Qiu v. Shanghai Cuisine, Inc.
- Edgardo Ramos
- 1:18-cv-05448
- U.S. District Court · Southern District of New York
- 9
In Qiu v. Shanghai Cuisine, Judge Ramos denied without prejudice a service challenge and granted plaintiffs leave to amend their complaint.
The ruling directly affected Na Sun and Jonathan Ho, who challenged service, and the plaintiffs, who received more time to serve them and permission to identify John Doe Corporation as United Restaurant Group, Inc. The court’s earlier default judgment against other defendants was not changed.
What happened
Qiu v. Shanghai Cuisine, Inc. is a wage case brought by restaurant employees under federal and New York law. The remaining defendants, Na Sun and Jonathan Ho, argued that they were not properly served because the restaurant was not their actual place of business.
The court found that service at the restaurant appeared improper, but it concluded that the plaintiffs had timely attempted service and had good reason for the confusion. The court also found that Sun and Ho would not be unfairly harmed by allowing more time for service. Separately, the plaintiffs asked to replace “John Doe Corporation” with its identified name, United Restaurant Group, Inc.
Judge Ramos denied Sun and Ho’s service motion without prejudice, ordered the plaintiffs to serve them within thirty days, and granted the plaintiffs’ motion to amend. The court also stated that the statute of limitations was no longer paused as of the order’s issuance.
The detailed version
- Qiu v. Shanghai Cuisine, Inc. · No. 1:18-cv-05448
- Edgardo Ramos
- May 4, 2020
Background
Ting Qiu Qiu, Jian Wei Deng, Yu Bo Su, Zhaobang Bai, and Shaohong Zeng sued Shanghai Cuisine, Inc., R & M Century, Inc., John Doe Corporation, Jonathan Ho, Na Sun, Jijie Hong, Wing Jing Lau, Josephine Feng, and Chenwen Ho. They alleged that the defendants failed to pay them for all hours worked and failed to pay overtime, violating the Fair Labor Standards Act and New York Labor Law. The plaintiffs brought the case for themselves and other similarly situated employees.
The court had already entered default judgment against Shanghai Cuisine, Inc., R & M Century, Inc., Jijie Hong, Wing Jing Lau, and Josephine Feng. The remaining defendants were John Doe Corporation, Na Sun, and Jonathan Ho, also identified as Chenwen Ho.
According to the docket, the plaintiffs’ attorney delivered the summons and complaint to Linda Pung, a manager or cashier at Shanghai Cuisine, on August 2, 2018, and mailed copies to the same address the next day. Sun and Ho argued that this was not valid service because Shanghai Cuisine was not their actual place of business at that time. They submitted affidavits stating that they had not been served. Ho also stated that he had begun working elsewhere before April 2018, while Sun stated that he was in China during part of the service period.
Service of Process
The court considered service under Federal Rule of Civil Procedure 4 and New York Civil Practice Law and Rules section 308(2). That New York provision permits service by delivering the papers to a defendant’s actual place of business and following up with a mailing to the defendant’s last known residence or actual place of business.
The court concluded that the plaintiffs’ evidence did not conclusively establish that Shanghai Cuisine was Sun’s or Ho’s actual place of business in August 2018. The shareholder and operating agreement was subject to competing interpretations; Ho’s occasional appearances at the restaurant did not alone establish that it was his actual place of business; and the liquor license referenced by the plaintiffs was not submitted to the court. In light of Sun’s and Ho’s affidavits, the court stated that it appeared they had not been properly served at the restaurant.
Even so, the court declined to dismiss the claims against them. Under Rule 4(m), a court may extend the service deadline when the plaintiff shows good cause for failing to complete proper service. The court found that the plaintiffs had timely attempted service and had believed for many months that service was complete. It also found that the uncertainty about who was employed by or involved with Shanghai Cuisine made the confusion understandable. The court rejected Sun and Ho’s claimed prejudice because the earlier collective certification was conditional and they would have an opportunity to oppose final certification if properly served.
The court therefore directed the plaintiffs to serve Sun and Ho and file proof of service within thirty days of the opinion and order. The final conclusion states that Sun and Ho’s Rule 12(b)(5) motion was DENIED without prejudice.
Statute of Limitations
The court had previously paused the statute of limitations while discovery was stayed during consideration of the service motion. Because the plaintiffs had not requested continued tolling, the court stated that the statute of limitations was no longer tolled as of the issuance of the opinion and order.
Amendment of the Complaint
The plaintiffs also moved under Federal Rule of Civil Procedure 15(a) to replace John Doe Corporation with United Restaurant Group, Inc. Sun and Ho did not oppose the request. The court found that the plaintiffs had acted diligently in identifying the corporation and had moved promptly after learning its name. Applying Rule 15(a)’s preference for allowing amendments when justice requires, the court GRANTED the motion to amend and directed the plaintiffs to file an amended complaint by June 4, 2020.
Disposition
Judge Edgardo Ramos denied without prejudice Sun and Ho’s motion to dismiss for insufficient service of process and granted the plaintiffs’ motion to amend the complaint. The court directed service on Sun and Ho, filing of proof of service, and filing of the amended complaint by June 4, 2020.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.