Gao et al v. Perfect Team Corporation et al

Filing 233

ORDER ADOPTING REPORT AND RECOMMENDATION. As recommended by Magistrate Judge Pollak: (1) the Perfect Team defendants are ordered to pay plaintiffs a total of $22,619.69, representing $22,507.31 in attorney's fees and $112.38 in co sts; (2) the Ji Shiang defendants are ordered to pay plaintiffs $25,141.19, representing $25,028.81 in attorney's fees and $112.38 in costs; and (3) plaintiffs' proposed adverse inference is approved and will be considered when this case is submitted for determination. Ordered by Judge Eric N. Vitaliano on 12/31/2013. (Hanly, Elizabeth)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LI RONG GAO, et al.,
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:
Plaintiffs,
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-against:
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PERFECT TEAM CORP., et al.,
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Defendants.
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:
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VITALIANO, D.J.

ORDER
10-CV-1637 (ENV) (CLP)

Plaintiffs seek sanctions against defendants Perfect Team Corporation, Chun
Kit Cheng and Jia Li Wang (collectively, the “Perfect Team defendants”), and
defendants Ji Shiang, Inc. and Feng Lin (collectively, the “Ji Shiang defendants”), in
the form of default judgment, costs and attorney’s fees, pursuant to Federal Rule of
Civil Procedure 37. In a Memorandum and Order, dated January 28, 2013,
Magistrate Judge Cheryl L. Pollak granted the sanctions motion in part and denied
it in part. Specifically, Judge Pollak ordered defendants to pay attorney’s fees and
costs associated with their discovery noncompliance, and although she declined to
recommend that plaintiffs be granted default judgment, Judge Pollak concluded
that an adverse inference in plaintiffs’ favor might be appropriate.
After soliciting additional briefing, Judge Pollak recommended in her Report
and Recommendation (“R&R”), dated March 8, 2013, that the Perfect Team
defendants be ordered to reimburse plaintiffs in the amount of $22,619.69, and the
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Ji Shiang defendants be ordered to reimburse plaintiffs in the amount of $25,
141.19. She further determined that plaintiffs’ proposed adverse inference was
appropriate, and recommended that this Court approve the adverse inference as
requested.
On April 5, 2013, defendants filed timely objections to the R&R. 1 On April
19, 2013 plaintiffs filed an opposition to the objections. The Perfect Team
defendants then requested permission to file a reply to plaintiffs’ opposition, which
the Court granted. The reply was timely filed on May 10, 2013.
The Court has reviewed the characteristically thorough and well-reasoned
R&R of Magistrate Judge Pollak. After careful consideration of the objections, 2 the
Court adopts the R&R in its entirety as the opinion of the Court.

1

By letter dated March 12, 2013, the Perfect Team defendants filed a motion requesting an
extension of time to file “Rule 72(a) Objections.” The Court subsequently granted an extension
until April 5, 2013. On March 27, 2013, the Ji Shiang defendants requested a similar extension
of time, which was also granted by the Court. Plaintiffs, however, note that although the Perfect
Team defendants requested an extension of time to file objections under Federal Rule of Civil
Procedure 72(a), they have objected to Magistrate Judge Pollak’s R&R under Federal Rule of
Civil Procedure 72(b). Plaintiffs also observe that the Ji Shiang defendants did not file their
objections via ECF until April 6, 2013, one day after the April 5 deadline. Nevertheless,
plaintiffs are not challenging defendants’ objections on either of these procedural grounds. (Pl.
Opp. Mem. at 4, n. 2.) As a result, the Court considers the defendants’ objections to the R&R to
be timely filed.

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The parties disagree about the applicable standard of review. (See Pl. Opp. Mem. at 4–5;
Perfect Team Obj. at 3; Ji Shiang Obj. at 4; Perfect Team Reply Mem. at 1–3.) Plaintiffs claim
that a clear error standard applies to all of Magistrate Judge Pollak’s determinations, with the
exception of the adverse inference recommendation, for which plaintiffs acknowledge that a de
novo standard of review may apply. (Pl. Opp. Mem. at 4–7.) Defendants appear to argue that
the Court should apply a de novo standard of review to the entirety of the R&R. (See, e.g.,
Perfect Team Reply Mem. at 1–3.) The dispute, however, is immaterial. Under either standard,
the Court agrees wholeheartedly with Magistrate Judge Pollak’s analysis. Cutting to the chase,
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Conclusion
Accordingly, as recommended by Magistrate Judge Pollak: (1) the Perfect
Team defendants are ordered to pay plaintiffs a total of $22,619.69, representing
$22,507.31 in attorney’s fees and $112.38 in costs; (2) the Ji Shiang defendants are
ordered to pay plaintiffs $25,141.19, representing $25,028.81 in attorney’s fees and
$112.38 in costs; and (3) plaintiffs’ proposed adverse inference is approved and will
be considered when this case is submitted for determination.
SO ORDERED.
Dated: Brooklyn, New York
December 18, 2013

s/ ENV
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ERIC N. VITALIANO
United States District Judge

whether or not required, the Court has reviewed all of Magistrate Judge Pollak’s conclusions de
novo.
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