Steeger v. JMS Cleaning Services LLC

Filing 13

MEMORANDUM OPINION AND ORDER.....ORDERED that plaintiffs request to administratively dismiss the case is denied. A status letter regarding this action is due February 25, 2018. IT IS FURTHER ORDERED that, by Friday February 2, 2018, Richard P. Liebo wtiz shall show cause why he should not be sanctioned pursuant to Rule 11, Fed. R. Civ. P., and this Courts inherent power for the following:1)failure to serve the November 9, 2017 Notice of Pretrial Conference;2)the misrepresentations and omissions in his January 13, 2018 letter; and3)costs needlessly imposed on the defendant. (Signed by Judge Denise L. Cote on 1/26/2018) (gr)

Case 1:17-cv-08013-DLC Document 13 Filed 01/26/18 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
PAUL STEEGER,
:
Plaintiff,
:
:
-v:
:
JMS CLEANING SERVICES LLC,
:
:
Defendant.
:
:
-------------------------------------- X

17cv8013(DLC)
MEMORANDUM OPINION
AND ORDER

DENISE COTE, District Judge:
This action was commenced on October 18, 2017.

This Order

requires plaintiff’s counsel to show cause why he should not be
sanctioned.
The defendant was served through the Secretary of State on
December 12, 2017.

On January 13, 2018, the plaintiff submitted

a letter to the Court requesting an adjournment of the Initial
Pretrial Conference, scheduled for January 19, 2018, stating
that the defendant had not responded to the Complaint and the
plaintiff intended to file a motion for a default judgment.

On

January 16, the Court granted plaintiff’s request, ordering
plaintiff’s motion for entry of default due on January 26, 2018.
The January 13, 2018 letter gave no indication that the
following had occurred.
According to a January 24, 2018 letter from defense
counsel, the following is the history of communication between

Case 1:17-cv-08013-DLC Document 13 Filed 01/26/18 Page 2 of 4

the parties in this action.

Plaintiff first contacted the

defendant in July 2017 by delivering a draft complaint and
demand letter to a P.O. Box for a principal of the defendant.
Soon thereafter, an attorney for the defendant spoke with
plaintiff’s attorney, Richard P. Liebowitz.

That attorney

offered to settle the case, and informed Mr. Liebowitz that the
alleged infringing photograph had been removed from defendant’s
website.

Mr. Liebowitz represented that he would present the

settlement offer to his client for his consideration.

Mr.

Liebowitz did not call back or respond to the defendant’s offer.
Instead, plaintiff filed this action in October.
On November 8, defendant’s current counsel spoke with
plaintiff’s counsel.

In this second call, defendant’s counsel

again attempted to reach a settlement, and also noted that the
defendant had not yet been served.

Although plaintiff’s counsel

promised to respond to this offer of settlement, he did not do
so.
The next day, on November 9, 2017, this Court issued a
Notice of Pretrial Conference, which directed the plaintiff to
“(i) notify all attorneys in this action by serving upon each of
them a copy of this notice and the court’s individual practices
forthwith, and (ii) to file poof of such notice with the Court.”
ECF Dkt. No. 7.

The Notice also instructs counsel that if they

“are unaware of the identity of counsel for any of the parties

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Case 1:17-cv-08013-DLC Document 13 Filed 01/26/18 Page 3 of 4

[they] must forthwith send a copy of the notice and practices to
that party personally.”
Despite speaking directly with defendant’s counsel, Mr.
Liebowitz did not serve the Notice of Pretrial Conference on
either defendant’s counsel or defendant.

Nor did he serve

defendant directly with the Complaint or inquire if defense
counsel would accept service on behalf of the defendant.
Instead, plaintiff served the defendant through the Secretary of
State on December 12, 2017.

ECF Dkt. No. 8.

Service did not

include the Notice of Pretrial Conference, even though the
Notice was issued on November 9.
Defendant’s principal, Mr. Ahmetaj, learned of the Pretrial
Conference through the Electronic Case Filing system (“ECF”),
and appeared at 500 Pearl Street on January 19.

Defendant had

not been informed by plaintiff’s counsel that the Pretrial
Conference had been adjourned, or that plaintiff intended to
file a motion for default judgment.

Defendant’s counsel

submitted a letter to the Court on January 24, outlining the
history of communication between the parties and requested that
the Court order plaintiff to show cause why the plaintiff should
not be required to post security for costs.

ECF Dkt. No. 11.

Also on January 24, about seven hours after the appearance
of defense counsel’s letter on ECF, Mr. Liebowitz filed a letter
stating that the “parties have reached a settlement in

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Case 1:17-cv-08013-DLC Document 13 Filed 01/26/18 Page 4 of 4

principle” and requested that the “Court administratively
dismiss the action with leave to reopen the case by April 1,
2018.”

ECF Dkt. No. 12.

Accordingly, it is hereby

ORDERED that plaintiff’s request to administratively
dismiss the case is denied.

A status letter regarding this

action is due February 25, 2018.
IT IS FURTHER ORDERED that, by Friday February 2, 2018,
Richard P. Liebowtiz shall show cause why he should not be
sanctioned pursuant to Rule 11, Fed. R. Civ. P., and this
Court’s inherent power for the following:
1) failure to serve the November 9, 2017 Notice of Pretrial
Conference;
2) the misrepresentations and omissions in his January 13,
2018 letter; and
3) costs needlessly imposed on the defendant.

Dated:

New York, New York
January 26, 2018
__________________________________
DENISE COTE
United States District Judge

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