Case Information
*1 18-3580 Lin v. Shanghai City Corp.
In the
United States Court of Appeals
for the
Second Circuit
August Term, 2019 (Argued: November Decided: February 2020) Docket No. cv
________________________________________________________________________
J IAN Y ANG L IN , H UI Q UI C HEN , AND X IN H E , ,
S HANGHAI C ITY C ORP D / B / A J OE ’ S S HANGHAI , S HANGHAI D UPLICATE C ORP . D / B / A J OE ’ S S HANGHAI , K IU S ANG S I A / K / A J OSEPH S I , T UN Y EE L AM A / K / A P ETER L AM , W ILLIAM K O , Y UN C AI , AND J OHN Z HANG ,
Defendants , S OLOMON C. L IU M IMI S L ILLIAN L IOU , AND C HENG K UENG L IU , .* Appeal from United States Court Southern New York (Caproni, J .) No. cv
________________________________________________________________________ * Clerk respectfully requested amend caption stated above. *2 Before:
S ACK , H ALL , Circuit Judges , Rakoff, † District Judge . Appeal from judgment United States District Court for Southern District New York (Caproni, J .) granting summary judgment Defendants. We hold reason recognize motion could converted into one for District Court appropriately applied Federal Civil Procedure 41(a)(1)(B), dismissing based Plaintiffs’ prior voluntary dismissals New York State Eastern District New York. AFFIRMED.
A ARON B. S CHWEITZER C. Douglass Thomas, John Troy (on brief) Troy Law, PLLC, Flushing, NY for Plaintiff Appellant .
D AVID B. H OROWITZ Fong & Wong, P.C., New York, NY, Defendant Appellee
. P ER C URIAM : Appellants, three kitchen workers formerly employed at three New York
City restaurants operating under name Joe’s Shanghai contend Defendants’ wage hour practices policies violated Fair Labor Standards Act (FLSA), New York Labor Law (NYLL), New York General Business Law (NYGBL), U.S.C. § District Court treated Appellees’ collective cross † Judge Jed S. Rakoff, United States Southern New York, sitting designation.
judgment as to Plaintiffs ‐ Appellants Lin, Chen, and He, and as to dismiss without prejudice as putative opt ‐ in plaintiffs Mendez, Flores, and Guerrero. The District Court granted judgment Defendants ‐ Appellees against Lin, Chen, and He, holding lawsuit barred Federal Civil Procedure 41(a)(1)(B) (the “two rule”) and dismissed prejudice as Mendez, Flores, and Guerrero. Because properly considered one and because two prior actions filed against Defendants Appellees were “based or includ[ed] claim,” FRCP 41(a)(1)(B), we affirm.
Over last three years, initiated three lawsuits against participated in another. The litigation began in October when former Joe’s Shanghai employees brought collective in Eastern New York (the EDNY I Action) against group corporate individual defendants which included many defendants named here. See Jin Shanghai Original, Inc. No. cv (E.D.N.Y.). The plaintiffs EDNY I Action alleged defendants’ wage hour practices violated FLSA NYLL. In August all three case – Lin, Chen, He – notices consent join putative Action. EDNY I granted class certification employees Joe’s Shanghai restaurants Flushing Midtown but denied employees Chinatown location while *4 denying the EDNY plaintiffs’ leave amend their complaint add Lin, Chen, He named co plaintiffs.
Shortly thereafter, Lin, Chen, He filed suit in the New York Supreme New York County (the NYS Action). Their state court complaint asserted an assortment of NYLL NYGBL violations made factual allegations substantially similar those made in the present action. The named the same defendants named here. On February 2018, Plaintiffs Appellants voluntarily dismissed the entire action with prejudice.
That same day, Plaintiffs Appellants filed new action Eastern of New York (the EDNY II Action), again alleging same NYLL NYGBL violations against same defendants based same set factual allegations. Plaintiffs Appellants added FLSA causes action claim under U.S.C. § causes action pursued below. dismissed action just days after filing it because, among other reasons, “they realized venue would improper Eastern District[.]” Br. at
Finally, instant February few days after dismissing II Action. complaints are virtually identical. This *5 action based the same operative facts names the same defendants (Appellees here) as did the NYS EDNY II Actions also includes the same legal as asserted in the EDNY II Action.
On June 2018, ‐ Appellants once again moved to voluntarily dismiss the complaint, time only as certain defendants who were defendants in the EDNY Action, which still ongoing. In response, the next day, Defendants ‐ Appellees filed a letter with requesting be dismissed with prejudice pursuant Federal Rule Civil Procedure 41. On June entered memo endorsement dismissing four defendants as requested but ordering parties brief “whether such dismissals should be with or prejudice” as part anticipated conditional certification. A91 92. filed collective June argued their supporting memorandum law NYS Action EDNY II Action “[did] not advance claims.” memorandum law motion, arguing entire should dismissed with prejudice under FRCP 41(a)(1)(B). In their reply memorandum law supporting certification, argued inclusion putative opt plaintiffs made NYS II Actions sufficiently different so fall within “strict construction” A436 38.
On October while considering motion for class certification, District Court entered an order informing parties it intended to treat Defendants Appellees’ to motion as a cross summary judgment as to Lin, Chen, and He, and a to dismiss without prejudice as to putative opt plaintiffs Mendez, Flores, and Guerrero. Court invited parties to submit any additional information pertinent to motion; neither party took advantage offer. Seven days later, its opinion and order granting summary judgment all asserted by Lin, Chen, He, and dismissing without prejudice claims made Guerrero, Flores, Mendez.
I.
“District courts discretion grant summary judgment sua sponte, even notice certain circumstances.” Schwan Stabilo Cosmetics GmbH & Co. v. Pacificlink Intern. Corp. F.3d (2d Cir. 2005); see FRCP 56(f)(1) (“After giving notice reasonable time respond, may . . . grant summary judgment nonmovant.”). When doing so, however, they must take care “to determine party against whom judgment is rendered has full fair opportunity meet proposition there is no genuine issue material fact tried, party whom rendered is entitled thereto matter law.” Ramsey Coughlin F.3d (2d Cir. 1996) (quotation marks citation omitted). *7 “The essential inquiry when such conversion challenged […] is not whether formal notice was served, but whether, based on facts circumstances of particular case, opposing party should reasonably have recognized possibility that might be converted into one summary judgment or taken by surprise deprived reasonable opportunity meet facts outside pleadings.” Villante v. Dep’t Corr. , 786 F.2d 516, 521 (2d Cir. 1986) (internal quotation omitted). We review Court’s grant judgment de novo. E.g. Biondo v. Kaledia Health , F.3d (2d Cir. 2019).
Here, ample opportunity argue that Rule 41(a)(1)(B) should not apply case. They were on notice Rule issue when their letter Notice Voluntary Dismissal on June That letter argued that were barred their entirety Rule 41(a)(1)(B) from pursuing their that should been dismissed with prejudice. See Kennedy Empire Blue Cross & Blue Shield F.2d (2d Cir. 1993) (holding papers seek grounds may lead entry can constitute notice purposes sua sponte conversion). On June asked both sides additional briefing “whether such dismissals should with or prejudice.” A92. In their amended brief certification, devoted section an argument 41(a)(1)(B) did apply because NYS II Actions did not advance *8 the claims. Plaintiffs ‐ Appellants spilled additional ink making argument on reply, while arguing that the inclusion the putative opt ‐ plaintiffs created sufficient differences between the NYS Action the EDNY II Action such that they do not fall within “strict construction” 41. A436 ‐ 38. Both these filings afforded Plaintiffs ‐ Appellants “reasonable opportunit[ies]” to present argument on issue which became basis Court’s decision. Villante F.2d at
Further, provided adequate notice that it was considering Appellees’ motion for cross ‐ judgment. The court invited Plaintiffs Appellants submit any additional information they deemed appropriate. chose not do so. Nor did file request more time provide additional information. “[B]ased facts circumstances particular case, [Plaintiffs Appellants] should reasonably recognized possibility that might converted into one judgment[.]” Villante F.2d at (internal quotation marks omitted).
II. only remaining argument that their state
does assert FLSA they asserted federal court, cases are *9 therefore different purposes of Rule 41(a)(1)(B). Rule however, does not require the two prior dismissals be of cases asserting identical claims. A second voluntary dismissal under Rule 41(a)(1)(B) shall with prejudice so long as plaintiff’s prior action “based on or includ[ed] same claim.” FRCP 41(a)(1)(B). few circuits have considered issue have analogized rule doctrine of res judicata, which bars plaintiff from re litigating a matter has already been decided by another court, even when plaintiff is asserting different legal claims or causes action. Commercial Space Mgmt. Co. v. Boeing Co. , F.3d 1080 (9th Cir. 1999) (comparing Rule 41(a)(1) determination res judicata); Manning v. S.C. Dep’t Highway & Pub. Transp. F.2d (4th Cir. 1990) (applying Rule 41(a)(1) as res judicata). Similarly, we hold second action is “based or includ[es] same claim” purposes 41(a)(1)(B) whenever it arises from same transaction or occurrence first action. Here, although federal court included federal causes not pled state court, both actions arose from set facts all additional either were or could have been raised state court. As aptly noted Court, hold otherwise would venue would been improper because it duplicated class portion Action. These arguments are waived, we need not consider them. See Greene United States F.3d (2d Cir. 1994) (“[I]t well established general rule an appellate will consider an issue raised first time appeal.”).
allow plaintiff evade enforcement rule simply adding new cause set facts.
We considered remaining arguments find them merit. Accordingly, we AFFIRM Court.
[1] now argue they did intend discontinue NYS Action with prejudice. Even assuming arguendo dismissal NYS Action prejudice, future preclusive effect such irrelevant application Federal Civil Procedure 41(a)(1)(B).
[2] argue first time appeal their II Action involuntary. They claim they dismiss suit because