Chen et al v. WAI ? Cafe Inc. et al
Filing
55
MEMORANDUM AND ORDER denying 47 Motion for Sanctions; granting 51 Motion to Withdraw as Attorney. For these reasons, the defendants' motion for sanctions (Docket no. 47) is denied. Plaintiffs' counsel's motion to withdraw (Docket no. 51) is granted. The Pro Se Office of the Court is respectfully directed to endeavor to find counsel to represent the plaintiffs pro bono. (As further set forth in this Order.) (Attorney C.K. Lee terminated.) (Signed by Magistrate Judge James C. Francis on 2/19/2016) Copies Sent By Chambers. (adc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
YONG KUI CHEN, ZU GUANG ZHU,
HAO CHEN, SHUT RING ZHU, GUO REN
HUANG and YOU HUANG ZHU, on behalf
of themselves end others similarly
situated,
10 Civ.
7254
(JCF)
MEMORANDUM
AND ORDER
Plain-:iffs,
l[~JSDS s6i:)y- .
- against
WAT? CAFE INC. and WAI YIN CHAN,
-
:DOCUMENT
,. - -, . . ~ ....-,/
'7T~l
'II 'J.,·Clh01"'-A._L1 1 .LLD
\ !~,
Defendants.
. .r~.,,
;>,"Tl--.
T
-:;'t
,.., .;1. •
.,
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
U:
""---]·
2-fL~·----· .
-·--
···-··-----.-·
----
I
--------~----·~
Accusing an attorney of perpetrating a fraud on the court is
serious busiCTess.
Chan,
charge
court
when
HerE~,
Lhe defendants, Wai?
olaintiffs'
he
asserted
attorney,
that
C.K.
certain
Caf~
Lee,
Inc. and Wai Yin
with
documents,
purported agreement settling the plaintiffs'
lying to
the
including
a
claims, had not been
produced in discovery and were therefore inadmissible at trial.
In an ostensibly unrelated motion,
representing
raise
~he
questions
plaintirfs.
about
Mr.
Lee asks to withdraw from
Although the oefondants'
p2a~nti
ffs'
counsel's
argurcents
professional
competence, they do not establish by clear and convincing evidence
The parties consented to my Jurisdiction for all purposes
pursuant at 28 U.S.C. ~ 63G(c).
Yong Kui Cheri v. Wai? Caf~ Inc.,
No. 10 Civ. 7754, 201? WL 997004, at *1 (S.D.N.Y. March 26, 2012),
vacated in part on ot~er arounds sub non. Yono Kui Chen v. Wai Yin
Chan, 615 F. App'x 10 (2d Cr. 2015)
1
that Mr. Lee intentionally lied to the Court; the defendants’
motion is therefore denied.
Plaintiffs’ counsel’s motion is
granted.
Background
The complaint in this action, filed in September 2010, alleges
that the defendants violated the Fair Labor Standards Act (the
“FLSA”) and the New York Labor Law (the “NYLL”) by failing to pay
the applicable minimum wage, overtime wage, and spread-of-hours
premium to the plaintiffs, who were employed as delivery persons at
the restaurant Wai? Café. (Complaint, ¶¶ 47-68). In response, the
defendants asserted that in February 2010 the defendants and five
of
the
plaintiffs2
entered
into
a
contract
under
which
the
defendants promised (1) to “make payments . . . to [the plaintiffs]
relating to their delivery services,” (2) to pay the plaintiffs
$10,000 to be divided among them, (3) to make the plaintiffs part
owners of the restaurant, and (4) to give them to 30% of the
proceeds when the restaurant was sold.
2
(Answer, ¶¶ 40-43, 45).
The defendants claimed that plaintiff Yong Kui Chen was
“unknown” to them and had never been employed at the restaurant.
(Answer, ¶¶ 36-37). Yong Kui Chen did not appear for trial, and he
was dismissed from the action. (Transcript dated Feb. 6 and 7,
2012 (“Tr.”) at 6); Yong Kui Chen, 2012 WL 997004, at *1. In
addition, prior to trial Jian Hui Lin was added as a plaintiff.
(Tr. at 7-9).
References to “the plaintiffs” in this opinion
should therefore be understood to exclude Yong Kui Chen and include
Jian Hui Lin.
2
This agreement served as the basis for three of the defendants’
affirmative defenses -- (1) that it established a business venture
between the plaintiffs and the defendants, thus affecting the
status of their relationship, (2) that it fully compensated the
plaintiffs for any damages suffered, and (3) that it constituted an
accord and satisfaction -- as well as for a counterclaim alleging
that “[i]n consideration for [the plaintiffs] becoming part owners”
of the restaurant, they “accepted payment of $10,000,” although
they had no intention of functioning as part owners and were
therefore unjustly enriched.
(Answer, ¶¶ 40-48, 66-68).
The
document is also the foundation of the defendants’ current motion
seeking terminating sanctions.
In June 2011, Perry I. Tischler, the attorney who was then
representing the defendants, served on Mr. Lee their initial
disclosures pursuant to Rule 26(a)(1) of the Federal Rules of Civil
Procedure.
(Declaration of Perry I. Tischler dated Oct. 31, 2015
(“Tischler
Decl.”),
¶
5;
Defendants’
Rule
26(a)(1)
Initial
Disclosures (“Initial Disclosures”), attached to Tischler Decl.).
The first document, two pages long, was identified as “Contract
dated
February
16,
2010
(written
in
Chinese).”
(Initial
Disclosures, § II(a); Document dated Feb. 16, 2010 (“Purported
Contract”), attached to Initial Disclosures).
Approximately seven months later, the parties’ joint pre-trial
3
order
listed
the
defendants’
Initial
Disclosures
among
the
plaintiffs’ expected trial exhibits:
Defendants’
Rule
26[(a)](1)
including attachments.[]
Initial
a.
Employee schedules
b.
Disclosures,
Employee compensation reports
(Joint Pretrial Order dated Jan. 11, 2012 (“Pre-Trial Order”), §
6.4).
In addition, the plaintiffs’ pre-trial memorandum of law
refers to a purported settlement contract, arguing that “[w]hatever
documentary
evidence
[the]
[d]efendants
believe
constitutes
a
settlement agreement is merely part of, at most, negotiations or
discussions of settlement” and should therefore be inadmissible.
(Pre-Trial Memorandum of Law (“Pl. Pre-Trial Memo.”) at 5).
The
plaintiffs further moved in limine to exclude “any evidence of
negotiations or discussions regarding settlement” on that same
ground, in almost identical language.
(Letter of C.K. Lee dated
Jan. 27, 2012 (“Motion In Limine”), at 2).
Shortly before the trial was to begin, Mr. Tischler asked to
be relieved as counsel, asserting
that
Mr.
Chan had “indicated
. . . that he has no funds available to cover the costs and fees
involved with [the firm’s] continuing representation.”
Perry I. Tischler dated January 31, 2012).
(Letter of
After a hearing at
which Mr. Chan asserted that he had discharged Mr. Tischler, I
4
granted the application.
(Memorandum Endorsement dated Feb. 2,
2012); Yong Kui Chen, 2012 WL 997004, at *1.
Prior to jury selection, I addressed the plaintiffs’ motions
in limine.
With respect to the request to exclude evidence of a
purported settlement, Mr. Lee stated:
Well, it’s really their issue, your Honor, but they had
a contract, it wasn’t signed, and I don’t know what they
planned to do with it. . . . I just wanted to avoid [Mr.
Chan] raising it like in his opening or trying to
question the plaintiffs regarding this purported contract
for settlement.
(Tr. at 4-5). I disagreed that the purported agreement constituted
inadmissible settlement negotiations, but deferred ruling on any
specific exhibits or testimony until offered at trial.
6).
(Tr. at 5-
The plaintiffs then moved for a default judgment against the
corporate entity, which I granted.
(Tr. at 6); Yong Kui Chen, 2010
WL 997004, at *1.
When Mr. Chan sought to introduce the purported agreement at
trial, I asked him to show it to Mr. Lee, and then convened a
sidebar to discuss the issue:
THE COURT:
document?
For starters, in what language is that
. . . .
MR. LEE: [] [O]bviously I have strong objections to
this document being admitted.
It’s not signed.
I
actually
never
received
that.
And
it’s
not
authenticated. There’s [sic] so many reasons why this
document should not be allowed. It was not provided in
5
the evidence list pretrial. . . .
THE COURT: Mr. Chan, do you wish to be heard on
this?
MR. CHAN: This is what the truth is, and I feel that
this should be listed as evidence. That’s the important
part of evidence.
. . . .
THE COURT: . . . . First of all, the contract, socalled, is not admissible; it’s unsigned. It should have
been turned over during the course of discovery, and it
was not. I will not accept it.
(Tr. at 81-82, 84).
any
suggestion
I further instructed the jury to “disregard
that
[the
purported
constitutes a settlement of [the] case.”
settlement
agreement]
(Tr. at 90).
At the beginning of the second day of trial, Mr. Chan asserted
that he wanted to introduce a document purporting to show that the
plaintiffs had received “some additional compensations daily.”
(Tr. at 109).
Mr. Lee asked for a side bar and examined the
potential evidence:
MR. LEE: Your Honor, I’ve never seen this document.
I did not get it in discovery. I did not -- it was not
put into the pretrial submissions for evidence.
I’ve
never had an opportunity to do discovery on this document
to see whether it’s relevant or made last night. So this
is clearly not admissible, your Honor, and there should
be no testimony about any of this stuff.
THE COURT: Mr. Chan, was that turned over to your
attorney prior to trial?
MR. CHAN: I did turn this over to my lawyer. You
can call my lawyer to see if my lawyer turned it over to
6
him. And also the contract I mentioned yesterday, I turn
it over to the lawyer.
The first day I think he was
lying; he did not tell the truth.
THE COURT: We don’t have Mr. Tischler here to make
any representations about whether he turned it over. And
on the basis of Mr. Lee’s representations, I’m not going
to admit a document that was not turned over in the
course of discovery.
(Tr. at 109-10).
The jury ultimately found “that the plaintiffs had not shown
that Wai? Café’s annual gross receipts exceeded $500,000” as
required by the FLSA, but that the defendants were liable under the
NYLL.
Yong Kui Chen, 2012 WL 997004, at *1-2.
Mr. Chan appealed the judgment.
After appointing counsel for
him (the plaintiffs proceeded pro se on appeal), the Second Circuit
vacated the judgment in part and remanded the case to this Court.
[T]aking particular heed of Chan’s unexpected pro se
status, the district court’s refusal to allow Chan to
contact his former attorney denied Chan a meaningful
opportunity to defend himself against the imposition of
discovery sanctions.
Accordingly, the case must be
remanded with instructions for the district court to
conduct a further inquiry into whether Chan produced the
contested evidence, as part of his Rule 26(a)(1)
disclosures or otherwise.
Should the district court
determine that the document was never produced, the
original judgment, corrected as set forth below, will be
reinstated. Should the court determine that Chan in fact
provided the settlement agreement to the plaintiffs’
counsel, however, the erroneous exclusion of evidence of
that agreement from the proceedings below entitles Chan
to a new trial.
Yong Kui Chen, 615 F. App’x at 13 (footnote omitted).
7
These
motions followed.
Discussion
A.
Legal Standard
A court may impose sanctions when a party or its attorney has
perpetrated a fraud against it.
Bravia Capital Partners Inc. v.
Fike, No. 09 Civ. 6375, 2015 WL 1332334, at *3 (S.D.N.Y. March 25,
2015); see also In re Dynex Capital, Inc. Securities Litigation,
No. 05 Civ. 1897, 2011 WL 2581755, at *4-5 (S.D.N.Y. April 29,
2011) (addressing whether counsel committed fraud on the court).
Fraud on the court “embrace[s] only that species of fraud which
does[,] or attempts to, defile the court itself.”
Passlogix, Inc.
v. 2FA Technology, LLC, 708 F. Supp. 2d 378, 394 (S.D.N.Y. 2010)
(first alteration in original) (quoting Kupferman v. Consolidated
Research and Manufacturing Corp., 459 F.2d 1072, 1078 (2d Cir.
1972)).
some
It requires “that a party has sentiently set in motion
unconscionable
scheme
calculated
to
interfere
with
the
judicial system’s ability impartially to adjudicate a matter by
. . . unfairly hampering the presentation of the opposing party’s
claim or defense.”
Id. at 393 (alteration in original) (quoting
McMunn v. Memorial Sloan–Kettering Cancer Center, 191 F. Supp. 2d
440, 445 (S.D.N.Y. 2002), and collecting cases).
Generally, a
single misrepresentation does not constitute fraud on the court.
Id. at 394.
Indeed, “[n]either perjury nor nondisclosure, by
8
itself, [] amounts to anything more than fraud involving injury to
a single litigant.”
Rybner v. Cannon Design, Inc., No. 95 Civ.
0279, 1996 WL 470668, at *3 (S.D.N.Y. Aug. 20, 1996) (Sotomayor,
D.J.) (quoting Gleason v. Jandrucko, 860 F.2d 556, 559 (2d Cir.
1988)).
Rather, typical sanctionable conduct occurs “when a party
lies to the court and his adversary intentionally, repeatedly, and
about issues that are central to the truth-finding process.”
Passlogix, 708 F. Supp. 2d at 393 (quoting McMunn, 191 F. Supp. 2d
at 445).
Fraud on the court must be shown by clear and convincing
evidence, see id. at 394, that is, “evidence that makes the fact to
be proved ‘highly probable,’” Century Pacific, Inc. v. Hilton
Hotels Corp., 528 F. Supp. 2d 206, 219 (S.D.N.Y. 2007) (quoting
Abernathy-Thomas Engineering Co. v. Pall Corp., 103 F. Supp. 2d
582, 596 (E.D.N.Y. 2000)), aff’d, 354 F. App’x 496 (2d Cir. 2009).
Although the evidence may be circumstantial, it may not be “loose,
equivocal[,] or contradictory.”
Id. (quoting Abrahami v. UPC
Construction Co., 224 A.D.2d 231, 233, 638 N.Y.S.2d 11, 13 (1st
Dep’t 1996)).
If the movant meets this high standard of proof, the
court should consider five factors in determining the appropriate
sanction:
(i) whether the misconduct was the product of intentional
bad faith; (ii) whether and to what extent the misconduct
prejudiced the injured party; (iii) whether there is a
9
pattern of misbehavior rather than an isolated instance;
(iv) whether and when the misconduct was corrected; and
(v) whether further misconduct is likely to occur in the
future.
Passlogix, 708 F. Supp. 2d at 394.
There are many available
sanctions, including corrective jury instructions and imposition of
attorneys’ fees. In the most egregious cases, the Court may impose
the “pungent, rarely used, and conclusive” remedy of dismissal.
Rybner, 1996 WL 470668, at *4 (quoting Dodson v. Runyon, 86 F.3d
37, 39 (2d Cir. 1996)).
B.
Fraud on the Court
The defendants contend that Mr. Lee intentionally misled the
Court
twice:
when
he
asserted
that
the
putative
settlement
agreement had not been produced during discovery, and when he
insisted
that
the
document
purportedly
showing
additional
compensation to the plaintiffs was not produced in discovery.
1.
Mr.
Settlement Agreement
Lee
has
admitted
that
the
defendants
produced
the
purported settlement agreement with their initial disclosures.
(Declaration
of
C.K.
Lee
dated
Dec.
23,
2015
(“Lee
12/23/15
Decl.”), ¶¶ 5-6). The defendants argue that Mr. Lee’s demonstrated
familiarity with the document establishes that his representation
that it was not produced was an intentional misstatement designed
to frustrate presentation of the defense.
10
They point primarily to
six facts that suggest that Mr. Lee cannot have been ignorant of
the fact that the document had been disclosed and therefore must
have lied when he represented otherwise:
(1) the agreement was “invoked in [the] [d]efendants’ answer
and annexed thereto”;
(2) it was produced as part of the defendants’ Rule 26(a)(1)
disclosures, “as the very first of only five documents”;
(3) it was included as one of the plaintiffs’ trial exhibits;
(4) it was referenced in the joint pre-trial order;
(5) it was mentioned in the plaintiffs’ pre-trial memorandum;
(6) it was invoked in an oral motion in limine.
(Memorandum of Law in Support of Defendants’ Motion for Sanctions
(“Def. Memo.”) at 6; Defendants’ Reply in Support of Motion for
Sanctions (“Reply”) at 1-2 (emphasis omitted)).
However, this
evidence does not clearly and convincingly establish that Mr. Lee
intentionally misled the Court.
First, the defendants have produced no evidence that the
agreement was annexed to the answer.
To be sure, the answer states
that a copy of the document in both its original language and in an
English translation are attached to the pleading.
(Answer, ¶ 63).
However, no such documents are annexed to the answer that appears
on the docket.
The defendants indicate, instead, that they were
included with a paper copy that Mr. Tischler served on Mr. Lee and
mailed to the Court.
(Def. Memo. at 2).
11
That assertion is
entirely unsupported. The attempted paper filing was stricken from
the
docket
with
directions
for
the
pleading
to
be
filed
electronically, so the official case docket does not corroborate
the defendants’ claim. (Rejection of Attempted Paper Filing in ECF
Case dated Nov. 15, 2010).
And Mr. Tischler stops short of
attesting that such documents were actually attached to that
attempted filing.
(Tischler Decl., ¶ 3).
Indeed, he admits that
the answer that he attempted to file “was subsequently e-filed” and
that the exhibit was not attached.
(Tischler Decl., ¶¶ 3-4).
What
remains of this evidence, then, is the fact that a settlement
agreement was referenced in the Answer.
As noted, Mr. Lee concedes that the defendants’ initial
disclosures include a copy of the subject document.
identified
as
Chinese).”
(Initial Disclosures, § II(a)).
Chinese.
“Contract
dated
February
(Lee 12/23/15 Decl., ¶ 2).
16,
2010
The copy is
(written
in
Mr. Lee cannot read
There is no evidence that
this document was ever translated into English.
And, other than
the date, some of the parties’ names, and a single reference to
“30%” in the document (Purported Contract at 1), there is little to
connect the document to the agreement mentioned in the Answer. For
example, there is no mention of a $10,000 payment.
(Answer ¶¶ 45,
66; Def. Memo. at 2 (describing terms of agreement)).
Rather, the
only monetary amounts cited are “$3.50” and “$48000,” neither of
12
which clearly relate to the agreement the defendants describe.
(Purported Contract at 1-2).
The defendants overstate the facts when they assert that the
plaintiffs listed the Purported Contract as one of their trial
exhibits and referenced it in the pre-trial order. Both documents,
it is true, cite as potential trial exhibits the defendants’
“Initial Disclosures.” (Index of Plaintiffs’ Exhibits (“Index”) at
2;3 Pre-Trial Order, § 6.4).
However, they then identify specific
attachments -- schedules and compensation reports -- that will be
offered in evidence.
(Index at 2; Pre-Trial Order, § 6.4).
The
plaintiffs mention neither the Purported Contract nor any other
settlement agreement.
The plaintiffs’ pre-trial memorandum argues that evidence of
settlement should be excluded.
However, it does not identify any
specific document that the plaintiffs seek to block.
Rather, the
relevant sentences read:
[I]t is clear in this case that no settlement of claims
ever occurred since this Court never approved any
settlement yet.
Whatever documentary evidence [the]
[d]efendants believe constitutes a settlement agreement
is merely part of, at most, negotiations or discussions
of settlement.
Therefore, any of [the] [d]efendants’
evidence that [the] [d]efendants offered to pay $10,000
3
The docketed version of this documents does not include
copies of the actual exhibits, which were redacted for filing.
(Index at 3). Nor are the exhibits part of the case file held by
the Clerk of Court.
13
to [the] [p]laintiffs . . . or that the two parties once
settled the case should be inadmissible . . . .
(Pre-Trial Memorandum of Law at 5 (emphasis added)). This phrasing
is not inconsistent with the possibility that the plaintiffs were
unfamiliar with the specific document upon which the defendants
were planning to rely.
Moreover, as we have seen, there is no
mention of $10,000 in the Purported Agreement.
It is, therefore,
not clear that the plaintiffs understood “[w]hatever documentary
evidence [the] [d]efendants” might rely on to include the Purported
Contract.
The defendants make much of some aspects of Mr. Lee’s argument
on a motion in limine prior to trial.
That argument used language
quite
the
similar
“[w]hatever
to
the
documentary
language
of
evidence
Pre-Trial
[the]
Memorandum:
[d]efendants
believe
constitutes a settlement agreement is then merely part of, at most,
negotiations or discussions of settlement.”
2).
(Motion In Limine at
In arguing his motion, Mr. Lee acknowledged the existence of
a unsigned document purporting to be a settlement agreement.
at 4-5).
The defendants wonder how he could know that the contract
was not signed unless he had seen it.
2).
But
(Tr.
Mr.
Lee
attests
that,
(Def. Memo. at 6; Reply at
after
Mr.
Chan
spoke
of
an
agreement, the plaintiffs “verbally informed” him that “an unsigned
agreement existed.”
(Lee 12/23/15 Decl., ¶ 4).
14
Further, the
defendants note that Mr. Lee did not argue that the unsigned
agreement was not produced.
However, Mr. Lee admits to confusion
about what agreement was being discussed, and the fact that he
failed to make that particular argument is somewhat shaky evidence
that he knew the document at issue had been produced.
(Lee
12/23/15 Decl., ¶ 7).
Mr. Lee’s version of events is just plausible enough.
When,
immediately prior to trial, Mr. Chan offered the document -written in Chinese, a language plaintiffs’ counsel cannot read -Mr. Lee did not recognize it as something that had been produced
with the Initial Disclosures.
(Lee 12/23/15 Decl., ¶¶ 5-7).
To be
sure, the evidence the defendants offer indicates that Mr. Lee’s
trial preparation leaves much to be desired.
Mere incompetence,
however, is not fraud on the court.
2.
Additional Compensation Document
There is a more fundamental failure of proof as to this
document. The trial transcript establishes that Mr. Chan attempted
to introduce a document that reflected “additional compensations
daily.”
(Tr. at 109).
It is not disputed that the defendants
produced a document titled “Extra Payout Made to Delivery People
2009-2010” with their initial disclosures.
§ II.e).
(Initial Disclosures,
But the defendants have not provided any evidence (such
as an affidavit from Mr. Chan) that the document included in the
15
initial disclosures is the document sought to be introduced at
trial.4
Rather, they present merely a representation from their
current attorney (who does not purport to have personal knowledge
of the relevant facts) that “[t]his evidence was also part of the
Rule 26(a)(1) disclosures.”
(Def. Memo. at 4).
This would not
satisfy the lower preponderance of the evidence standard, and
certainly
does
not
Moreover,
this
single
intentional,
Passlogix,
would
708
F.
meet
not
the
clear
instance
of
constitute
Supp.
2d
at
and
convincing
misrepresentation,
fraud
393-94
on
the
standard.
even
court.
(requiring
if
See
repeated
intentional misrepresentations); see also Shah v. Eclipsys Corp.,
No. 08 CV 2528, 2010 WL 2710618, at *14 (E.D.N.Y. July 7, 2010)
(same).
C.
Motion to Withdraw
“When considering whether to grant a motion to be relieved as
counsel, ‘district courts analyze two factors: the reasons for
withdrawal and the impact of the withdrawal on the timing of the
proceeding.’”
Leviton Manufacturing Co. v. Fastmac Performance
Upgrades, Inc., No. 13 Civ. 01629, 2013 WL 4780045, at *2 (S.D.N.Y.
July 8, 2013) (quoting Blue Angel Films, Ltd. v. First Look
4
Indeed, the defendants would have had this same problem with
the Purported Contract had Mr. Lee not conceded that the document
produced with the Initial Disclosures was the same document that
Mr. Chan presented at trial.
16
Studios, Inc., No. 08 Civ. 6469, 2011 WL 672245, at *1 (S.D.N.Y.
Feb. 17, 2011)).
“Satisfactory reasons for withdrawal include ‘a
client’s lack of cooperation, including lack of communication with
counsel, and the existence of irreconcilable conflict between
attorney and client.’”
Farmer v. Hyde Your Eyes Optical, Inc., 60
F. Supp. 3d 441, 445 (S.D.N.Y. 2014) (quoting Naguib v. Public
Health Solutions, No. 12 CV 2561, 2014 WL 2002824, at *1 (E.D.N.Y.
May 15, 2014)).
This is Mr. Lee’s second application to withdraw.
After a
conference at which the plaintiffs in attendance indicated that
they wanted Mr. Lee’s firm to continue to represent them, I denied
the application without prejudice to renewal once it was determined
whether a new trial was necessary.
(Order dated Sept. 16, 2015).
Given Mr. Lee’s concession that the Purported Contract was, in
fact, produced during discovery (Lee 12/23/15 Decl., ¶¶ 5-6) and my
denial of the defendants’ motion for terminating sanctions, a new
trial is required.
Yong Kui Chen, 615 F. App’x at 13.5
5
The Court of Appeals did not address the fact that the
Purported Contract was not offered in an admissible form, that is,
in an English translation certified as true and accurate. However,
the mandate is clear: if the document was produced during
discovery, due process requires a new trial. Yong Kui Chen, 615 F.
App’x at 13.
I do not read the decision, however, to undermine
the well-established rule that a documents in a foreign language is
generally inadmissible unless accompanied by a certified English
translation. See, e.g., Lakah v. UBS AG, 996 F. Supp. 2d 250, 258
(S.D.N.Y. 2014); Kasper Global Collection & Brokers, Inc. v. Global
17
Plaintiffs’ counsel’s second application to withdraw asserts
that “irreconcilable differences” exist between the plaintiffs and
counsel “regarding post-trial litigation and appeal strategy.”
(Declaration
of
Decl.”), ¶ 6).
C.K.
Lee
dated
Dec.
31,
2015
(“Lee
12/31/15
Mr. Lee also states that in April 2014, the
plaintiffs consented to the withdrawal, and notes that the Second
Circuit relieved his firm as counsel upon his representation that
it was not retained for post-trial or appeal work.
Decl., ¶¶ 6-8).
(Lee 12/31/15
In light of the plaintiffs’ prior representation
(in September 2015) that they wanted Mr. Lee’s firm to remain as
counsel, I provided the plaintiffs an opportunity to object to the
second application. (Order dated Jan. 4, 2016 (“1/4/16 Order”), at
1).
The order was sent to the last known addresses of the six
plaintiffs.
(1/4/16 Order at 2).
Three of those mailings -- to
Jian Hui Lin, You Huang Zhu, and Zu Guang Zhu -- were returned as
undeliverable.
The remaining plaintiffs did not object.
Although
this suggests that some plaintiffs were not informed of the motion
to withdraw and their right to object, the return of those mailings
Cabinets & Furniture Manufacturers Inc., 952 F. Supp. 2d 543, 55455 & n.9 (S.D.N.Y. 2013); In re Advanced Battery Technologies, Inc.
Securities Litigation, No. 11 Civ. 2279, 2012 WL 3758085, at *9
(S.D.N.Y. Aug. 29, 2012); City of New York v. Geodata Plus, LLC,
537 F. Supp. 2d 443, 448 n.9 (S.D.N.Y. 2007); Quiroga, S.L. v. Fall
River Music, Inc., No. 93 Civ. 3914, 1998 WL 851574, at *2 n.3
(S.D.N.Y. Dec. 7, 1998).
18
indicates that those plaintiffs have not been in communication with
their counsel.
cooperation
cornmunlcation,
In
Biman Bangladesh Airlines,
3120, 1997 WL 411446, at *l (S.D.N.Y. July 18, 1997)
Civ.
of
See Fischer v.
light
of
by
a
c.lient
Mr.
however,
its
counsel,
96
("[L]ack
including
lack
of
is a sufficient reason for allovJing withdrawal.").
Lee's
plaintiffs to object,
will,
with
No.
representations
and
the
failure
of
the application to withdraw is granted.
the
I
reques·" U1at the Pro Se Office of the Court attempt
to find 12.IQ bono counsel to represent the plaintiffs going forward.
Conclusion
For
these
reasons,
47)
is
withdraw
(Docket
no.
Court
respectfully
(Docket
no.
is
the
defendants'
denied.
51)
is
motion
Plaintiffs'
granted.
directed
to
The
endeavor
for
sanctions
counsel's
Pro
to
Se
motion
Office
find
counsel
represent the plaintiffs 12.IQ bono.
SO ORDERED.
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated:
New York, New York
February 19, 2016
19
of
to
the
to
Copies transmitted to:
C.K. Lee, Esq.
Anne Seelig, Esq.
Lee Litigation Group, PLLC
30 East 39th Street
2nd Floor
New York, NY 10016
(Via ECF)
Brian D. Netter, Esq.
Mayer Brown LLP
1999 K Street, N.W.
Washington, DC 20006
(via ECF)
Zu Guang Zhu
43 Nostrand Ave., Apt. 3C
Brooklyn, NY 11206-5175
(via U.S. Mail)
Shui Bing
2 Orchard
New York,
(via U.S.
Zhu
Street, 3C
NY 10002
Mail)
Hao Chen
818 56th Street, 1st Floor
New York, NY 11220
(via U.S. Mail)
Guo Ren Huang
136 Bowery, Apt. 181
New York, NY 10013
(via U.S. Mail)
You Huang Zhu
125 Lockwood Ave.
Yonkers, NY 10701
(via U.S. Mail)
Jian Hui Lin
52 East Broadway, Rm B35
New York, NY 10002
(via U.S. Mail)
20
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