Mangahas v. Eight Oranges Inc.

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JESSY MANGAHAS, on behalf of herself and all others similarly situated, Plaintiff, v. EIGHT ORANGES INC. DBA THE BAO; CHIBAOLA, INC. DBA ULUH; JOANNE HONG BAO, individually, and RICHARD LAM, individually, Defendant.

No. 22-cv-4150 (LJL)

United States District Court, S.D. New York

May 1, 2023

OPINION AND ORDER

LEWIS J. LIMAN, UNITED STATES DISTRICT JUDGE

Plaintiff Jessy Mangahas (along with opt-in plaintiffs) moves, pursuant to Federal Rules of Civil Procedure 15 and 16, to file a second amended complaint. Dkt. No. 64.

BACKGROUND

Familiarity with the prior proceedings in this case is presumed. The action was initiated by complaint filed on May 20, 2022. Dkt No. 1. On August 18, 2022, plaintiff filed the operative amended complaint. Dkt. No. 25. Plaintiff Jessy Mangahas (“Plaintiff” or “Mangahas”) is an employee of defendant Eight Oranges Inc. d/b/a The Bao located at 13 St. Marks Place, New York, NY (“The Bao”) and Chibaola Inc., d/b/a Uluh located at 152 Second Avenue, New York, NY (“Uluh”) (collectively, the “Restaurants”). Dkt. No. 25 ¶¶ 1, 43. Plaintiff brings this case as a putative class action and a collective action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b) on behalf of a collective or class of servers, runners bussers, bartenders, and barbacks (collectively “Tipped Workers”) who worked at The Bao and Uluh. Id. ¶¶ 1, 39-40. Plaintiff asserts FLSA collective action claims on behalf of Tipped Workers employed at the Restaurants from May 20, 2019 to the date of final judgment in this matter, id. ¶ 102, and New York Labor Law (“NYLL”) class action claims on behalf of Tipped Workers employed at the Restaurants between October 5, 2015 and the date of final judgment in this matter, id. ¶ 113. Plaintiff alleges that the Defendants violated the tip credit provisions of the FLSA and the NYLL. Id. ¶ 11. The Complaint alleges a slew of other labor law violations including that Defendants would take unlawful deductions from Tipped Workers' compensation, such as the value of any customer walk outs, plate and glass breakage, and incorrect customer orders, and that Defendants would also deduct an hour from the Tipped Workers' hours for lunch at The Bao regardless of whether the worker took an hour off from work. Id. ¶¶ 24-26. Defendants required Tipped Workers to purchase their t-shirt uniforms, id. ¶ 27, failed to pay Tipped Workers the spread of hours premium pay required by the NYLL, id. ¶ 28, and failed to provide Tipped Workers with proper annual wage notices or accurate wage statements required by the NYLL, id. ¶¶ 30-31.

Plaintiff alleges that Defendants' conduct violated (1) the minimum wage provisions of the FLSA, 29 U.S.C. § 201, et seq., id. ¶¶ 140-46 (First Cause of Action); (2) the overtime wage provisions of the FLSA (by failing to pay Plaintiff and members of the FLSA collective at a rate of 1.5 times the full minimum wage for hours in excess of forty per week), id. ¶¶ 147-50 (Second Cause of Action); (3) the misappropriated tip provisions of the FLSA, id. ¶¶ 151-55 (Third Cause of Action); (4) the minimum wage provisions of the NYLL, id. ¶¶ 156-65 (Fourth Cause of Action); (5) the overtime wage provisions of the NYLL, id. ¶¶ 166-69 (Fifth Cause of Action); (6) the tip misappropriation provisions of the NYLL, id. ¶¶ 170-75 (Sixth Cause of Action); (7) provisions of the NYLL that required reimbursement for the purchase of the t-shirts, id. ¶¶ 176-78 (Seventh Cause of Action); (8) the spread of hours provisions of the NYLL, id. ¶¶ 179-81 (Eighth Cause of Action); (9) the annual time of hire wage notice provisions of the NYLL, id. ¶¶ 182-84 (Ninth Cause of Action); and (10) the wage statement provisions of the NYLL, id. ¶¶ 185-87 (Tenth Cause of Action). Plaintiff Mangahas also brings individual claims for retaliation under the FLSA, id. ¶¶ 188-92 (Eleventh Cause of Action), and under the NYLL, id. ¶¶ 193-97 (Twelfth Cause of Action).

By opinion and order of October 18, 2022, the Court granted Plaintiff's motion to have this case conditionally certified as a collective action under FLSA and authorized the dissemination of notice to the Tipped Workers. Dkt. No. 43. The Court also denied the motion of individual defendant Joanne Hong Bao to dismiss the complaint as against her for failure to state a claim for relief. Dkt. No. 44. Section 216(b) notice went out to putative collective members on January 4, 2023 and the notice period closed on March 6, 2023. To date, twentyseven plaintiffs have joined this action including Mangahas. Dkt. Nos. 52-61, 65 at 2.

The Case Management Plan and Scheduling Order entered in this case on September 2, 2022, provides that any motions by Plaintiff to amend shall be made by September 28, 2022 (save for the addition of opt-in plaintiffs which would be based on the notice period deadline if the Court granted the motion to conditionally certify a collective). Dkt. No. 28. It also provided for fact discovery to be completed no later than August 29, 2023 and all discovery to be completed by October 13, 2023. Id. Discovery deadlines were extended by three months by this Court at a conference held in this matter on April 25, 2023.

Plaintiff first filed a letter motion for leave to file a second amended complaint on March 20, 2023. Dkt. No. 62. The Court denied that letter motion without prejudice to renewal by formal motion. Dkt. No. 63. On March 29, 2023, Plaintiff filed a formal motion to file a second amended complaint along with a memorandum of law and a declaration in support of the motion.

Dkt. Nos. 64-66, 71. Defendants filed a memorandum of law in opposition to the motion on April 12, 2023. Dkt. No. 69. Plaintiff filed a reply memorandum of law on April 19, 2023. Dkt. No. 76.

The proposed second amended complaint makes several revisions to the amended complaint. It adds food packers to the list of tip-ineligible positions at the Restaurants (in addition to the already alleged managers, expeditors, soup dumpling cooks and dessert cooks). It adds Pitchaya Wohlfahrt as a named plaintiff^[1] and asserts a claim of retaliation in violation of the FLSA and NYLL on behalf of her stemming from Defendants' termination of her employment on March 1, 2023, following her joinder to the case on February 2, 2023.^[2] Finally, it asserts that Defendants filed a frivolous defamation lawsuit against Mangahas and two other opt-in Plaintiff on March 9, 2023, in retaliation for the filing of this lawsuit. Dkt. No. 68-1.

The lawsuit was filed in New York State Supreme Court, New York County on March 9, 2023, by Chibaola and asserts causes of action for defamation per se, defamation, and tortious interference with Uluh's business. It alleges that on or about September 8, 2022 false and defamatory comments were published in a Chinese-language news outlet widely read in the New York Chinese-speaking community, named Sing Tao Daily (“Singtao”). The article alleges that Uluh has cockroaches and other hygiene problems. Dkt. No. 66-1 ¶ 8. The complaint alleges that the defendants, including Mangahas and two others who are opt-in plaintiffs here, were the source of the statements and planned to use the defamatory statements and their dissemination in the news to harm Uluh. Id. ¶ 10. The allegation is based on information provided to Uluh by two confidential informants who were asked to join the scheme and declined. Id. ¶¶ 10-13. The state court complaint is verified by Richard Lam, the President of Chibaola and a defendant in the federal lawsuit in front of this Court. Dkt. No. 66-1 at ECF p. 9.

DISCUSSION

Three rules are applicable here. Federal Rule of Civil Procedure 15(a)(2) permits a party to amend its pleading with the leave of the court in the absence of the opposing party's written consent. Fed.R.Civ.P. 15(a)(2). Federal Rule of Civil Procedure 21 permits the court, “[o]n motion or on its own,” to add a party “on just terms.” Fed.R.Civ.P. 21. Federal Rule of Civil Procedure 16 provides that the court's scheduling order “may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4).

As a general matter, under Rule 15(a), “[l]eave to amend a complaint [is to] be freely given when justice so requires.” Dougherty v. Town of N. Hempsted Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002) (citing Fed.R.Civ.P. 15(a)). The court may deny such a motion only on grounds of “undue delay, bad faith, dilatory tactics undue prejudice to the party to be served with the proposed pleading, or futility.” Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995). However, “[m]ere delay . . . absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend.” State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981).

Under Rule 21, a court may allow a party to be added or removed “at any time, on just terms.” Fed.R.Civ.P. 21. “In deciding whether to permit joinder, courts apply the same standard of liberality afforded to motions to amend pleadings under Rule 15.” New York Wheel Owner LLC v. Mammoet Holding B.V., 2020 WL 4926379, at *21 (S.D.N.Y. Aug. 21, 2020) (quoting Bridgeport Music, Inc. v. Universal Music Grp., Inc., 248 F.R.D. 408, 412 (S.D.N.Y. 2008)).

However “[w]hen a party files a motion to amend after the pleading deadline set forth in the case management plan and scheduling order, Fed.R.Civ.P. 16(b) governs and the party must establish ‘good cause' to amend its pleadings.” Pristine Jewelers NY, Inc. v. Broner, 492 F.Supp.3d 130, 131-32 (S.D.N.Y. 2020) (citing Sherman v. Fivesky, LLC, 2020 WL 5105164, at *1 (S.D.N.Y. Aug. 31, 2020)). This is not a forgiving standard. “To show good cause, a movant must demonstrate diligence before filing her motion, such that despite the movant...