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PRYOR CASHNIAN LLP
7 Times Square, New York, NY 10036 Tel: 212-421-4100 Fax: 212-326-0806
EF
November 26, 2018
BY ECF AND HAND DELIVERY
Hon. O. Peter Sherwood
Supreme Court of the State of New York
60 Centre Street, Part 49, Room 252
New York, NY 10007
Re: LiOun Diao-Tin v. Express Trade Capital, Inc. et al.. Index
Dear Justice Sherwood:
We represent the plaintiff, Li Qun Diao-Tin ("Plaintiff"), in the above
We write today to seek permissi0ñ from the Court to bring a motion for sanctions
Rolnick, Kristian Andersen (together, "Individual Defendants"), and their counse
Carton.
Individual Defendants and their counsel have engaged in frivolous con
delay and prolong the resolution of the litigation in violation of Rule 130-1.1(c)(2).
briefly below, Individual Defeñdañts and their counsel: (1) failed to produce nearly
in response to Plaintiff's jurisdictional
discovery demands; (2) indisputably knew
Individual D f nd==±s would be subject to this Court's jurisdiction based on their
with this forum, yet they still forced Plaintiff to expend significant resources l
for
nearly five months; and (3) recently withdrew their jurisdictional defeñse, t
that their entire defense was a sham.
Background
Ï PRYOR CASHMAN LLP
Hon. O. Peter Sherwood
November 26, 2018
Page 2
personal jurisdiction in her Complaint. In the Order, this Court expressly
permi lan to take as to the issue of jurisdiction. (NYSCEF Dkt. No.
discovery
Pursuant to the Order, on June 25, 2018, Plaintiff served jurisdictional
on both Individual Defendants.
Thereafter, Individual Defendants, through their counsel, engaged in
which were designed solely to frustrate and prolong the resolution of the narrow
Individual Defendants are subject to the jurisdiction of this Court.
Individual Defendants Refused To Meaningndly
Participate In The Jurisdictional Discovery
Individual Defendants did not participate in the jurisdictional
discõvery
Court. Instead, counsel for Individual Defendants employed tactics explicitly de
Defendants'
Plaintiff's ability to pursue discovery. Individual c0üñsel initially
to engage in discovery, esponsing the frivolous argument that they were not re
deci=ênts until Plaintiff filed an amended complaiñt, notwithstanding the Court's
After the Court rejected this argument, counsel for Individual Defendants
to participate in several meet and confers, during which he refused to concede
fundamental documents (e.g., documents evidencing transactions in New York)
Defenants'
the issue of jurisdiction. Individual counsel only finally acceded
document requests on the eve of a court conference.
Yet, Individual Defendants merely produced approximately sixty pages
response to Plaintiff's jurisdictional document requests. The document production
virtually any of the documents that Individual Defendants agreed to produce,
entries showing the trips that they made to New York, business records showing
conducted in New York, and cc-±ations among Individual Defendants
regarding the key agreements executed in this case, each of which contained New
Ï PRYOR CASHMAN LLP
Hon. O. Peter Sherwood
November 26, 2018
Page 3
At All Times, Individual Defendants And Their Counsel Knew
That They Had Obvious Contacts With The State Of New York
Individual Defendants and their counsel likely failed to produce rel
because they probably had ale dys known that they would be withdrawing
objection. Indeed, Individual Defeñdañts and their counsel undoubtedly knew
Defendants were subject to personal jurisdiction in New York well before they
to ni£mi££ It is plain from a basic investigation of the relevant facts and do
Indeed, Rolnick was a resident of New York at all relevant times. Rolnick's
Port Washington, New York in two of the most significant documeñts in th
Agreement.1
Operating Agreement and the A&S Engineering Operating
Similarly, the deposition of Andersen made clear that he obviously ha
ongoing contacts with New York. Most importantly, Andersen had personally
subject to the jurisdiction of New York Courts in a personal guarantee he sig
Trade for the benefit of A&S. He also has numerous other connections with
example, he has a New York mobile telephone number that he has used to con
behalf of A&S.
Defeñdañts'
Individual counsel had possession of each of these documents
this litigation. Yet he feigñcd ignorance of whether his clients would be subject
New York, thus forcing the parties to engage in a five month exercise in futility.
Individual Defendants Withdrew Their Personal Jurisdiction Defense
Having achieved their goal to delay this proceeding, Individual Dafanants
to withdraw their pers0ñal jurisdiction defense. (See Ex. A hereto.) Thus, the p
Defendants'
five monthe this issue, even though Individual c
virtually litigating
or at the very least, should have known, that Individual Defendants are subject
jurisdiction.
PRYOR CASHMAN LLP
Hon. O. Peter Sherwood
November 26, 2018
Page 4
sixty pages of documents from either Rolnick or Andersen, even after multiple deadlines have
passed in both jurisdictional and standard discovery.
Defendants'
Individual concession of jurisdiction places the parties in the precise same
posture as they would have been in the day following the Court's decision on the motion to dismiss,
had Individual Defendants not forced Plaintiff to engage in the futile exercise of proving
jurisdictional discovery. Plaintiff therefore seeks permission from the Court to move for sanctions
against Individual Defendants and their counsel, Eisenberg & Carton, to recover the funds she has
expended since the Court's decision of June 15, 2018.
Very truly yours,
Eric M Fishman
EXHIBIT A
Matte, Rebecca L.
From: Lloyd M. Eisenberg
Sent: Friday, November 16, 2018 11:09 AM
To: Fishman, Eric;Matte, Rebecca L.
Subject: K. Andersen
Categories: A&S
I'm in a deposition today and can't write more now. But wanted you to know that Kristian has agreed to withdraw his
jurisdictional objection.
Let's talk more later today or Monday.
Lloyd M. Eisenberg
Eisenberg & Carton
(Sent from Phone)
1
Preview
PRYOR CASHNIAN LLP 7 Times Square, New York, NY 10036 Tel: 212-421-4100 Fax: 212-326-0806 EF November 26, 2018 BY ECF AND HAND DELIVERY Hon. O. Peter Sherwood Supreme Court of the State of New York 60 Centre Street, Part 49, Room 252 New York, NY 10007 Re: LiOun Diao-Tin v. Express Trade Capital, Inc. et al.. Index Dear Justice Sherwood: We represent the plaintiff, Li Qun Diao-Tin ("Plaintiff"), in the above We write today to seek permissi0ñ from the Court to bring a motion for sanctions Rolnick, Kristian Andersen (together, "Individual Defendants"), and their counse Carton. Individual Defendants and their counsel have engaged in frivolous con delay and prolong the resolution of the litigation in violation of Rule 130-1.1(c)(2). briefly below, Individual Defeñdañts and their counsel: (1) failed to produce nearly in response to Plaintiff's jurisdictional discovery demands; (2) indisputably knew Individual D f nd==±s would be subject to this Court's jurisdiction based on their with this forum, yet they still forced Plaintiff to expend significant resources l for nearly five months; and (3) recently withdrew their jurisdictional defeñse, t that their entire defense was a sham. Background Ï PRYOR CASHMAN LLP Hon. O. Peter Sherwood November 26, 2018 Page 2 personal jurisdiction in her Complaint. In the Order, this Court expressly permi lan to take as to the issue of jurisdiction. (NYSCEF Dkt. No. discovery Pursuant to the Order, on June 25, 2018, Plaintiff served jurisdictional on both Individual Defendants. Thereafter, Individual Defendants, through their counsel, engaged in which were designed solely to frustrate and prolong the resolution of the narrow Individual Defendants are subject to the jurisdiction of this Court. Individual Defendants Refused To Meaningndly Participate In The Jurisdictional Discovery Individual Defendants did not participate in the jurisdictional discõvery Court. Instead, counsel for Individual Defendants employed tactics explicitly de Defendants' Plaintiff's ability to pursue discovery. Individual c0üñsel initially to engage in discovery, esponsing the frivolous argument that they were not re deci=ênts until Plaintiff filed an amended complaiñt, notwithstanding the Court's After the Court rejected this argument, counsel for Individual Defendants to participate in several meet and confers, during which he refused to concede fundamental documents (e.g., documents evidencing transactions in New York) Defenants' the issue of jurisdiction. Individual counsel only finally acceded document requests on the eve of a court conference. Yet, Individual Defendants merely produced approximately sixty pages response to Plaintiff's jurisdictional document requests. The document production virtually any of the documents that Individual Defendants agreed to produce, entries showing the trips that they made to New York, business records showing conducted in New York, and cc-±ations among Individual Defendants regarding the key agreements executed in this case, each of which contained New Ï PRYOR CASHMAN LLP Hon. O. Peter Sherwood November 26, 2018 Page 3 At All Times, Individual Defendants And Their Counsel Knew That They Had Obvious Contacts With The State Of New York Individual Defendants and their counsel likely failed to produce rel because they probably had ale dys known that they would be withdrawing objection. Indeed, Individual Defeñdañts and their counsel undoubtedly knew Defendants were subject to personal jurisdiction in New York well before they to ni£mi££ It is plain from a basic investigation of the relevant facts and do Indeed, Rolnick was a resident of New York at all relevant times. Rolnick's Port Washington, New York in two of the most significant documeñts in th Agreement.1 Operating Agreement and the A&S Engineering Operating Similarly, the deposition of Andersen made clear that he obviously ha ongoing contacts with New York. Most importantly, Andersen had personally subject to the jurisdiction of New York Courts in a personal guarantee he sig Trade for the benefit of A&S. He also has numerous other connections with example, he has a New York mobile telephone number that he has used to con behalf of A&S. Defeñdañts' Individual counsel had possession of each of these documents this litigation. Yet he feigñcd ignorance of whether his clients would be subject New York, thus forcing the parties to engage in a five month exercise in futility. Individual Defendants Withdrew Their Personal Jurisdiction Defense Having achieved their goal to delay this proceeding, Individual Dafanants to withdraw their pers0ñal jurisdiction defense. (See Ex. A hereto.) Thus, the p Defendants' five monthe this issue, even though Individual c virtually litigating or at the very least, should have known, that Individual Defendants are subject jurisdiction. PRYOR CASHMAN LLP Hon. O. Peter Sherwood November 26, 2018 Page 4 sixty pages of documents from either Rolnick or Andersen, even after multiple deadlines have passed in both jurisdictional and standard discovery. Defendants' Individual concession of jurisdiction places the parties in the precise same posture as they would have been in the day following the Court's decision on the motion to dismiss, had Individual Defendants not forced Plaintiff to engage in the futile exercise of proving jurisdictional discovery. Plaintiff therefore seeks permission from the Court to move for sanctions against Individual Defendants and their counsel, Eisenberg & Carton, to recover the funds she has expended since the Court's decision of June 15, 2018. Very truly yours, Eric M Fishman EXHIBIT A Matte, Rebecca L. From: Lloyd M. Eisenberg Sent: Friday, November 16, 2018 11:09 AM To: Fishman, Eric;Matte, Rebecca L. Subject: K. Andersen Categories: A&S I'm in a deposition today and can't write more now. But wanted you to know that Kristian has agreed to withdraw his jurisdictional objection. Let's talk more later today or Monday. Lloyd M. Eisenberg Eisenberg & Carton (Sent from Phone) 1