Qiu et al v. Shanghai Cuisine, Inc. et al

Filing 88

ORDER granting 86 Letter Motion to Compel; granting 86 Letter Motion for Extension of Time. The motions to compel and for an extension of time to serve are GRANTED. Plaintiffs are directed to serve Defendants with both versions of the complaint by July 31, 2020. ( Service due by 7/31/2020.) (Signed by Judge Edgardo Ramos on 6/26/2020) (kv)

Case 1:18-cv-05448-ER Document 88 Filed 06/26/20 Page 1 of 3

TROY LAW, PLLC
ATTORNEYS / COUNSELORS AT LAW
Tel: [phone] [e-mail] Fax: [phone]
41-25 Kissena Boulevard, Suite 103, Flushing, NY 11355
June 24, 2020
The motions to compel and for an extension of time to serve are
Via ECF
GRANTED. Plaintiffs are directed to serve Defendants with both
Hon. Edgardo Ramos, U.S.D.J. versions of the complaint by July 31, 2020.
United States District Court
Southern District of New York
40 Foley Square
June 26, 2020
New York, NY 10007
Re:

Motion: 1) to Compel Chenwen Ho and Na Sun to Provide their Residences
and Domiciles Pursuant to Local Civil Rule 26.1; and
2) for an Extension to July 31, 2020 of Time Serve Chenwen Ho and Na Sun
Qiu et al v. Shanghai Cuisine, Inc. et al, No. 18-cv-05448 (ER), (S.D.N.Y.)

Your Honor,
We represent the Plaintiffs in the above referenced matter. We write respectfully 1) to ask
that the Court compel Chenwen Ho and Na Sun to provide their residences and domiciles pursuant
to Local Civil Rule 26.1; and 2) for an extension of time to serve Chenwen Ho and Na Sun from
June 4, 2020 to July 31, 2020. This is Plaintiffs’ second request for an extension of time to serve.
Plaintiffs’ first request for an extension of time to serve, made on June 3, 2020 for an extension to
July 4, 2020 of time to serve, has not been either opposed by Defendants or addressed by the Court.
Because Plaintiffs recently amended their Complaint, we also seek clarification as to
whether to serve the original Compliant, the Amended Complaint, or both on Chenwen Ho and Na
Sun.
Background
Attorneys for Chenwen Ho and Na Sun appeared on December 12, 2019 to show cause
why default judgment should not be entered against them. Chenwen Ho and Na Sun moved to
dismiss the Complaint against them on January 13, 2020 for want of sufficient service of process. 1
On January 14, 2020, Plaintiffs served Chenwen Ho and Na Sun a demand for residences and
domiciles pursuant to Local Civil Rule 26.1 by first-class mail and email to their attorneys of
record. They did not respond within the 7-day period prescribed by the Rule, and accordingly,
Plaintiffs moved on January 27, 2020 for a conference to discuss, inter alia, Plaintiffs’
contemplated motion to compel this information. See Dkt. No. 74.

1

In furtherance of his motion, Chenwen Ho named the Hudson Club at 21 South End Avenue, New York, NY 10280
as his actual place of business in May 2018. See Dkt. No. 67-1 ¶ 7. However, the Hudson Club has been, is, and as a
service business will until the implementation of Phase 3 reopening in Manhattan remain closed due to COVID-19. It
is not clear from Chenwen Ho’s affidavit that the Hudson Club is still his actual place of business, and due to the
closure, site visits have not been able to verify whether it is still his actual place of business. The Hudson Club’s
telephone number is not listed online, so we were unable to call it to verify whether Chenwen Ho still worked there.
Accordingly, we have not attempted to serve Chenwen Ho at the Hudson Club, as it would represent a futile exercise.

Case 1:18-cv-05448-ER Document 88 Filed 06/26/20 Page 2 of 3
Hon. Edgardo Ramos, U.S.D.J.
Qiu et al v. Shanghai Cuisine, Inc. et al, No. 18-cv-05448 (ER), (S.D.N.Y.)
Page 2 of 3
At the said conference, on February 14, 2020, the Court stayed discovery pending
resolution of Defendants’ motion to dismiss. That motion was denied on May 4, 2020, and
Plaintiffs were given leave to amend their Complaint and to serve Chenwen Ho and Na Sun by
June 4, 2020.
In furtherance of our efforts to serve Chenwen Ho and Na Sun, and in light of the discovery
stay having been lifted, we emailed Defense counsel four times between May 29, 2020 and June
2, 2020, reminding counsel of Defendants’ obligations under Rule 26.1, and also proposing that
counsel accept service on behalf of their clients in order to minimize time and cost. On July 2,
2020, Defense counsel refused point-blank either to accept service or to disclose Chenwen Ho’s
or Na Sun’s addresses. See Dkt. No. 81-1. Accordingly, Plaintiffs moved to compel production of
Chenwen Ho’s and Na Sun’s addresses on June 3, 2020, and for an extension to July 4, 2020 of
time to serve them. See Dkt. No. 81. The Court directed Defendants to respond by June 8, 2020.
See Dkt. No. 82. Defendants did not respond, and have not requested an extension of time to
respond. However, no Order issued from this motion.
Pursuant to the Court’s Order of May 4, 2020, Plaintiffs filed an Amended Complaint on
June 4, 2020 and re-filed on June 11, 2020. See Dkt. Nos. 83, 84.
Plaintiffs’ Motion to Compel Should Be Granted as Unopposed
Local Civil Rule 26.1 provides that “a party shall furnish to any other party, within seven
(7) days after a demand, a verified statement setting forth, if the responding party is a natural
person, that party’s residence and domicile, and any state or other jurisdiction of which that party
is a citizen for purposes of 28 U.S.C. § 1332.” L. Civ. R. 26.1, 26.1(a). Defendants have submitted
no valid objections to complying with this demand, either to us or to the Court.
Unopposed motions to compel are typically granted. See, e.g., Gesualdi v. Interstate
Payroll Co., No. 14-cv-06780 (ADS) (SIL), 2016 U.S. Dist. LEXIS 21209, at *4 (E.D.N.Y. Feb.
22, 2016) (“In any event, by failing to oppose the instant motion, Defendant fails to satisfy its
burden of showing why the discovery sought should be denied.”); Aetna Life Ins. Co. v. Licht, No.
03-cv-06764 (PKL), 2005 U.S. Dist. LEXIS 1119, at *2 (S.D.N.Y. Jan. 27, 2005) (granting motion
to compel where “Defendants have filed no opposition to plaintiff’s motion, though defendants’
time to oppose has passed; nor has the Court received any motion for protective order or an
extension of time to respond.”); Hynes v. Kirkpatrick, No. 05-cv-00380 (FJS) (GHL), at *4–5
(N.D.N.Y. Mar. 21, 2007) (“By failing to file… a memorandum of law, Defendants have
‘consented’ to Plaintiff’s motion.”); see also Peyser v. Kirshbaum, No. 12-cv-02857 (KBF), 2012
U.S. Dist. LEXIS 176873, at *3–4 (S.D.N.Y. Dec. 11, 2012) (“The Court advised that if
respondents failed to oppose such motion [to compel arbitration] on or before September 3, 2012,
the Court would deem petitioner’s motion unopposed.… Respondents… did not file an opposition
prior to the September 3 deadline. As such the Court treats petitioner’s motion as unopposed.”).
Here, as in Peyser, supra, Defendants were given a deadline by which to respond, and
before which no response was filed. As of this writing, no response has been filed. Therefore, the
Court should grant Plaintiffs’ motion to compel Defendants’ production of Chenwen Ho’s and Na
Sun’s residences and domiciles pursuant to Local Civil Rule 26.1, within 7 days of the Order.

Case 1:18-cv-05448-ER Document 88 Filed 06/26/20 Page 3 of 3
Hon. Edgardo Ramos, U.S.D.J.
Qiu et al v. Shanghai Cuisine, Inc. et al, No. 18-cv-05448 (ER), (S.D.N.Y.)
Page 3 of 3
Plaintiffs’ Motion for an Extension of Time to Serve Should Be Granted
As the Court noted in its May 4, 2020 Order, “dismissal is not required if Plaintiffs can
show ‘good cause’ why service was not made.” Dkt. No. 80 (quoting Fed. R. Civ. P. 4(m)). “In
determining whether ‘good cause’ exists for the failure of proper service, courts typically consider
‘the plaintiff’s diligence and the prejudice to the defendant.’” Id. (quoting Gordon v. Hunt, 116
F.R.D. 313, 319–21 (S.D.N.Y. 1987). Here, Plaintiffs have diligently and continuously sought
production of Chenwen Ho’s and Na Sun’s residences and domiciles since January 14, 2020, more
than five months ago. We have sought it through serving demands on Defendants, reminding
Defendants of their obligations, and moving the Court twice to compel production. Further,
Defendants cannot claim that they would be prejudiced by an extension, as it was necessitated by
their own failure to respond to a discovery demand. Plaintiffs seek an extension to July 31, 2020,
approximately 5 weeks from this filing. This time frame is appropriate because it would allows the
Court time to rule on Plaintiffs’ motion to compel, Defendants time to comply, and to actually
effectuate the service.
Plaintiff Seeks Clarification as to Which Complaint to Serve
At the time the May 4, 2020 Order was issued, the original Complaint was the operative
complaint in this matter. The May 4, 2020 Order clearly contemplated that the original Complaint
be served on Chenwen Ho and Na Sun, because it Ordered Plaintiffs to file proof of service on
June 4, 2020, which was also the deadline to file an Amended Complaint. However, as of this
writing, the Amended Complaint is the operative complaint. As such, we are compelled to consider
whether to serve the original Complaint, the Amended Complaint, or both out of an abundance of
caution. We would appreciate any guidance the Court gives on this matter.
For all the reasons stated above, Defendants Chenwen Ho and Na Sun should be compelled
to disclose their residences and domiciles, and Plaintiffs should be granted an extension until July
31, 2020 to serve them.
We thank the Court for its time and consideration in this matter.
Respectfully Submitted,
/s/ Aaron B. Schweitzer
Aaron B. Schweitzer
cc:

via ECF
all counsel of record