Zhao et al v. L & K Restaurant, Inc. et al

Filing 53

ORDER denying 52 Letter Motion for Local Rule 37.2 Conference. Pursuant to Rule 2(B) of the Court's Individual Practices, parties must (1) meet and confer and then (2) jointly call Chambers to schedule a teleconference regarding any discovery dispute that the parties have been unable to resolve without Court intervention. Because Plaintiff's counsel failed to comply with the Court's Individual Practices, counsel will not be eligible for any fees relating to the drafting of this letter. The parties are directed to meet and confer in person regarding this dispute and, if Court intervention is still required, then the parties should jointly call Chambers on Thursday, October 29, 2015 at 4:00 p.m. (Signed by Judge Valerie E. Caproni on 10/26/2015) (spo)

MEMO ENDORSED

TROY LAW, PLLC

ATTORNEYS / COUNSELORS AT LAW
Tel: [phone] [e-mail] Fax: [phone]
41-25 Kissena Blvd., Suite 119, Flushing, New York 11355

Via ECF
The Honorable Valerie Caproni
United States District Court
Southern District of New York
40 Foley Square
Room 240
New York, New York 10007

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 10/26/2015

RE: Plaintiff’s Request for Rule 37.2 Informal Conference Regarding
Defendants’ Deficient Responses to First Set of Interrogatory and
Production of Document Requests and Compel Defendants to Produce
“John” Zhu for Defendants’ Depositions
Zhao et al v. L&K Restaurant, Inc. et al, 14cv6103 (VEC)
October 23, 2015
Dear Hon. Judge Caproni:
This office represents the Plaintiffs in the above referenced matter. In accordance with
Local Rule 37.2, Plaintiffs respectfully request your Honor’s assistance to facilitate the curing of
Defendants deficient discovery responses and compel Defendants to produce “John” Zhu to be
deposed as detailed below.
Plaintiffs filed the Complaint in the Southern District of New York on August 5, 2014.
See Docket No. 1 On September 4, 2014, the parties entered into a Stipulation to extend the time
for Defendants to file an Answer to September 25, 2014. After extensive motion practice,
Defendants filed an answer to the complaint. See Docket No. 35. The parties sent a proposed
case management plan and scheduling order on June 19, 2015. See Docket No. 42. The parties’
case management plan and scheduling order was so ordered on June 26, 2015. See Docket No
44. All fact discovery was to be completed no later than August 26, 2015. On August 24, 2015,
both parties filed a joint letter requesting to extend the completion of discovery. See Docket No.
50. The next day, the Court granted the joint request and set a deadline for the completion of fact
discovery to November 5, 2015, while scheduling a status conference for November 6, 2015. See
Docket No. 51.
I.

Deposition of “John” Zhu

Plaintiffs filed their complaint on August 5, 2014, listing “John” Zhu as an individual
Defendant. In the complaint, Plaintiffs allege, inter alia, that “John” Zhu is the owner, officer,
director, and/or managing agent of L & K Restaurant, Inc., d/b/a Asian Wok at 88 Fulton Street,
New York, NY 10038, who had hiring and firing power. See Docket No. 1 ¶¶ 15-17. In fact,
Plaintiffs alleged “John” Zhu fired Plaintiff Ying Jie Zhao. See Docket No. 1 ¶ 18.

It is clear from the Defendant counsel’s filed documents including but not limited to the
Notice of Appearance and Motion to Dismiss, Defendant’s counsel represent named Defendant
“John” Zhu. See Docket Nos. 12-13. In fact, Defendants responded to all of Plaintiffs’ discovery
requests on behalf of “John” Zhu. Through the discovery process and Plaintiffs’ Motion for
Conditional Class Certification, Defendants supplied an employee list of individuals who
performed work as the restaurant Defendants listed Lishuang Zhu’s position as “head chef.”
Plaintiff Ying Jie Zhao recollects that he was fired by a head chef by the last name “Zhu.” As a
result, Plaintiffs highly believe that Lishuang Zhu on that list is “John” Zhu.
On August 7, 2015, Plaintiffs served Defendants with a notice of deposition of “John”
Zhu. In effort to arrange deposition, Plaintiffs contacted Defendants’ counsel, requesting to
confirm the presence for deposition of Mr. Lishang Zhu on October 13, 2015. Defendants’
counsel did not provide any response. We renewed our request on October 22, 2015 and have
been told by Defendants’ counsel that they could not confirm the presence of Mr. Lishuang Zhu
aka “John” Zhu, because they were not representing him and he would not be present at
scheduled day for depositions, October 26, 2015. Plaintiffs do not find that answer acceptable.
Plaintiffs have a right to depose Mr. Zhu. Plaintiffs are now seeking Court intervention to have
Defendants produce “John” Zhu a/k/a Lishuang Zhu for Defendants’ depositions.
II.

Defendants’ Discovery Responses Deficiencies

On July 14, 2015, Plaintiffs served Defendants with their discovery requests, which
included Plaintiffs first set of interrogatories, first request for document production and
Plaintiffs’ Rule 26 (a) Disclosures. Defendants sent their discovery responses on August 7, 2015.
However, Plaintiffs did not find Defendants’ responses adequate, and sent a deficiency letter
regarding Defendants responses to Plaintiffs’ first set of discovery requests on October 20, 2015.
Defendants’ sent their amended responses to Plaintiffs on October 23, 2015. Plaintiffs are still
not satisfied with the adequacy of Defendants’ responses. As a result, Plaintiffs had to cancel the
scheduled depositions and seek court intervention.
For the reasons stated above, Plaintiffs respectfully ask for the Court’s intervention in
facilitating the curing of these deficiencies and refusal to produce Defendant “John” Zhu for
depositions. Plaintiffs respectfully request a Local Rule 37.2 informal conference to address the
current discovery dispute between the parties. Thank you for your time and consideration in this
matter.
Respectfully submitted,
TROY LAW, PLLC
/s/John Troy
John Troy,
Attorney for Plaintiff

CC:

Via ECF
Jian Hang, Esq
Kevin Vorhis, Esq

Case 1:14-cv-06103-VEC Document 52 Filed 10/23/15 Page 3 of 3

William Michael Brown, Esq.
Marisol Santos, Esq.
Attorneys for Defendants

Pursuant to Rule 2(B) of the Court's Individual Practices,
parties must (1) meet and confer and then (2) jointly call
Chambers to schedule a teleconference regarding any
discovery dispute that the parties have been unable to
resolve without Court intervention. Because Plaintiff's
counsel failed to comply with the Court's Individual Practices,
counsel will not be eligible for any fees relating to the drafting
of this letter. The parties are directed to meet and confer in
person regarding this dispute and, if Court intervention is still
required, then the parties should jointly call Chambers on
Thursday, October 29, 2015 at 4:00 p.m.
SO ORDERED.

HON. VALERIE CAPRONI
UNITED STATES DISTRICT JUDGE
Date: 10/26/2015