Mok v. 21 Mott St. Restaurant Corp. et al
MEMORANDUM AND ORDER ON SANCTIONS: The Court will allow the action to proceed based upon the satisfaction of the following required actions, which are imposed as sanctions under Rule 16(f). 1. Plaintiff's counsel shall forthwith (and no later than seven (7) days from this Order) purge his willful non-compliance with this Court's Order of February 17, 2016, as extended through May 23, 2016, by filing all final pretrial submissions. To the extent, this requires the merger of the plaintiff's portion of the Joint Pretrial Order with the defendants, defendants are ordered to cooperate. 2. Plaintiff's counsel shall pay the sum of $3,000 into the Court's registry within seven (7) days to vindicate his violation of the Court's Order. 3. Within fourteen (14) days of plaintiff's counsel's satisfaction of paragraph 1 and 2 above, defendants may submit proof of their attorneys' fees and expenses associated with plai ntiff's counsel's conduct outlined herein. After hearing from plaintiff's counsel, the Court will fix the amount of the reasonable attorneys' fees and costs. Plaintiff's counsel shall pay to defendants' counsel the am ount ordered with seven (7) days. If and when the above three requirements are satisfied, the Court, upon application of the plaintiff, will reschedule the final pretrial conference. BRANDON D. SHERR AND THE LAW OFFICE OF JUSTIN A. ZELLER, P.C. ARE WARNED THAT ANY FAILURE TO COMPLY WITH ANY ORDER OR DIRECTION OF THIS COURT WILL RESULT IN THE DISMISSAL WITH PREJUDICE OF PLAINTIFF'S CLAIMS. (Signed by Judge P. Kevin Castel on 1/18/2017) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WILLIAM MOK, individually and on behalf of
all other persons similarly situated,
ORDER ON SANCTIONS
21 MOTT ST. RESTAURANT CORP. d/b/a
HOP KEE RESTAURANT, PETER LEE and
PHILIP LEE, jointly and severally,
On February 17, 2016, this Court ordered the parties to file “Final pretrial
submissions consisting of voir dire requests, proposed jury instructions, verdict sheet, joint
pretrial order and fully submitted in limine motions by April 29, 2016.” (Order of Feb 17, 2016;
Doc 32.) This was a generous period of 72 days. The Court scheduled a final pretrial
conference for May 5, 2016. In part to give the Court more time to review the anticipated
submissions, the Court adjourned the final pretrial conference to June 1, 2016.
Plaintiff’s counsel asked for an extension of the date for the filing of the final
pretrial submissions to May 13, 2016, which the Court granted. (Order of April 29, 2016; Doc
36.) Counsel did so aware that the Court required time to review final pretrial submissions. (“In
light of the Court’s adjournment of the May 5 pretrial conference to June 1, the parties hope this
extension will not substantially impact the Court’s preparation for that conference.”) (Ltd of B.
Sherr, Apr. 27, 2016; Doc 34.) Plaintiff’s counsel asked for yet a further adjournment of the date
for final pretrial submissions from May 13 to May 23. The Court granted the request. (Order of
May 13, 2016; Doc 38.) Thereafter at 9:54 a.m. on June 1, 2016, plaintiff asked for an
adjournment of the June 1 conference scheduled for 3 p.m. that day. The Court granted the
request and moved the conference to June 28.
Subsequently, the Court adjourned the conference to July 6, 2016. (Order of
June 27, 2016; Doc 40.) On July 5, defendants’ counsel wrote to the Court to advise as
“[A]t no time during the past two months has Plaintiff’s counsel contacted
my office to consult on the preparation of a joint pretrial order, to identify
proposed trial exhibits or to discuss the issues identified in your Honor’s
individual rules. At 6:10 pm this evening, I was surprised to receive in my email box 32 pages of proposed “joint jury instructions" which I had never
previously been consulted on or asked to review. Further, no proposed joint
pretrial order was annexed to this document.”
(Ltr of M. Minsley, July 5, 2016; Doc 41.)
A principal purpose of the final pretrial conference is to address the content of the
final pretrial submissions, which are critical to the trial of the action. The proposed Joint Pretrial
Order outlines the parties’ witnesses, exhibits, objections, expected length of trial, damages and
host of other issues. The importance of the proposed voir dire, jury instructions and verdict sheet
are self-evident. Plaintiff’s counsel appeared at the July 6 conference without having filed any
final pretrial submissions or having sought a further adjournment to do so. He, thus, thwarted
the very purpose of the conference. At the July 6 conference counsel had the opportunity to
explain his failures and this is what he said:
MR. SHERR: Your Honor, I’m very contrite in our failings to get these
documents in. All I can do is apologize. It’s been crushingly busy the last
couple weeks. In fact, today I’ve had—we have two in my office, two
joint pretrial orders due today. I worked very hard to try to get it done.”
(July 6, 2016, Tr. 5-6.)
Thereafter, the Conference concluded as follows:
MR. SHERR: Your Honor, I’m not trying to make excuses. I’m just trying
to offer the—essentially anything I can to explain our position.
THE COURT: Well, there’s nothing for me to do here. I guess we’re
MR. MINSLEY: I would just add that the only thing I got from Mr. –
from plaintiffs’ office was last night around 6:00, I got proposed jury. . .
THE COURT Okay. Thank you all for coming by. You’re in violation of
Following the July 6 final pretrial conference, plaintiff’s counsel did nothing for
nearly five months to cure the violation. By letter dated November 30, 2016, plaintiff’s counsel
coyly suggested that he was waiting for the Court to do something regarding his violation and
asked “the Court to reset a deadline for submitting these papers to provide the defendants time to
respond and the parties time to resolve differences.” (Ltr. of B. Sherr, Nov. 30, 2016; Doc 42.)
On December 5, 2016, the Court issued an order to show cause why the action
ought not be dismissed. (Order of Dec. 5, 2016; Doc 43.) Plaintiff’s counsel responded. (Doc
Undeniably, plaintiff remains in violation of this Court’s Order of February 17,
2016, with the original time of compliance extended by subsequent Orders through May 23,
2016. Despite plaintiff’s claim of inadvertence, plaintiff’s counsel has failed to demonstrate
what it was that was inadvertent in not seeking an adjournment of the time for final pretrial
submissions, as he had done previously. If plaintiff’s counsel somehow forgot that an
adjournment of the time for final pretrial submissions was necessary (despite having previously
requested such adjournments), he certainly knew that he had submitted none prior to the final
pretrial conference on July 6. This is not Mr. Sherr’s first time missing a deadline in a Fair
Labor Standards Act case; his failure to file a motion for conditional certification by a Courtordered deadline resulted in forfeiture of his client’s right to do so. Bray v. Always Ready &
Reliable, Inc., 11 cv 6830 (JMF)(Order of Dec. 4, 2012; Doc 41.)
“[D]ismissal of an action under Rule 41(b) is considered a “‘harsh remedy’ that
should ‘be utilized only in extreme situations.’” Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir.
2009) (quoting Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)). In weighing
dismissal as a remedy the Court should consider whether: “(1) the plaintiff's failure to prosecute
caused a delay of significant duration; (2) plaintiff was given notice that further delay would
result in dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need to
alleviate court calendar congestion was carefully balanced against plaintiff's right to an
opportunity for a day in court; and (5) . . . the efficacy of lesser sanctions.” U.S. ex rel. Drake v.
Norden Systems, Inc., 375 F.3d 248, 254 (2d Cir. 2004). “[N]one of the five factors is separately
dispositive . . . .” LeSane v. Hall's Security Analyst, Inc., 239 F.3d 206, 210 (2d Cir. 2001).
Because of the lack of a warning and the possibility that lesser sanctions would be
efficacious, the Court will not dismiss the action. The fault here appears to be that of plaintiff’s
counsel and there is no indication that William Mok, the plaintiff, participated or acquiesced in
counsel’s failures. Plaintiff’s counsel suggests that “[t]he Court consider ordering the payment
of reasonable expenses of the other parties for the July 7 [sic] pretrial conference.” (Sherr
Affirmation, ¶8.) Certainly, paying all reasonable attorneys’ fees and expenses associated with
plaintiff’s failure to comply with this Court order would go some distance in making the
defendants whole but it would not (1) vindicate an unjustified violation of the Court’s Order; or
(2) cure the plaintiff’s on-going non-compliance. While plaintiff’s counsel states that he stands
ready to comply, he has not complied; he remains in violation.
Rule 16(f)(1), Fed. R. Civ. P., permits a court to issue “any just orders” if a party
or its attorney: “(B) is substantially unprepared to participate. . . in the conference; or (C) fails to
obey a scheduling or other pretrial order.” Here, Mr. Sherr was substantially unprepared to
participate in the July 6 conference because he had failed to obey the Order requiring the filing
of final pretrial submissions. Rule 16(f)(2) provides that “[i]nstead of or in addition to any other
sanction the court must order the party, its attorney or both to pay the reasonable expenses” of
the other side unless the conduct was substantially justified or other circumstances make an
award of expenses unjust. Mr. Sherr’s conduct was not substantially justified and no other
circumstance makes an award of expenses unjust.
The Court will allow the action to proceed based upon the satisfaction of the
following required actions, which are imposed as sanctions under Rule 16(f).
1. Plaintiff’s counsel shall forthwith (and no later than seven (7) days from this
Order) purge his willful non-compliance with this Court’s Order of February
17, 2016, as extended through May 23, 2016, by filing all final pretrial
submissions. To the extent, this requires the merger of the plaintiff’s portion
of the Joint Pretrial Order with the defendants, defendants are ordered to
2. Plaintiff’s counsel shall pay the sum of $3,000 into the Court’s registry within
seven (7) days to vindicate his violation of the Court’s Order.
3. Within fourteen (14) days of plaintiff’s counsel’s satisfaction of paragraph 1
and 2 above, defendants may submit proof of their attorneys’ fees and
expenses associated with plaintiff’s counsel’s conduct outlined herein. After
hearing from plaintiff’s counsel, the Court will fix the amount of the
reasonable attorneys’ fees and costs. Plaintiff’s counsel shall pay to
defendants’ counsel the amount ordered with seven (7) days.
If and when the above three requirements are satisfied, the Court, upon
application of the plaintiff, will reschedule the final pretrial conference.
BRANDON D. SHERR AND THE LAW OFFICE OF JUSTIN A. ZELLER,
P.C. ARE WARNED THAT ANY FAILURE TO COMPLY WITH ANY ORDER OR
DIRECTION OF THIS COURT WILL RESULT IN THE DISMISSAL WITH
PREJUDICE OF PLAINTIFF’S CLAIMS.
Dated: New York, New York
January 18, 2017
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