Liberty Holdings (NYC) LLC et al v. Aposta, Inc. et al

Filing 61

MEMORANDUM & ORDER re: 13 MOTION for Vincent J. Quigg to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208-15653492. Motion and supporting papers to be reviewed by Clerk's Office staff. f iled by Aposta, Inc., Gene Hacker. For the reasons detailed above: (1) Mr. Quigg's original request to be admitted pro hac vice [dkt. no. 13] is GRANTED, retroactive to October 3, 2018, see supra n.1; (2) the Clerk of the Court is directed to strike the Answer of Defendants Aposta, Inc. and Gene Hacker dated January 4, 2018 [dkt. no. 26]; (3) a default judgment is entered against Defendants Aposta, Inc. and Gene Hacker; and (4) the Clerk of the Court is directed to revoke Mr. Quigg 's pro hac vice admission in the Southern District of New York. Plaintiffs may initiate an inquest into damages before the undersigned. In addition, Plaintiff may make an additional request for monetary sanctions in the form of attorney's fees against Mr. Quigg and/or Defendants Aposta, Inc. and Gene Hacker from the date of the original order imposing sanctions. SO ORDERED. (Signed by Judge Loretta A. Preska on 5/21/2020) (va) Transmission to Attorney Services/Help Desk.

Case 1:18-cv-05108-LAP Document 61 Filed 05/21/20 Page 1 of 9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LIBERTY HOLDINGS (NYC) LLC, and
DREAMBUILDER INVESTMENTS, LLC,
Plaintiffs,

No. 18 Civ. 5108 (LAP)

-against-

MEMORANDUM & ORDER

APOSTA, INC., and GENE HACKER,,
Defendants.

LORETTA A. PRESKA, Senior United States District Judge:
In an Opinion & Order dated November 13, 2019, this Court
imposed monetary sanctions in the amount of $7,700 on Defendants
and Defendants’ Counsel Vincent J. Quigg (“Mr. Quigg”) for their
repeated,

deliberate

conferences.

(See

failure

Opinion

to

&

appear

Order

at

Imposing

Court-ordered
Sanctions

(the

“November 13 Order), dated November 13, 2019 [dkt. no. 45].)

In

that order, the Court noted that “[s]hould Mr. Quigg and Defendants
fail to comply with [the] Order, the Court will not hesitate to
impose a more drastic sanction. (Id. at 13.) To no one’s surprise,
the Court must now act on that promise.
I.

BACKGROUND

The

Court

need

not

recount

Mr.

Quigg’s

laundry

list

of

transgressions that were the subject of the Court’s November 13
Order.

Given the severity of the sanctions the Court now imposes,

1

Case 1:18-cv-05108-LAP Document 61 Filed 05/21/20 Page 2 of 9

however, it will briefly review the course of events since the
issuance of that order.
On

January

Plaintiffs’

9,

Counsel

2020,

the

Richard

Court

Gora

received

(“Mr.

Gora”)

a

letter

from

requesting

a

conference to discuss Defendants’ failure to comply with the
November 13 Order.

(See Letter Requesting Conference, dated

January 9, 2020 [dkt. no. 46].)

Specifically, Mr. Gora’s letter

noted that Mr. Quigg had failed to pay monetary sanctions, despite
the Court’s order that they were to be paid within 45 days of the
November 13 Order.

(Id. at 1)

In addition, Mr. Gora claimed that

Defendants had completely failed to comply with their discovery
obligations.

(Id.) Mr. Gora accordingly requested that the Court

issue an order to show cause why (i) Mr. Quigg’s pro hac vice
admission should not be revoked, (ii) Defendants’ Answer should
not be stricken, and (iii) a default judgment should not enter
against the Defendants. (Id. at 3.)1 The Court instructed counsel
for the parties to appear for a conference on January 30, 2020, to
discuss the substance of the letter.

(See Scheduling Order, dated

January 9, 2020 [dkt. no. 47].)

1

In reviewing the docket, the Court notes that Mr. Quigg’s pro
hac vice admission was never formally granted. For the purposes
of this order and in light of Mr. Quigg’s filing of documents
during this litigation, Mr. Quigg’s original request to be admitted
pro hac vice [dkt. no. 13] is GRANTED, retroactive to the date on
which it was originally filed (October 3, 2018).
2

Case 1:18-cv-05108-LAP Document 61 Filed 05/21/20 Page 3 of 9

The night before the January 30 conference, an odd thing
happened.

Without further explanation, Mr. Quigg filed a notice

of appearance on behalf of another attorney named Harold J. Pokel
(“Mr. Pokel”).

(See Notice of Appearance, dated January 29, 2020

[dkt. no. 48].)

Notwithstanding the fact that lawyers do not file

notices of appearance for other attorneys, the notice did not
include any of Mr. Pokel’s contact information.

The next morning,

Mr. Pokel--but not Mr. Quigg--appeared at the scheduled conference
between

the

parties.

Mr.

Pokel

explained

to

the

Court

the

backstory behind his appearance:
I sometimes take assignments through an agency called Per
Diem, and that’s what happened yesterday. They called me and
asked me if I would take this and represent on behalf of Mr.
Quigg because he wasn’t going to be able to appear, and I
said that I would do it, but that a notice of appearance had
to be put in, at the very least, by counsel in California.
And I was told this morning--I’ve had several telephone calls
with Per Diem. They told me they have not be retained after
all and they kind of left it to me whether to appear or not
today, and I thought the right thing to do was appear.
(See Transcript of January 30 Conference, dated February 10, 2020
[dkt. no. 51] at 2:20-3:5.)

In addition, Mr. Pokel explained that

he spoke with someone from Mr. Quigg’s office, but he or she did
not provide him with any materials that would allow him to develop
a working knowledge of the case of the substance of the conference.
(Id. at 1:10-17.)

After thanking Mr. Pokel for being mindful of

his professional responsibilities, the Court agreed to issue the

3

Case 1:18-cv-05108-LAP Document 61 Filed 05/21/20 Page 4 of 9

order to show cause requested in Mr. Gora’s January 9 letter. (See
dkt. no 46.)
On February 4, 2020, this Court ordered Defendants’ Counsel
Vincent J. Quigg (“Mr. Quigg”) to show cause why:
(1)

The Answer of Defendants Aposta, Inc. and Gene Hacker,
dated January 4, 2018 [dkt. no. 26] should not be
stricken and a default not be entered against them; and

(2)

Mr. Quigg’s pro
stricken; and

(3)

Additional sanctions should not be imposed upon Mr.
Quigg and/or Defendants Aposta, Inc. and Gene Hacker.

hac

vice

admission

should

not

be

(See Order to Show Cause, dated February 4, 2020 [dkt. no. 50].)
The Court ordered Mr. Quigg to file his response to the order--if
any--by February 25, 2020.

No such response was filed.

The Court originally scheduled a hearing on that Order to
Show Cause for March 9, 2020, (id.), but adjourned the conference
to a later date due to the fact that Mr. Quigg’s representation
that he had an appearance in another matter in California, (dkt.
no. 56.)

The Court only agreed to adjourn the March 9 hearing

after Mr. Quigg filed a sworn affidavit detailing the particulars
of the appearance and after the Court confirmed that appearance
with the California court.

(See dkt. nos. 54, 55, 56.)

In its

order granting the continuance, the Court noted that it “will not
grant any further adjournments for [the] conference.”
dated March 6, 2020 [dkt. no. 36].)

4

(See Order,

Case 1:18-cv-05108-LAP Document 61 Filed 05/21/20 Page 5 of 9

On May 4, 2020, the Court ordered the parties to appear
telephonically on May 19, 2020, for a rescheduled hearing on the
Order to Show Cause.
[dkt. no. 57].)

(See Scheduling Order, dated May 4, 2020

Like clockwork, Mr. Quigg sought his escape on

the evening of May 18.

In a letter to the Court filed after the

close of business on May 18, Mr. Quigg requested a continuance of
the May 19 hearing first on the ground that, due to California’s
COVID-19-related stay at home order, his “office is not operating,”
“all of [his] staff has been sent home,” and he “do[es] not have
access to [his] files.”
no. 58].)

(Quigg Letter, dated May 18, 2020 [dkt.

He also claimed, without any evidence whatsoever, that

he has “been ill and not able to do any work.”

(Id.)

Mr. Quigg

neglected to explain why he could not have alerted the Court to
these issues at an earlier date.
Mr. Gora filed a letter the same evening objecting to any
continuance of the May 19 conference.
18, 2020 [dkt. no. 59].)

(See Gora Letter, dated May

In that letter, Mr. Gora noted that Mr.

Quigg’s assertion that he could not do work due to the COVID-19
shutdown was belied by the fact that he had made numerous filings
in bankruptcy court in California and had an appearance scheduled
in bankruptcy court on the same day as the conference.

(Id.)

Second, with respect to Mr. Quigg’s claim that he was too ill to
work, Mr. Gora argued that Mr. Quigg had provided no evidence of
his supposed condition that the Court could rely on.
5

(Id.)

The

Case 1:18-cv-05108-LAP Document 61 Filed 05/21/20 Page 6 of 9

Court denied Mr. Quigg’s request for a continuance that evening on
grounds substantially similar to those raised in Mr. Gora’s letter.
(See Order, dated May 18, 2020 [dkt. no. 60].)

A copy of that

order was e-mailed to Mr. Gora and Mr. Quigg that evening, and the
order was docketed the morning of May 19.
The Court proceeded with the telephonic conference on the
order to show cause at noon on May 19 with a court reporter present.
Mr. Gora dialed in to the conference promptly at noon, but Mr.
Quigg did not do so.

In an effort to give Mr. Quigg one last

chance to appear, the Court did not go on the record until 12:11
p.m.

He did not appear.

The Court accordingly agreed to enter an

order imposing the sanctions requested in the Order to Show Cause.
II.

DISCUSSION

As discussed in the November 13 Order, Federal Rule of Civil
Procedure 16 empowers this Court, on motion or sua sponte, to
impose sanctions on an attorney or a party who fails to appear at
a scheduling or other pretrial conference,” does not participate
in good faith . . . in the [pretrial] conference, or “fails to
obey a scheduling or other pretrial order.”

See Fed. R. Civ. P.

16(f)(1)(C).

impose

The

Court’s

discretion

to

appropriate

sanctions under Rule 16(f) is very broad; Rule 16(f) equips the
Court with “discretion to impose whatever sanction it feels is
appropriate under the circumstances.”

6

Huebner v. Midland Credit

Case 1:18-cv-05108-LAP Document 61 Filed 05/21/20 Page 7 of 9

Mgmt., Inc., 897 F.3d 42, 53 (2d Cir. 2018)(quoting Advisory
Committee’s notes to 1983 amendment of Fed. R. Civ. P. 16(f)).
As the Court warned in its previous order, such appropriate
sanctions under Rule 16 can be severe and can include “significant
sanctions, including striking pleadings, dismissal, entry of a
default judgment and contempt of court.”

Chen v. Marvel Food

Serv., LLC, No. 15 Civ. 6206 (JMA) (AYS), 2016 WL 6872626, at *2
(E.D.N.Y. Nov. 21, 2016).

(See also November 13 Order at 13

(citing Edwards v. Horn, No. 10 Civ. 6194 (RJS)(JLC), 2012 WL
1292672, at *1-2 (S.D.N.Y. Apr. 13, 2012) and U.S. v. Salten, No.
03 Civ. 578 (JS) (ARL), 2007 WL 1129392, at *1 (E.D.N.Y. Apr. 10,
2007).)

Indeed, the Court specifically noted in the November 13

Order that, given Mr. Quigg’s lengthy track record of flouting
scheduling orders, it had ample grounds to impose a default
judgment.

(See November 13 Order at 12-13.)

At the time, the

Court elected not to impose such a grave sanction out of the hope
that Mr. Quigg and Defendants would take advantage of “a second
chance to participate in this litigation on a good-faith basis.”
(Id. at 13.)
Clearly, the Court’s hope was misplaced.

Since the issuance of

the November 13 Order, Mr. Quigg has remained undeterred.

First,

neither he nor Defendants have paid to Plaintiffs the monetary
sanction originally imposed by the November 13 Order, despite the
Court’s demand that it be paid within 45 days of that order.
7

This

Case 1:18-cv-05108-LAP Document 61 Filed 05/21/20 Page 8 of 9

alone is grounds for imposing additional sanctions.

See Durant v.

Traditional Investments, Ltd., No. 88 Civ. 9048 (PKL), 1992 WL
51557 (S.D.N.Y. March 12, 1992)(imposing additional sanctions
where

defendant

sanctions).

failed

to

pay

previous

award

of

monetary

Second, Mr. Quigg has continued his practice of

seeking continuances at the last minute based on excuses that can
charitably be described as misleading.

Notwithstanding the fact

that misleading the Court could separately serve as justification
for

sanctions

under

Rule

11,2

this

tendency

shows

immense

disrespect for the Court, for the litigants, and for Mr. Quigg’s
opposing counsel.3

Third, and most importantly, Mr. Quigg has

failed to appear for two additional Court-ordered conferences
since the issuance of the November 13 Order.

Given the substance

of that prior order, the Court need not explain why this would
serve as a proper basis for imposing additional sanctions.

2

See, e.g., Macolor v. Libiran, No., 2015 WL 1267337, at *4
(S.D.N.Y. Mar. 18, 2015) (noting that “making a false statement
with an intent to mislead the Court certainly meets [the]
definition” of “subjective bad faith” required for the imposition
of sanctions under Rule 11.).
3 As demonstrated by the incident involving Mr. Pokel and the
January 30 conference, see supra at 2-3, this practice has also
evinced Mr. Quigg’s disrespect for other attorneys admitted to
practice in the Southern District of New York.
That Mr. Quigg
would attempt to pass off his professional responsibilities in
this matter to another attorney without so much as bothering to
speak to him personally or provide him with background information
on the representation is inexcusable.
8

Case 1:18-cv-05108-LAP Document 61 Filed 05/21/20 Page 9 of 9

Accordingly, and given Mr. Quigg’s failure to demonstrate any
reason why such sanctions should not be opposed, the Court elects
to impose the full range of sanctions described in the Court’s
February 4 Order to Show Cause.

(See supra at 3-4 (citing dkt.

no. 50).)
III. CONCLUSION
For the reasons detailed above: (1) Mr. Quigg’s original request
to be admitted pro hac vice [dkt. no. 13] is GRANTED, retroactive
to October 3, 2018, see supra n.1; (2) the Clerk of the Court is
directed to strike the Answer of Defendants Aposta, Inc. and Gene
Hacker dated January 4, 2018 [dkt. no. 26]; (3) a default judgment
is entered against Defendants Aposta, Inc. and Gene Hacker; and
(4) the Clerk of the Court is directed to revoke Mr. Quigg’s pro
hac

vice

admission

Plaintiffs

may

in

initiate

the
an

Southern
inquest

District
into

of

damages

New

York.

before

the

undersigned. In addition, Plaintiff may make an additional request
for monetary sanctions in the form of attorney’s fees against Mr.
Quigg and/or Defendants Aposta, Inc. and Gene Hacker from the date
of the original order imposing sanctions.
SO ORDERED.
Dated:

New York, New York
May 21, 2020
__________________________________
LORETTA A. PRESKA
Senior United States District Judge

9