10 Civ. 7254 (JCF)

03-26-2012

### **(ECF)**

OPINION

### __AND ORDER__

JAMES C. FRANCIS IV

UNITED STATES MAGISTRATE JUDGE

The plaintiffs in this case bring claims for unpaid wages, overtime, and spread of hours pay pursuant to the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201 __et __ __seq.__ and New York Labor Law against their former employer, Wai ? Café Inc. ("Wai ? Café"), and its owner, Wai Yin Chan. The parties consented to proceed before me for all purposes in accordance with 28 U.S.C. § 636(c) and agreed to try liability issues to a jury, reserving for me the calculation of damages. Shortly before trial, defendants' counsel was relieved, and Mr. Chan proceeded to trial __pro se__. Because the corporate defendant failed to appear by counsel at trial, it was held to be in default. Plaintiff Yong Kui Chen did not attend the trial, and his claims were therefore dismissed. The claims of Jian Hui Lin, who was not named in the original Complaint, but who had submitted a form indicating his consent to sue under the FLSA, were submitted to the jury.

The trial was held on February 6 and 7, 2012. At the close of the evidence, the jury was asked to make liability determinations with respect to each of the plaintiffs' claims and to make factual findings that would serve as the basis for calculating damages.

### Liability

A threshold issue in any FLSA case is whether the plaintiffs are "covered" employees under the statute. "The FLSA minimum-wage and overtime provisions apply only to employees who are (1) personally engaged in interstate commerce or in the production of goods for interstate commerce (so-called 'individual coverage'), or (2) [were] employed in an enterprise engaged in interstate commerce or in the production of goods for interstate commerce (so-called 'enterprise coverage')." __Garcia v. Serpe__, No. 3:08cv1662, 2012 WL 380253, at *4 (D. Conn. Feb. 6, 2012) (alteration in original) (quotation marks and citations omitted). Here, the plaintiffs never contended that they personally performed work related to the production of goods transported across state lines, so individual coverage is not triggered. To establish enterprise coverage, the plaintiffs must demonstrate that the employees "engage in commerce or handle, sell, or otherwise work on goods and materials that have been moved in commerce, and [] the enterprise has at least $500,000 in annual gross volume of sales made or business done." __Solis v. Cindy's Total Care, Inc.__, No. 10 Civ. 7242, 2012 WL 28141, at *15 (S.D.N.Y. Jan. 5, 2012) (citing 29 U.S.C. § 203(s)(1)). At trial, the jury found that the plaintiffs had not shown that Wai ? Café's annual gross receipts exceeded $500,000.00. The FLSA claims must therefore be dismissed.

Nevertheless, I will retain supplemental jurisdiction over the plaintiffs' claims under New York Labor Law. Pursuant to 28 U.S.C. § 1367, a federal district court that has original jurisdiction over a civil action may also exercise jurisdiction over other claims unless certain exceptions apply. Where all federal claims are dismissed prior to trial, it is generally appropriate to dismiss without prejudice any state claims. __See Motorola Credit Corp. v. Uzan__, 388 F.3d 39, 56 (2d Cir. 2004). However, where the parties and the court have expended substantial resources in preparation for trial, and particularly where a case has actually been tried, it is appropriate to retain jurisdiction over state claims even when the federal claims are dismissed. __See id. __(approving exercise of supplemental jurisdiction over state claims tried in conjunction with federal claims that were subsequently dismissed); __Nowak v. Ironworkers Local 6 Pension Fund__, 81 F.3d 1181, 1191-92 (2d Cir. 1996) (allowing supplemental jurisdiction where case had proceeded for more than a year and federal claims were dismissed only nine days before scheduled trial); __Purgess v. Sharrock__, 33 F.3d 134, 138 (2d Cir. 1994) (where dismissal of federal claim occurs "late in the action, after there has been substantial expenditure in time, effort, and money in preparing the dependent claims, knocking them down with a belated rejection of supplemental jurisdiction may not be fair. Nor is it by any means necessary.").

This is such a case. The parties completed discovery, submitted the pretrial order, and tried a case in which the federal and state claims were based on the same constellation of facts. In such circumstances, the exercise of supplemental jurisdiction over the remaining state claims is warranted.

With respect to the remaining liability issues, the jury concluded that each plaintiff had been denied the appropriate minimum wage, overtime, and spread of hours pay. The jury also found, however, that Mr. Chan had not acted willfully, thus precluding the plaintiffs from an award of liquidated damages. N.Y. Labor Law § 663(1).

### Damages

Following trial, the parties were invited to submit proposed damages calculations based on the jury's findings as to the periods of time each plaintiff worked, the hours that plaintiff worked each week, and the amount he was actually paid. The plaintiffs made such a submission, and also indicated that they were waiving any claim for attorneys' fees. (Letter of C.K. Lee dated Feb. 14, 2012 ("Pl. Damages Statement")). Mr. Chan did not file a response. The following determinations constitute my findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

The formulas used to calculate damages are the same for each plaintiff. The unpaid minimum wage ("MW") is equal to the difference between the prevailing minimum wage minus the plaintiff's actual rate of pay (the "paid rate") multiplied by the number of hours worked in a week up to forty hours multiplied by the number of weeks worked in the relevant period. The overtime ("OT") owed is the difference between one and one-half times the minimum wage and the paid rate multiplied by the number of hours over forty multiplied by the number of weeks worked. Finally, the unpaid spread of hours ("SH") equals the number of days worked over ten hours multiplied by the minimum wage multiplied by the number of weeks. Based on this framework, the damages for each plaintiff are as follows:

A. __Zu Ghang Zhu__

1. __September 2004 - December 2004__

Number of weeks worked 17.2 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $600/month

Paid rate $1.77/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($5.15 - 1.77) x (40) x (17.2) = $2,325.44 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($7.73 - 1.77) x (39) x (17.2) = $3,997.97 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($5.15) x (17.2) = $575.77 Total = $6,899.18

2. __January 2005 - December 2005__

Number of weeks worked 52 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $600/month

Paid rate $1.77/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($6.00 - 1.77) x (40) x (52) = $8,798.40 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($9.00 - 1.77) x (39) x (52) = $14,662.44 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($6.00) x (52) = $2,028.00 Total = $25,488.84

3. __January 2006 - December 2006__

Number of weeks worked 52 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $600/month

Paid rate $1.77/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($6.75 - 1.77) x (40) x (52) = $10,358.40 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.13 - 1.77) x (39) x (52) = $16,954.08 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($6.75) x (52) = $2,281.50 Total = $29,593.98

4. __February 2007 - April 2007__

Number of weeks worked 13 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $600/month

Paid rate $1.77/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.15 - 1.77) x (40) x (13) = $2,797.60 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.73 - 1.77) x (39) x (13) = $4,542.72 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($7.15) x (13) = $604.18 Total = $7,944.50

5. __May 2008 - July 23, 2009__

Number of weeks worked 59.6 weeks

Hours worked/week 72 hrs./wk.

Monthly salary $900/month

Paid rate $2.91/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.15 - 2.91) x (40) x (59.6) = $10,108.16 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.73 - 2.91) x (32) x (59.6) = $14,914.30 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6) x ($7.15) x (59.6) = $2,556.84 Total = $27,579.30

6. __July 24, 2009 - December 2009__

Number of weeks worked 23.8 weeks

Hours worked/week 72 hrs./wk.

Monthly salary $900/month

Paid rate $2.91/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.25 - 2.91) x (40) x (23.8) = $4,131.68 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.88 - 2.91) x (32) x (23.8) = $6,069.95 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6) x ($7.25) x (23.8) = $1,035.30 Total = $11,236.93

7. __January 2010 - August 2010__

Number of weeks worked 34.4 weeks

Hours worked/week 72 hrs./wk.

Monthly salary $1,000/month

Paid rate $3.23/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.25 - 3.23) x (40) x (34.4) = $5,531.52 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.88 - 3.23) x (32) x (34.4) = $8,421.12 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6) x ($7.25) x (34.4) = $1,496.40 Total = $15,449.04

### Zu Ghang Zhu Total = $124,191.77

B. __Hao Chen__

1. __December 2003__

Number of weeks worked 4.3 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $600/month

Paid rate $1.77/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($5.15 - 1.77) x (40) x (4.3) = $581.36 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($7.73 - 1.77) x (39) x (4.3) = $999.49 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($5.15) x (4.3) = $143.94 Total = $1,724.79

2. __January 2004__

Number of weeks worked 4.3 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $650/month

Paid rate $1.91/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($5.15 - 1.91) x (40) x (4.3) = $557.28 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($7.73 - 1.91) x (39) x (4.3) = $976.01 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($5.15) x (4.3) = $143.94 Total = $1,677.23

3. __February 2004__

Number of weeks worked 4.3 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $700/month

Paid rate $2.06/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($5.15 - 2.06) x (40) x (4.3) = $531.48 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($7.73 - 2.06) x (39) x (4.3) = $950.86 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($5.15) x (4.3) = $143.94 Total = $1,626.28

4. __March 2004__

Number of weeks worked 4.3 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $750/month

Paid rate $2.21/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($5.15 - 2.21) x (40) x (4.3) = $505.68 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($7.73 - 2.21) x (39) x (4.3) = $925.70 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($5.15) x (4.3) = $143.94 Total = $1,575.32

5. __April 2004__

Number of weeks worked 4.3 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $800/month

Paid rate $2.36/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($5.15 - 2.36) x (40) x (4.3) = $479.88 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($7.73 - 2.34) x (39) x (4.3) = $900.55 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($5.15) x (4.3) = $143.94 Total = $1,524.37

The plaintiffs incorrectly calculated the hourly rate at $2.34.

6. __May 2004__

Number of weeks worked 4.3 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $850/month

Paid rate $2.50/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($5.15 - 2.50) x (40) x (4.3) = $455.80 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($7.73 - 2.50) x (39) x (4.3) = $877.07 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($5.15) x (4.3) = $143.94 Total = $1,476.81

7. __June 2004__

Number of weeks worked 4.3 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $900/month

Paid rate $2.65/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($5.15 - 2.65) x (40) x (4.3) = $430.00 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($7.73 - 2.65) x (39) x (4.3) = $851.92 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($5.15) x (4.3) = $143.94 Total = $1,425.86

8. __July 2004__

Number of weeks worked 4.3 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $950/month

Paid rate $2.80/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($5.15 - 2.80) x (40) x (4.3) = $404.20 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($7.73 - 2.80) x (39) x (4.3) = $826.76 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($5.15) x (4.3) = $143.94 Total = $1,374.90

9. __August 2004__

Number of weeks worked 4.3 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $1,000/month

Paid rate $2.94/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($5.15 - 2.94) x (40) x (4.3) = $380.12 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($7.73 - 2.94) x (39) x (4.3) = $803.28 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($5.15) x (4.3) = $143.94 Total = $1,327.34

10. __September 2004__

Number of weeks worked 4.3 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $1.050/month

Paid rate $3.09/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($5.15 - 3.09) x (40) x (4.3) = $354.32 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($7.73 - 3.09) x (39) x (4.3) = $778.13 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($5.15) x (4.3) = $143.94 Total = $1,276.39

11. __October 2004__

Number of weeks worked 4.3 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $1,100/month

Paid rate $3.24/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($5.15 - 3.24) x (40) x (4.3) = $328.52 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($7.73 - 3.24) x (39) x (4.3) = $752.97 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($5.15) x (4.3) = $143.94 Total = $1,225.43

12. __November 2004__

Number of weeks worked 4.3 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $1,150/month

Paid rate $3.39/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($5.15 - 3.39) x (40) x (4.3) = $302.72 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($7.73 - 3.39) x (39) x (4.3) = $727.82 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($5.15) x (4.3) = $143.94 Total = $1,174.48

13. __December 2004__

Number of weeks worked 4.3 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $1,200/month

Paid rate $3.53/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($5.15 - 3.53) x (40) x (4.3) = $278.64 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($7.73 - 3.53) x (39) x (4.3) = $704.34 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($5.15) x (4.3) = $143.94 Total = $1,126.92

14. __January 2005 - December 2005__

Number of weeks worked 52 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $1,200/month

Paid rate $3.53/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($6.00 - 3.53) x (40) x (52) = $5,137.60 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($9.00 - 3.53) x (39) x (52) = $11,093.16 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($6.00) x (52) = $2,028.00 Total = $18,258.76

15. __January 2006 - December 2006__

Number of weeks worked 52 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $1,200/month

Paid rate $3.53/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($6.75 - 3.53) x (40) x (52) = $6,697.60 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.13 - 3.53) x (39) x (52) = $13,384.80 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($6.75) x (52) = $2,281.50 Total = $22,363.90

16. __January 2007 - April 2007__

Number of weeks worked 17.2 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $1,200/month

Paid rate $3.53/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.15 - 3.53) x (40) x (17.2) = $2,490.56 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.73 - 3.53) x (39) x (17.2) = $4,829.76 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($7.15) x (17.2) = $799.37 Total = $8,119.69

17. __May 2008 - December 2008__

Number of weeks worked 34.4 weeks

Hours worked/week 72 hrs./wk.

Monthly salary $1,400/month

Paid rate $4.52/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.15 - 4.52) x (40) x (34.4) = $3,618.88 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.73 - 4.52) x (32) x (34.4) = $6,635.97 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6) x ($7.15) x (34.4) = $1,475.76 Total = $11,730.61

The plaintiffs incorrectly state this figure as 39 hours here and also for the next two periods.

18. __January 2009 - July 23, 2009__

Number of weeks worked 29 weeks

Hours worked/week 60 hrs./wk.

Monthly salary $1,200/month

Paid rate $4.65/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.15 - 4.65) x (40) x (29) = $2,900.00 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.73 - 4.65) x (20) x (29) = $3,526.40 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6) x ($7.15) x (29) = $1,244.10 Total = $7,670.50

19. __July 24, 2009 - August 2010__

Number of weeks worked 53 weeks

Hours worked/week 60 hrs./wk.

Monthly salary $1,200/month

Paid rate $4.65/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.25 - 4.65) x (40) x (53) = $5,512.00 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.88 - 4.65) x (20) x (53) = $6,603.80 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6) x ($7.25) x (53) = $2,305.50 Total = $14,421.30

### Hao Chen Total = $101,100.88

C.

__You Huang Zhu__

1. __December 2008 - July 23, 2009__

Number of weeks worked 33.4 weeks

Hours worked/week 72 hrs./wk.

Monthly salary $700/month

Paid rate $2.26/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.15 - 2.26) x (40) x (33.4) = $6,533.04 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.73 - 2.26) x (32) x (33.4) = $9,052.74 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6) x ($7.15) x (33.4) = $1,432.86 Total = $17,018.64

2. __July 24, 2009 - December 2009__

Number of weeks worked 22.5 weeks

Hours worked/week 72 hrs./wk.

Monthly salary $700/month

Paid rate $2.26/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.25 - 2.26) x (40) x (22.5) = $4,491.00 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.88 - 2.26) x (32) x (22.5) = $6,206.40 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6) x ($7.25) x (22.5) = $978.75 Total = $11,676.15

3. __January 2010 - August 2010__

Number of weeks worked 34.4 weeks

Hours worked/week 72 hrs./wk.

Monthly salary $900/month

Paid rate $2.91/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.25 - 2.91) x (40) x (34.4) = $5,971.84 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.88 - 2.91) x (32) x (34.4) = $8,773.38 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6) x ($7.25) x (34.4) = $1,496.40 Total = $16,241.62

### You Huang Zhu Total = $44,936.41

D. __Shui Bing Zhu__

1. __January 2006 - December 2006__

Number of weeks worked 52 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $600/month

Paid rate $1.77/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($6.75 - 1.77) x (40) x (52) = $10,358.40 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.13 - 1.77) x (39) x (52) = $16,954.08 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($6.75) x (52) = $2,281.50 Total = $29,593.98

2. __January 2007 - February 2008__

Number of weeks worked 60.6 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $600/month

Paid rate $1.77/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.15 - 1.77) x (40) x (60.6) = $13,041.12 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.73 - 1.77) x (39) x (60.6) = $21,176.06 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($7.15) x (60.6) = $2,816.39 Total = $37,033.57

3. __May 2008 - July 23, 2009__

Number of weeks worked 64 weeks

Hours worked/week 72 hrs./wk.

Monthly salary $700/month

Paid rate $2.26/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.15 - 2.26) x (40) x (64) = $12,518.40 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.73 - 2.26) x (32) x (64) = $17,346.56 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6) x ($7.15) x (64) = $2,745.60 Total = $32,610.56

4. __July 24, 2009 - March 2010__

Number of weeks worked 35.4 weeks

Hours worked/week 72 hrs./wk.

Monthly salary $700/month

Paid rate $2.26/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.25 - 2.26) x (40) x (35.4) = $7,065.84 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.88 - 2.26) x (32) x (35.4) = $9,764.74 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6) x ($7.25) x (35.4) = $1,539.90 Total = $18,370.38

### Shui Bing Zhu Total = $117,608.49

E. __Guo Ren Huang__

1. __May 2008 - August 2008__

Number of weeks worked 17.2 weeks

Hours worked/week 72 hrs./wk.

Monthly salary $700/month

Paid rate $2.26/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.15 - 2.26) x (40) x (17.2) = $3,364.32 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.73 - 2.26) x (32) x (17.2) = $4,661.89 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6) x ($7.15) x (17.2) = $737.88 Total = $8,764.09

2. __September 2009 - August 2010__

Number of weeks worked 52 weeks

Hours worked/week 72 hrs./wk.

Monthly salary $900/month

Paid rate $2.91/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.25 - 2.91) x (40) x (52) = $9,027.20 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.88 - 2.91) x (32) x (52) = $13,262.08 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6) x ($7.25) x (52) = $2,262.00 Total = 24,551.28

### Guo Ren Huang Total = $33,315.37

F. __Jian Hui Lin__

1.April 2005 - December 2005

Number of weeks worked 38.7 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $600/month

Paid rate $1.77/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($6.00 - 1.77) x (40) x (38.7) = $6,548.04 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($9.00 - 1.77) x (39) x (38.7)

= $10,912.24 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($6.00) x (38.7) = $1,509.30 Total = $18,969.58

2. __January 2006 - December 2006__

Hours worked/week 79 hrs./wk.

Monthly salary $600/month

Paid rate $1.77/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($6.75 - 1.77) x (40) x (52) = $10,358.40 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.13 - 1.77) x (39) x (52) = $16,954.08 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($6.75) x (52) = $2,281.50 Total = $29,593.98

3. __January 2007 - April 2007__

Number of weeks worked 17.2 weeks

Hours worked/week 79 hrs./wk.

Monthly salary $600/month

Paid rate $1.77/hr.

Unpaid MW = (MW - Paid Rate) x (40 hours) x (Number of weeks) = ($7.15 - 1.77) x (40) x (17.2) = $3,701.44 Unpaid OT = (1.5MW - Paid Rate) x (Hours over 40) x (# weeks) = ($10.73 - 1.77) x (39) x (17.2)

= $6,010.37 Unpaid SH = (days worked over 10 hrs.) x (MW) x (# weeks) = (6.5) x ($7.15) x (17.2) = $799.37 Total = $10,511.18

### Jian Hui Lin Total = $59,074.74

### Conclusion

Judgment shall be entered in favor of the plaintiffs and against the defendants Wai ? Café Inc. and Wai Yin Chan, jointly and severally, on the plaintiffs' New York Labor Law claims as set forth below;

+--------------------------+ ¦Plaintiff ¦Amount ¦ +--------------+-----------¦ ¦Zu Ghang Zhu ¦$124,191.77¦ +--------------+-----------¦ ¦Hao Chen ¦$101,100.88¦ +--------------+-----------¦ ¦You Huang Zhu ¦$44,936,41 ¦ +--------------+-----------¦ ¦Shui Bing Zhu ¦$117,608.49¦ +--------------+-----------¦ ¦Guo Ren Huang ¦&33,35.37 ¦ +--------------+-----------¦ ¦Jian Hui Lin ¦$59,074.74 ¦ +--------------------------+

The plaintiffs' claims under the FLSA are dismissed. The Clerk of Court shall enter judgment accordingly and close this case.

The plaintiffs request that I "reapportion" the costs of the interpreter who translated for both the plaintiffs and Mr. Chan at trial. (Pl. Damages Statement). This application is moot; as the prevailing parties, the plaintiffs are entitled to costs, and interpreter expenses are included among taxable costs. 28 U.S.C. § 1920(6).

--------

SO ORDERED.

________________________

JAMES C. FRANCIS IV

UNITED STATES MAGISTRATE JUDGE

Dated: New York, New York

Copies mailed this date to:

C.K. Lee, Esq.

Robert L. Kraselnik, Esq.

Kraselnik & Lee, PLLC

30 East 39th Street, 2nd Floor

New York, New York 10016

Wai Yin Chan

54 Lyman Ave.

Staten Island, New York 10305