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Ha v. Baumgart Cafe of Livingston

United States District Court, D. New Jersey

April 26, 2018

SIU CHING HA et al., Plaintiffs,




         This matter comes before the Court by way of Defendants' motions for sanctions and attorneys' fees against Plaintiffs' counsel, Lina Franco, Esq. and John Troy, Esq. D.E. 108, 109, 112. In separate submissions, Ms. Franco and Mr. Troy oppose the motions. D.E. 113, 115. Pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1, the Court decided these motions without oral argument. For the reasons set forth below, the Court will grant in part and deny in part Defendants' motions.


         On July 14, 2015, Plaintiffs, Siu Ching Ha and Pak Chuan Leong, on behalf of themselves and others similarly situated, filed this matter alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq., and the New Jersey State Wage and Hour Law, N.J.S.A. 34:11-56. Plaintiffs allege that Defendants, which are four New Jersey cafes and their two individual managers and owners, failed to properly compensate their employees with the minimum wage and overtime pay. Compl., D.E. 1; Am. Compl., D.E. 25. At the time of the events relevant to the pending motions, Ms. Franco was local counsel to Plaintiffs and Mr. Troy was admitted pro hac vice on behalf of Plaintiffs. Notice of Appearance, D.E. 9; Order Granting Pro Hac Vice Admission, D.E. 32. Defendants are represented by Benjamin Xue, Esq., Douglas Weiner, Esq., and Chris Franzblau, Esq. Notices of Appearance, D.E. 4, 37.

         On October 7, 2016, the Court issued an Order granting Plaintiffs' request to file a motion for conditional certification. The October 7, 2016 Order set a deadline of November 23, 2016 for Plaintiffs to file the motion. Order, Oct. 7, 2016, D.E. 48. However, the November 23, 2016 deadline passed without Plaintiffs filing either the motion or a request to extend the deadline. On December 9, 2016, sixteen days beyond the original deadline, Ms. Franco filed the motion for conditional certification on behalf of Plaintiffs. See Pltfs.' Mot. for Conditional Certification, D.E. 50. Also on December 9, 2016, Ms. Franco filed a belated request for an extension of time to file the motion for conditional certification. See Ltr. Request for Extension, Dec. 9, 2016, D.E. 49. In the letter, Ms. Franco stated in pertinent part:

[O]n November 21, 2016, I was forced to leave the Country due to a family emergency in Mexico City. I have attached a copy of my itinerary as Exhibit (A). Plaintiffs were to file their motion for collective action on that week on November 23rd but due to my family emergency, which is still ongoing, I was unable to file until today.

Id. The attached flight itinerary appeared to have been generated by[1] Id. Ex. A, D.E. 49-1. The flight itinerary indicated that Ms. Franco had flown from New York to Mexico City on Thursday, November 21, 2016, and returned from Mexico City to New York on December 8, 2016. Id. However, November 21, 2016 was indisputably a Monday, not a Thursday.

         On December 11, 2016, Mr. Troy, pro hac vice counsel for Plaintiffs, submitted a letter to the Court explaining that he had emailed all motion papers to Ms. Franco on the afternoon of November 23, 2016, with the expectation that Ms. Franco would file the motion on that same date.[2]See Ltr. from John Troy, Dec. 11, 2016, D.E. 51. In his letter to the Court, Mr. Troy included his e-mail to Ms. Franco and the motion papers that Ms. Franco was to file on November 23rd. Id. Mr. Troy claimed that he was unaware of Ms. Franco's family emergency, and also was unaware of the missed deadline, until Ms. Franco informed him of it on December 8, 2016. According to Mr. Troy, Ms. Franco told him that she could not check her e-mails while she was away. Id.

         On December 12 and 13, 2016, Defense counsel objected to Plaintiffs' belated filing of the motion. Defense counsel pointed out numerous inconsistencies in Ms. Franco's purported reason for the late submission. See Mots. to Strike, D.E. 51, 52; Ltr. from Benjamin Xue, Esq., Dec. 13, 2016, D.E. 54. Specifically, Mr. Xue stated that Ms. Franco's public Instagram account[3] revealed that Ms. Franco was not in Mexico City when the motion was due on November 23, 2016. According to Mr. Xue, Plaintiff was in New York City and then Miami, Florida during the entire time she claimed to be in Mexico City addressing a family emergency. See Ltr. from Benjamin Xue, Dec. 13, 2016, D.E. 54. In an accompanying declaration, the Defense attached screenshots of the Instagram photos as exhibits, which confirmed much of Mr. Xue's allegations. See Declaration of Puja Sharma (“Sharma Decl.”), Dec. 13, 2016, D.E. 54-1 to 54-11.

         Mr. Sharma's declaration and the accompanying exhibits demonstrate that although Ms. Franco was in Mexico City, it was not on or around November 23, 2016, when Plaintiff's certification motion was due. Ms. Franco was in Mexico City and Cuba in late October until on or around November 6, 2016. Sharma Decl. ¶¶ 6-8 & Exhs. C-E. But for the period of on or around November 6, 2016 to on or around December 3, 2016, it appears that Ms. Franco was in New York City. Id. ¶¶ 9-11 & Exhs. F-H. Defense counsel also observed that the date on the flight itinerary supplied by Ms. Franco--“Thursday November 21, 2016”--was not a real date. See Mot. to Strike, D.E. 53.

         The Court scheduled a conference for February 3, 2017 to address the collective certification motion and Defendants' objections to its late filing. Order, Dec. 14, 2016, D.E. 56. However, on December 14, 2016, Ms. Franco withdrew the motion with prejudice. See Ltr from Lina Franco, Dec. 14, 2016, D.E. 55. She also stated:

Plaintiffs wish to make it clear to the Court that as a result of discussions among Counsel, Plaintiffs no longer intend to pursue a motion to certify a class and respectfully request that the extension letter (Dkt. No. 49) be terminated as moot and subsequent motion (Dkt. No. 50) withdrawn with prejudice.
We therefore respectfully request that the court adjourn, sine die, the conference scheduled before the Honorable Judge Hammer, for February 3rd at 2:00 pm.

         Ltr. from Lina Franco, Dec. 14, 2016, D.E. 57. The Court therefore deemed the motion withdrawn on December 14, 2016. Order, Dec. 14, 2016, D.E. 58.

         On December 23, 2016, Ms. Franco reversed course and requested to change the withdrawal of the motion for conditional certification to be without prejudice. See Ltr. from Lina Franco, Dec. 23, 2016, D.E. 60. Ms. Franco claimed that her request on December 14, 2016 to withdraw the motion with prejudice was erroneous. Id. Ms. Franco also attempted to explain the discrepancies regarding her alleged trip to Mexico City and her family emergency. Id. Ms. Franco claimed that she had gone to Mexico City earlier in November and that her mother's medical diagnosis had sent her “into a tailspin” that caused her to miss the motion deadline. Id. Ms. Franco also claimed that she gave the Court an “erroneous itinerary” because she was suffering from the “emotional distraction” of her mother's diagnosis. Id. Ms. Franco also moved to withdraw as counsel in this matter and two others before this Court, claiming that “[s]ignificant differences and key lapses in ...

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