United States District Court, D. New Jersey
MICHAEL A. HAMMER, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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 despegar.com. 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.
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.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
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 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
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.
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
We therefore respectfully request that the court adjourn,
sine die, the conference scheduled before the
Honorable Judge Hammer, for February 3rd at 2:00
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.
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