Amaya et al v. Garden City Irrigation Inc. et al

Filing 217

MEMORANDUM AND ORDER: Marina Trubitsky is hereby ordered to pay sanctions in the amount of $5,000 to the Clerk of this Court by February 24, 2017. In addition, Ms. Trubitsky is ordered to show cause by that date why this case should not be dis missed for lack of prosecution. Failure to respond will result in a recommendation that the claims of plaintiffs Samuel Estrada and Jose Alvarado be dismissed. Finally, by February 24, 2017, Ms. Trubitsky is directed to show cause why her conduct s hould not be referred to the Eastern District Disciplinary Committee for appropriate action pursuant to Rule 1.5 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York. Ordered by Magistrate Judge Robert M. Levy on 1/17/2017.(Marino, Janine) See attached Memorandum & Order for Details.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FREDY AMAYA, et al.,
Plaintiffs,

MEMORANDUM
AND ORDER

-against03 CV 2814 (FB)(RML)
GARDEN CITY IRRIGATION INC., et al.,
Defendants.
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LEVY, United States Magistrate Judge:
This wage-and-hour collective action was commenced in June 2003. Since then,
most of the plaintiffs have reached a resolution with the defendants, with the exception of
plaintiffs Samuel Estrada and Jose Alvarado, who are represented by attorney Marina Trubitsky.
A review of the docket sheet reveals at least nine occasions on which Ms. Trubitsky failed to
appear for scheduled conferences or depositions or respond to court orders in this case. (See
docket entries dated 4/15/2014, 6/4/2014, 8/8/2014, 8/21/2014, 10/20/2014, 8/19/2015,
9/10/2015, 9/28/2016, and 11/22/2016.) Most recently, after Ms. Trubitsky failed to appear for a
conference on September 28, 2016, I directed Ms. Trubitsky and counsel for defendants to file
confidential reports regarding the status of mediation by November 2, 2016. Defendants’ counsel
submitted a letter explaining that, in an effort to reach a settlement with plaintiffs Estrada and
Alvarado, he had attempted to contact Ms. Trubitsky, but received no response. (See Letter of
Raymond Nardo, Esq., dated Nov. 2, 2016, Dkt. No. 216.) Ms. Trubitsky did not file a status
report by the deadline, and on November 22, 2016, I issued the following order:
ORDER TO SHOW CAUSE. By Order dated 9/28/16, I directed all
counsel to file a status report on 11/2/16. Raymond Nardo, Esq.,
filed a timely report on behalf of the Garden City defendants, who
are attempting to resolve this case through court-annexed

mediation. However, Marina Trubitsky, Esq., failed to file a status
report on behalf of the remaining plaintiffs Alvarado and Estrada.
Ms. Trubitsky also failed to appear at the most recent conference
(9/28/16) or request an adjournment. (Ms. Trubitsky’s office
subsequently filed a letter dated 10/25/16 stating that Ms. Trubitsky
had been sick on the date of the conference, but did not explain
why Ms. Trubitsky did not notify the court or request an
adjournment). In his 11/2/16 status report, Mr. Nardo advised that
“the elusive” Ms. Trubitsky “unsurprisingly” has not responded to
his most recent communication, and that her participation is critical
to the court-annexed mediation. Some three weeks have now
passed, and Ms. Trubitsky has neither filed her own status report
nor responded to Mr. Nardo’s. On or before 11/30/16,
Ms.Trubitsky shall personally draft and file a written status report
detailing the status of this litigation and her efforts to either
prosecute or settle it (including whether she has responded to Mr.
Nardo’s 10/19/16 settlement inquiries) or SHOW CAUSE why she
should not be sanctioned for failure to comply with orders of this
court.
(Order to Show Cause, dated Nov. 22, 2016.) Ms. Trubitsky has failed to comply with that order.
This court has been more than forgiving and patient with Ms. Trubitsky, and has
repeatedly accepted her belated excuses for fear of prejudicing her clients. But her neglect and
disregard are unacceptable and unprofessional, and Judge Block’s and my many threats and
admonitions have apparently fallen on deaf ears.
On October 25, 2016, an employee in Ms. Trubitsky’s office filed a letter
explaining that Ms. Trubitsky had missed the scheduled court conference on September 28, 2016
“due to her illness” and could not be reached. (See Dkt. No. 215.) Since then, neither the court
nor defendants’ counsel has heard from Ms. Trubitsky. The court does not know the nature of
Ms. Trubitsky’s illness, but if it prevents her from representing her clients or practicing law, then
she is ethically obligated to withdraw. See N.Y. Rules of Professional Conduct, Rule 1.16(b)(2)
(“[A] lawyer shall withdraw from the representation of a client when . . . the lawyer’s physical or
mental condition materially impairs the lawyer’s ability to represent the client.”)
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Federal courts are vested with the inherent power “to manage their own affairs so
as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U.S.
626, 630–631 (1962). Included in that power is the authority to “discipline attorneys who appear
before” the court. See Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (citing Ex parte Burr, 9
Wheat. 529, 531, 6 L.Ed. 152 (1824)). The Second Circuit has advised that “[d]ue process
requires that courts provide notice and opportunity to be heard before imposing any kind of
sanctions.” Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 334 (2d Cir. 1999)
(emphasis in original) (citation omitted). Ms. Trubitsky has been warned numerous times that
her lack of response could result in sanctions, yet she has repeatedly ignored her obligations.
Accordingly, Marina Trubitsky is hereby ordered to pay sanctions in the amount of $5,000 to the
Clerk of this Court by February 24, 2017. In addition, Ms. Trubitsky is ordered to show cause
by that date why this case should not be dismissed for lack of prosecution. Failure to respond
will result in a recommendation that the claims of plaintiffs Samuel Estrada and Jose Alvarado be
dismissed. Finally, by February 24, 2017, Ms. Trubitsky is directed to show cause why her
conduct should not be referred to the Eastern District Disciplinary Committee for appropriate
action pursuant to Rule 1.5 of the Local Rules of the United States District Courts for the
Southern and Eastern Districts of New York.
SO ORDERED.
Dated: Brooklyn, New York
January 17, 2017

/s/
ROBERT M. LEVY
United States Magistrate Judge

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