United States District Court, N.D. Texas, Dallas Division
PASCUAL ECOQUIJ-TZEP, and all others similarly situated under 29 USC 216b, Plaintiffs,
HAWAIIAN GRILL also known as MW Hawaiian Grill, Defendant.
MEMORANDUM OPINION AND ORDER
L. HORAN UNITED STATES MAGISTRATE JUDGE.
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.
reasons and to the extent explained below, the Court GRANTS
Plaintiff's Motion for Leave to File Second Amended
Complaint [Dkt. No. 32].
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.
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.
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
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.).
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.
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.
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.
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.
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