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2W Product Corp. v. Y&P Wholesale

January 5, 2009

2W PRODUCT CORP. AND GUANZHOU LIN, PLAINTIFFS,
v.
Y&P WHOLESALE, INC. AND TOMMY HUANG, DEFENDANTS.



The opinion of the court was delivered by: Go, United States Magistrate Judge

REPORT AND RECOMMENDATION

Plaintiffs 2W Product Corp. and Guanzhou Lin ("plaintiffs") bring this action against defendants Y&P Wholesale, Inc. and Tommy Huang ("defendants") for the "unlawful sale of counterfeit cleaning products bearing trademarks that are unauthorized copies of [p]laintiffs' registered and common law trademarks and trade dress." Complaint (ct. doc. 1) at ¶ 1. Plaintiffs have moved for sanctions for defendants' failure to comply with discovery requests and orders of this Court. See Motion for Sanctions (ct. doc. 21). Specifically, plaintiffs seek an order striking defendants' answer, granting relief for defendants' infringement and awarding attorneys' fees. See id. at 2.

Since I have determined that striking defendants' answer is an appropriate sanction, I am addressing plaintiffs' application in a report and recommendation to the Court for consideration under Rule 72(b) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 72(b); see, e.g., Steele v. Costco Wholesale Corp., No. 03 CV 0713 (NG)(MDG), 2005 WL 1068137, at *2 (E.D.N.Y. May 6, 2005); Zises v. Dept. of Soc. Srvcs., 112 F.R.D. 223, 226 (E.D.N.Y. 1986).

PERTINENT FACTS

Plaintiffs commenced this action on January 31, 2007 against defendants and served the summons and complaint upon defendants on February 8, 2007. See ct. doc. 1; see also Affirmation of Allen Wu, Esq. in Opposition to Defendants' Order to Show Cause (ct. doc. 12) at ¶ 3. After defendants failed to respond, plaintiffs moved for entry of default which the Clerk of the Court entered on May 17, 2007. See Clerk's Entry of Default entered on 05/17/2007. Plaintiffs then filed a notice of motion for default judgment. See ct. doc. 6.

On July 23, 2007, defendants submitted an application for an order directing plaintiffs to show cause why the notation of default should not be vacated, and attached their proposed verified answer. See Order to Show Cause (ct. doc. 10). After unsuccessful attempts to settle this action, Judge Vitaliano subsequently granted defendants' motion to vacate the notation of default, but ordered defendants to pay plaintiffs $500 in costs.*fn1

After the Honorable Judge Vitaliano held a hearing on defendants' motion to vacate the notation of default, I then scheduled an initial conference for December 4, 2007. See scheduling order entered on 11/02/2007. Defendants' counsel failed to appear at the conference and was reached by telephone. See minute entry entered on 12/04/2007. During the conference, I directed the parties to serve automatic disclosures by December 18, 2007 and to complete discovery by May 2, 2008. See id.

In a letter dated April 14, 2008, plaintiffs sought leave to make a motion to strike defendants' answer based on defendants' refusal to appear for their depositions noticed for March 19, 2008. See Letter from Anne Seelig, Esq. dated April 14, 2008 (ct. doc. 19) at 1. Although plaintiffs served notices of depositions on defendants more than a month before the deposition date and attempted to confirm the depositions by letter and in several phone calls to defendants' counsel, defendants' counsel indicated the day before the scheduled depositions that his clients refused to attend any depositions. See id. After plaintiffs served defendants with second notices of depositions for April 3, 2008, defendants' counsel again called the day before the depositions to cancel because his clients would not be attending. See id. Defendants did not file any opposition to plaintiffs' letter request.

At the next conference on May 5, 2008, defendants' counsel appeared 35 minutes late and was sanctioned. See Transcript for Conference on May 5, 2008 ("5/5/08 Tr.") (ct. doc. 23) at 2, 4, 11. The Court noted that this was the third time that defendants' counsel has not timely appeared for a conference. See id. at 2 ("defendant[s] failed to appear at all" for a scheduled settlement conference on October 26, 2007 and on December 4, 2007 "defendant did not appear, but [the Court was] able to reach counsel by telephone for the conference"). I also ordered defendants to appear for their depositions on June 4, 2008 at 10:00 a.m. See minute entry entered on 05/05/2008. Because defendants also failed to provide their automatic disclosures and responses to plaintiffs' discovery requests as previously ordered by this Court during the December 4, 2007 conference, I sanctioned the defendants $100 and directed them to provide the outstanding discovery by May 22, 2008 and extended the discovery deadline to June 16, 2008. See id.; 5/5/08 Tr. at 8. Finally, I warned defendants that "further and more drastic sanctions will be imposed if they fail to comply with the Court's orders or further discovery requests in a prompt and timely fashion." Minute entry entered on 05/05/2008; see also 5/5/08 Tr. at 11.

In a letter dated June 6, 2008, plaintiffs again moved for sanctions for defendants' failure to comply with the Court's May 5, 2008 discovery directives. See ct. doc. 21. Defendants had not only failed to provide plaintiffs with the outstanding discovery, they did not appear for the Court ordered deposition on June 4, 2008 which plaintiffs' counsel, a court reporter and a Mandarin speaking interpreter were prepared to conduct that morning. When plaintiffs' counsel contacted defendants' counsel's office, she was informed that neither defendants nor their attorney, Mr. Tischler, would be attending the deposition. See id. Plaintiffs' counsel states that Mr. Tischler contacted her later that afternoon and admitted that he knew about the Court's order and apologized for failing to appear. See id. at 2.

On June 19, 2008, defendants' counsel sought by order to show cause for leave to withdraw as his firm had "been unable to gain cooperation, effective communication, or requested documents necessary to establish defenses herein for the [d]efendants." See Affirmation of Perry I. Tischler, Esq. in Support of Order to Show Cause at ¶ 2. After this Court ordered defendants' counsel to file the order to show cause electronically and to correct errors in the attorney's affirmation, see order entered on 07/01/2008,*fn2 counsel filed a corrected order to show cause on August 7, 2008. See ct. doc. 24. Opposing the application to withdraw as counsel, see ct. doc. 25, plaintiffs argue they have been prejudiced by the defendants' failure to comply with discovery requests which has delayed this action and caused plaintiffs to incur over $25,000 in legal fees. See id. at ¶¶ 9, 10.

At a hearing held on September 4, 2008, this Court granted defendants' counsel's motion for leave to withdraw. See minute entry entered on 09/05/2008. Defendants neither appeared nor filed any opposition. In an order dated September 5, 2008, the Court, inter alia, stayed this action until October 6, 2008 to give defendants an opportunity to obtain new counsel and ordered the defendants to respond to outstanding discovery requests by October 21, 2008. See order entered on 09/05/2008 (ct. doc. 29) at 2. The Court warned Y&P Wholesale, Inc. that "if [its] new counsel does not file a notice of appearance by October 21, 2008, default may be entered against it[]" and that Tommy Huang will be expected to proceed himself if he is unable to obtain new counsel by the same date. Id. at 2-3. Further, defendants were given one last opportunity to comply with its discovery obligations by October 21, 2008 and were warned that "sanctions will be imposed if they fail to comply with these discovery deadlines in a timely fashion[.]" Id. at 3 (emphasis in original). They were further warned that "[f]ailure to comply with this order may result in entry of defaults against [them]." Id.

On October 21, 2008, plaintiffs renewed their request for sanctions, to strike defendants' answer, and to enter a default judgment against defendants because the defendants had not complied with the Court's September 5, 2008 order. See Letter from Anne Seelig, Esq. ...


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