United States District Court, W.D. Texas, Austin Division
ALFONSO BARRIENTOS, EUSEBIA NAVA, and RAUL MARCELINO CASTRO, Plaintiffs,
MIKATSUKI INTERNATIONAL, INC. d/b/a KIWAMI RAMEN, ASIANA RESTAURANT MANAGEMENT GROUP, INC. d/b/a SHABU and SHABU HOT POT & NOODLE BAR, THE NOODLES GROUP, INC. d/b/a SHABU, and BENNY CHIKAI LEUNG, Defendants.
PITMAN, UNITED STATES DISTRICT JUDGE
the Court is Plaintiffs Alfonso Barrientos, Eusebia Nava, and
Raul Marcellino Castro's (collectively,
“Plaintiffs”) Motion for Partial Summary
Judgment. (Dkt. 14). Defendants Mikatsuki International, Inc.
d/b/a Kiwami Ramen (“Mikatsuki”), Asiana
Restaurant Management Group, Inc. d/b/a Shabu and
Shabu Hot Pot & Noodle Bar (“Asiana”), The
Noodles Group, Inc. d/b/a Shabu (“the Noodles
Group”), and Benny Chikai Leung (“Leung”)
(collectively, “Defendants”) have neither
responded to this motion nor requested additional time to
respond. The date by which Defendants' response was due
has passed, see W.D. Tex. Loc. R. CV-7(e)(2), and
the case is set for trial on December 12, 2019. (Dkt. 10 at
this dispositive motion is unopposed, summary judgment is not
automatic, and so the Court must determine whether Plaintiffs
have shown that they are entitled to judgment as a matter of
law on the issues for which they request it. See Johnson
v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006);
Fed.R.Civ.P. 56(a). Having considered Plaintiffs' motion,
the record, and the relevant law, the Court finds that the
motion should be granted.
action, Plaintiffs seek unpaid wages under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201
et seq. (Compl., Dkt. 1, at 1). Plaintiffs,
“routine kitchen worker[s]” in Defendants'
restaurants, allege that Defendants “regularly
scheduled [them] to work more than 40 hours per week, ”
did not properly record hours worked and compensation paid,
and failed to pay Plaintiffs statutorily required overtime
compensation. 29 U.S.C. § 207(a)(2). (Id. at
Plaintiffs “move for partial summary judgment on the
issue that Defendants Leung and Asiana are liable to
Plaintiffs for violations of the FLSA for failing to pay the
required overtime wages for the time period between January
2017 and May 2018.” (Mot., Dkt. 14, at 2). Plaintiffs
list five material facts for which they ask the Court to find
there is no genuine dispute: (1) that they “were
employed in an enterprise covered by the requirements of the
FLSA”; (2) that each of them “regularly worked
for Defendants Leung and Asiana at the restaurant in excess
of forty hours per week but [were] not paid overtime pay as
required by the FLSA”; (3) that they “were
employees of the Defendants within the meaning of the FLSA,
and not independent contractors”; (4) that “Leung
and Asiana were each an employer or joint employer of each of
the Plaintiffs within the meaning of the FLSA”; and (5)
that “Defendants Leung and Asiana violated the FLSA by
failing to maintain complete and accurate records of the
hours worked by Plaintiffs each workweek.”
(Id.). They further clarify that they are
not currently seeking summary judgment on the issues
of (1) “[w]hether Defendants Mikatsuki and The Noodles
Group are also liable to Plaintiffs for failure to pay the
required overtime wages in violation of the FLSA”; (2)
“[w]hether any of the Defendants' violations of the
FLSA were willful as defined by the FLSA; (3)
“[w]hether Defendants Mikatsuki and Asiana are liable
to Plaintiffs under the FLSA as successor entities for the
FLSA violations of their predecessor”; and (4)
“[t]he amounts of Plaintiffs' damages under the
FLSA.” (Id. at 3).
judgment is appropriate under Federal Rule of Civil Procedure
56 only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
dispute is genuine only if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 254 (1986). “A fact issue is ‘material'
if its resolution could affect the outcome of the
action.” Poole v. City of Shreveport, 691 F.3d
624, 627 (5th Cir. 2012).
Plaintiffs both carry the burden at trial and are,
collectively, the moving party. Generally, once the moving
party has made an initial showing that there is no evidence
to support the nonmoving party's case, the party opposing
the motion must come forward with competent summary judgment
evidence of the existence of a genuine fact issue.
Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 587 (1986). Unsubstantiated assertions, improbable
inferences, and unsupported speculation are not competent
summary judgment evidence, and thus are insufficient to
defeat a motion for summary judgment. Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
Furthermore, the nonmovant is required to identify specific
evidence in the record and to articulate the precise way that
evidence supports her claim. Adams v. Travelers Indem.
Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). Rule 56
does not impose a duty on the court to “sift through
the record in search of evidence” to support the
nonmovant's opposition to the motion for summary
judgment. Id. After the nonmovant has been given the
opportunity to raise a genuine factual issue, if no
reasonable juror could find for the nonmovant, then the Court
will grant summary judgment. Miss. River Basin Alliance
v. Westphal, 230 F.3d 170, 175 (5th Cir. 2000).
did not respond to Plaintiffs' motion for partial summary
judgment, though they did file an answer to Plaintiffs'
complaint. (Dkt. 4). Despite their failure to respond, the
Court may not automatically grant summary judgment without
first ensuring that no material fact issues exist.
Fed.R.Civ.P. 56(e)(3) advisory committee's note to 2010
amendment; Eversley v. MBank Dallas, 843 F.2d 172,
174 (5th Cir. 1988). If Plaintiffs, as movants, meet their
initial burden, the Court must deny the motion for summary
judgment even if there is no response. Baton Rouge Oil
& Chem. Workers Union v. ExxonMobil Corp., 289 F.3d
373, 375 (5th Cir. 2002). However, when no response is filed
to a motion for summary judgment, the Court may take the
movant's uncontroverted factual assertions as true.
Eversley, 843 F.2d at 174; see also Morgan v.
Fed. Exp. Corp., 114 F.Supp.3d 434, 437 (S.D. Tex. 2015)
Defendants failed to address all of Plaintiffs' fact
assertions. The Court will treat the unaddressed fact
assertions as “undisputed for the purposes of the
motion.” Fed.R.Civ.P. 56(e)(2); Eversley v. MBank
Dallas, 843 F.2d 172, 174 (5th Cir. 1988).
Were Plaintiffs Employed in a FLSA-Covered
establish that the FLSA covers them at all, Plaintiffs must
show either that they were “engaged in commerce or in
the production of goods for commerce” or that they were
“employed in an enterprise engaged in commerce or in
the production of goods for commerce.” 29 U.S.C.
§§ 206(a), 207(a)(1). Plaintiffs proceed on the
latter theory. (Mot., Dkt. 14, at 6-8). In this context, one
of the statutory definitions of the term “enterprise
engaged in commerce or in the production of goods for
commerce” is “an enterprise that . . . has
employees engaged in commerce or in the production of goods
for commerce, or that has employees handling, selling, or
otherwise working on goods or materials that have been moved
in or produced for commerce by any person; and . . . is an
enterprise whose annual gross volume of sales made or
business done is not less than $500, 000 (exclusive of excise
taxes at the retail level that are separately stated).”
29 U.S.C. § 203(s)(1)(A). The FLSA's accompanying
regulations specify that an enterprise meets that threshold
without additional computation needed if the employer knows