North American Karaoke-Works Trade Association, Inc. v. Entral Group International, LLC

Filing 27

North American Karaoke-Works Trade Association, Inc. v. Entral Group International, LLC

Doc. 27

Case 1:06-cv-05158-LTS-MHD

Document 27

Filed 01/05/2007

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------X NORTH AMERICAN KARAOKE-WORKS TRADE ASSOCIATION, INC., Plaintiff-Counterclaim Defendant, -againstENTRAL GROUP INTERNATIONAL, LLC, DefendantCounterclaimant, -againstSAM CHAN and RAY YIM, Counterclaim Defendants. -------------------------------------------X DECLARATION OF DAVID J. HOFFMAN David J. Hoffman declares as follows: 1. I am counsel for the Plaintiff North American Case No. 06-cv5158(LTS)(MHD) ECF CASE

Karaoke-works Trade Association, Inc. ("NAKTA") and Counterclaim Defendants Ray Yim and Sam Chan. 2. I submit this declaration in response to the

Court's order of December 26, 2006 requesting the Plaintiff's opposition the striking of Plaintiffs and Counterclaim Defendants pleadings. 3. By this motion, Plaintiff and Counterclaim

Defendants also move that this Court: (1) dismiss this case for lack of subject matter jurisdiction; (2) or in the alternative, reconsider its dismissal of Plaintiff's complaint; and (3) reconsider its imposition of sanctions. 1

Dockets.Justia.com

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4.

A true copy of the initial conference order filed In

July 25, 2006 is attached hereto as Exhibit A. trial conference for October 20, 2006.

paragraph 1, that order set the date of the initial preIn paragraph 4, the initial order stated that Preliminary Pre-Trial Statement was due "no later than seven (7) calendar days before the date set forth in paragraph 1 above". 5. By letter dated October 16, 2006, attached hereto The Court adjourned the conference until In changing the conference date, the

as Exhibit B, EGI's counsel requested an adjournment of the conference. December 1, 2006. accordingly". 6. Attached hereto as Exhibit C is a true copy of

Court noted that "the related deadlines are modified

the docket sheet in this matter. 7. Attached hereto as Exhibit D is a true copy of an

e-mail dated October 16, 2006 by Robert Hanlon, Esq., noting that I had requested a FRCP 26(f) conference: "I am aware that you have previously requested such a conference, but we were unavailable in the time frame you suggested." 8. After the Court granted EGI's request for an A true copy of the transcript

adjournment, Mr. Hanlon and I did hold a conference in accordance with the rules. Exhibit E. of the conference on December 1, 2006 is attached hereto as At page 11, Mr. Hanlon acknowledged that "Mr. There clearly were Hoffman and I did meet and confer.

areas that we agreed upon and areas that we did not agree upon, and that is not untypical in these cases." 9. In addition to the foregoing, Plaintiff and

Counterclaimants have endeavored to move this case along. 2

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Plaintiff served its First Set of Interrogatories (Exhibit F) and First Set of Document Requests (Exhibit G) on September 23, 2006. 10. In response, by letter dated September 28, 2006

(Exhibit H), Defendants' counsel refused to answer discovery requests asserting that the requests were premature. 11. Plaintiff and Counterclaimants served their A copy is

initial disclosures on November 3, 2006. attached as Exhibit I. 12. 2006.

Counsel for the Defendant asserted that the

Preliminary Pre-Trial Statement was due on November 24, Defendant filed the Preliminary Pre-Trial Statement on November 24, 2006. 13. According the website of the United States

District Court for the Southern District of New York, November 24, 2006 was designated a holiday (Exhibit J). 14. p. 13. At the conference on December 1, 2006, the Court Exhibit E,

ordered me to pay $585 to Defendants' counsel.

Prior to making that assessment the Court did not

indicate that it was contemplating sanctions, nor did the Court identify the authority under which it issued that sanction. 15. I understand that the Court adjourned the

conference until December 13, 2006 and directed that the Preliminary Pre-Trial Statement be due on December 8, 2006. This was not my understanding at the December 1, 2006 conference. 16. I did not appear at the December 13, 2006 At that conference, I understand that the 3

conference.

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Court dismissed Plaintiff's Complaint. complaint.

At no time has the

Court permitted me to be heard as to the dismissal of the Nor has the Court identified the authority under which it dismissed my complaint. 17. Furthermore, I have contacted the Southern The Southern District

District Reporters in an effort to obtain a transcript of the December 13, 2006 proceedings. Reporters have informed me that two court reporters served in the Courtroom that day, yet neither recorded the proceedings in this case. on December 13, 2006. 18. My absence at the December 13, 2006 conference During the Therefore, the Southern District Reporters has no record of the proceedings in this matter

was merely due to my confusion about the dates. adjourned until January 13, 2007. have a calendar with me.

conference, I understood that the conference had been At the time, I did not No Of course, the Court's minute

entry of December 5, 2006 indicated the proper date. the reasons set forth below, I was certain that the conference had been adjourned into January, 2007. 19.

doubt, I should have examined this more closely, but for

My belief that the conference had been adjourned

until January 13, 2007 was because at first the Court indicated that it would adjourn the conference "out two weeks" or "two weeks out from today" (Exhibit E, p. 13). The Court never rescinded that statement. for the conference was December 15, 2006. 20. I informed the Court (Exhibit E, p. 13) that I Thus, the earliest date I believed that the Court was contemplating

was scheduled to begin a trial on December 15, 2006. 4

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(Exhibit K).

That trial was eventually stayed by the

Appellate Division, First Department, by order dated December 8, 2006 (Exhibit L). 21. After that, the Court let Mr. Hanlon choose the Exhibit E, p. 13. Mr. At no time did the Court or Mr. Furthermore, as I noted

between "the 13th" or another date. Hanlon chose "the 13th". Hanlon expressly say "January". January was not a Wednesday. 22.

above, I did not have a calendar to indicate that 13th of

If I had understood the date to have been

December 13, 2006, I would have objected as I had another appearance scheduled on December 13, 2006 before Magistrate Judge Michael Dolinger. (Exhibit M). Although the order was issued on December 1, 2006, I had earlier been asked to choose between two dates, one of which directly conflicted with the scheduled trial, and December 13, 2006. chosen December 13, 2006. 23. I am a sole practitioner. It would have been I had

impossible for me to appear twice in Court on the same day, on the eve of trial, without seriously impacting my trial preparations. Thus, my silence when "the 13th" was chosen indicates that I sincerely believed that the conference had been adjourned to January 13, 2007. 24. Furthermore, although the Court expected that I

would "have a further discussion with Mr. Hanlon", I never did receive any communications with counsel for the Defendants before December 8, 2006, the due date, nor December 13, 2006. Nor was the Preliminary Pre-Trial Therefore, as of Statement refiled during that time.

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December 13, 2006, I was not aware that the conference had been scheduled for that date. 25. perjury. Dated: New York, New York January 5, 2007 /s/_____________________ David J. Hoffman I make the foregoing declaration under penalty of

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