Walsh v. Fusion Japanese Steakhouse, Inc.

585 F.Supp.3d 766

Martin J. WALSH, Plaintiff,

v.FUSION JAPANESE STEAKHOUSE, INC., Fusion Japanese Steakhouse, Inc., Z&S International Cuisine, Incyuan Zheng Xiao, Christine Xiao, Defendants.

2:19-CV-00496-CCW

United States District Court, W.D. Pennsylvania.

Signed February 9, 2022

Brian P. Krier, Pro Hac Vice, Ethan Dennis, U.S. Department of Labor Office of Solicitor, Philadelphia, PA, for Plaintiff.

Jian Hang, Pro Hac Vice, Hang & Associates, PLLC, Flushing, NY, for Defendant Fusion Japanese Steakhouse, Inc.

Jian Hang, Pro Hac Vice, Shan Zhu, Hang & Associates, PLLC, Flushing, NY, for Defendants Z&S International Cuisine, Inc., Yuan Zheng Xiao, Christine Xiao.

MEMORANDUM OPINION AND ORDER ON PRETRIAL MOTIONS IN LIMINE

CHRISTY CRISWELL WIEGAND, United States District Judge Pending before the Court are (1) Defendants’ omnibus motion in limine and (2) seven pretrial motions in limine filed by the Secretary of the United States Department of Labor ("DOL"). For the reasons set forth below, the Court resolves these motions as follows:

• Defendants’ omnibus Motion in Limine to Exclude DOL's Exhibits P1 and P3 to P27, ECF No. 109, is GRANTED in part, DENIED in part and DEFERRED in part;

• DOL's Amended Motion in Limine to Exclude Evidence Related to Defendants’ Executive Exemption Claim, ECF No. 119 is GRANTED ;

• DOL's Motion in Limine to Exclude Undisclosed Witnesses and Evidence, ECF No. 101, is GRANTED ;

• DOL's Amended Motion in Limine to Exclude Testimony and Other Evidence of Employees’ Waiver of Rights, ECF No. 121, is GRANTED ;

• DOL's Motion in Limine to Exclude and Strike the Deposition Designations of Yuan Zheng Xiao and Christine Xiao, ECF No. 100, is GRANTED ;

• DOL's Motion in Limine and Counter-designations to the Deposition of Wage and Hour Investigator Nicholas Barron, ECF No. 106, is GRANTED ;

• DOL's Motion in Limine to Preclude Inquiries into or Evidence of Employees’ Immigration Status, ECF No. 102, is GRANTED ; and

• DOL's Motion in Limine to Exclude Evidence or Argument About Defendants’ Financial Status or Inability to Pay a Judgment, ECF No. 103, is GRANTED .

I. BACKGROUND

This action was brought under Sections 16(c) and 17 of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201, et seq. (the "FLSA") by DOL against Defendants, who own and run multiple Japanese Steakhouse restaurants, for willfully failing to pay their kitchen employees an overtime premium, and failing to make and keep appropriate records, in violation of the FLSA. ECF No. 80 at 1. Defendants are Fusion Japanese Steakhouse, Inc., a Pennsylvania corporation, ("Fusion Washington"); Fusion Japanese Steakhouse Inc., a West Virginia corporation, ("Fusion Vienna"); Z&S International Cuisine, Inc. d/b/a Fusion Steakhouse of Wheeling ("Fusion Triadelphia") (collectively "Fusion Restaurants"); and two individuals, Yuan Zheng Xiao and Christine Xiao (the "Individual Defendants").

The Court granted DOL's partial motion for partial summary judgment in full and found that: (1) the Fusion Restaurants are "covered enterprises" subject to the FLSA; (2) the Individual Defendants, Yuan Zheng Xiao and Christine Xiao, are "employers" under § 3(d) of the FLSA; (3) Defendants violated § 7(a) of the FLSA by failing to pay their employees statutory overtime premiums; (4) Defendants violated § 11(c) of the FLSA by failing to make, keep, and preserve the employment records of their kitchen employees; (5) Defendants willfully violated the FLSA's overtime provisions; (6) DOL is entitled to liquidated damages under § 16(c) of the FLSA; and (7) the Court should enjoin Defendants from future FLSA violations. ECF No. 80 at 8–29, 32. Only the amount of damages remains to be determined. Id. at 8. The Court also denied Defendants’ motion for summary judgment, finding that material issues of fact remained as to whether Defendants’ affirmative defense of the executive exemption had been waived because DOL did not have adequate notice of Defendants’ intention to assert it. ECF No. 80 at 29–31.

II. Legal Standard

"[A] motion in limine is a pretrial motion which requests that the Court prohibit opposing counsel from referring to or offering evidence on matters prejudicial to the moving party." Smith v. Allstate Ins. Co. , 912 F. Supp. 2d 242, 246 (W.D. Pa. 2012). A trial court has discretion arising from its "inherent authority to manage the course of trials" to rule on such motions. See Luce v. United States , 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). That said, a "trial court should exclude evidence on a motion in limine only when the evidence is clearly inadmissible on all potential grounds" to ensure that juries are not exposed to unfairly prejudicial, confusing, or irrelevant evidence. Johnstown Heart & Vascular Ctr., Inc. v. AVR Mgmt., LLC, 2019 WL 3573663, at *3, 2019 U.S. Dist. LEXIS 131234, at *7 (W.D. Pa. Aug. 6, 2019) (internal citation omitted).

III. Analysis

A. Defendants’ Omnibus Motion in Limine to Exclude DOL's Exhibits P1, P3 to P27, ECF No. 109, Will Be Granted in Part, Denied in Part, and Deferred in Part

1. Proposed Exhibits P3, P4, and P6 through P22 Should Not Be Excluded

Proposed Exhibits P6 through P22 are statements obtained by DOL Wage and Hour investigators from employees on the premises of the Fusion restaurants (the "Kitchen Employee Statements"), as part of a DOL investigation of Defendants for FLSA violations. ECF No. 126 at 2; ECF No. 116 at 2–3. Proposed Exhibits 3 and 4 are sworn statements from Fusion managers Putu Suyasa, manager of the Fusion Washington location and Xiao Zhen Liang, Manager of Triadelphia (the "Manager Employee Statements," and together with the Kitchen Employee Statements, the "Written Employee Statements"). See ECF No. 128 at 1; ECF No. 116 at 6–7.

a. The Parties’ Arguments

Defendants seek to exclude the Written Employee Statements on the grounds of hearsay and set forth multiple arguments, some of general applicability and others based on specific documents. ECF No. 116 at 2–7. As a general matter, Defendants contend that Rule 801(d)(2)(D) does not apply, because the Kitchen Employee Statements are from cooks, servers, and dishwashers who are not authorized speak on behalf of the Defendants. Id. at 2–3. Further, the Manager Employee Statements are each from individuals who managed only one of the three Defendant Restaurants, and thus statements regarding the Defendant Restaurants and their policies as a whole exceed the scope of manager's employment authorization. Id. at 6–7. Essentially, Defendants contend that the Written Employee Statements are not being made within the scope of the employee's relationship with Defendants. Id. Defendants further object that certain statements do not show that they were made during the existence of the informant's employment. Id. at 3–4 (citing examples). Defendants further contend that certain exhibits include hearsay within hearsay, including due to the issue of translation or interpretation. Id. at 4–5.

DOL contends that the Written Employee Statements are admissible as non-hearsay under Rule 801(d)(2)(D) because they were made during the employment relationship and concern matters within the scope of the individual's employment relationship with Defendants. ECF No. 126 at 3–4; ECF No. 128 at 2–3. DOL further contends that the Kitchen Employee Statements are also admissible business records under Rule 803(6), and that DOL Wage and Hour Investigator Nicholas Barron will lay the necessary foundation to admit these statements. ECF No. 126 at 4–5.

b. Mr. Barron May Authenticate the Kitchen Employee Statements at Trial

As a threshold matter, Defendants argue that the Kitchen Employee Statements cannot be properly authenticated because they were taken by various investigators, some of whom may not testify at trial. ECF No. 116 at 5. DOL contends that Mr. Barron, as the lead DOL investigator, has the requisite knowledge to authenticate the Kitchen Employee Statements because he either took the statements himself or otherwise coordinated with and oversaw the investigator who did take the statement. ECF No. 126 at 2 n.2.

Under Rule 901, to authenticate evidence, the "proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is," and may do so via "testimony that an item is what it is claimed to be." Fed. R. Civ. P. 901 (a)–(b). "The proponent need not conclusively prove that a piece of evidence is authentic; ‘[a]ll that is required is a foundation from which the fact-finder could legitimately infer that the evidence is what the proponent claims it to be.’ " Langbord v. United States Dep't of the Treasury , No. 06-5315, 2011 WL 2623315, *1, 2011 U.S. Dist. LEXIS 71779, *5 (E.D. Pa. July 5, 2011) (citing McQueeney v. Wilmington Trust Co. , 779 F.2d 916, 928 (3d Cir. 1985) ). The Third Circuit has recognized that the "burden of proof for authentication is slight" and that circumstantial evidence may be sufficient. McQueeney , 779 F.2d at 928.

Given this light burden of authentication, and Mr. Barron's knowledge of the statements due to his capacity as lead investigator, Mr. Barron may authenticate the Kitchen Employee Statements at trial.

c. The Written Employee Statements Will Not Be Excluded Under Rule 801(d)(2)(D)

Next, the parties dispute whether an employee must be authorized to speak on behalf of the employer for a statement to be considered not hearsay under Federal Rule of Evidence 801(d)(2)(D). Under Rule 801(d)(2)(D), a statement offered against an opposing party is not hearsay if it was "was made by the party's agent or employee on a matter within the scope of that relationship and while it existed." Fed. R. Evid. 801(d)(2)(D).

Here, all but two of the Written Employee Statements¹ indicate that the employee was currently employed by one of the Fusion Restaurants at the time of their statement to the DOL Wage & Hour Investigator, by identifying "present" as the date of employment.² In the context of FLSA cases, ...