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Alvarado v. Rainbow Inn, Inc.

United States District Court, D. Columbia

November 19, 2015

FRANCISCO PEREZ ALVARADO, Plaintiff,
v.
RAINBOW INN, INC. et al., Defendants

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[Copyrighted Material Omitted]

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          For Francisco Perez Alvarado, Plaintiff, Counter Defendant: Justin Derek Zelikovitz, LAW OFFICES OF JUSTIN ZELIKOVITZ, PLLC, Washington, DC USA.

         For Rainbow Inn, Inc., doing business as JACKEY CAFE, Defendant: Wendell C. Robinson, LEAD ATTORNEY, LAW OFFICES OF WENDELL C. ROBINSON, Washington, DC USA.

         For 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.

         For Rainbow Inn, Inc., Counter Claimant: Wendell C. Robinson, LEAD ATTORNEY, LAW OFFICES OF WENDELL C. ROBINSON, Washington, DC USA.

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         MEMORANDUM OPINION

         G. MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE.

         Before 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

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for their failure to attend their depositions. These motions are ripe for resolution. Upon consideration of the parties' briefs and the entire record herein,[1] the Court will grant in part and deny in part the motions as stated herein.

         BACKGROUND

         Defendant 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.[2] 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.

         A. Defendant Rainbow Inn's Counterclaim

         Defendant 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.

         Rainbow 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.

         B. Defendant Jackey Ko's Counterclaim

         In his 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

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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.

         C. Defendants' Failure to Appear for Depositions

         Plaintiff noticed the depositions of Jackey Ko, Kin Long Ko, and Rainbow Inn's corporate designee.[3] 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.

         On 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.

         The 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.

         LEGAL STANDARDS

         A. Motion to Dismiss for Failure to State a Claim

         A 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).

         Nevertheless, 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

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tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 ...


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