Tangtiwatanapaibul et al v. Tom & Toon Inc et al
Filing
165
OPINION AND ORDER: For the foregoing reasons, the Report is ADOPTED in its entirety as the opinion of the Court. SO ORDERED. (Signed by Judge Lorna G. Schofield on 9/17/2018) (rro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
SRISUWAN TANGTIWATANAPAIBUL, et al., :
Plaintiffs, :
:
-against:
:
TOM & TOON INC., et al.,
:
Defendants. :
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X
9/17/2018
17 Civ. 00816 (LGS)
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge:
Magistrate Judge Katharine Parker, to whom this matter has been referred, issued an
order (the “Report”), dated July 9, 2018, denying Plaintiffs’ Motion for a Temporary Restraining
Order (“TRO”), Preliminary Injunction and Sanctions. On July 30, 2018, Plaintiffs filed an
objection to the denial of the TRO and preliminary injunction claiming that (1) Judge Parker did
not have authority to issue an order as to Plaintiffs’ motion for a preliminary injunction and (2)
Plaintiffs’ motion was not procedurally deficient. On August 14, 2018, Defendants filed a
declaration in opposition to Plaintiffs’ objections. Because injunctive relief is a dispositive
matter, the court construes the order as a report and recommendation. See 28 U.S.C. §
636(b)(1)(B). For the reasons stated below, the Report is adopted in its entirety.
I.
BACKGROUND
The facts and procedural history relevant to the motion are set out in the record and
summarized here.
a. Factual history
In this Federal Labor Standards Act case, Plaintiff Phouviengsone Sysouvong
(“Sysouvong”), among others, is suing Defendant Roongkant Preechatammarach (“Toon”) for
wage and labor violations that occurred while she was a cook for Tom & Toon, Inc. Sysouvong
was employed at Tom & Toon, Inc. from approximately June 5, 2012, to September 4, 2014.
Sysouvong currently lives in Laos, and Toon lives in the United States.
Plaintiffs allege that Defendant Toon engaged in an intimidation campaign against
Plaintiff Sysouvong to prevent Sysouvong’s involvement in this litigation. Sysouvong alleges
that Toon bribed the Laotian police department to send a letter to Sysouvong to summon her to
the police station and interrogate her to force Sysouvong to “surrender” to Toon. While
Sysouvong was at the police station on March 12, 2018, the police called “Toon’s
representative,” who informed Sysouvong over the phone that Toon wanted to speak to
Sysouvong privately about the case. After Sysouvong informed the representative that she
needed to think about whether to meet Toon privately, the representative told Sysouvong not to
tell her family or attorneys in the United States anything about the call or meeting with the
police. Sysouvong claims that as a result, she did not contact her attorney or family. After the
March 12, 2018, meeting at the police station, the police called Sysouvong on March 13, 14 and
15. During these calls, the police told Sysouvong to stop communicating with her family and
lawyer between March and June 2018.
Defendant Toon submitted a sworn affidavit claiming that she does not speak Lao, has
never been to Laos and never arranged for the police to contact Sysouvong. In the July 9, 2018,
hearing before Judge Parker, Plaintiffs never alleged any direct contact between any individual
Defendant and Sysouvong. Moreover, Plaintiffs agreed that the police have not contacted
Sysouvong since March 2018.
b. Procedural history
On June 26, 2018, Plaintiffs filed an Emergency Motion for Injunctive Relief to prevent
Defendant from “attempting to tamper [with] Plaintiff’s testimony” and for sanctions. In support
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of the motion, Plaintiffs’ counsel submitted Sysouvong’s English-language declaration without
an affidavit or certification by a translator. Sysouvong does not read or speak English. The
declaration concluded: “This document has been translated to me in my native language of Lao,
and I fully comprehend the contents. I declare [ ]under penalty of perjury under the laws of the
United States of America that the foregoing is true and correct.” Plaintiff’s counsel explained in
the hearing before Judge Parker that counsel put together the English-language affidavit and had
it translated to Lao for Sysouvong, who then signed the English-language affidavit.
On June 29, 2018, Defendants objected to the declaration because Plaintiffs failed to
provide an affidavit of a translator. On July 3, 2018, Plaintiffs filed a Certificate of
Interpretation and Translation dated June 28, 2018, which failed to include the date, time and
place of the translation or a certified copy of the document that was translated.
After the parties’ July 9, 2018, hearing, Judge Parker issued an order that construed
Plaintiffs’ Emergency Motion for a TRO, Preliminary Injunction and Sanctions as a motion for
discovery sanctions pursuant to Federal Rule of Civil Procedure 37 and denied the motion in its
entirety. Judge Parker stated:
Plaintiffs’ counsel failed to provide proper certification by a translator of
Plaintiff’s assertions of improper contact by defendants. Moreover, at oral
argument, Plaintiffs’ counsel utterly failed to rebut the sworn affidavit submitted
by Defendants that there has been no contact with the Plaintiff. Plaintiffs[’]
counsel also conceded that there has been no contact between police in Laos and
their client since March and no direct contact between any individual Defendant
and their client at all. In short, Plaintiffs have utterly failed to establish any
factual or legal basis for their motions.
Plaintiffs objected and now seek a preliminary injunction to prevent Toon, and individuals acting
on her behalf, from retaliating against Plaintiff and others participating in this lawsuit.
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II.
STANDARD
a. Review of Magistrate Judge’s Report and Recommendation
Pursuant to 28 U.S.C. § 636(b)(1)(A), “a judge may designate a magistrate judge to hear
and determine any pretrial matter pending before the court, except a motion for injunctive relief
. . . .” For matters of injunctive relief, a magistrate judge may “submit to a judge of the court
proposed findings of fact and recommendations for the disposition, by a judge of the court, of
any motion excepted in [§ 636(b)(1)(A)] . . . .” 28 U.S.C. § 636(b)(1)(B). Judge Parker’s order
denying injunctive relief is construed as a report and recommendation.
A reviewing court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district court
“may adopt those portions of the report to which no ‘specific, written objection’ is made, as long
as the factual and legal bases supporting the findings and conclusions set forth in those sections
are not clearly erroneous or contrary to law.” Adams v. N.Y. State Dep’t of Educ., 855 F. Supp.
2d 205, 206 (S.D.N.Y. 2012) (first quoting Fed. R. Civ. P. 72(b), and then citing Thomas v. Arn,
474 U.S. 140, 149 (1985)).
Under Federal Rule of Civil Procedure 72(b), if a matter is dispositive, the court must
undertake a de novo review of any part of the report to which a specific objection is made on
issues raised before the magistrate judge. See 28 U.S.C. § 636(b)(1); United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); accord Contrera v. Langer, No. 16 Civ. 3851, 2018
WL 3918179, at *1 (S.D.N.Y. Aug. 16, 2018). “Even when exercising de novo review,
however, ‘[t]he district court need not . . . specifically articulate its reasons for rejecting a
party’s objections . . . .’” LaBarbera v. D. & R. Materials Inc., 588 F. Supp. 2d 342, 344
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(E.D.N.Y. 2008) (alterations in original) (quoting Morris v. Local 804, Int’l Bhd. of Teamsters,
167 F. App’x 230, 232 (2d Cir. 2006) (summary order)). As the denial of the TRO and
preliminary injunction is a dispositive matter, the review below is de novo.
b. Injunctive Relief
The purpose of a TRO is “only to preserve the status quo . . . until after the presentment
of further evidence on the merits of the [plaintiff’s] claims.” Mastrio v. Sebelius, 768 F.3d 116,
121 (2d Cir. 2014). “It is well established that in this Circuit the standard for an entry of a TRO
is the same as for a preliminary injunction.” Nat’l Football League Mgmt. Council v. Nat’l
Football League Players Ass’n, No. 17 Civ. 6761, 2017 WL 4685113, at *1 (S.D.N.Y. Oct. 17,
2017).
“A party seeking a preliminary injunction must show (1) irreparable harm; (2) either a
likelihood of success on the merits or both serious questions on the merits and a balance of
hardships decidedly favoring the moving party; and (3) that a preliminary injunction is in the
public interest.” N. Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir.
2018).
III.
DISCUSSION
Based on a de novo review of the record, the Report, Plaintiffs’ Objection and
Defendants’ Response, the Report is adopted in its entirety. Plaintiffs’ motion for a TRO and
preliminary injunctive relief is denied because (1) Plaintiffs did not provide proper certification
to establish that Sysouvong knew what she was signing, and (2) Plaintiffs have not shown
irreparable harm.
First, Plaintiffs failed to provide proper certification by a translator of Sysouvong’s
allegations of Defendants’ improper conduct. An unsworn declaration executed outside of the
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United States may be submitted in place of a sworn declaration or affidavit if, among other
things, the statement is subscribed as true under penalty of perjury in “substantially the following
form: . . . ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the
United States of America that the foregoing is true and correct. Executed on (date).’” 28 U.S.C.
§ 1746. “If the declarant himself does not speak and read English[,] . . . the party relying on his
English-language declaration must also submit documents sufficient to establish that he
understood what he was signing.” Sicom S.P.A. v. TRS Inc., 168 F. Supp. 3d 698, 709 (S.D.N.Y.
2016). A certified translation in the declarant’s native language is sufficient if the declarant read
the translation before he signed the English-language version. See, e.g., Espinoza v. 953 Assocs.
LLC, 280 F.R.D. 113, 118 (S.D.N.Y. 2011). The declarant can also sign the document in his
native language if counsel files the native-language document with a certified English-language
translation. See, e.g., Mattis v. Zheng, No. 05 Civ. 2924, 2006 WL 3155843, at *1 n.1 (S.D.N.Y.
Oct. 27, 2006). Alternatively, the declarant may submit a separate declaration indicating that the
document has been translated, as long as it is clear that the declarant understood the contents of
the document he signed. See, e.g., Cuzco v. Orion Builders, Inc., 477 F. Supp. 2d 628, 634
(S.D.N.Y. 2007).
Plaintiffs did not provide sufficient documentation to establish that Sysouvong knew
what she was signing. Plaintiff does not read English. Her declaration was signed in English
and included the statement, “This document has been translated to me in my native language of
Lao, and I fully comprehend the contents,” but the declaration was not accompanied by any Lao
translation. After Defendants objected to the lack of proper translation or certification, Plaintiffs
submitted a certificate of interpretation and translation dated June 28, 2018, two days after the
date of Plaintiff’s declaration. The certificate does not contain a date or place of execution of the
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translation, and Plaintiff failed to submit any certified translation to supplement the certificate.
Even assuming that the declaration is admissible evidence, Plaintiff has not established
irreparable harm. Plaintiffs conceded at the hearing before Judge Parker that Plaintiff Sysouvong
never had direct contact with Defendant Toon. Plaintiffs additionally agreed that police have not
contacted Sysouvong since March 2018. Plaintiffs have not explained why they waited until
June 26, 2018, to file an Emergency Motion for conduct that allegedly occurred in March. Thus,
Plaintiffs have failed to establish a sufficient factual or legal basis to support a TRO or
preliminary injunction.
IV.
CONCLUSION
For the foregoing reasons, the Report is ADOPTED in its entirety as the opinion of the
Court.
SO ORDERED
Dated: September 17, 2018
New York, New York
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