Rahman et al v. Red Chili Indian Cafe, Inc. et al

Filing 90

ORDER SCHEDULING STATUS CONFERENCE AND DIRECTING DEFENDANTS TO APPEAR ON APRIL 28, 2020: A status and scheduling conference is scheduled before Judge Moses on April 28, 2020, at 10:30 a.m., in Courtroom 20A, 500 Pearl Street, New York, NY 10007. Plaintiffs may appear through counsel. Defendants Mohammed Miah and Noor Islam must appear in person. Defendant Red Chili Indian Caf, Inc. must appear through counsel. The Clerk of Court is directed to mail a copy of this Order to defendants Miah and Islam. (As further set forth in this Order.) (Status Conference set for 4/28/2020 at 10:30 AM in Courtroom 20A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Barbara C. Moses.) (Signed by Magistrate Judge Barbara C. Moses on 2/27/2020) (cf) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

2/27/20

MAHFUJUR RAHMAN, et ano.,
Plaintiffs,
-againstRED CHILI INDIAN CAFE, INC., et al.,
Defendants.

17-CV-5156 (RA) (BCM)
ORDER SCHEDULING STATUS
CONFERENCE AND DIRECTING
DEFENDANTS TO APPEAR ON
APRIL 28, 2020

BARBARA MOSES, United States Magistrate Judge.
A status and scheduling conference is scheduled before Judge Moses on April 28, 2020,
at 10:30 a.m., in Courtroom 20A, 500 Pearl Street, New York, NY 10007. Plaintiffs may appear
through counsel. Defendants Mohammed Miah and Noor Islam must appear in person.
Defendant Red Chili Indian Café, Inc. must appear through counsel.
THE PARTIES ARE DIRECTED TO READ THIS ENTIRE ORDER
CAREFULLY. FAILURE TO COMPLY WITH PRE-CONFERENCE
RESPONSIBILITIES, OR FAILURE TO APPEAR AT THE
CONFERENCE, MAY RESULT IN SEVERE CONSEQUENCES,
INCLUDING MONETARY SANCTIONS AND/OR THE ENTRY OF A
DEFAULT JUDGMENT.
For nearly one year, from February 25, 2019 to February 10, 2020, pro se defendants
Miah and Islam (the "individual defendants") failed to participate in discovery, failed to comply
with Court orders to produce documents and appear for hearings, and took no steps to defend this
Fair Labor Standards Act action. Defendant Red Chili Indian Café, Inc. (Red Chili) has never
appeared or answered.
On July 12, 2019, I issued a Report and Recommendation (Dkt. No. 61) recommending
that the individual defendants' Joint Answer with Affirmative Defenses (Dkt. No. 26) be stricken
and that plaintiffs be directed to move for a default judgment. On December 5, 2019, the Hon.
Ronnie Abrams, United States District Judge, issued an Order (Dkt. No. 66) agreeing with my

recommendation, striking the Joint Answer with Affirmative Defenses, and directing plaintiffs to
move for a default judgment, which they did on January 3, 2020. (Dkt. No. 71.) On January 6,
2020, Judge Abrams issued an Order to Show Cause giving defendants a deadline of February 3,
2020 to serve answering papers and ordering them to show cause, on February 10, 2020, why a
default judgment should not be entered in favor of plaintiffs. (Dkt. No. 80.)
The individual defendants did not serve any answering papers. However, on February 10,
2020, they appeared in person before Judge Abrams, who orally denied plaintiffs' motion for
default judgment as to them "in light of the fact that [they] both [appeared] and indicated a desire
to be heard," without prejudice to renewal of the default motion should Miah or Noor again fail
to appear when required or comply with their other litigation obligations. Feb. 10, 2020 Tr. (Dkt.
No. 89) at 6:19-21. Judge Abrams warned the individual defendants:
[F]rom now on if you do not respond or you do not show up, you do not do
something on time, plaintiff will win this case.
Id. at 6:16-18. Thereafter, in a written Order dated February 26, 2020 (Dkt. No. 88), Judge
Abrams memorialized her oral ruling, and also denied the motion for default judgment as to
defendant Red Chili, in order to give that defendant "one more opportunity to find counsel to
represent it in this action, which it must, given that a corporation may not proceed pro se." Judge
Abrams warned that if it "does not obtain representation and file a responsive pleading by April
27, 2020, Plaintiffs' motion for default judgment against it will be granted." Id.
Judge Moses will hold a status conference on April 28, 2020, at 10:30 a.m., in
Courtroom 20A, 500 Pearl Street, New York, NY 10007. 1 As noted above, defendants Miah

1

During the February 10, 2020 hearing, defendant Miah stated that he would be "out of the
country," due to a family member's sickness, from February 25, 2020 until "like the end of
March or the beginning of April." The Court sets the conference for late April to accommodate
defendant Miah's schedule and to allow defendant Red Chili time to retain counsel.

2

and Islam must appear in person. They should plan to arrive at the courthouse at least 20
minutes prior to the time of the conference, in case there are lines in the security pavilion. If the
individual defendants have retained counsel by the date of the conference, they must still
appear in person, along with their attorney. Defendant Red Chili must appear through
counsel. As Judge Abrams explained in her February 26 Order, "a corporation cannot proceed
pro se." See also Dkt. No. 42, at 6 ("Defendants are reminded that the corporate defendant in this
mat[t]er – Red Chili Indian Café, Inc. – must retain counsel to defend this action. Because it is a
corporation, it cannot proceed without an attorney to represent it."); Dkt. No. 34 ("Defendant
Red Chili Indian Cafe is reminded that 'a corporation may not appear in a lawsuit against it
except through an attorney, and that, where a corporation repeatedly fails to appear by counsel, a
default judgment may be entered against it' pursuant to Federal Rule of Civil Procedure 55.").
Defendants shall take the following steps in advance of the April 28, 2020
conference:
1.

Defendants Miah and Islam shall contact the New York Legal Assistance
Group (NYLAG)'s legal clinic for pro se litigants in the Southern District of New
York,
more
information
about
which
can
be
found
here:
https://www.nylag.org/pro-se-clinic/. NYLAG may be able to provide guidance to
defendants concerning (a) their defense of this action generally, and (b) their
preparation for the April 28, 2020 conference.

2.

Defendants Miah and Islam shall request that the Court reinstate their Joint
Answer and Affirmative Defenses (Dkt. No. 26), which the Court ordered
stricken on December 5, 2019. They may do so by filing a letter-motion through
the Pro Se Intake Unit.

3.

Defendants Miah and Islam shall bring with them to the April 28 conference
the following documents and information:
a. All tax returns and tax filings of the corporate defendant Red Chili
for the years 2015 and 2016, including documents that defendants now
possess and documents that they are able to obtain from the relevant tax
authorities, or from their tax preparer(s) or accountants, between now and
April 28;

3

b. All documents concerning revenues, income, payroll, expenses, taxes
or any other money earned or spent by Red Chili during the years 2015
and 2016, including Red Chili's bank statements and the two notebooks
that defendant Miah described at his deposition;
c. The name(s) and contact information of all third party tax preparer(s)
and accountant(s) used by Red Chili from 2015 to the present; and
d. The telephone numbers, account names, and cellular service providers
associated with all cellphones used by the individual defendants
and/or by Red Chili during the years 2015 and 2016.
Plaintiffs shall bring to the conference any tax information request or authorization forms
(e.g., IRS Forms 4506, 4506-T, or 8821) or other information request or third-party authorization
forms that they believe will be useful in obtaining the documents that defendants were previously
ordered to produce, filled out to the extent possible, and may request an order directing the
individual defendants to execute such forms.
If any party is unable to attend the conference on April 28, 2020, that party must
promptly write to the Court, proposing dates on which he is available for a status conference.
Any unexcused absence by defendant Miah or defendant Islam on April 28, 2020, at 10:30
a.m., may result in severe consequences, including sanctions and/or entry of a default
judgment against the absent defendant.
The Clerk of Court is directed to mail a copy of this Order to defendants Miah and Islam.
Dated: New York, New York
February 27, 2020
SO ORDERED.

________________________________
BARBARA MOSES
United States Magistrate Judge

4