A S I A N A M E RI C A N L E G A L D E F E N S E A N D E D U C A T I O N F U N D 99 HUDSON STREET, 12 FL • NEW YORK. NY 10013 • TEL 212.966.5932 • FAX 212.966.4303 • INFO@AALDEF.ORG

January 23, 2008

BY ECF

Hon. Jed S. Rakoff

U.S. District Judge

Daniel Patrick Moynihan U.S. Courthouse

500 Pearl Street, Room 1340

New York, New York 10007

Re: Ahmed, et al. v Devi Restaurant, Ltd., et al., 

07CV3512 (JSR)(FM) 

Dear Judge Rakoff:

Plaintiffs submit this letter in opposition to Defendants Suvir Saran and Hemant Mathur’s 

motion to dismiss the Third Amended Complaint. Plaintiffs will rely on the arguments made in 

this letter and at the oral argument before the Court scheduled for January 25, 2008 to oppose 

Defendants’ motion. 

An initial agreement towards settlement was reached between the parties on December 20, 2007 

and was memorialized in a term sheet signed by the parties on that day. In drafting a Settlement 

Agreement that reflects the substance of the Term Sheet, a last minute dispute has arisen 

regarding the interpretation of one of its provisions. Although the parties are working to resolve 

this dispute and expect to do so, Plaintiffs submit this letter in opposition to Defendants motion 

as per the Court’s instructions. I apologize to the Court for Plaintiffs’ failure to submit a full 

brief as we have been focused on finalizing the settlement and did not expect these 

complications. 

1. Plaintiffs Have Sufficiently Plead the Issue of Defendants’ Individual Liability

Defendants Saran and Mathur argue that the Third Amended Complaint should be dismissed 

because Plaintiffs have not plead sufficient facts to establish their liability under the Federal 

Labor Standards Act (“FLSA”) or New York Labor Law (“NYLL”). There is no basis for this 

position in the law. Plaintiffs are not required to prove their case in the complaint. Rather, the 

notice pleading standard of Fed. R. Civ. P. Rule 8 requires only that a plaintiff disclose sufficient 

information to permit the defendant “to have a fair understanding of what the plaintiff is 

complaining about and to know whether there is a legal basis for recovery.” See Riccuiti v. New 

York Transit Auth., 941 F.2d 119, 123 (2nd Cir. 1991). “Dismissal ... is usually reserved for those 

cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that 

its true substance, if any, is well disguised.”

Plaintiffs have provided more than sufficient information in the Third Amended Complaint to 

make it clear that they are complaining of Defendants’, including Saran and Mathur, failure to 

pay minimum wages, overtime, and tips. And, they have identified the FLSA and NYLL as a 

legal basis for recovery. There is nothing ambiguous about the Third Amended Complaint. 

Case 1:07-cv-03512-JSR Document 29 Filed 01/24/2008 Page 1 of 2
Indeed, one only has to read the four paragraphs of the Preliminary Statement to understand the 

factual points of complaint and the legal causes of action. 

Defendants specifically argue that Plaintiffs have plead no facts to support their legal claim that 

Saran and Mathur are individually liable under the FLSA and NYLL. Defendants’ position is 

baffling since even they identify the factual allegations in paragraphs 14 and 15 of the Third 

Amended Complaint (Defendants Saran and Mathur “had the power to hire and fire employees, 

set their wages and schedules, and retain their records”) that support Plaintiffs assertion that 

Saran and Mathur are individually liable. These are exactly the type of facts that the Second

Circuit has required to prove individual liability under the FLSA and NYLL. See Herman v. 

RSR Sec. Serv. Ltd., 172 F.3d 132, 139 (2nd Cir. 1999). 

Defendants’ reliance on cases citing the principle that pleadings containing solely legal 

conclusions do not satisfy the Rule 8 standard are irrelevant on the point of individual liability 

because the Third Amended Complaint includes both legal conclusions and factual allegations 

that support those claims. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1969 (2007) (motion 

to dismiss should be denied if an adequately stated claim is “supported by showing any set of 

facts consistent with the allegations in the complaint”; heightened fact pleading of specifics is 

not required).

2. The Declarations of Defendants Saran and Mathur Should Be Excluded

This Court should not consider the declarations of Defendants Saran and Mathur because the 

consideration of a motion to dismiss pursuant to Fed. R. Civ. P. Rule 12(b)(6) must be limited to 

the “four corners of the complaint.” Bolanos v. Norwegian Cruise Lines Ltd., 2002 WL 

1465907, *4 (S.D.N.Y. July 9, 2002) (citation omitted); Friedl v. City of New York, 210 F.3d 79 

(2nd Cir. 2000) (vacating grant of dismissal where district court plainly relied on factual 

declarations offered by defendants in support of motion to dismiss). 

If the Court decides to accept Defendants’ declarations and treat this motion as one for summary 

judgment pursuant to Fed. R. Civ. P. 56, Plaintiffs respectfully request a sufficient opportunity to 

submit supplemental materials as provided for by Fed. R. Civ. P. 12(d). 

***

Please contact me should the Court have any questions.

Respectfully,

/s

Tushar J. Sheth

Staff Attorney

cc: Arthur Forman

Doug Wigdor

Joshua Zuckerberg

Case 1:07-cv-03512-JSR Document 29 Filed 01/24/2008 Page 2 of 2