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Mok v. 21 Mott St. Restaurant Corp.

United States District Court, S.D. New York

January 18, 2017

WILLIAM MOK, individually and on behalf of all other persons similarly situated, Plaintiff,
v.
21 MOTT ST. RESTAURANT CORP. d/b/a HOP KEE RESTAURANT, PETER LEE and PHILIP LEE, jointly and severally, Defendants.

          MEMORANDUM AND ORDER ON SANCTIONS

          P. Kevin Castel United States District Judge

         On February 17, 2016, this Court ordered the parties to file “Final pretrial submissions consisting of voir dire requests, proposed jury instructions, verdict sheet, joint pretrial order and fully submitted in limine motions by April 29, 2016.” (Order of Feb 17, 2016; Doc 32.) This was a generous period of 72 days. The Court scheduled a final pretrial conference for May 5, 2016. In part to give the Court more time to review the anticipated submissions, the Court adjourned the final pretrial conference to June 1, 2016.

         Plaintiff's counsel asked for an extension of the date for the filing of the final pretrial submissions to May 13, 2016, which the Court granted. (Order of April 29, 2016; Doc 36.) Counsel did so aware that the Court required time to review final pretrial submissions. (“In light of the Court's adjournment of the May 5 pretrial conference to June 1, the parties hope this extension will not substantially impact the Court's preparation for that conference.”) (Ltd of B. Sherr, Apr. 27, 2016; Doc 34.) Plaintiff's counsel asked for yet a further adjournment of the date for final pretrial submissions from May 13 to May 23. The Court granted the request. (Order of May 13, 2016; Doc 38.) Thereafter at 9:54 a.m. on June 1, 2016, plaintiff asked for an adjournment of the June 1 conference scheduled for 3 p.m. that day. The Court granted the request and moved the conference to June 28.

         Subsequently, the Court adjourned the conference to July 6, 2016. (Order of June 27, 2016; Doc 40.) On July 5, defendants' counsel wrote to the Court to advise as follows:

“[A]t no time during the past two months has Plaintiff's counsel contacted my office to consult on the preparation of a joint pretrial order, to identify proposed trial exhibits or to discuss the issues identified in your Honor's individual rules. At 6:10 pm this evening, I was surprised to receive in my email box 32 pages of proposed “joint jury instructions" which I had never previously been consulted on or asked to review. Further, no proposed joint pretrial order was annexed to this document.”

(Ltr of M. Minsley, July 5, 2016; Doc 41.)

         A principal purpose of the final pretrial conference is to address the content of the final pretrial submissions, which are critical to the trial of the action. The proposed Joint Pretrial Order outlines the parties' witnesses, exhibits, objections, expected length of trial, damages and host of other issues. The importance of the proposed voir dire, jury instructions and verdict sheet are self-evident. Plaintiff's counsel appeared at the July 6 conference without having filed any final pretrial submissions or having sought a further adjournment to do so. He, thus, thwarted the very purpose of the conference. At the July 6 conference counsel had the opportunity to explain his failures and this is what he said:

MR. SHERR: Your Honor, I'm very contrite in our failings to get these documents in. All I can do is apologize. It's been crushingly busy the last couple weeks. In fact, today I've had-we have two in my office, two joint pretrial orders due today. I worked very hard to try to get it done.”

(July 6, 2016, Tr. 5-6.)

         Thereafter, the Conference concluded as follows:

MR. SHERR: Your Honor, I'm not trying to make excuses. I'm just trying to offer the-essentially anything I can to explain our position.
THE COURT: Well, there's nothing for me to do here. I guess we're adjourned.
MR. MINSLEY: I would just add that the only thing I got from Mr. - from plaintiffs' office was last night around 6:00, I got ...

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