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Ecoquij-Tzep v. Grill

United States District Court, N.D. Texas, Dallas Division

June 21, 2017

PASCUAL ECOQUIJ-TZEP, and all others similarly situated under 29 USC 216b, Plaintiffs,
v.
HAWAIIAN GRILL also known as MW Hawaiian Grill, Defendant.

          MEMORANDUM OPINION AND ORDER

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Pascual Ecoquij-Tzep seeks leave to file a Second Amended Complaint to add additional parties and correct the name of Defendant Hawaiian Grill a/k/a MW Hawaiian Grill. See Dkt. No. 32. Defendant objects to amendment. See Dkt. No. 39.

         For the reasons and to the extent explained below, the Court GRANTS Plaintiff's Motion for Leave to File Second Amended Complaint [Dkt. No. 32].

         Background

         Ecoquij-Tzep, on his own behalf and on behalf of those similarly situated, sued his former employer for violating the overtime and minimum wage standards under the Fair Labor Standards Act (“FLSA”). See Dkt. No. 1 (Complaint); Dkt. No. 11 (First Amended Complaint); 29 U.S.C. § 216(b). After completion of Phase I discovery, Ecoquij-Tzep seeks leave of court to amend his complaint to properly identify Defendant and to add four additional parties. See Dkt. No. 32.

         In his proposed Second Amended Complaint, Ecoquij-Tzep alleges that LE Arlington, Inc. is the business entity that operates Defendant Hawaiian Grill a/k/a MW Hawaiian Grill. Ecoquij-Tzep seeks to amend his complaint to identify Defendant as LE Arlington, Inc. d/b/a MW Hawaiian Grill also d/b/a MW's Hawaiian Grill also d/b/a Little Tokyo and f/k/a Shun Far El Paso, Inc. See Dkt. No. 32-1; see also Dkt. No. 32-3.

         Ecoquij-Tzep also seeks to add three individuals - Shizhong Zhang, Ying Hui Wang, and Kong Shen Wang - as parties. Ecoquij-Tzep alleges in his proposed Second Amended Complaint that these individuals are owners, managers, and/or officers of LE Arlington, Inc. Specifically, Ecoquij-Tzep alleges that Ying Hui Wang is an owner, president, and director of LE Arlington, Inc.; Kong Shen Wang is an owner and manager of LE Arlington, Inc.; and Shizhong Zhang is a 25% shareholder in LE Arlington, Inc. See id.; see also Dkt. No. 32-3 (Texas Secretary of State records for LE Arlington, Inc.). Zhang was Ecoquij-Tzep's manager at Hawaiian Grill, and he reported to both Ying Hui Wang and Kong Shen Wang. See Dkt. No. 32 at 3-4; Dkt. No. 32-2 at 7-10 (Zhang deposition).

         Ecoquij-Tzep also seeks to add Grand Fast Food Inc. d/b/a Famous Cajun Grill and also d/b/a Famous Wok (“Grand Fast Food Inc.”) as a party. In his proposed Second Amended Complaint, Ecoquij-Tzep alleges that he worked for both MW Hawaiian Grill and Famous Cajun Grill and that both restaurants shared management personnel. See Dkt. No. 32-1 at 5. Ecoquij-Tzep further alleges that Grand Fast Food Inc. and Le Arlington, Inc. are part of a joint enterprise, along with at least one other entity, Megatrend Food Management, Inc., that operates restaurants under the MW Hawaiian Grill, Little Tokyo, and Famous Cajun Grill brands. See Id. at 6. Ecoquij-Tzep alleges that Ying Hui Wang and Kong Sheng Wang appear as officers, directors, or managers for both LE Arlington, Inc. and Grand Fast Food Inc. and that Ying Hui Wang appears as president of Megatrend Food Management, Inc. in the records of the Texas Secretary of State. See Id. at 6; see also Dkt. No. 32-4 (Texas Secretary of State records for Grand Fast Food Inc.).

         Ecoquij-Tzep alleges and argues that “as owners, managers, and/or officers” of LE Arlington, Inc. and/or Grand Fast Food Inc., the individuals whom he seeks to add as parties ran the day-to-day operations of LE Arlington, Inc., Grand Fast Food Inc., or both for the relevant time period, were responsible for paying Ecoquij-Tzep's wages during the relevant time period, and controlled Ecoquij-Tzep's work and schedule. Accordingly, Ecoquij-Tzep contends that they were his employer as defined by 29 U.S.C. § 203(d). See Dkt. No. 32 at 4; Dkt. No. 32-1 at 3-4.

         Defendant filed an objection to the motion for leave to amend. See Dkt. No. 39. Defendant states that Defendant Hawaiian Grill a/k/a MW Hawaiian Grill is owned by LE Arlington, Inc. and does not object to Ecoquij-Tzep's proposed amendment concerning Defendant's name. See Id. at 3.

         But Defendant objects to the addition of parties, arguing that amendment to add these parties would be futile. Defendant challenges Ecoquij-Tzep's allegation that he worked for Famous Cajun Grill, based on deposition testimony of Defendant's corporate representative, Zhang, to the contrary. Thus, Defendant argues that any alleged FLSA violation claims against Grand Fast Food Inc. could not have arisen from the same transaction and occurrence as those against LE Arlington, Inc. See Id. at 2-3. And Defendant argues that the individuals whom Ecoquij-Tzep seeks to add were not Ecoquij-Tzep's employers under either the economic reality test or merely because they were owners, officers, or members of LE Arlington, Inc. See Id. at 4-5.

         Ecoquij-Tzep filed a reply in which he points out that Defendant admits in its response that LE Arlington, Inc. is the entity that owns Defendant; that Grand Fast Food Inc. owns a Famous Wok/Famous Cajun Grill Restaurant; and that Ying Hui Wang and Kong Shen Wang have owner ship interest in Grand Fast Food Inc. See Dkt. No. 41 at 2. Ecoquij-Tzep argues that the allegations in his proposed Second Amended Complaint are sufficient under both the FLSA and the economic reality test to allow the Court to draw a reasonable inference that the individuals whom he seeks to add were his employers under the FLSA. See Id. at 2-4. And Ecoquij-Tzep asserts that the fact that Mr. Zhang denied that Ecoquij-Tzep worked at Famous Cajun Grill does not mean that Ecoquij-Tzep's proposed amendment would be futile - it only means that Ecoquij-Tzep will be required to prove his allegations with other evidence. See Id. at 4.

         Legal Standards

         Because the standards by which the Court evaluates a motion for leave to amend the pleadings vary according to whether the motion was filed before or after the deadline established in the scheduling order, the Court must determine, as an initial matter, whether the motion was filed before or after the deadline. See, e.g., Orthoflex,Inc. v. Thermotek, Inc., Nos. 3:11-cv-08700-D & 3:10-cv-2618-D, 2011 WL 4398279, at *1 (N.D. Tex. Sept. 21, 2011) (“Motions for leave to amend are typically ...


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