United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
G. KOELTL, District Judge
August 3, 2016, the plaintiff brought this action against the
individual defendant Muhammad Zishan and the corporate
defendant Zishan, Inc., alleging violations of the Fair Labor
Standards Act and the New York Labor Law. The plaintiff
filed an Amended Complaint on August 19, 2016, and the
defendants, represented by counsel, filed an answer on
November 7, 2016. See Docket Nos. 5, 17.
March 22, 2017, then-counsel for the defendants moved to
withdraw from the case and included a notarized consent form
signed by Zishan consenting to the withdrawal. See
Docket No. 25. In a March 31, 2017 order, the Court granted
the motion and directed Zishan to find new counsel or submit
a statement that he was appearing pro se, and instructed the
corporate defendant Zishan, Inc. to file a notice of
appearance for new counsel by May 1, 2017. See
Docket No. 30; see also Lattanzio v. COMTA, 481 F.3d
137, 139-40 (2d Cir. 2007) (noting that corporate entities
must be represented by legal counsel in order to appear in
court). The March 31, 2017 order further warned that
“[i]f either defendant fails to comply with this order,
the plaintiff may seek a default judgment against any
defendant who fails to comply.” See Docket No.
30. Pursuant to the March 31, 2017 order, the defendants'
prior counsel filed a certificate of service stating that the
defendants were served by mail with a copy of the March 31,
2017 order. See Docket Nos. 30, 31. The May 1, 2017
deadline passed with no response from either Zishan or
22, 2017, the plaintiff moved to strike the defendants'
answer and enter a default judgment pursuant to Rules 16(f),
37(b)(2)(a), and 55 of the Federal Rules of Civil Procedure.
See Docket No. 37. By order dated July 10, 2017, the
Court instructed the defendants to respond to the motion by
July 17, 2017 and scheduled a hearing on the motion for July
21, 2017. See Docket No. 43. The July 10, 2017 order
repeated the warning that the failure to respond to the
motion or the failure to appear at the hearing could result
in default judgment being entered against the defendants with
no trial. See Docket No. 43. On July 11, 2017, the
plaintiff filed affidavits of service indicating that both
the plaintiff's motion and the Court's July 10, 2017
order were served on the defendants by mail. See
Docket Nos. 44, 45.
July 21, 2017 hearing was adjourned to July 25, 2017, and a
notice of the adjournment was served on the defendants on
July 19, 2017. See Docket Nos. 47, 48. The
defendants failed to appear at the July 25, 2017 hearing.
stated on the record at the July 25, 2017 hearing, the
plaintiff is entitled to a default judgment against both
defendants. Under the Federal Rules of Civil
Procedure, “if a party . . . fails to appear at a . . .
pretrial conference” or “fails to obey a . . .
pretrial order, ” a court may “strik[e] pleadings
in whole or in part” or “render a default
judgment against the disobedient party.” Fed.R.Civ.P.
“Several factors may be useful in evaluating a district
court's exercise of discretion to dismiss an action under
Rule 37. These include: (1) the willfulness of the
non-compliant party or the reason for noncompliance; (2) the
efficacy of lesser sanctions; (3) the duration of the period
of noncompliance, and (4) whether the non-compliant party had
been warned of the consequences of . . .
noncompliance.” Agiwal v. Mid Island Mortgage
Corp., 555 F.3d 298, 302-03 (2d Cir. 2009) (citation and
quotation marks omitted). In entering a default judgment,
“[t]he Court may . . . make referrals . . . when, to
enter or effectuate a judgment, it needs to . . . determine
the amount of damages.” Fed.R.Civ.P. 55(b)(2).
the defendants are plainly aware of this lawsuit, as
indicated by the fact that they answered the complaint and
consented to the withdrawal of their prior counsel. They are
also aware of the Court's order to appear by May 1, 2017,
either pro se or by new counsel for the individual defendant,
or by new counsel for the corporate defendant. The defendants
also refused to respond to the order to respond to the motion
seeking a default judgment against them. Accordingly, the
defendants' failure to comply with the Court's orders
and their failure to appear at the hearing on the motion was
despite being served with two orders from the Court warning
the defendants that non-compliance with the Court's
directives could result in a default judgment, the defendants
have still failed to appear to defend this action. The
defendants' continued non-compliance in the face of these
repeated warnings indicates that a sanction less severe than
a default judgment would be ineffective. This case cannot
proceed without the participation of the defendants.
the duration of the period of non-compliance, it appears that
the defendants last participated in this matter on March 22,
2017, when their previous attorney filed the defendants'
consent form as part of his motion to withdraw as counsel.
The defendants' failure to participate in this action for
over four months weighs in favor of a default judgment.
See Fajardo v. Arise News, Inc., No. 15-CV-6912
(PKC), 2016 WL 2851339, at *3 (S.D.N.Y. May 13, 2016)
(determining that a three-month period of non-compliance
weighed in favor of a default judgment).
has been a persistent default by the defendants. The
defendants' answer is stricken, and a default judgment
against the defendants is warranted. See id.
(striking defendants' answer and entering default
judgment pursuant to Rule 37(b)(2)(A)).
reasons stated above, the defendants' answer is stricken
and a default judgment should be entered against them after
the amount of the judgment is determined. Therefore, the case
is referred to the Magistrate Judge for an inquest on