Kwoka et al v. DAngelo

Filing 110

ORDER dismissing 109 Letter Motion to Compel. Defendant's counterclaims are hereby DISMISSED without prejudice. In light of that dismissal, defendant's counsel and plaintiff's counsel are ordered to meet and confer with each other in person this week to resolve any remaining discovery issues. If the discussion goes off the rails, the parties may jointly call the Court and the Court will decide the issues, and will assess attorney's fees if either party has acted in an unreasonable manner. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 109. SO ORDERED. (Signed by Judge Arun Subramanian on 3/10/2025) (ar)

Case 1:24-cv-02246-AS

Document 110

Filed 03/10/25

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Arun Subramanian, US District Judge
United States District Court
Southern District of New York
500 Pearl Street, Courtroom 15A
New York, NY 10007
[phone]
[e-mail].g
March 10, 2025
Via ECF
Re: 1:24-CV-02246 Kwoka, et al v. D’Angelo
Dear Honorable Judge Subramanian,
We write to make a motion for dual relief:
1. To Compel Plaintiffs to produce the discovery duly demanded in
September, 2024, more than 6 months ago; and
2. Pursuant to FRCP 42(a), for permission to withdraw our counterclaims.
I have reached out to Mr. Gebski to see if he would consent to any of the
relief I am requesting herein. He would not.
MOTION TO COMPEL
Mr. Gebski has presented a myriad of excuses to explain why he hasn’t
provided the discovery demanded. First Mr. Kwoka had just returned from a threemonth trip; then Mr. Kwoka’s wife had surgery on her elbow; then Mr. Gebski was
on an “unexpected” trial and needed delay for that; then there was flood in Mr.
Gebski’s apartment; then Mr. Gebski was moving his family cross-country and all
of his files were boxed up; and then Mr. Gebski was going to quit his representation,
and obtained a delay while the Plaintiffs obtained new counsel.
I told Mr. Gebski that he could pick any production date that he was
comfortable with, as long as he stuck to it. He selected November 12, 2024; and of
course, he did not stick to it.

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From November 12, 2024, until mid-December, Mr. Gebski made a halfdozen or more requests for additional extensions of “just over the weekend,” or
“just two more days,” and on and on. But the promised productions never arrived.

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The only thing that did arrive was a dump of 15,000 documents, which
Gebski acknowledged were “mostly non-responsive,” which were in no way crossreferenced to any of our Demands.
On December 10, 2024, I finally made a motion to Compel. When Mr.
Gebski and I appeared in Court, Mr. Gebski was given 60 more days to produce the
documents that were then already 60 days past due. Mr. Gebski produced nothing
during this 60 day extension.
Mr. Gebski has continuously missed discovery deadlines, and he has never
been made to suffer any consequence for this.
Mr. Gebski’s latest excuse is that the subpoenas we served have “shaken
business relationships” with “uninvolved customers.” This is both untrue, and a
complete red herring. None of the subpoenas we served were on customers of Esme
Designs. The subpoenas that we served were on competitors of Esme Designs; and
were all companies where Kwoka has worked, or is currently working. Moreover,
the subpoenas were served after Mr. Gebski had already missed the February
extension date for his time to respond to our discovery demands.
Defendant’s demands, for the most part, were made to support her
counterclaims. If Your Honor would permit us to withdraw our counterclaims, we
could pare down our demands to just a small handful; to only those that would aid
in our defense to Plaintiffs’ complaint against us. For example. Plaintiff has alleged
that Defendant has violated the parties’ oral operating agreement. We have asked
Plaintiff to provide all evidence that such an oral agreement actually exists.
MOTION TO WITHDRAW COUNTERCLAIMS
Defendant asks to withdraw her counter-complaint for several reasons:
1. In the interest of simplifying this case;
2. To aid in resolving the existing discovery dispute by significantly reducing
the amount of discovery that would be needed; and

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3. To avoid duplicate litigation with the proceeding that is pending in Supreme
Court, New York County, Esme Designs v. Kwoka, et al.
Withdrawing Defendant’s counterclaims would not cause any prejudice to
the Plaintiffs. The litigation on the counterclaims is at a very early stage. Plaintiff
has not provided any discovery on any of the counterclaims, nor has he made any
motions against the counterclaims. No significant resources have been spent on the
counterclaims. [And the mere prospect that any of the claims might appear in a later
lawsuit, does not qualify as sufficient prejudice to warrant denial of a motion to
dismiss without prejudice. Durham v Fla. E. Coast Ry. Co., 385 f2d, 366, 5th Cir,
1967; see also, Thorton v Young, 2022 U.S. Dist. Lexis 193607, SDNY, 2022.]

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WHEREFORE, Defendant pleads with Your Honor, to issue an Order
containing the following relief:
1. Permitting Defendant to withdraw, without prejudice, all counterclaims;
2. If this permission is granted, then in that event, to pare down Defendant’s
discovery demands to the 6 items attached hereto as Exhibit A;
3. Providing that Plaintiff must completely comply with Defendant's pared
down discovery demands no later than March 31, 2025, and that if he should
fail to do so, FOR ANY REASON, that he be required to reimburse
Defendant for all of her legal fees incurred in this action to date; and that
Defendant have a negative inference on these issues in any subsequent
motion for Summary judgment, or trial; and
4. For such other and further relief as this Court deems just and proper.
Defendant's counterclaims are hereby DISMISSED without
prejudice. In light of that dismissal, defendant's counsel and
plaintiff's counsel are ordered to meet and confer with each
other in person this week to resolve any remaining discovery
issues. If the discussion goes off the rails, the parties may jointly
call the Court and the Court will decide the issues, and will
assess attorney's fees if either party has acted in an unreasonable
manner. The Clerk of Court is respectfully directed to
terminate the motion at ECF No. 109.
SO ORDERED.

Respectfully submitted,
__
_______
Elaine, Platt, Esq., Of Counsel
Jones Law Firm, P.C.
5 Tudor City Place
New York, NY 10017
Office: [phone]
Direct: [phone]
[e-mail]
Attorneys for Defendant

Arun Subramanian, U.S.D.J.
Date: March 10, 2025

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EXHIBIT A
Defendant’s Revised Discovery Demands,
Addressed only to the Complaint

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1. How do you compute your more than $3 million in claimed damages? Provide
any evidence to substantiate your claim.
2. Provide any evidence that proves the existence of an oral operating agreement
between the parties for Esme Designs.
3. Did Mark Kwoka perform any services for any companies in the bridal industry
(other than Esme Designs), at any time after July of 2019? If so, identify which
companies, and the nature of the services.
4. Please provide all documents that prove that the booth rental fee at the National
Bridal Market trade show, held in Chicago on March 17, 2024, was paid for by
Esme Designs, LLC.
5. Please provide all documents that evidence that the parties “verbally agreed” to
split the rental space “75% Mr. Kwoka and 25% Ms. D’Angelo.”
6. Please provide all documents showing when, where, and how the “Shop Esme”
URL was obtained.

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