Julie A. Su v. L & Y Food, Inc. ( 2024 )

O 11 22 33 44 55 66 77 88 United States District Court 99 Central District of California 1100 1111 JULIE A. SU, Case No. 2:24-cv-02606-ODW (BFMx) 1122 Plaintiff, ORDER GRANTING TEMPORARY 1133 v. RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY 1144 L & Y FOOD, INC et al., PRELIMINARY INJUNCTION 1155 Defendants. SHOULD NOT ISSUE [4] 1166 1177 Plaintiff Julie A. Su, in her official capacity as Acting Secretary of the United 1188 States Department of Labor, initiated this action asserting violations of the Fair Labor 1199 Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. (See Compl., ECF No. 1.) 2200 Plaintiff also seeks an emergency injunction preventing Defendants L & Y Food, Inc., 2211 Moon Poultry, Inc., JRC Culinary Group, Inc., Fu Qian Chen Lu, Bruce Shu Hua Lok, 2222 and Ryan Zhong Lu from engaging in further FLSA violations and from shipping or 2233 delivering for shipment into commerce goods produced in an establishment in or 2244 about which there has been oppressive child labor within 30 days prior to the removal 2255 of such goods. (See Ex. Parte Appl., ECF No. 4.) 2266 Plaintiff has presented evidence showing the following: Defendants violated the 2277 FLSA’s prohibitions on oppressive child labor at a poultry processing establishment in 2288 Irwindale, California. Defendants employed oppressive child labor at the facility, 1 which permanently renders produced goods as contraband that is forbidden from 2 entering commerce (“hot goods”). Once Plaintiff objected to shipment of those hot 3 goods, Defendants nonetheless removed the contraband from the poultry processing 4 establishment within 30 days of Defendants’ employment of child labor. Defendants 5 have refused to disclose to Plaintiff where those hot goods are and have refused to 6 refrain from shipping such goods into commerce. Rather, Defendants have interfered 7 with and attempted to evade compliance with the FLSA by (1) refusing to disclose 8 whether hot goods were shipped or distributed for shipment into commerce or to 9 where the hot goods were shipped and (2) offering contradictory and incomplete 10 explanations of where the hot goods are located. Thus, Defendants’ conduct 11 necessitates the Temporary Restraining Order as the Court orders below. 12 The standard for issuing a temporary restraining order is “substantially 13 identical” to that for issuing a preliminary injunction. Stuhlbarg Int’l Sales Co. v. 14 John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). Pursuant to Federal Rule 15 of Civil Procedure (“Rule”) 65, a court may grant preliminary injunctive relief to 16 prevent “immediate and irreparable injury.” Fed. R. Civ. P. 65(b). In the Ninth 17 Circuit, a plaintiff must demonstrate “serious questions going to the merits, and a 18 balance of hardships that tips sharply towards the plaintiff can support issuance of a 19 preliminary injunction, [provided] that there is a likelihood of irreparable injury and 20 that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 21 632 F.3d 1127, 1135 (9th Cir. 2011) (internal quotation marks omitted). 22 In light of the immediacy of irreparable harm pending the Court’s review of this 23 action, the Court finds a temporary restraining order warranted. If Defendants’ 24 conduct is not immediately rectified, Defendants’ employees, Defendants’ law- 25 abiding competitors, and Plaintiff, who is authorized by Congress to enforce the 26 FLSA in the public interest, will be irreparably harmed as follows: Defendants will 27 continue to employ oppressive child labor to the risk of minors’ life and limb; hot 28 1 goods may enter the stream of commerce; and Defendants will continue to thwart 2 Plaintiff’s investigation. 3 Accordingly, and in light of the immediacy of irreparable harm identified 4 above, the Court GRANTS Plaintiff’s ex parte application for a temporary restraining 5 order. (ECF No. 4.) The Court ENJOINS Defendants as follows: 6 1. Defendants shall not employ oppressive child labor, as defined in 7 29 U.S.C. § 203(1), in violation of Sections 12(c) and 15(a)(4) of the FLSA, including 8 by Defendants suffering or permitting to work any person under the age of 18 years in 9 any hazardous occupation prohibited by 29 C.F.R. § 570.61, including but not limited 10 to all boning operations. 11 2. To facilitate compliance with Paragraph 1 above, Defendants must 12 produce to Plaintiff within three (3) days of this Order a list of all individuals they 13 have employed since May 1, 2023, with each employee’s most recent phone number, 14 mailing address, email address, date of birth, and records showing all pay received and 15 all hours worked. This provision applies to all Defendants, including the individual 16 Defendants. 17 3. Defendants shall not, in violation of 29 U.S.C. § 212(a), ship or deliver 18 for shipment into commerce any goods produced at an establishment in or about 19 which thirty days prior to the removal of such goods therefrom any oppressive child 20 labor has been employed, including the oppressive child labor described in 21 Paragraph 1 above. This paragraph applies to the establishment located at 22 15861 Salvatierra St., Irwindale, CA 91706-6604, and any other establishments where 23 Plaintiff may identify oppressive child labor. 24 4. The ensure compliance with Paragraph 3 above, Defendants must do the 25 following for any establishment subject to Paragraph 3 (“Subject Establishment”): 26 a. Defendants must allow the Wage and Hour Division of the United 27 States Department of Labor regular access to any Subject 28 Establishment to inspect goods. 1 b. Within one day of this Order or 24 hours of notice by Plaintiff that 2 she has discovered oppressive child labor at a Subject 3 Establishment, whichever is later, provide an accounting to 4 Plaintiff of all goods at the Subject Establishment. Such an 5 accounting must include: 6 i. The total number and type of boxes, bins, and pounds of all 7 poultry and poultry byproducts, whether or not these 8 products have been cut, deboned, moved, or otherwise 9 handled in any manner, at the Subject Establishment, with 10 the accounting to commence at the start of business 11 operations on the date oppressive child labor was last 12 employed at a Subject Establishment; 13 ii. The total number and type of boxes, bins, and pounds of all 14 poultry and poultry byproducts moved from the Subject 15 Establishment to any facility owned, operated, managed, 16 supervised, or controlled by any Defendant, whether or not 17 those products have been cut, deboned, moved, or otherwise 18 handled in any manner, with the accounting to commence at 19 the start of business operations on the date the accounting is 20 requested; 21 iii. The names and contact information for all vendors from 22 whom any poultry on site was received and the quantities of 23 product received; 24 iv. The names and contact information for all third-party 25 customers to whom poultry was to be sold to or shipped or 26 distributed for shipment from the Subject Establishment and 27 in what quantities; and 28 1 v. Descriptions of all other goods intended for shipment or 2 delivery for shipment, and the quantities of those goods as of 3 the morning of the accounting request, and the names and 4 contact information for any customer involved in the 5 purchase of those goods and the quantities of goods each 6 customer has purchased. 7 c. For any goods subject to Paragraph 3 that have not been removed 8 from a Subject Establishment, refrain from shipping such goods until 9 30 days have passed since Plaintiff discovered the employment of 10 oppressive child labor at a Subject Establishment. 11 d. For any goods subject to Paragraph 3 that have been removed from a 12 Subject Establishment that remain within Defendants’ control, refrain 13 from shipping any such hot goods absent agreement by Plaintiff. 14 e. For any goods subject to Paragraph 3 that have been removed from a 15 Subject Establishment that are no longer with Defendants’ control: 16 i. Disgorge all profits related to any such hot goods shipped or 17 delivered for shipment into commerce. Such disgorgement 18 must occur within 14 days of Plaintiff providing a calculation 19 of such profits. If Defendants contest Plaintiff’s calculation, 20 they must file a motion with the Court to establish the amount 21 Defendants must disgorge. Any such motion must be filed 22 within 14 days of receiving a disgorgement calculation from 23 Plaintiff. During the pendency of such motion, Defendants 24 shall post a bond in favor of Plaintiff in the amount of the 25 disputed calculation or deposit said amount in the Court’s 26 registry. 27 ii. Within 24 hours of any request by Plaintiff, Defendants must 28 identify to Plaintiff who they provided such goods so that 1 Plaintiff may take all necessary steps to prevent further 2 shipments into commerce in violation of 29 U.S.C. § 212(a). 3 To comply with this subparagraph, Defendants must produce 4 within 24 hours of Plaintiff’s request any documentation 5 evidencing the transfer of such goods out of Defendants’ 6 control, including all shipping and delivery records, including 7 contracts, purchase orders, invoices, receipts, bills of lading, 8 and any other documents in its possession, control, or custody 9 concerning the shipment, delivery for shipment, transportation, 10 offer for transportation, or sale of poultry goods. 11 iii. Within one day of the date of this Order or 24 hours of notice 12 by Plaintiffs that she has discovered the employment of 13 oppressive child labor at a Subject Establishment, whichever is 14 later, provide notice of this Temporary Restraining Order to any 15 person or entity Defendants have knowledge of receiving such 16 goods. 17 5. To permit Plaintiff to perform the calculation specific in 18 Subparagraph 4(e)(i), within seven days of the date of this Order, 19 Defendants must submit to Plaintiff the record of all revenues and expenses 20 associated with profits earned from the transport, offer for transport, 21 shipping, delivery for shipment, or sale in commerce of goods subject to 22 Paragraph 3. 23 The Court ORDERS that no security bond is required under Rule 65(c). 24 IT IS FURTHER ORDERED that Defendants SHOW CAUSE on April 15, 25 2024, at 10:00 a.m., in the courtroom of the Honorable Otis D. Wright, II, located in 26 Courtroom 5D at 350 W. 1st Street, Los Angeles, California 90012, why the Court 27 should not issue a preliminary injunction enjoining Defendants from further violations 28 of the FLSA as specified in this Order, pending final disposition of this action. 1 IT IS FURTHER ORDERED that, should Defendants wish to submit an 2 || opposition brief in advance of the hearing on the Order to Show Cause, they must do 3 || so on or before April 5, 2024. Plaintiff shall not file any responsive pleadings but 4|| may address any arguments raised in Defendants’ supplemental opposition at the 5 | hearing. 6 IT IS FURTHER ORDERED that Plaintiff serve Defendants with this Order 7 || and all documents in this case no later than April 2, 2024. This Order may be served 8 | on Defendants by Wage and Hour Division employees. 9 10 IT IS SO ORDERED. 11 12 April 1, 2024 ss 13 fy Gd lliid 15 OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28