Li et al v. Ichiro Sushi, Inc. et al

Filing 145

ORDER granting in part and denying in part 126 Motion for Sanctions; denying without prejudice to renewal 137 Motion to Withdraw as Attorney. For the foregoing reasons, the plaintiffs' motion for sanctions (Docket no. 126) is granted i n part and denied in part. David Yan's motion to be relieved as counsel (Docket no. 137) is denied without prejudice to renewal. Within fourteen days of the date of this Order, the plaintiffs shall submit an application, including attorney time records, outlining the expenses incurred because of Ichiro Sushi Inc.'s discovery failures. In addition, within fourteen days of the date of this Order, Mr. Yan shall file an application to be relieved as counsel that complies with Local Civil Rule 1.4. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 2/6/2017) Copies Transmitted this Date By Chambers. (anc)

orders may impose harsh sanctions, such as dismissing the case,
precluding evidence, or deeming certain facts established for the
purpose of the litigation.

Fed. R. Civ. P. 37(b)(2)(A).

When

determining the appropriate sanction to impose under Rule 37,
courts in this Circuit weigh several factors, including “(1) the
willfulness of acts underlying noncompliance; (2) the efficacy of
lesser sanctions; (3) the duration of noncompliance; and (4)
whether the noncompliant party was on notice that it faced possible
sanctions.”

Sentry Insurance A Mutual Co. v. Brand Management,

Inc., 295 F.R.D. 1, 5 (E.D.N.Y. 2013).

If a litigant succeeds on

a Rule 37(b)(2) motion, “the court must order the disobedient
party, the attorney advising that party, or both to pay the
reasonable expenses, including attorney’s fees, caused by the
failure, unless the failure was substantially justified or other
circumstances make an award of expenses unjust.”

Fed. R. Civ. P.

37(b)(2)(C).
On November 22, 2016, I ordered Ichiro to respond to the
plaintiffs’ discovery requests by November 30, 2016.
Nov. 22, 2016, ¶ 3).
to comply.

(Order dated

All interested parties agree that it failed

(Plaintiffs’ Memorandum of Law in Support of Motion to

Sanction (“Pl. Memo.”) at 1-2; Declaration of David Yan filed Dec.
27, 2016 (“Yan Decl.”), ¶¶ 2, 6).
order.
2

Sanctions are therefore in

The plaintiffs refuse to suggest an appropriate sanction, but
advise against a default judgment because it “could prejudice
[them] by making it less likely that they can build their merits
case

against

Ichiro

[]

and

the

remaining

[d]efendants.”

(Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion
for Rule 37 Sanctions (“Reply”) at 2-3).

But the discovery

deadline has passed and the plaintiffs have not requested an
extension.
deadline

to

(Order dated Sept. 29, 2016 (extending discovery
November

30,

2016);

Order

dated

Nov.

29,

2016

(extending discovery deadline to December 13, 2016, for sole
purpose of deposing Jiau Ping Chen and Ichiro Asian Fusion, Inc.);
Order dated Dec. 20, 2016 (ordering Jiau Ping Chen and Ichiro Asian
Fusion, Inc. to appear for deposition on December 29, 2016); Order
dated Dec. 28, 2016 (extending deadline for depositions of Jiau
Ping Chen and Ichiro Asian Fusion, Inc. to January 13, 2017, with
no further extensions).

Nevertheless, I will not recommend a

sanction that the plaintiffs have disavowed.1

Nor will I fashion

a different sanction without guidance from the plaintiffs as to
what would be appropriate.

I will, however, order the payment of

plaintiffs’ reasonable expenses (including attorneys’ fees) caused

1

If the plaintiffs desire a default judgment against Ichiro,
they could seek it without recourse to Rule 37 in light of Ichiro’s
failure to answer the Amended Complaint.
3

by Ichiro’s failure to participate in discovery, as required by the
Rule.2

Fed. R. Civ. P. 37(b)(2)(C).

The sanction shall be imposed against Ichiro and not against
its counsel.

Mr. Yan asserts that he lost contact with the

principal of Ichiro at the time that the plaintiffs propounded
their discovery and that all subsequent attempts to contact him
have been unsuccessful.

(Yan Decl., ¶ 2).

Mr. Yan therefore has

neither information nor documents that would allow him to respond
to the discovery requests.

(Yan Decl., ¶¶ 5-6).

Moreover, there

is no indication that Mr. Yan advised or otherwise inspired Ichiro
to violate my discovery order.
Motion to Withdraw as Counsel
Local Civil Rule 1.4 governs withdrawal of attorneys in this
district:
An attorney who has appeared as attorney of record for a
party may be relieved . . . only by order of the Court
and may not withdraw from a case without leave of the
Court granted by order. Such an order may be granted
only upon a showing by affidavit or otherwise of
satisfactory reasons for withdrawal . . . and the posture
of the case, including its position, if any, on the
calendar, and whether or not the attorney is asserting a
retaining or charging lien. All applications to withdraw

2

Mr. Yan’s request to stay these proceedings for thirty days
to allow Ichiro to retain new counsel and respond to plaintiffs’
motion (Yan Decl., ¶ 9) is denied.
First, Ichiro is currently
represented. Second, I cannot imagine that new counsel would be
able to excuse Ichiro’s complete failure to participate in
discovery.
4

must be served upon the client and (unless excused by the
Court) upon all other parties.
Local Civil Rule 1.4.

There is no evidence that Mr. Yan has served

(or attempted to serve) his motion on Ichiro or its principal.
(Certificate

of

Service

filed

Dec.

27,

2016,

Declaration of David Yan dated Dec. 27, 2016).

attached

to

Therefore, the

motion is denied without prejudice. See, e.g., Granados v. Traffic
Bar and Restaurant, Inc., No. 13 Civ. 500, 2016 WL 1317988, at *3
(S.D.N.Y. March 31, 2016) (denying motions to withdraw without
prejudice

where

“neither

application

has

complied

with

the

requirement that a request to withdraw must be served on the
attorneys’ clients”).
Conclusion
For

the

foregoing

reasons,

the

plaintiffs’

motion

for

sanctions (Docket no. 126) is granted in part and denied in part.
David Yan’s motion to be relieved as counsel (Docket no. 137) is
denied without prejudice to renewal.
Within fourteen days of the date of this Order, the plaintiffs
shall submit an application, including attorney time records,
outlining the expenses incurred because of Ichiro Sushi Inc.’s
discovery failures.

In addition, within fourteen days of the date

of this Order, Mr. Yan shall file an application to be relieved as
counsel that complies with Local Civil Rule 1.4.

5