Wu v. Sushi Nomado of Manhattan, Inc.

Background

Jian Wu and Fen Biao Cai brought this Fair Labor Standards Act case on behalf of themselves and other similarly situated persons. The opinion addresses defendants’ motion for sanctions under Rules 41(b) and 37(b) of the Federal Rules of Civil Procedure. The defendants sought sanctions based on Wu’s continued failure to make himself available for a deposition, including dismissal with prejudice of Wu’s claims.

Plaintiffs’ counsel opposed sanctions and asked the court to stay the case indefinitely until Wu could confirm that he could travel from China for a deposition. Magistrate Judge Freeman found that Wu and Troy Law had not taken diligent steps to arrange the deposition, had not diligently pursued the case, and had failed to comply with court orders. Plaintiffs’ counsel objected only to the finding that Troy Law had failed to communicate with Wu for long periods. The district court stated that counsel’s communication chart showed only four contacts with Wu over more than a year and supported the magistrate judge’s finding.

Magistrate Judge’s Recommendations

Magistrate Judge Freeman recommended that Wu receive a final 45-day opportunity to make himself available for a remote deposition from China or, if he obtained permission to travel, from another location such as Hong Kong. The recommendation also addressed whether testimony taken remotely from China could be used in the case, the consequences if Wu did not complete the deposition, possible limits on Wu’s later testimony, and an award requiring Troy Law to pay the defendants’ reasonable attorneys’ fees and expenses incurred in making the sanctions motion.

District Court’s Ruling

The district court concluded that dismissal for failure to prosecute—a case-ending sanction for not moving a case forward—would be appropriate given the pattern of delay and repeated failures to follow court orders. Nevertheless, the court gave Wu one final opportunity to avoid dismissal with prejudice.

The court ordered Wu to make himself available for a deposition completed by March 28, 2022. It also ordered plaintiffs’ counsel to notify Wu within 24 hours that he risked dismissal of his claims for failure to prosecute. The court stated that, if the deposition was not completed by March 28, 2022, the defendants should file a letter and the court would dismiss Wu’s claims with prejudice.

The court adopted Magistrate Judge Freeman’s recommendation that Troy Law pay the reasonable attorneys’ fees and expenses incurred by the defendants in moving for sanctions. The clerk was directed to terminate the pending sanctions motion. The opinion does not state that Wu’s claims were dismissed in this order; it states that dismissal would occur if the deposition was not completed by the specified deadline.

Date Note

The docket header identifies the filing date as February 28, 2022, while the signed opinion states “Date: February 28, 2021.”