Elsevier Inc. et al v. Memon et al

Filing 256

ORDER; See Attachment for details as directed by JS Chambers. So Ordered by Judge Joanna Seybert on 3/29/2018. C/ECF (Valle, Christine) Modified on 3/29/2018 to edit text as directed by JS Chambers. (Valle, Christine).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
ELSEVIER INC., ELSEVIER B.V.,
ELSEVIER LTD., ELSEVIER IRELAND LTD.,
JOHN WILEY & SONS, INC., WILEY
PERIODICALS, INC., and BLACKWELL
PUBLISHING, LTD.
Plaintiffs,
-against-

ORDER
13-CV-0257(JS)(AKT)

HAROON MEMON, BOB MEMON, KULSOOM MEMON,
HANIF MEMON, SAMINA MEMON a/k/a SAMINA
KHMISA, IQBAL GABA a/k/a IQBAL HUSSAIN
GABA a/k/a IQBAL H. GABA a/k/a MR.
IKQBAL JABA a/k/a M.I. GABA a/k/a MR.
GABA a/k/a DR. I. GABA, HAJI SULEMAN
GAZIANI a/k/a SULEMAN HAJI a/k/a H.
SULEMAN, MOHAMMAD IQBAL GAZIANI a/k/a
MOHAMMAD IQBAL a/k/a MOHAMMAD GAZIANI,
JAVARIA IQBAL a/k/a MOHAMMAD GAZIANI,
MUHAMMAD OWAIS, ABDUL KARAR, IQBAL
KAPADWALA, MUHAMMAD TOBRIA a/k/a M.
TOBRIA, ZAHIDA JAMAL, MUHAMMAD SHAHID,
SARDAR AHMED a/k/a S. AHMED, and FEROZA
BANO,
Defendants.
--------------------------------------X
APPEARANCES
For Plaintiffs:
Nicole Haff, Esq.
John Gerard McCarthy, Esq.
Roger J. Maldonado, Esq.
Smith Gambrell & Russell LLP
1301 Avenue of the Americas
New York, NY 10019
For Defendants:
Haroon Memon, Bob
Memon, Kulsoon Memon,
Hanif Memon, Samina
Memon, Abdul Karar,
and Muhammad Tobria

Arshad Majid, Esq.
Majid & Associates, P.C.
300 Rabro Drive, Suite 112

Hauppauge, NY 11788
Iqbal Gaba

Iqbal Gaba, pro se
12 Grays Croft Road
Streatham Vale
London SW 165UP, U.K.

Haji Suleman Gaziani

Haji Suleman Gaziani, pro se
c/o Latif & Latif Advocates
154-155, Sunny Plaza
Hasrat Mohani Road
Off I.I. Chundrigar
Karachi, Pakistan

Iqbal Kapadwala

Iqbal Kapadwala, pro se
772 Franklin Ave.
Valley Stream, NY 11580

Mohammad Iqbal Gaziani

Mohammad Iqbal Gaziani, pro se
c/o Latif & Latif Advocates
154-155, Sunny Plaza
Hasrat Mohani Road
Off I.I. Chundrigar
Karachi, Pakistan

Remaining Defendants:

No appearances.

SEYBERT, District Judge:
During the Pre-Trial Conference on March 2, 2018, the
Memon Defendants expressed their intention to seek to disqualify
one of Plaintiffs’ attorneys, Ms. Haff, on the basis of events
which occurred during a court-ordered inspection of a second
computer in the Memon Defendants’ home on October 9, 2014.

At the

Pre-Trial Conference, the Court directed the Memon Defendants to
file

(1)

a

letter

outlining

their

concerns

and

their

prior

disqualification motions, and (2) an affidavit from a person with
knowledge of the contents of the second computer on or before March

2

26, 2018.

(See Mar. 2, 2018 Minute Entry, Docket Entry 252.)

To

date, no such letter or affidavit has been filed.
Nevertheless,

the

Court

reviewed

the

record,

which

reflects the following: (1) former counsel for the Memon Defendants
was informed that the second computer was not operational before
the inspection (Chaudhary Letter, Docket Entry 132; DePasquale
Letter,

Docket

Entry

133),

rendering

the

Memon

Defendants’

argument that Ms. Haff caused it to become inoperable specious;
(2) former counsel for the Memon Defendants took the second
computer into his possession on the day of the inspection, contrary
to counsel’s representations to this Court (DePasquale Letter);
(3)

the Memon Defendants were previously ordered to submit an

affirmation or declaration outlining the chain of custody of the
computer, but never did so (Dec. 1, 2014 Minute Entry, Docket Entry
183); (4) the parties initially agreed to split the cost of a
forensic examination of the second computer (Dec. 1, 2014 Minute
Entry), but Plaintiffs eventually agreed to pay the remaining cost
due to the Memon Defendants’ refusal (Nov. 20, 2015 Minute Entry,
Docket Entry 187); and (5) on February 6, 2015 and July 24, 2015,
counsel for the Memon Defendants sought to disqualify Ms. Haff
based on her interactions with the pro se Defendant Iqbal Kapadwala
and

her

handling

of

electronic

evidence,

including

supposed

evidence on the second computer (Feb. 6, 2015 Letter, Docket Entry
163; July 24, 2015 Letter, Docket Entry 182).
3

On November 20, 2015, Judge Tomlinson considered the
motion to disqualify and declined to disqualify Ms. Haff.

Judge

Tomlinson ordered that the parties proceed with the forensic
examination of the second computer and found that Ms. Haff’s
contact with pro se Defendant Kapadwala was proper.
2015 Minute Entry.)

(See Nov. 20,

Fact and expert discovery was closed in

January 2016 (Jan. 28, 2016 Minute Entry, Docket Entry 199), and
Judge Tomlinson subsequently approved the parties’ Joint Pre-Trial
Order, which did not indicate that Ms. Haff would be called as a
witness or that the Memon Defendants would seek to disqualify her.
(Oct. 21, 2016 Minute Entry, Docket Entry 229; Dec. 7, 2017
Electronic Order.)
Now, four years after the inspection and three years
after Judge Tomlinson resolved these issues, the Memon Defendants
have made, in this Court’s view, a last-ditch attempt to delay a
trial

in

this

matter.

The

Court

will

not

disqualification of Ms. Haff has been settled.

allow

it.

The

In this regard,

counsel for the Memon Defendants is cautioned that the Court will
not hesitate to impose sanctions under Federal Rule of Civil
Procedure 11 for any improper conduct.
On March 2, 2018, the Court also extended the deadline
to file the Amended Joint Pre-Trial Order to March 26, 2018,
because counsel for the Memon Defendants stated that he needed
additional time to review Plaintiffs’ modifications to the Joint
4

Pre-Trial Order.

In a letter to the Court dated March 15, 2018,

the Memon Defendants advised that they have requested additional
documents from Plaintiffs that they “require . . . in order to
file the Joint Pre-Trial Order.”

However, as the Court has made

clear, discovery was closed in 2016.
entitled to any additional discovery.

The Memon Defendants are not
They are directed to review

the revisions to the Joint Pre-Trial Order promptly and file the
Amended Joint Pre-Trial Order on or before April 9, 2018.
On

March

14,

2018,

Plaintiffs

requested

that

a

settlement conference be scheduled with Judge Tomlinson. The Court
is skeptical that a settlement conference will be productive at
this stage.

Therefore, the parties are directed to engage in

meaningful settlement discussions and file a joint letter on or
before April 23, 2018 advising the Court whether they believe a
settlement conference will be fruitful.
a trial thereafter.

The Court will schedule

Plaintiffs are directed to serve a copy of

this Order on the pro se Defendants via first class mail or e-mail
and file proof of service on ECF promptly.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
29 , 2018
Central Islip, New York
5