United States District Court, S.D. New York
JI LI, JIANHUI WU, BIN ZHANG, DE PING ZHAO, and KAI ZHAO, on behalf of themselves and others similarly situated, Plaintiffs,
ICHIRO RESTAURANT INC., ICHIRO SUSHI INC., NEW ICHIRO SUSHI INC., and ICHIRO ASIAN FUSION, INC., all d/b/a ICHIRO, JIAN PING CHEN, JIN LI, HIU CHEN, and JUHANG WANG a/k/i JAMES WANG, Defendants.
Troy, Esq., Kibum Byun, Esq., Troy Law, PLLC, David Yan,
Esq., Benjamin B. Xue, Esq., Kevin Y. Yam, Esq. Xue &
MEMORANDUM AND ORDER
C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE
plaintiffs in this wage and hour action seek sanctions
pursuant to Rule 37(b)(2) of the Federal Rules of Civil
Procedure against defendant Ichiro Sushi Inc.
("Ichiro") and its attorney, David Yan, for
discovery failures. Mr. Yan opposes the application and moves
to withdraw as counsel for Ichiro. The plaintiffs' motion
is granted in part and denied in part. Mr. Yan's motion
is denied without prejudice.
"a party . . . fails to obey an order to provide or
permit discovery . . . the court where the action is pending
may issue further just orders." Fed.R.Civ.P.
37(b)(2)(A). Those orders may impose harsh sanctions, such as
dismissing the case, precluding evidence, or deeming certain
facts established for the purpose of the litigation.
Fed.R.Civ.P. 37(b)(2)(A). When determining the appropriate
sanction to impose under Rule 37, courts in this Circuit
weigh several factors, including “(1) the willfulness
of acts underlying noncompliance; (2) the efficacy of lesser
sanctions; (3) the duration of noncompliance; and (4) whether
the noncompliant party was on notice that it faced possible
sanctions.” Sentry Insurance A Mutual Co. v. Brand
Management, Inc., 295 F.R.D. 1, 5 (E.D.N.Y. 2013). If a
litigant succeeds on a Rule 37(b)(2) motion, “the court
must order the disobedient party, the attorney advising that
party, or both to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the
failure was substantially justified or other circumstances
make an award of expenses unjust.” Fed.R.Civ.P.
November 22, 2016, I ordered Ichiro to respond to the
plaintiffs' discovery requests by November 30, 2016.
(Order dated Nov. 22, 2016, ¶ 3). All interested parties
agree that it failed to comply. (Plaintiffs' Memorandum
of Law in Support of Motion to Sanction (“Pl.
Memo.”) at 1-2; Declaration of David Yan filed Dec. 27,
2016 (“Yan Decl.”), ¶¶ 2, 6). Sanctions
are therefore in order.
plaintiffs refuse to suggest an appropriate sanction, but
advise against a default judgment because it “could
prejudice [them] by making it less likely that they can build
their merits case against Ichiro  and the remaining
[d]efendants.” (Plaintiffs' Reply to
Defendants' Opposition to Plaintiffs' Motion for Rule
37 Sanctions (“Reply”) at 2-3). But the discovery
deadline has passed and the plaintiffs have not requested an
extension. (Order dated Sept. 29, 2016 (extending discovery
deadline to November 30, 2016); Order dated Nov. 29, 2016
(extending discovery deadline to December 13, 2016, for sole
purpose of deposing Jiau Ping Chen and Ichiro Asian Fusion,
Inc.); Order dated Dec. 20, 2016 (ordering Jiau Ping Chen and
Ichiro Asian Fusion, Inc. to appear for deposition on
December 29, 2016); Order dated Dec. 28, 2016 (extending
deadline for depositions of Jiau Ping Chen and Ichiro Asian
Fusion, Inc. to January 13, 2017, with no further
extensions). Nevertheless, I will not recommend a sanction
that the plaintiffs have disavowed. Nor will I fashion a
different sanction without guidance from the plaintiffs as to
what would be appropriate. I will, however, order the payment
of plaintiffs' reasonable expenses (including
attorneys' fees) caused by Ichiro's failure to
participate in discovery, as required by the
Rule. Fed.R.Civ.P. 37(b)(2)(C).
sanction shall be imposed against Ichiro and not against its
counsel. Mr. Yan asserts that he lost contact with the
principal of Ichiro at the time that the plaintiffs
propounded their discovery and that all subsequent attempts
to contact him have been unsuccessful. (Yan Decl., ¶ 2).
Mr. Yan therefore has neither information nor documents that
would allow him to respond to the discovery requests. (Yan
Decl., ¶¶ 5-6). Moreover, there is no indication
that Mr. Yan advised or otherwise inspired Ichiro to violate
my discovery order.
to Withdraw as Counsel
Civil Rule 1.4 governs withdrawal of attorneys in this
An attorney who has appeared as attorney of record for a
party may be relieved . . . only by order of the Court and
may not withdraw from a case without leave of the Court
granted by order. Such an order may be granted only upon a
showing by affidavit or otherwise of satisfactory reasons for
withdrawal . . . and the posture of the case, including its
position, if any, on the calendar, and whether or not the
attorney is asserting a retaining or charging lien. All
applications to withdraw must be served upon the client and
(unless excused by the Court) upon all other parties.
Civil Rule 1.4. There is no evidence that Mr. Yan has served
(or attempted to serve) his motion on Ichiro or its
principal. (Certificate of Service filed Dec. 27, 2016,
attached to Declaration of David Yan dated Dec. 27, 2016).
Therefore, the motion is denied without prejudice. See,
e.g., Granados v. Traffic Bar and
Restaurant, Inc., No. 13 Civ. 500, 2016 WL 1317988, at
*3 (S.D.N.Y. March 31, 2016) (denying motions to withdraw
without prejudice where “neither application has
complied with the requirement that a request to withdraw must
be served on the attorneys' clients”).
foregoing reasons, the plaintiffs' motion for sanctions
(Docket no. 126) is granted in part and denied in part. David
Yan's motion to be relieved as counsel ...