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Goh v. Nori O Inc.

United States District Court, D. New Jersey

March 31, 2019

JIT SHI GOH, on behalf of himself and others similarly situated Plaintiff,
v.
NORI O INC., d/b/a/ SUSHI O, OTAYA SUSHI II, INC., d/b/a/ SUSHI O, PENG L. TAM, a/k/a ALAN TAM, YUK YEN CHAI, a/k/a IVY CHAI, and YUK WING CHAI, Defendants.

          OPINION

          KATHARINE S. HAYDEN, U.S.D.J.

         This lawsuit brought by plaintiff Jit Shi Goh arises out of allegations that defendants Nori O Inc., Otaya Sushi II, Inc., Peng L. Tam, Yuk Yen Chai, and Yuk Wing Chai (collectively, “defendants”) violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), by failing to pay overtime wages to him and other similarly situated employees. (D.E. 1, Compl.) Before the Court is Goh's motion to conditionally certify this collective action. (D.E. 16, Mot.) Goh also seeks the issuance of court-authorized notice to the conditional collective action members, compelled production of a data file containing these members' contact information, equitable tolling of the statute of limitations pending the expiration of the opt-in period, and an order requiring that defendants post the approved notice in “conspicuous locations at the location where the [conditional collective action members] worked, or are now working.” (Mot. 1-2.)

         For reasons set forth below, the Court denies Goh's motion without prejudice.

         I. Factual Background

         As alleged in the complaint and supported by Goh's affidavit (D.E. 17-2, Goh Aff.), Sushi O, located in Edison, New Jersey, employed him as a “kitchen worker to handle fry wok work” from May 1, 2014 until June 28, 2015. (Compl. ¶ 10, Goh. Aff. ¶ 3.) Goh worked Tuesday through Sunday. Tuesday through Friday included two shifts, 10:30 A.M. to 3:00 P.M. and 4:30 P.M. to 10:00 P.M.; Saturday included two shifts, 11:30 A.M. to 3:00 P.M. and 4:30 P.M - 10:00 P.M.; Sunday included one extended shift, 11:30 A.M. to 10:00 P.M. (Id. ¶ 5(a)-(c).) This adds up to 59.5 hours per week.

         Goh alleges that he was paid “a flat rate of $800 each week” from May 1, 2014 to August 31, 2014. (Id. ¶ 5(e).) On September 1, 2014, he received a $25 weekly pay increase, and was paid $825 a week until November 30, 2014. (Compl. ¶ 43.) His weekly pay rate dropped to $750 from December 1, 2014 until June 28, 2015, when his employment with defendants ended. (Id. ¶ 44.) Goh asserts that he was “never informed of [his] hourly rate” and “was not compensated at one-and one-half of my calculated hourly wage for all hours . . . over forty (40) hours each week.” (Goh Aff. ¶¶ 6-7.)

         Goh alleges knowledge of “Sushi O's policy to not pay any employees for overtime” based on his conversations “with other sushi chefs, kitchen workers, waiters, and various other employees.” (Id. ¶ 10.) Goh also asserts that these employees “worked for six (6) days a week, and similar hours” to Goh. (Id.)

         Goh identifies five of these employees, listing each one's role in the restaurant, nationality, estimated age, and certain physical characteristics:

13. There was a guy named Peter, who worked on hibachi in the kitchen; he is between 50 to 60 years old, from Malaysia. Peter is about average build.
14. Another guy [n]amed Addy, who worked in the kitchen frying tempuras, he is between 30 to 40 years old, from Mexico. Addy is a bit chubby, and short.
15. There was this Mexican dishwasher, who was in his 20s, whom I do not recall his name. He was of a smaller build, skinny and short.
16. There was also this Malaysian waitress, about 50 years old.
17. There was another sushi chef named Eugene, who worked at the sushi bar, he is Chinese, and is in his 40s. Eugene also drives people to and from work.

(Id. ¶¶ 13-18.) Goh alleges that the defendants “exploited me and my co-workers, and it is my hope that we will be permitted to recover wages that we are owed.” (Id. ¶ 18.) He concludes his affidavit with an appeal to the Court to “allow [him] to represent the interests of [his] co-workers in ...


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