Barrientos v. Mikatsuki Int'l, Inc.

ALFONSO BARRIENTOS, EUSEBIA NAVA, and RAUL MARCELINO CASTRO, Plaintiffs, v. MIKATSUKI INTERNATIONAL, INC. d/b/a KIWAMI RAMEN,ASIANA RESTAURANT MANAGEMENT GROUP,INC. d/b/a SHABU and SHABU HOT POT & NOODLE BAR, THE NOODLES GROUP,INC. d/b/a SHABU, and BENNY CHIKAI LEUNG, Defendants.

1:18-CV-934-RP

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

November 6, 2019

ORDER

Before the Court is Plaintiffs Alfonso Barrientos, Eusebia Nava, and Raul Marcellino Castro's (collectively, "Plaintiffs") Motion for Partial Summary Judgment. (Dkt. 14). Defendants Mikatsuki International, Inc. d/b/a Kiwami Ramen ("Mikatsuki"), Asiana Restaurant Management Group, Inc. d/b/a Shabu and Shabu Hot Pot & Noodle Bar ("Asiana"), The Noodles Group, Inc. d/b/a Shabu ("the Noodles Group"), and Benny Chikai Leung ("Leung") (collectively, "Defendants") have neither responded to this motion nor requested additional time to respond. The date by which Defendants' response was due has passed, see W.D. Tex. Loc. R. CV-7(e)(2), and the case is set for trial on December 12, 2019. (Dkt. 10 at 2).

Although this dispositive motion is unopposed, summary judgment is not automatic, and so the Court must determine whether Plaintiffs have shown that they are entitled to judgment as a matter of law on the issues for which they request it. See Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006); Fed. R. Civ. P. 56(a). Having considered Plaintiffs' motion, the record, and the relevant law, the Court finds that the motion should be granted.

I. BACKGROUND

In this action, Plaintiffs seek unpaid wages under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. (Compl., Dkt. 1, at 1). Plaintiffs, "routine kitchen worker[s]" in Defendants' restaurants, allege that Defendants "regularly scheduled [them] to work more than 40 hours per week," did not properly record hours worked and compensation paid, and failed to pay Plaintiffs statutorily required overtime compensation. 29 U.S.C. § 207(a)(2). (Id. at 3-5).

Now, Plaintiffs "move for partial summary judgment on the issue that Defendants Leung and Asiana are liable to Plaintiffs for violations of the FLSA for failing to pay the required overtime wages for the time period between January 2017 and May 2018." (Mot., Dkt. 14, at 2). Plaintiffs list five material facts for which they ask the Court to find there is no genuine dispute: (1) that they "were employed in an enterprise covered by the requirements of the FLSA"; (2) that each of them "regularly worked for Defendants Leung and Asiana at the restaurant in excess of forty hours per week but [were] not paid overtime pay as required by the FLSA"; (3) that they "were employees of the Defendants within the meaning of the FLSA, and not independent contractors"; (4) that "Leung and Asiana were each an employer or joint employer of each of the Plaintiffs within the meaning of the FLSA"; and (5) that "Defendants Leung and Asiana violated the FLSA by failing to maintain complete and accurate records of the hours worked by Plaintiffs each workweek." (Id.). They further clarify that they are not currently seeking summary judgment on the issues of (1) "[w]hether Defendants Mikatsuki and The Noodles Group are also liable to Plaintiffs for failure to pay the required overtime wages in violation of the FLSA"; (2) "[w]hether any of the Defendants' violations of the FLSA were willful as defined by the FLSA; (3) "[w]hether Defendants Mikatsuki and Asianaare liable to Plaintiffs under the FLSA as successor entities for the FLSA violations of their predecessor"; and (4) "[t]he amounts of Plaintiffs' damages under the FLSA." (Id. at 3).

II. LEGAL STANDARD

Summary judgment is appropriate under Federal Rule of Civil Procedure 56 only "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). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). "A fact issue is 'material' if its resolution could affect the outcome of the action." Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).

Here, Plaintiffs both carry the burden at trial and are, collectively, the moving party. Generally, once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Furthermore, the nonmovant is required to identify specific evidence in the record and to articulate the precise way that evidence supports her claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id. After the nonmovant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, then the Court will grant summary judgment. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 175 (5th Cir. 2000).

Defendants did not respond to Plaintiffs' motion for partial summary judgment, though they did file an answer to Plaintiffs' complaint. (Dkt. 4). Despite their failure to respond, the Court may not automatically grant summary judgment without first ensuring that no material fact issues exist. Fed. R. Civ. P. 56(e)(3) advisory committee's note to 2010 amendment; Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988). If Plaintiffs, as movants, meet their initial burden, the Court must deny the motion for summary judgment even if there is no response. Baton Rouge Oil & Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). However, when no response is filed to a motion for summary judgment, the Court may take the movant's uncontroverted factual assertions as true. Eversley, 843 F.2d at 174; see also Morgan v. Fed. Exp. Corp., 114 F. Supp. 3d 434, 437 (S.D. Tex. 2015) (collecting cases).

III. DISCUSSION

Here, Defendants failed to address all of Plaintiffs' fact assertions. The Court will treat the unaddressed fact assertions as "undisputed for the purposes of the motion." Fed. R. Civ. P. 56(e)(2); Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988).

A. Were Plaintiffs Employed in a FLSA-Covered Enterprise?

To establish that the FLSA covers them at all, Plaintiffs must show either that they were "engaged in commerce or in the production of goods for commerce" or that they were "employed in an enterprise engaged in commerce or in the production of goods for commerce." 29 U.S.C. §§ 206(a), 207(a)(1). Plaintiffs proceed on the latter theory. (Mot., Dkt. 14, at 6-8). In this context, one of the statutory definitions of the term "enterprise engaged in commerce or in the production of goods for commerce" is "an enterprise that . . . has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and . . . is an enterprise whose annual gross volume of sales made or business done is not less than $500,000(exclusive of excise taxes at the retail level that are separately stated)." 29 U.S.C. § 203(s)(1)(A). The FLSA's accompanying regulations specify that an enterprise meets that threshold without additional computation needed if the employer knows the business's gross receipts substantially exceed $500,000 or if the business's gross receipts before year-end already exceed $500,000, as well as if at the beginning of a particular quarter, its gross dollar volume over the previous 12 months exceeds $500,000. 29 C.F.R. § 779.266(a), (b).

Asiana meets this threshold. Leung testified in his deposition that Asiana grossed $747,339 in 2017. (Leung Dep., Dkt. 14-1, at 73-74). When the restaurant at issue was known as "Kiwani Ramen," it grossed about $55,000 to 60,000 per month. (Id. at 78-79). The FLSA thus applies to Asiana's employment of Plaintiffs through May 2018. (See Mot., Dkt. 14, at 7).

Plaintiffs are also correct that while they worked for Asiana, they handled goods "produced out of state but which [were] used in the employer's business," (id.), satisfying the FLSA's requirements. See 29 U.S.C. §§ 203(s)(1)(A); 206(a), 207(a)(1). Leung acknowledged that in the restaurant, Plaintiffs handled "produce, food equipment, and utensils," some of which were produced outside of Texas. (Mot., Dkt. 14, at 7 (citing Leung Dep., Dkt. 14-1, at 70)). This activity is well within the FLSA's ambit. See, e.g., Dole v. Bishop, 740 F. Supp. 1221, 1225 (S.D. Miss. 1990). See generally Sobrinio v. Med. Ctr. Visitor's Lodge, Inc., 474 F.3d 828, 829 (5th Cir. 2007) (quoting Marshall v. Victoria Transp. Co., Inc. 603 F.2d 1122 (5th Cir. 1979)) ("[A]ny regular contact with commerce, no matter how small, will result in coverage."); McDaniel v. Family Sleep Diagnostics, Inc., No. 3:13-CV-4031-KS, 2016 WL 5122123, at *2 (N.D. Tex. Sept. 20, 2016) (noting that "Congress stated that [29 U.S.C. § 203(s)(1)(A)'s] effect would expand FLSA coverage so that every enterprise doing the requisite dollar volume of business would be covered by the FLSA" and collecting cases)). To be clear, Plaintiffs proceed on the theory that Asiana, as an enterprise, itself qualifies for enterprise coverage under the FLSA, and they have alleged sufficient facts to support that conclusion. CompareTony...