call the veracity of the tax returns into question. Plaintiff relies solely on her declaration which assum es wages based upon hours allegedly worked by all of the alleged em ployees, none of which were deposed or offered affidavits. In addition, in her brief in opposition, Plaintiff m akes calculations based on her projections of all of the em ployees earned wages and other salon expenses without citing to any support in the record or authority. Finally, Plaintiff attacks the tax returns as false and argues that a tax return is insufficient proof on sum m ary judgm ent in an FLSA case. Plaintiff’s argum ent m iss the m ark. In order to survive sum m ary judgm ent, Plaintiff m ust dem onstrate a m aterial dispute of fact regarding whether the nail salon had an annual gross incom e of m ore than $ 50 0 ,0 0 0 . Despite having exchanged discovery, which includes Defendants’ payroll ledger, Plaintiff did not depose any of the em ployees she alleges worked at the salon or Kenny Pham , who prepared Defendants’ tax returns. Without citing to any support in the record, Plaintiff baldly states in her brief that “Defendants’ tax returns are unreliable, insufficient and do not tend to support the argum ent that Defendant m ade 4 less than $ 50 0 ,0 0 0 .0 0 .” Pl. Opp. Brief, p. 8. Plaintiff also claim s that the redacted versions of the tax returns subm itted in support of the m otion are insufficient and that there is no proof that these returns were actually filed. Counsel for Plaintiff conceded at oral argum ent that the redacted versions of the tax returns subm itted in support of the m otion for sum m ary judgm ent are identical to the unredacted versions exchanged during discovery and that the redactions have no im pact on the total num bers relevant to the Court’s considerations on this m otion. In addition, counsel acknowledged that Kenny Pham was not deposed and, therefore, Plaintiff cannot challenge his certification, which states that the Schedule C’s are true and accurate copies of the versions filed by him with the State of New J ersey and the United States Treasury. Kenny Pham Cert., ¶3. Finally, because Plaintiff neither identified nor deposed any of her co-workers, her unsupported statem ents regarding the am ount of hours worked is insufficient on sum m ary judgm ent to create a genuine issue of m aterial fact. Plaintiff cites to Monterossa v. Martinez Rest. Corp., No. 11 CIV. 3689 J MF, 20 12 WL 3890 212, at *3 (S.D.N.Y. Sept. 7, 20 12) for the proposition that Plaintiff’s own words are sufficient to call the veracity of the tax returns into question. In Monterossa, the plaintiff dem onstrated that the defendant restaurant's tax returns were inconsistent with defendants' own records which indicated that defendants paid significantly m ore in wages than the restaurant claim ed on its tax returns. Id. As a result, the court denied sum m ary judgm ent, even though the restaurant’s tax returns did not show a gross annual incom e that vaulted the threshold am ount, because the defendants' own records strongly suggested that it had sufficient gross annual incom e to qualify for coverage 5 under the FLSA. Monterossa v. Martinez Rest. Corp., No. 11 CIV. 3689 J MF, 20 12 WL 3890 212, at *3 (S.D.N.Y. Sept. 7, 20 12). Here, Plaintiff’s assertions and speculation ask the Court to extrapolate generalized figures and hours without the benefit of any docum entation or testim ony from her co-workers. In addition, even though Plaintiff’s counsel stated during oral argum ent that Defendants’ payroll ledger was produced, there was no attem pt m ade in this m otion to identify any inconsistencies or m arshal any evidence to underm ine the veracity of the ledger or tax return. Instead, Plaintiff sim ply states that the financial subm issions are untrustworthy and clearly false. While the Court agrees that cash, or predom inantly cash, businesses m ay insulate them selves from FLSA claim s with clever book-keeping and that such practices frustrate a plaintiff’s attem pt to m arshal evidence in support of a claim , sum m ary judgm ent requires m ore than “m ere allegations, general denials or . . . vague statem ents . . . .” Trap Rock Indus., Inc., 982 F.2d at 890 (citation om itted). As the non-m oving party, Plaintiff m ust identify som e evidence beyond her own speculation to create a genuine issue of m aterial fact. Here, counsel acknowledged that no depositions were taken of the other em ployees or the tax preparer. In addition, although not required, Plaintiff could have subm itted her own tax return to show a discrepancy in the am ount of hours she worked versus the am ount of tim e Defendants recorded. The payroll ledger was not challenged or used to highlight any inference of inaccuracy. As a result, the Court is left with unchallenged evidence tending to show that the business does not “[have an] annual volum e of sales m ade or business [that] is not less than $ 50 0 ,0 0 0 .” 29 U.S.C. § 20 3(s) (1) (A)(i)-(ii) to be am enable to suit under the FLSA. Sum m ary judgm ent is granted in favor of Defendants as to Counts I, II, and VI. 6 IV. Conclusion For the reasons set forth above, sum m ary judgm ent is granted in favor of Defendants as to Counts I, II, and VI. The decision of whether to exercise supplem ental jurisdiction over Plaintiff’s rem aining state law claim s is left to the Court's discretion as “pendent jurisdiction is a doctrine of discretion, not of plaintiff's right.” United Mine Workers of Am . v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130 , 16 L.Ed.2d 218 (1966). Because this Court has dism issed Plaintiff's federal claim s, the Court declines to exercise jurisdiction over Plaintiff's rem aining state law claim s. Section 1367(c)(3) provides: The district courts m ay decline to exercise supplem ental jurisdiction over a claim under subsection (a) if ... the district court has dism issed all claim s over which it has original jurisdiction. See 28 U.S.C. § 1367 (c) (3). Other courts faced with sim ilar situations have followed this procedure. See, e.g., McGrain v. City of Philadelphia, 20 0 6 WL 2668651, at *7 (E.D.Pa. Sept. 15, 20 0 6) (declining to exercise jurisdiction over state law claim s pursuant to 28 U.S.C. § 1367 (c) (3) when all federal claim s have been dism issed); and Cunningham v. Lenape Regional High Dist. Bd. of Educ., 492 F.Supp.2d 439, 451 (D.N.J . 20 0 7) (sam e). As a result, Plaintiff's rem aining state law claim s are hereby dism issed. Dated: Novem ber 27, 20 17 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
