IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

YUANXIANG ZHANG, LIQIONG DENG,

and CANWEN ZHANG,

No. 3:13-cv-00838-MO

Plaintiffs, 

OPINION AND ORDER

v. 

BING’S RESTAURANT, INC., an Oregon 

domestic business corporation, PAUL JOE, 

and SUE JOE,

 Defendants. 

MOSMAN, J., 

 On June 18, 2014, I granted Plaintiffs’ Motion for Entry of Default Against All 

Defendants. On July 14, 2014, Defendants separately filed motions to set aside the entry of 

default. I denied those motions. Now before the court is Plaintiffs’ Motion for Default Judgment 

[60]. Plaintiff’s motion is granted, and I have adopted their proposed judgment subject to the 

modifications described herein.

Legal Standard 

Once default is entered against a party, the well-pled factual allegations in the

Complaint are taken as true. Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). 

1 – OPINION AND ORDER

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“However, a defendant is not held to admit facts that are not well-pleaded or to admit 

conclusions of law.” DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (internal 

quotation marks omitted) If the court determines that the defendant is in default, all allegations 

except those as to damages may be taken as true. Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 

1414 (9th Cir. 1990) (citing Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977)). 

 FRCP 36 allows a party to serve on any other party a written request to admit the truth of 

any matters relating to facts, the application of law to facts, or opinions about either; and the 

genuineness of any described documents. Fed. R. Civ. P. 36(a)(1). “A matter is admitted, unless, 

within 30 days after being served, the party to whom the request is directed serves on the 

requesting party a written answer. . . . If a matter is not admitted, the answer must specifically 

deny it. . .” Fed. R. Civ. P. 36(a)(3)–(4). “Requests for admissions cannot be used to compel an 

admission of a conclusion of law.” Playboy Enters., Inc. v. Welles, 60 F.Supp.2d 1050, 1057 

(S.D. Cal. 1999). 

DISCUSSION

I. Facts Admitted

On February 21, 2014, Plaintiffs served all Defendants with a copy of several requests for 

admissions (“RFA”) via first-class and certified mail. (Estrada Decl. [47-3] at ¶17.) Responses to 

these requests were therefore due on March 26, 2014. The certified copies sent to Defendants 

Paul Joe and Sue Joe were eventually returned as undeliverable. (Id.) Plaintiffs, however, did 

receive certified confirmation that the RFAs were successfully delivered to Defendant Bing’s 

Restaurant. (Id.) Defendant Bing’s Restaurant did not respond to the RFAs until August 11, 

2012. (Griggs Decl. [50] at ¶3.) Therefore, the facts in the RFAs are deemed admitted and are 

conclusively established as to Defendant Bing’s Restaurant. Fed. R. Civ. P. 36(b). 

2 – OPINION AND ORDER

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Plaintiffs state that they re-sent RFAs to Defendants Paul Joe and Sue Joe on April 17, 

2014, but I have no evidence that supports this fact. Plaintiffs cite to a declaration from Anthony 

Estrada as evidence of this fact. There are two problems, however, with Mr. Estrada’s

declaration. First, the declaration is titled “Declaration of Anthony Estrada” and it is signed by 

Anthony Estrada, but the first line of the declaration states, “I, Jon H. Weiner, declare as 

follows.” (Estrada Decl. [31-1] at 1.) This error causes me to doubt the accuracy and reliability 

of the other statements contained in the declaration. Even if I were to ignore this defect, the 

portion cited by Plaintiff states that on April 17, 2014, Plaintiffs served all Defendants with 

copies of Plaintiffs’ First Interrogatories; this says nothing about re-sending the RFAs. (Id. at 5–

6.) Given the lack of evidence regarding when Defendants Paul Joe and Sue Joe received the 

RFAs, I cannot conclude that the relevant time period to respond lapsed making the facts 

contained in the RFAs admitted and therefore conclusively established. 

Ultimately, however, this has little effect on the outcome of this motion. The purpose the 

RFAs served against Defendants Paul Joe and Sue Joe is to establish that they are jointly and 

severally liable with Defendant Bing’s Restaurant for all of Plaintiffs’ alleged damages. Nothing 

in the RFAs, however, establish that conclusion. The only relevant admission is number 45, 

which states: “Admit that Bing’s, Paul Joe, and Sue Joe are each individually and jointly-andseverally liable as to each of the claims asserted by plaintiff in the Compliant filed in this matter 

. . . and the damages alleged therein.” (Requests for Admissions [60-2] at 11.) This admission is 

merely a legal conclusion that piercing the corporate veil and holding Defendants Paul Joe and 

Sue Joe individually liable for their corporation’s actions is appropriate, and is devoid of any 

supporting facts. I agree with the California District Court in Playboy Enterprises that this is not 

an appropriate use of an RFA. See Playboy Enters., Inc., 60 F.Supp.2d at 1057. Therefore, even 

3 – OPINION AND ORDER

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if I found the RFAs to conclusively establish the facts contained therein as to Defendants Paul 

Joe and Sue Joe, I still would not hold them individually liable for the damages contained in the 

complaint because there are no admitted facts that support the conclusion that Defendants should 

be stripped of the limited liability protections afforded to business incorporated in Oregon. 

Defendant Bing’s Restaurant alone is liable to Plaintiffs.

The RFAs conclusively establish the following relevant facts against Defendant Bing’s 

Restaurant: 

1. Plaintiffs were all employed by Defendant Bing’s Restaurant during the alleged 

damages periods. (RFAs 1–3.) 

2. Plaintiffs were entitled to receive minimum wages and overtime wages pursuant 

to federal and state law. (RFA 4,6.) 

3. Plaintiffs Zhan and Deng worked an average of 54 hours a week. (RFA 10.) 

4. Plaintiff Canwen worked 70 hours a week from October, 2007 until December, 

2007, 24 hours a week from January, 2008 until June 2008, and 24 hours a week 

from August, 2008 until February, 2009. (RFAs 20, 23, 25.) 

5. Plaintiffs’ documents containing an accounting of wages accrued, wages actually 

paid, and wages still owed to Plaintiffs is true, correct, and complete. (RFA 43.) 

6. Defendant Bing’s Restaurant was aware of its various duties under the relevant 

federal and state minimum wage laws. (RFAs 27, 29, 31, 33, 35, 37, 39–41.) 

7. Defendant Bing’s Restaurant failed to fulfill its duty to provide the minimum 

required hourly wages. (RFAs 28, 30. 32, 34, 36, 38, 39–41.) 

II. Calculation of Damages 

With the relevant facts above conclusively established, the calculation of the proper 

damages award becomes a rather simple and straight forward task. Under ORS 653.055, 

Plaintiffs are able to recover all of their unpaid wages from 2007 through 2012. Plaintiffs are 

also able to recover the civil penalties provided in ORS 652.150 because they were entitled to 

unpaid wages at the time of their respective terminations. Under 29 U.S.C. §§ 216 & 255, 

4 – OPINION AND ORDER

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Plaintiffs are able to recover their unpaid overtime wages, and statutory liquidated damages for

their unpaid wages and overtime from 2010 through 2012 because Defendant Bing’s Restaurant 

willfully failed to pay Plaintiffs statutorily mandated minimum wages.

1

 Under 29 U.S.C. § 216, 

ORS 653.055 and ORS 652.200, Plaintiffs are entitled to their reasonable attorney fees and costs.

I adopt by reference the calculations of the unpaid wages owed to Plaintiffs found 

throughout Plaintiffs’ motion. (Pls.’ Motion for Default Judgment [60].) These calculations 

require two minor corrections that will be described below, but are otherwise an accurate 

calculation of the damages owed that can be established by the evidence available in this case. 

A. 2010 Unpaid Overtime 

In their 2010 unpaid overtime calculation, Plaintiffs argue that they worked an average of 

54 hours a week for 32.5 weeks for that year. (Id. at 9–10, 16–17.) Plaintiffs then calculate the 

overtime they should have been paid if they worked 14 hours of overtime a week for 32.5 weeks. 

(Id.) Defendants correctly point out that if Plaintiffs worked for only half a week, they would 

have only worked 27 hours and would not be entitled to overtime under federal or state law. 

(Defs.’ Opposition [62] at 12–13, 19.) Therefore, the proper value for both the 2010 unpaid 

overtime wages and 2010 overtime wage liquidated damages is $1881.60, and not the $1,911.00 

that Plaintiffs’ used in their damages calculation. Plaintiffs’ damages calculation should therefore 

be decreased by $117.60. 2

1 I find that Defendant Bing’s Restaurant willfully violated 29 U.S.C. §§ 206–207 because it admitted that it was 

aware of its duty to pay a minimum wage and it failed to do so. (See RFAs 27–41.) Nowhere in Defendants’ 

opposition did they challenge Plaintiffs’ attempt to recover three years of overtime wages and liquidated damages. 2 The total amount should be reduced by $29.40 for four different line items in Plaintiffs’ damages calculation 

(Zhang’s unpaid overtime wages and overtime wages liquidated damages; and Deng’s unpaid overtime wages and 

overtime wages liquidated damages).

5 – OPINION AND ORDER

 

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B. State Law Penalty Wages 

Under ORS 652.150, Plaintiffs are entitled to recover civil penalties for the unpaid wages 

they were owed at the time of their respective terminations. The penalty wages are calculated 

based on an employee’s hourly rate of pay, at 8 hours per day, for no more than 30 days from the 

date that payment of wages was due. (ORS 652.150.) In Plaintiffs’ calculation, they include 

overtime wages and they use more than 8 hours a day. (Pls.’ Motion for Default Judgment [60] at 

38–39.) This was a mistake. The proper value for the state law penalty wages is $2,112.00 and 

not the $2,147.20 that Plaintiffs used in their damages calculation. Plaintiffs’ damages 

calculation should therefore be decreased by $70.40. 3

CONCLUSION

Due to the extensive facts that were conclusively established against Defendant Bing’s 

Restaurant by Plaintiffs’ RFAs, I find that there is sufficient evidence on the record to support 

Plaintiffs’ damages calculation, after modifying it according to the changes I described above. 

There is not, however, sufficient evidence to support a conclusion that I should pierce the 

corporate veil and hold Defendants Paul Joe and Sue Joe jointly-and-severally liable in their 

individual capacities for Defendant Bing’s Restaurant’s actions.

I therefore find it proper to enter an award of $223,741.64 in favor of Plaintiffs against 

Defendant Bing’s Restaurant, itemized as follows:

• Total Damages for Plaintiff Zhang: $105,316.98 

• Total Damages for Plaintiff Deng: $104,316.98 

• Total Damages for Plaintiff Canwen: $14,107.68 

3 The total amount should be reduced by $35.20 for two different line items in Plaintiffs’ damages calculation 

(Zhang’s state law penalty wages, and Deng’s state law penalty wages). 

6 – OPINION AND ORDER

 

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As discussed above, Plaintiffs are also entitled to seek reasonable attorney fees and costs 

under 29 U.S.C. § 216, ORS 653.055 and ORS 652.200. 

IT IS SO ORDERED.

DATED this 3rd day of November, 2014. 

/s/ Michael W. Mosman ___ 

MICHAEL W. MOSMAN

United States District Judge

7 – OPINION AND ORDER

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