United States District Court, D. Columbia
[Copyrighted Material Omitted]
Francisco Perez Alvarado, Plaintiff, Counter Defendant:
Justin Derek Zelikovitz, LAW OFFICES OF JUSTIN ZELIKOVITZ,
PLLC, Washington, DC USA.
Rainbow Inn, Inc., doing business as JACKEY CAFE, Defendant:
Wendell C. Robinson, LEAD ATTORNEY, LAW OFFICES OF WENDELL C.
ROBINSON, Washington, DC USA.
Jackey KO, also known as JACKEY CHOW, also known as JACKEY
KOO, also known as JACKEY K. CHOW, also known as JACKEY KO
CHOW, Kin Long KO, also known as PETER KO, also known as
PETER KOO, also known as PETER K. KO, also known as KINLONG
KO, Jackey KO, Defendants, Counter Claimant: Wendell C.
Robinson, LEAD ATTORNEY, LAW OFFICES OF WENDELL C. ROBINSON,
Washington, DC USA.
Rainbow Inn, Inc., Counter Claimant: Wendell C. Robinson,
LEAD ATTORNEY, LAW OFFICES OF WENDELL C. ROBINSON,
Washington, DC USA.
MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE.
the Court are several pending motions: (1) plaintiff's
motion to dismiss defendant Rainbow Inn's counterclaim
and for a show-cause order pursuant to Federal Rule of Civil
Procedure 11; (2) plaintiff's motion to dismiss defendant
Jackey Ko's counterclaims; (3) defendant Jackey Ko's
motion for leave to file out of time her response to
plaintiff's motion to dismiss; and (4) plaintiff's
motion for sanctions against all defendants
for their failure to attend their depositions. These motions
are ripe for resolution. Upon consideration of the
parties' briefs and the entire record
herein, the Court will grant in part and deny
in part the motions as stated herein.
Rainbow Inn, Inc., and its owners, defendants Jackey Ko and
Kin Long Ko, operate a restaurant known as " Jackey
Cafe." Am. Compl. ¶ ¶ 6-17. Plaintiff worked
for defendants as a dishwasher and kitchen hand. Id.
¶ 1. Plaintiff filed this action pursuant
to the Fair Labor Standards Act (" FLSA" ), 29
U.S.C. § 201 et seq., the District of Columbia Wage
Payment and Collection Law (" DCWPCL" ), D.C. S.T.
§ 32-1301 et seq., and the District of Columbia Minimum
Wage Act Revision Act (" DCMWA" ), D.C. S.T. §
32-1001 et seq. Am. Compl. ¶ 2. In his First Amended
Complaint, plaintiff alleges that defendants failed to pay
him minimum and overtime wages. Id. Plaintiff
alleges that defendants owe him approximately $17,000.00 in
unpaid wages. Id. ¶ 34.
Defendant Rainbow Inn's Counterclaim
Rainbow Inn filed an answer to plaintiff's First Amended
Complaint. See Rainbow Inn Ans. That answer included a
counterclaim against plaintiff for fraud. See id. at 2-4. In
its counterclaim, Rainbow Inn alleges that plaintiff lacked
sufficient information to substantiate his claims at the time
of filing the instant suit. Id. ¶ ¶ 9-10.
Plaintiff, in Rainbow Inn's view, saw his wage lawsuit as
a way to make " easy money" after being fired from
defendants' restaurant. Id. ¶ 9.
Inn alleges that plaintiff, in filing this action, made
intentionally false misrepresentations of material facts,
including: (1) that Rainbow Inn has a gross annual business
volume in excess of $500,000; (2) that Rainbow Inn owes
plaintiff $21,164.30 in unpaid wages; (3) that plaintiff
possessed a time card issued by Rainbow Inn; and (4) that
plaintiff possessed a photograph of Rainbow Inn's
time-card machine. Id. ¶ 11. Rainbow Inn
alleges that these four factual allegations are fraudulent
because plaintiff lacked documentation sufficient to support
facts (1) and (2) at the time of filing the complaint.
Id. ¶ 10. Further, Rainbow Inn alleges that
plaintiff admitted in discovery that he does not possess any
time card issued by Rainbow Inn. Id. Finally,
Rainbow Inn alleges that a video taken by plaintiff and
produced to defendants in discovery which purports to show
defendants' time-card machine is misleading because
Rainbow Inn does not have a time-card machine. Id.
Defendant Jackey Ko's Counterclaim
First Amended Complaint, plaintiff joined Jackey Ko and Kin
Long Ko, purported owners of defendant Rainbow Inn, to this
action. See Am. Compl. ¶ ¶ 6-17. Defendant Jackey
Ko answered plaintiff's First Amended Complaint and
asserted two counterclaims. See Jackey Ko Ans. First, Jackey
Ko alleges a fraud counterclaim which is identical in all
respects to Rainbow Inn's fraud counterclaim.
Id. at 2-4. Second, Jackey Ko asserts a counterclaim
for intrusion upon seclusion, alleging that plaintiff
unlawfully videotaped the interior of the kitchen at Jackey
Cafe. Id. ¶ 15. Jackey Ko alleges that
plaintiff displayed this video to his friends
and family and made it available for public viewing.
Id. Jackey Ko further alleges that she wanted to
keep the interior of her kitchen private from public view.
Id. ¶ ¶ 15-16.
Defendants' Failure to Appear for Depositions
noticed the depositions of Jackey Ko, Kin Long Ko, and
Rainbow Inn's corporate designee. Mot. for Sanctions
at 1. The depositions were originally scheduled sometime in
May 2015 but eventually rescheduled for September 11, 2015.
Id. On September 9, 2015, the Court held a telephone
conference at plaintiff's request during which plaintiff
apprised the Court that defendant refused to attend the
September 11, 2015, depositions because it was defense
counsel's wife's birthday. Id. During the
conference, plaintiff's and defendants' counsel
agreed to reset the depositions for September 24, 2015.
Id. at 2.
September 23, 2015, plaintiff again requested a conference
with the Court regarding the upcoming depositions. See Notice
of Request for Discovery Conference [Dkt. 31]. The Court held
a telephone conference later that day. During the conference,
plaintiff informed the Court that defendants' counsel had
represented that defendants would not attend the September
24, 2015, depositions because they would be attending
functions related to the Chinese president's visit to
Washington, D.C. Id. During the conference, the
Court rejected defendants' excuse for not attending their
depositions and made it clear that defendants would be
subject to sanctions if they failed to appear.
Court directed plaintiff to submit an itemization of the
costs it would incur if defendants failed to attend the
depositions. Id. The Court also ordered defendants
to submit a notice by 6:00 p.m. that day informing the Court
and plaintiff whether they would attend their depositions the
next day. Id. In his filing, plaintiff represented
that he would suffer $800.00 in out-of-pocket costs related
to the depositions. See Notice of Cancellation Costs [Dkt.
32]. These costs included hiring a court reporter and a
Chinese translator. Id. Defendants' notice,
while fairly equivocal, seemed to indicate that they would
not attend the depositions on September 24, 2015. See
Response to Order of the Court [Dkt. 33]. Defendants did not
in fact appear for their depositions that day. See Notice of
Failure to Attend Deposition [Dkt. 38]. However, the record
reveals that defendants were eventually deposed on October
16, 2015. Mot. for Extension at 1.
Motion to Dismiss for Failure to State a Claim
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242, 352
U.S.App.D.C. 4 (D.C. Cir. 2002); Fed.R.Civ.P. 12(b)(6). Under
Rule 8, a plaintiff need only provide " 'a short and
plain statement of [his] claim showing that [he] is entitled
to relief,' in order to 'give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests[.]'" Bell A. Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957)); Fed.R.Civ.P. 8(a). A Rule 12(b)(6)
motion does not assess the pleader's likelihood of
success on the merits but only whether he has stated a claim.
Eastern Savings Bank, FSB v. Papageorge, 31
F.Supp.3d 1, 11 (D.D.C. 2014).
the Supreme Court has held that " [t]o survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief
that is plausible on its face.'" Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009) (quoting Twombly, 550 U.S. at 570). A
claim is facially plausible " when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. Although " detailed factual
allegations" are not required, a complaint must offer
" more than labels and conclusions" to provide
grounds for relief. Twombly, 550 U.S. at 555. " Nor does
a complaint suffice if it
tenders 'naked assertion[s]' devoid of 'further
factual enhancement.'" Iqbal, 556 U.S. at