Banh v. New Orleans Crispy Chicken & Chili Dogs
Banh v. New Orleans Crispy Chicken & Chili Dogs
2018 WL 11507574 (W.D. Mich. 2018)
June 25, 2018
Kent, Ray, United States Magistrate Judge
Summary
The Court ordered defendant Le to provide ESI, including employment reports, gross and net sales of defendant Le's restaurants and businesses, and verification that Plaintiffs were never employed by Defendant Company. The Court also adjourned the final pretrial conference and trial without date. This information is necessary to determine the merits of the case and whether the plaintiffs have a valid claim.
Additional Decisions
THU BANH and VI NGUYAN, Plaintiffs,
v.
NEW ORLEANS CRISPY CHICKEN AND CHILI DOGS and ANDREW KERN SANG VAN LE, Defendants
v.
NEW ORLEANS CRISPY CHICKEN AND CHILI DOGS and ANDREW KERN SANG VAN LE, Defendants
Case No. 1:17-cv-62
United States District Court, W.D. Michigan, Southern Division
Filed June 25, 2018
Counsel
Robert Anthony Alvarez, Kristin Lynn Sage, Avanti Law Group PLLC, Wyoming, MI, for Plaintiffs.Andrew Kern Sang Van Le, Grand Rapids, MI, Pro Se.
Kent, Ray, United States Magistrate Judge
ORDER
*1 This matter is now before the Court on plaintiffs’ “Second motion to compel discovery and to enter default judgment against defendant Andrew Le” (ECF No. 53).
I. Background
On January 18, 2017, plaintiff's Thu Banh and Vi Nguyen filed this action against defendants New Orleans Crispy Chicken and Chili Dogs (“Crispy Chicken”) and Andrew Kern Sang Van Le (“Le”) alleging violations of the Fair Labors Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. and the Workforce Opportunity Wage Act (“WOWA”), M.C.L. § 408.411, et seq. See Compl. (ECF No. 1). Defendant Le's counsel, Miles J. Murphy III, entered his appearance on March 6, 2017 and filed an answer on March 14, 2017. See Answer (ECF No. 7). The parties consented to have the undersigned act as the presiding judge pursuant to 28 U.S.C. § 636(c). See Order of Reference (ECF No. 9). After a scheduling conference, the Court entered a case management order (CMO) on April 28, 2017. See CMO (ECF No. 12).
The parties exchanged Fed. R. Civ. P. 26(a)(1) disclosures in June 2017. See Proof of Service and Certificate of Service (ECF Nos. 14-15). On June 9, 2017, plaintiffs served defendants’ counsel with the following: notice of deposition for defendant Crispy Chicken; notice of deposition for defendant Le; plaintiffs’ “First Interrogatories”; and, plaintiffs’ “First Request for Production of Documents”. See Proof of Service (ECF No. 16). An early settlement conference set for June 26, 2017 was adjourned until June 20, 2018, because the magistrate judge assigned to conduct the settlement conference “determined that discovery needs to be exchanged between the parties to further facilitate this case.” See Order (ECF No. 18).
On July 20, 2017, defendants’ counsel filed proofs of service for the interrogatories and requests for production. See Proof of service (ECF Nos. 20-21). On July 24, 2017, plaintiffs’ counsel filed a proof service regarding the notice of deposition of Crispy Chicken and a “re-notice” of Le's deposition. See Proof of Service (ECF No. 21). On August 15, 2017, defendants filed their expert witness list, identifying “Lettinga & Associates, LLC – CPA's” as experts regarding, among other things: federal, state, local and financial documentation of defendants including employment reports; gross and net sales of defendant Le's restaurants and businesses for 2015 and 2016; and to “[v]erify that Plaintiffs were never employed by Defendant Company.” Defendants’ Expert Witness List (ECF No. 22).
The parties filed a proposed stipulation to amend the case management (ECF No. 26) on September 29, 2017, followed by plaintiffs’ “Motion to compel and to extend discovery” (ECF No. 27) on October 20, 2017. On October 23, 2017, the Court sent out a notice scheduling the motion to compel for November 20, 2017 (ECF No. 30). On October 24, 2017, the CMO was amended to extend discovery to December 18, 2017 (ECF No. 32).
However, the proceedings came to an abrupt halt on November 9, 2017, when Attorney Murphy moved to withdraw as counsel for defendants. In his motion, Attorney Murphy advised the Court, among other things, that “[d]efendants have never kept the terms of their Engagement Agreement as signed,” that defendant Le “has limited assets and indicated that he cannot pay the attorney fees owed to Plachta, Murphy & Associates for services rendered and expenses incurred in this matter for himself or his company” which amount to a little over $2,000.00 as of September 2017; and, that defendants’ actions are “indicative of the breakdown of the attorney-client relationship.” Motion (ECF No. 33). Finally, Attorney Murphy stated that, “The attorney-client relationship has also broken down as Defendants have refused to produce required documents under the FRCP, have refused to file tax returns necessary to their defense, and have refused to supply counsel with information necessary for their defense.” Id. at PageID.143 (emphasis added).
*2 The Court set counsel's motion to withdraw for hearing along with plaintiffs’ motion to compel. After the November 20, 2017 hearing, the Court (1) granted Attorney Murphy's motion to withdraw (ECF No. 38), held plaintiffs’ motion to compel in abeyance “pending the defendants retaining new counsel and/or further order of the Court” (ECF No. 38), and entered an order directing defendants to obtain new counsel by December 20, 2017, and that if this is not accomplished, directing defendants to appear on December 22, 2017 to show cause why relief should not be granted to plaintiffs (ECF No. 39).
Defendants did not obtain new counsel. Defendant Le appeared at the show cause hearing on December 22, 2017, at which time plaintiffs’ counsel and defendant Le discussed settlement, with a status conference scheduled for January 12, 2018. After the status conference, it appeared that this matter was to resolved by entry of a consent judgment, and the Court entered the following order:
A status conference was held this date at which time the Court was notified that the parties intend to file a consent judgment. As stated on the record, the parties shall be given fourteen (14) days from today's date to agree upon and file a proposed consent judgment. Should a consent judgment not be filed by January 26, 2018, the Clerk's office shall enter default against corporate defendant New Orleans Crispy Chicken and Chili Dogs, LLC., and a hearing date will be set on plaintiff's pending motion to compel and for discovery (ECF No. 27).
Order (ECF No. 43).
Despite the representations made at the status conference, the parties did not enter into a consent judgment. In addition, defendant Le did not secure counsel to represent his business entity, defendant Crispy Chicken. On February 7, 2018, the Clerk's Office entered a default against Crispy Chicken and plaintiffs’ motion to compel was set for hearing. See Order (ECF No. 44), Default (ECF No. 46), and Notice (ECF No. 45). The Court issued the following order on March 1, 2018:
This matter is before the Court on the Plaintiffs’ Motion to Compel and Extend Discovery (ECF 27). After a hearing held on February 28, 2018, with both parties being adequately heard, it is hereby ordered that Defendant Le shall have fourteen (14) days from the date of this order to fully and completely respond to Plaintiff's’ Interrogatory No. 4 and Requests for Production Nos. 1, 2, 3, 4, 7, 12, 13, 14 and 17. Discovery shall be extended by forty-five (45) days after the fourteen days from the date of this Order. The Case Management Order previously issued (ECF 12) shall be amended to reflect the extension of discovery.
ACCORDINGLY, IT IS HEREBY ORDERED that the Plaintiffs’ Motion to Compel and Extend Discovery (ECF 27) is GRANTED. Defendant Le must respond to Plaintiffs’ discovery requests within fourteen days of the date of this order. The Case Management Order shall be amended to reflect the extension of discovery by forty-five days after the expiration of the fourteen days Defendant Le has to respond.
Order (ECF No. 49).
This matter is now before the Court on plaintiffs’ second motion to compel, in which they state that defendant Le, defied the Court's March 1, 2018 order and “turned in his response beyond the deadline and did not cure the defects originally identified in his first response.” Plaintiffs’ Brief (ECF No. 53, PageID.179). Plaintiffs further stated that:
Plaintiffs have attempted to work with Defendant on multiple occasions to receive the requested discovery, but Defendant has been uncooperative. To this day, Plaintiffs have not received satisfactory discovery answers. Defendant's failure to fully respond to Plaintiffs’ discovery requests within the ample amount of time allowed as well as make available full and complete sets of documents for inspection is unjustified and improper. Defendant has defied a Court Order, and thus should have a default judgment entered against him as sanctions.
*3 Id. Defendant Le did not respond to plaintiffs’ second motion.
Most recently, the settlement conference re-scheduled for June 20, 2018 was cancelled at the request of defendant Le. In an ex parte email sent to the Court on June 18, 2018, defendant Le stated that he was recently in a car accident, could not make the court date due to “three weekly physical therapy appointments,” and that he “need[s] to know two weeks in advance in order to reschedule.”
II. Discussion
Defendant Le has a history of refusing to cooperate in discovery. Plaintiff's refusal was one reason his attorney withdrew, and also resulted in the Court granting plaintiffs’ first motion to compel. Plaintiffs have now filed a second motion to compel to obtain discovery which they requested over one year ago. Defendant Le has not responded to this motion. Enough is enough. The fact that plaintiff was reportedly undergoing physical therapy on June 18, 2018, is no excuse for his failure to provide discovery responses which were served over one year ago. Upon due consideration, plaintiffs’ second motion to compel will be granted. Defendant Le is advised that if he fails to provide an adequate response to the requested discovery by July 13, 2018, the Court may exercise its right to issue sanctions which could include prohibiting defendant Le “from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence” or entering a default judgment against him. See Fed. R. Civ. P. 37(b)(2)(A)(ii) and (vi). Accordingly,
IT IS ORDERED that plaintiffs’ second motion to compel (ECF No. 53) is GRANTED in part.
IT IS FURTHER ORDERED that Defendant Le fully and completely respond to Plaintiff's’ Interrogatory No. 4 and Requests for Production Nos. 1, 2, 3, 4, 7, 12, 13, 14 and 17, and serve those discovery responses on plaintiffs’ counsel by no later than July 13, 2018.
IT IS FURTHER ORDERED that the final pretrial conference set for July 18, 2018, and trial set for August 6, 2018 are ADJOURNED without date.