    12-1845
    Chen v. Chan


                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                        AMENDED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 2nd day of July, two thousand fifteen.

    PRESENT:
                PIERRE N. LEVAL,
                GERARD E. LYNCH,
                CHRISTOPHER F. DRONEY,
                      Circuit Judges.
    _____________________________________

    YONG KUI CHEN, on behalf of themselves and
    others similarly situated, GUO REN HUANG, JIAN
    HUI LIN,

                         Plaintiffs-Appellees,

    HAO CHEN, on behalf of themselves and others
    similarly situated, YOU HUANG ZHU, on behalf of
    themselves and others similarly situated, ZU
    GUANG ZHU, on behalf of themselves and others
    similarly situated, SHUI BING ZHU, GUO REN
    HUANG,

                         Plaintiffs-Counter-
                         Defendants-Appellees,
                   v.                                                     No. 12-1845

    WAI YIN CHAN,

                         Defendant-Counter-
                         Claimant-Appellant,
WAI ? CAFE INC.,

                       Defendant-Counter-
                       Claimant.

_____________________________________

FOR PLAINTIFF-APPELLEES:                      Yong Kui Chen, pro se, New York, NY; Guo Ren
                                              Huang, pro se, New York, NY; Jian Hui Lin, pro se,
                                              New York, NY.

FOR PLAINTIFFS-COUNTER-
DEFENDANTS-APPELLEES:                         Hao Chen, pro se, Brooklyn, NY; You Huang Zhu,
                                              pro se, Yonkers, NY; Zu Guang Zhu, pro se, New
                                              York, NY; Shui Bing Zhu, pro se, New York, NY;
                                              Guo Ren Huang, pro se, New York, NY.

FOR DEFENDANT-APPELLANT:                      BRIAN D. NETTER (Matthew A. Waring, on the
                                              brief), Mayer Brown LLP, Washington, D.C.


       Appeal from a judgment of the United States District Court for the Southern District of

New York (James C. Francis, IV, M.J.).


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED in part and VACATED in part,

and the case is REMANDED for further proceedings.

       Appellant Wai Yin Chan appeals from a judgment of the district court awarding damages

to the plaintiffs on their claims under the New York Labor Law (“NYLL”). Chan asserts that the

district court erred by (1) excluding evidence of a purported settlement agreement between Chan

and the plaintiffs at trial; (2) relying on the federal minimum wage instead of the lower

corresponding New York wage in calculating damages for certain periods of the plaintiffs’

employment; (3) failing to incorporate a tip allowance or meal allowance against the general

minimum wage in calculating the plaintiffs’ damages; and (4) failing to offset Chan’s liability by

payments of $2,000 to each of four plaintiffs who conceded that such payments had been made.
We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

       First, we address the scope of our jurisdiction over this appeal. Rule 3(c)(1)(B) of the

Federal Rules of Appellate Procedure requires an appellant to “designate the judgment, order, or

part thereof being appealed” in his notice of appeal. Fed. R. App. P. 3(c)(1)(B). Our jurisdiction

over the subsequent proceedings is “limited by the wording of the notice.” New Phone Co. v.

City of N.Y., 498 F.3d 127, 130 (2d Cir. 2007). Nevertheless, we have long held that “a notice of

appeal filed by a pro se litigant must be viewed liberally.” Grune v. Coughlin, 913 F.2d 41, 43

(2d Cir. 1990). “As long as the pro se party’s notice of appeal evinces an intent to appeal an order

or judgment of the district court and appellee has not been prejudiced or misled by the notice, the

notice’s technical deficiencies will not bar appellate jurisdiction.” Marmolejo v. United States,

196 F.3d 377, 378 (2d Cir. 1999) (internal quotation marks omitted); see also Phelps v. Kapnolas,

123 F.3d 91, 93 (2d Cir. 1997) (construing pro se notice of appeal of final disposition to create

jurisdiction over earlier orders). While Chan’s notice of appeal specifies that he appeals from

“the Judgment of a damages calculation” entered against him, Docket No. 1 at 1, we construe his

notice liberally as an appeal from the final judgment that confers jurisdiction over Chan’s

challenges to the district court’s evidentiary rulings at trial that are subsumed in that judgment.

       As to the merits of those arguments, Chan claims that the district court violated his due

process rights by excluding documentary evidence and testimony regarding a purported settlement

agreement between Chan and the plaintiffs. Specifically, Chan argues that the district court erred

by excluding the evidence as a discovery sanction, based solely on a representation by the

plaintiffs’ counsel that Chan’s former lawyer never produced a copy of the agreement during


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discovery, without providing Chan an opportunity to contact his former attorney to verify that

representation. Had Chan been permitted such an opportunity, he argues, he would have been

able to establish that his former attorney included a copy of the settlement agreement as part of his

Rule 26(a)(1) Initial Disclosures.

       Although “district courts generally have wide discretion in deciding when sanctions are

appropriate . . . , the manner in which sanctions are imposed must comport with due process

requirements.” Sanko S.S. Co. v. Galin, 835 F.2d 51, 53 (2d Cir. 1987). At a minimum, this

means “that the delinquent party be provided with notice of the possibility that sanctions will be

imposed and with an opportunity to present evidence or arguments against their imposition.”

Satcorp Int’l Grp. v. China Nat’l Silk Imp. & Exp. Corp., 101 F.3d 3, 6 (2d Cir. 1996) (internal

quotation marks omitted); see also Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 270 (2d Cir.

1999) (requiring notice and opportunity to argue against imposition of sanctions for failure to

produce documents during discovery). In this case, even though Chan had been left to proceed

pro se on the eve of trial, insisted that he had provided a copy of the agreement to his former

attorney, and requested an opportunity to call his attorney to check whether the documents had

been produced, the district court refused to pause the proceedings to accommodate Chan’s request.

It thus prevented him from obtaining potentially compelling evidence to refute the plaintiffs’

representations. In such circumstances, and taking particular heed of Chan’s unexpected pro se

status, the district court’s refusal to allow Chan to contact his former attorney denied Chan a

meaningful opportunity to defend himself against the imposition of discovery sanctions.

Accordingly, the case must be remanded with instructions for the district court to conduct a further

inquiry into whether Chan produced the contested evidence, as part of his Rule 26(a)(1)


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disclosures or otherwise. Should the district court determine that the document was never

produced, the original judgment, corrected as set forth below, will be reinstated. Should the court

determine that Chan in fact provided the settlement agreement to the plaintiffs’ counsel, however,

the erroneous exclusion of evidence of that agreement from the proceedings below entitles Chan to

a new trial.1

        In addition to his evidentiary challenge, Chan raises numerous objections to the district

court’s calculation of the plaintiffs’ damages. If the district court determines that Chan is entitled

to a new trial, these challenges may of course become moot. Because the district court’s initial

judgment might yet be reinstated, however, and because our discussion may provide useful

guidance for a new damages calculation following a second trial, we briefly review his objections.

As a general matter, we review a district court’s computation of compensatory damages for clear

error. Jimico Enters., Inc. v. Lehigh Gas Corp., 708 F.3d 106, 110 (2d Cir. 2013). To the extent

that Chan’s objections raise pure questions of law, including the “measure of damages upon which

the factual computation is based,” we review those claims de novo. Delchi Carrier SpA v.

Rotorex Corp., 71 F.3d 1024, 1029 (2d Cir. 1995) (internal quotation marks omitted).



1
  The district court alternately found that Chan’s proffered copy of the settlement agreement was
inadmissible because it was unsigned. However, the mere fact that an agreement is unsigned does
not make it per se inadmissible. Such a document may be authenticated by other means, see, e.g.,
United States v. Tin Yat Chin, 371 F.3d 31, 37-38 (2d Cir. 2004) (observing that Fed. R. Evid. 901
only requires “sufficient proof . . . so that a reasonable juror could find in favor of authenticity or
identification,” which is not “a particularly high hurdle”) (internal quotation marks omitted), and
may be relevant to demonstrate the existence of an agreement between the parties, see 10 Ellicott
Square Court Corp. v. Mountain Valley Indem. Co., 634 F.3d 112, 124 (2d Cir. 2011) (recognizing
that under New York law “[a]n unsigned contract may be enforceable, provided there is objective
evidence establishing that the parties intended to be bound”) (internal quotation marks omitted).
If the district court grants Chan a new trial, he should have the opportunity to demonstrate the
document’s admissibility.

                                                  5
       First, Chan argues that the district court erred by calculating damages for the plaintiffs’

periods of employment after June 24, 2009 based on the federal minimum wage of $7.25, rather

than New York’s prevailing minimum wage of $7.15. Because New York’s minimum wage rate,

like the federal rate, increased to $7.25 on July 24, 2009, see id. § 137-1.2(e); N.Y. Lab. Law

§ 652(1) (providing minimum wage of $7.15 for periods on and after January 1, 2007, “or, if

greater, such other wage as may be established by federal law pursuant to 29 U.S.C. section 206”),

the district court did not err by using the higher amount.

       Second, Chan argues that the magistrate judge’s damages calculation was erroneous

because it relied simply on the minimum wage rate, without giving him a “tip allowance” by

crediting the plaintiffs’ tips against the required minimum wage, see N.Y. Comp. Codes R. &

Regs. tit. 12, § 137-1.5 (July 24, 2009) (repealed eff. Jan. 1, 2011), or a “meal allowance” for

meals provided to the plaintiffs by his restaurant, see id. § 137-1.9(a). Chan argues that, unlike

the federal Fair Labor Standards Act, at the time of the events of this lawsuit the NYLL imposed

no notice requirements before letting an employer take advantage of either allowance. In fact,

numerous courts in this Circuit have held that New York State regulations during this time

imposed notice requirements on employers intending to claim a tip allowance.2 Yet the point is


2
  See, e.g., Hicks v. T.L. Cannon Corp., 35 F. Supp. 3d 329, 340-41 (W.D.N.Y. 2014),
reconsideration denied, No. 13-CV-06455, 2014 WL 5088879 (W.D.N.Y. Oct. 8, 2014); He v.
Home on 8th Corp., No. 09 Civ. 5630, 2014 WL 3974670, at *1 (S.D.N.Y. Aug. 13, 2014); Cuzco
v. F & J Steaks 37th St. LLC, No. 13-CV-1859, 2014 WL 2210615, at *2 (S.D.N.Y. May 28,
2014); Hernandez v. Punto y Coma Corp., No. 10-CV-3149, 2013 WL 4875074, at *4 (E.D.N.Y.
Sept. 11, 2013); Mendez v. Pizza on Stone, LLC, No. 11 Civ. 6316, 2012 WL 3133547, at *4
(S.D.N.Y. Aug. 1, 2012); Copantitla v. Fiskardo Estiatorio, Inc., 788 F. Supp. 2d 253, 290
(S.D.N.Y. 2011); Lanzetta v. Florio’s Enters., Inc., 763 F. Supp. 2d 615, 623 (S.D.N.Y. 2011), on
reconsideration, No. 08 Civ. 6181, 2011 WL 3209521 (S.D.N.Y. July 27, 2011); Jin M. Cao v. Wu
Liang Ye Lexington Rest., Inc., No. 08 Civ. 3725, 2010 WL 4159391, at *2 (S.D.N.Y. Sept. 30,
2010); Padilla v. Manlapaz, 643 F. Supp. 2d 302, 313 (E.D.N.Y. 2009).

                                                 6
not free from doubt. Other courts have held that, prior to a series of amendments in 2011, New

York’s regulations required no such notice as a prerequisite to claiming a tip allowance. See Jin

v. Pac. Buffet House, Inc., No. CV-06-579, 2009 WL 2601995, at *4 (E.D.N.Y. Aug. 24, 2009);

Yan v. 520 Asian Rest. Corp., No. 13-CV-2417, 2014 WL 7177259, at *10 (S.D.N.Y. Dec. 17,

2014).

         Because Chan, proceeding pro se below, did not claim either a tip or a meal allowance

before the district court, the district court never had a chance to consider his compliance with the

procedural prerequisites for claiming those credits under the New York State regulations. Nor

did the district court make the factual findings necessary to resolve the question of Chan’s

eligibility for those credits, even assuming that Chan is correct that he is not barred from claiming

them by any procedural requirements. Under these circumstances, we consider it prudent to

allow the district court to consider Chan’s argument in the first instance on remand. See Huli v.

I.R.S., 872 F.2d 22, 24 (2d Cir. 1989); cf. Tocker v. Philip Morris Cos., 470 F.3d 481, 490 (2d Cir.

2006). If the issue remains contested below, the district court will have occasion both to address

the merits of Chan’s interpretation of the New York State regulations and to make any appropriate

factual findings. See United States v. Adeniji, 31 F.3d 58, 65 (2d Cir. 1994).

         Finally, Chan argues that the district court should have offset its damages calculation by

$8,000 because plaintiffs Zu Guang Zhu, Shui Bing Zhu, You Huang Zhu, and Guo Ren Huang

admitted that they each received a payment of $2,000 from Chan. The record confirms that the

plaintiffs’ counsel admitted those payments during a sidebar and agreed that they should be

deducted from Chan’s ultimate liability. In light of this stipulation, the district court’s failure to

credit those payments in the damages calculation was error.


                                                  7
        Accordingly, we VACATE the judgment of the district court and REMAND for

determinations as to whether the district court properly excluded Chan’s proposed evidence of a

settlement agreement from trial, and as to whether Chan was entitled to a tip or meal allowance

under the NYLL. Based on the results of district court’s determinations, Chan may be entitled

either to a new trial or to a recalculation of damages for all plaintiffs. In any event, if the district

court determines that neither form of relief is warranted, the district court is directed to recalculate

damages for plaintiffs Zu Guang Zhu, Shui Bing Zhu, You Huang Zhu, and Guo Ren Huang.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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