Lin v. Yuri Sushi Inc

Background

Tingyao Lin brought claims described in the opinion as arising under the Fair Labor Standards Act, New York Labor Law, and related New York regulations. The claims include alleged minimum-wage, overtime, spread-of-hours, and notice violations, as well as an alleged breach of implied contract based on failure to reimburse work-related expenses. The opinion also refers to claims under Title VII of the Civil Rights Act of 1964, although its description of the claims is internally inconsistent.

Defendant Sophia Lian disputes that she was Lin’s employer under the federal and New York wage laws. She contends that she acted at the direction of Yixiang Cao, whom the opinion identifies as the sole owner and operator of Yuri Sushi. The opinion states that Cao has not appeared in the case. Lian previously had attorneys, but they withdrew in 2020. The court later denied Lian’s motion for summary judgment because a genuine dispute of material fact remained about whether she was Lin’s employer.

The court had scheduled pretrial proceedings and set a tentative trial date. Lian also requires a Mandarin interpreter. The opinion states that Lin intended to proceed to trial against Lian while also seeking default judgment against Cao, Yuri Sushi, Inc., doing business as Yuri Sushi, and Yuri Sushi House, LLC.

Legal standard

Under 28 U.S.C. § 1915(e)(1), a court may request a volunteer attorney to represent a person who cannot afford counsel. In a civil case, the court generally cannot require the government to provide or pay for an attorney. The court therefore must use requests for volunteer counsel sparingly.

The court applied factors identified by the Court of Appeals for the Second Circuit, including whether the litigant is indigent, whether the claims appear likely to have substance, the litigant’s ability to investigate facts and present the case, the importance of cross-examination, the complexity of the legal issues, and whether counsel would likely lead to a fairer result.

Court’s reasoning

The court stated that a defendant’s request to proceed without paying court fees had been granted, so the defendant qualified as indigent. It found that Lin’s claims were “likely to be of substance.” The court also found that the other factors favored seeking counsel because Lian would need to prepare for trial, gather evidence, select witnesses, prepare the joint pretrial order, and advocate at trial. The court concluded that representation could help clarify the issues and shape the examination of witnesses.

The opinion repeatedly refers to the applicant as both Sophia Lian and “Plaintiff,” creating an internal inconsistency. The order’s opening, discussion of Lian’s employer status, and conclusion identify Sophia Lian as the defendant who would receive the limited representation.

Order and scope of representation

The court directed the Clerk of Court to attempt to locate pro bono counsel for Sophia Lian. The requested representation is limited to pretrial conferences, preparation for trial, assistance drafting the joint pretrial order, advocacy during trial, and possible settlement discussions.

A volunteer attorney would not be required to respond to a dispositive motion unless the court expanded the representation. Counsel could seek appropriate relief, including more time to respond or an expanded role. The representation would otherwise end when discovery is completed or when counsel files a notice of completion, according to the procedures described in the order. Counsel could also seek reimbursement of certain out-of-pocket expenses from the court’s pro bono fund.

The court emphasized that it was requesting, rather than appointing, counsel; that volunteer counsel might not be found; and that no attorney was guaranteed to accept the matter. Finally, the court certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied fee-waiver status for purposes of an appeal.

Disposition

The court granted the request for limited pro bono representation in the form of a direction to the Clerk of Court to seek a volunteer attorney for Sophia Lian. It denied in forma pauperis status for an appeal from the order.