United States District Court, D. Massachusetts
XIAO WEI CATERING LINKAGE IN INNER MONGOLIA CO. LTD., AND FEI XIE, Plaintiffs, and Defendants-in-Counterclaim,
INNER MONGOLIA XIAO WEI YANG USA, INC., d/b/a XIAO WEI YANG AND/OR LITTLE LAMB RESTAURANT, CHENG XU, AND YONGHUA QIN, Defendants, and Plaintiffs-in-Counterclaim.
ORDER ON DEFENDANTS' MOTION TO DEEM THEIR
REQUESTS FOR ADMISSIONS ADMITTED (#140).
Page Kelley, United States Magistrate Judge
case involves an agreement gone awry between a hot-pot
restaurant chain headquartered in China, and the owners of a
restaurant in Boston, Massachusetts, who wanted to become a
franchisee of the Chinese company. The suit has been marked
by frequent, acrimonious discovery disputes, which in large
part have been caused by plaintiffs' failure to follow
the rules of discovery. In a previous Order, this court found
that plaintiffs' counsel, Attorney Frank Xu, admitted to
this court pro hac vice from New York, should pay
reasonable attorneys' fees and costs to defendants'
counsel under 28 U.S.C. § 1927 for defendants' work
on a motion for a protective order and to quash subpoenas
issued by plaintiffs. (#147.) The court further ordered under
its inherent authority that Attorney Xu should be formally
sanctioned for gratuitously accusing defendants' counsel,
Attorney Elizabeth Brady Murillo, of fabricating documents.
Id. In this Order, the court allows defendants'
motion to deem their requests for admission admitted. (#140.)
The court will hold a hearing on the request for sanctions.
facts of this case are described in detail in Judge
Casper's Order on defendants' motion for summary
judgment, in which she dismissed counts I-IV of the
nine-count complaint. (#81 at 2-4, 15.) The facts are
repeated here in abbreviated form. Plaintiffs, Xiao Wei
Catering Linkage in Inner Mongolia Co., Ltd. (Linkage), and
Fei Xie, a chef employed by Linkage, brought suit against
defendants Inner Mongolia Xiao Wei Yang USA, Inc. (Inner
Mongolia), and two individuals, Cheng Xu and Yonghua Qin.
(#1.) Plaintiff Linkage is a large, well-known restaurant
chain in China; defendant Inner Mongolia is a Massachusetts
corporation that operated a restaurant in Boston,
Massachusetts called the “Little Lamb
Restaurant.” (#1 ¶¶ 1-3; #90 at 10.)
Defendants Xu and Qin are married, live in Massachusetts, and
are president and treasurer of Inner Mongolia, respectively.
Id. ¶¶ 4-6.
2011, Xu and Qin traveled to China and negotiated a
Cooperation Agreement with Linkage so that they could become
Linkage's first franchisee in the United States.
Id. ¶¶ 11-12. The complaint alleges that
Xu and Qin fraudulently represented themselves to Linkage,
concealed material facts, and so induced Linkage to enter
into the Cooperation Agreement, which Linkage would not have
done but for Xu and Qin's
misrepresentations. Id. ¶¶ 13-15. Xu and
Qin are also alleged to have misappropriated Linkage's
brand-name and confidential knowledge, and are said to have
violated Linkage's federal trademark registration and
other intellectual property rights. Id. ¶¶
allege that defendants breached the Cooperation Agreement by
withdrawing visa sponsorship for Xie, the chef Linkage sent
to work with Xu and Qin, and exploited Xie's specialized
knowledge and trade secrets while refusing to pay for his
expenses as the Cooperation Agreement required them to do.
Id. ¶ 19.
plaintiffs claim that defendants gained business revenues as
a franchisee, but did not pay franchise fees as the
Cooperation Agreement provided. Id. ¶¶ 18,
22. Pursuant to the Agreement, Linkage transferred capital
and money to defendants, including loans totaling
approximately $66, 000. Id. ¶ 20.
The Motion for Requests for Admission to be Deemed
noted in the court's previous Order sanctioning Attorney
Xu, plaintiffs in this case repeatedly have failed to comply
with the rules of discovery. (#147 at 3.) The court set out
several examples in its previous Order and will not repeat
them here. Id. at 4-10. The court concluded there
. . . that Attorney Xu, by issuing the seven subpoenas and
forcing defendants to file and then litigate a motion to
quash, and then further litigate a frivolous motion for
sanctions against defendants, engaged in conduct warranting a
sanction of attorneys' fees and costs under § 1927 .
. . [D]efendants were in good faith attempting to negotiate a
discovery dispute when plaintiffs improperly issued the
subpoenas under Rule 45 as an end-run around Rule 34.
Plaintiffs responded to the motion to quash with fallacious
legal arguments and promptly filed a baseless cross-motion
for sanctions that, among other things, wrongly accused
opposing counsel of falsifying documents. This conduct was in
keeping with Mr. Xu's conduct throughout this litigation,
in which he has demonstrated that he will not follow the
rules of discovery, is not willing to engage in meaningful
discussions with opposing counsel, maintains legal positions
that are not supported by law, and lacks “a firm grasp
of the rules and responsibilities of attorneys practicing
before this court.”
Id. at 11-12 (quoting Irwin Indus. Tool Co. v.
Bibow Indus., Inc., No. 11-cv-30023-DPW, 2014 WL
1323744, at *6 (D. Mass. Mar. 31, 2014)).
defendants move that their requests for admission be deemed
admitted. (#140.) First, defendants argue, plaintiffs'
responses were outside the 30-day response period established
by Fed.R.Civ.P. 36 (3). Defendants served their first set of
requests for admission on October 27, 2017, and received
responses from plaintiffs on November 30, 2017. (#141 at 2.)
The court finds that because Fed.R.Civ.P. 6 (a)(1)(C) allows
three extra days for requests served by mail, plaintiffs'
response was not late. In any event, defendants wrote to
plaintiffs' counsel to address deficiencies in the
response on December 7, 2017. Id. Plaintiffs never
January 2018, in a filing pertaining to another discovery
dispute, defendants again raised the issue of the deficient
responses to the request for admissions. Id. Again,
plaintiffs did not respond. Id.
months after defendants sent their first communication
regarding the deficiencies in plaintiffs' response, on
March 2, 2018, defendants again contacted counsel for
plaintiffs and informed them that if they did not respond,
defendants intended to file a motion with the court.
Id. at 3. On March 9, plaintiffs filed a
“supplemental answer” which contained no amended
responses, only legal arguments about why plaintiffs would
not agree to any of the admissions. Id. ...