1976 J. J. Deli Grocery Corp. v. Food and Nutrition Service, No. 1:2020cv10203 - Document 3 (S.D.N.Y. 2020)
Court Description: MEMO ENDORSED ORDER granting 2 Motion for Extension of Time to File. ENDORSEMENT: I am granting this motion. (Signed by Judge Colleen McMahon on 12/8/2020) (mml)
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1976 J. J. Deli Grocery Corp. v. Food and Nutrition Service Doc. 3 Case Case 1:20-cv-10203-CM Document 2 Filed Page 1 of 7 1 of 7 1:20-cv-10203-CM Document 3 12/04/20 Filed 12/09/20 Page UNITED STATES DISTRICT COURT SOUTHER DISTRI.CT COUNTY OF NEW YORK --------------------------x 1976 J. J. DELI GROCERY CORP., Case o. NOTICE OF MOTION FOR LEAVE TO FILE LATE COMPLAINT l) UNITED STATES DEPARTMENT OF AGRICULTURE; 2) FOOD AND NUTRITION SERVICE; -------------------x PLEASE TAKE NOTICE, that upon the attached affidavit of Rafael Vargas DIBIN 1976 J. J. Deli Grocery Corp, sworn to on the 3rd day of December 2020, and Afftrmation of Support by his attorney, Charlie A. Vargas, Esq., sworn on the 2 nd day of December 2020, and all proceedings herein, the petitioner will move this court, the United States District Southern ew York, U.S.D .J., in room and date to be determined by the Judge in light of the District of current Covid-19 pandemic, or soon thereafter order as counsel can be beard, for an order pursuant to Rule of the Federal Rules of Civil Procedure granting the motion for leave to file the Complaint. Dated: December 2nd , 2020 Brooklyn, NY Charlie A. ar sq. Attorney for Petitioner 26 Court Street, Suite 1406 Brooklyn, ew York 11242 (718) 596-0025 Charli~ cvar 0 aslaw.com TO: USDA/FNS Administrative Review Branch Room 5042 1320 Braddock Place Alexandria, VA 22314- 1649 USDCSDNY OOCUMEN1 ELECTRONICALLY~ DOC#: DATE FILED: I I I;). / q / 20 Dockets.Justia.com Case 1:20-cv-10203-CM Document 2 Filed Page 2Page of 7 2 of 7 Case 1:20-cv-10203-CM Document 3 12/04/20 Filed 12/09/20 UNlTED STATES DISTRICT COURT SOUTHERN DISTRICT COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - -x 1976 J. J. DELI GROCERY CORP., Case No. OTICE OF MOTIO FOR LEAYE TO FILE LATE COMPLAINT l) UNITED ST ATES DEPARTMENT OF AGRICULTURE; 2) FOOD AND NUTRITION SERVICE; ---------------------x STATE OF NEW YORK) SS.: COUNTY OF KI GS ) CHARLIE A. VARGAS, ESQ., an attorney duly admitted to practice in United States District Court, Southern District County of ew York, hereby affirms the following allegation under the penalties of perjury: l. That I am the incoming attorney of record for the Petitioner, 1976 J. J. Del.i Grocery Corp., herein, and as such, I am familiar with the facts and circumstances of the within Proceeding, except as to those matters which are based upon information and belief, and as to those matters, I believe them to be true. The basis of my belief is information furnished to me by my client and information in the tile. 2. This affirmation is submitted in support of the within motion for leave to file a late complaint against the Defendants, United States Department of Agriculture ("USDA.') and Food and Nutrition Service ("FNS"), in response to a Final Agency Decision dated October 5 th, 2020. (See. Exhibit A: Final Agency Decision) 3. The above-entitled action is a federal action in which Plaintiff seeks relief through Section 14 of the Food and Nutrition Act of2008 (7 U.S.C. 2023) and to Section 279.7 of the Regulations (7 CFR § 279.7) with respect to a judicial review of the final detennination made by the Defendants. Case Case 1:20-cv-10203-CM Document 2 Filed Page 3Page of 7 3 of 7 1:20-cv-10203-CM Document 3 12/04/20 Filed 12/09/20 4. The Plaintiff files this Complaint for Review of the Food and Nutrition Service's (" FNS") Final Agency Decision permanently d:isqualifying 1976 J. J. DELI GROCERY CORP from participating in the Supplemental Nutrition Assistance Program (''S AP"). 5. The undersigned was recently retained on this matter on December 2 nd , 2020, however, the plaintiff provided documents for the undersigned' s review in mid October of 2020. The undersigned is a solo-practitioner and during the late month of October became ill 6. for several weeks until returning back to work in mid-November. Furthermore, the undersigned experienced two personaJ losses in the family in the 7. month of November and decided to tend to his family during such time. At this time, the undersigned was not officially retained by the plaintiff but the undersigned did communicate to the plaintiff that he will review the case file and continue the conversation by phone. 8. Upon reviewing all of the documents provided, and before being officially retained, - - ~ the undersigned noticed that the plaintiff bad actually received a Final Agency Decision and as such, was only allotted thirty days to tile a complaint in the U.S. District Court ofjurisdiction where he engaged in business. 9. The Federal Rules of Civil Procedure provide equitable safeguards for an inadvertently missed deadline. The missing of the deadline was inadvertent and the undersigned has acted expeditiously and in good faith to get the paper submitted, and that the other side has not been prejudiced. The courts have generally held inadvertence as au "excusable neglect'· to mitigate the harshness of being completely barred by filing a document by a missed filing deadline. Fed. R. Civ. P. 60(b)(l) 10. Furthermore, the undersigned was not yet admitted into the U.S. Southern District Court ofNcw York and had to wait for his application to be approved by the court. (See Exhibit B : Notice of Approval dated November 241\ 2020) 11 . The Final Agency Decision of the USDA, FNS was received by plaintiffs prior legal representatives, Latin American Business Office, [nc., on or about October 5th, 2020, and Case Case 1:20-cv-10203-CM Document 2 Filed Page 4Page of 7 4 of 7 1:20-cv-10203-CM Document 3 12/04/20 Filed 12/09/20 the federal complaint was due to be filed on or before November 4th, 2020. Therefore, only one month has passed since the missed deadline. 12. The U.S. Supreme Court has provided guidance on what constitutes excusable neglect in the Pioneer case, where the Court laid out a four-factor balancing test for what constitutes excusable neglect under either Rule 6 or Rule 60. In a passing reference endorsing the standard of excusable neglect enunciated by the court below, the factors to be considered in excusable neglect are (in no panicular order): ( 1) whether the delay in filing was within the reasonable control of the movant; (2) the length of the delay and the delay's potential impact on judicial proceedings; (3) the danger of prejudice to the non-moving party; and (4) whether the movant acted in bad faith_ 13. Though the delay in filing the federal complaint was within reasonable control of the movant, the missing of the deadline was clearly inadvertent. The inadvertence is evidenced by the plaintiff's statements in bis own affidavit that describes a medical condition that involved recovering from heart attack that occurred on or about July 291\ 2020. It is also evidenced by the plaintiff's inability to read or speak English, the undersigned's own inability to practice in the U.S. Southern District of ew York without approval, the undersigned's illness in November 2020, and personal loss in the midst of a Covid- l 9 pandemic. 14. Secondly, the length of the delay is only thirty days from the deadline and not significant enough to have a potential impact on the judicial proceeding. Fed. R. Civ. P. 60(b)( l ) (B) provides that for any act that must be done by a party to a federal court proceeding within a specified time frame, the court may "for good cause, extend the time .. . after the time has expired if the party failed to act because of excusable neglect.,. Second, Rule 60(b)(1) provides for a party or their legal representative to obtain relief from an adverse judgment of a federal court for "mistake, inadvertence, surprise or excusable neglect.'' Fed. R. Civ. P. 60(b)(I ). In theory, a motion under Rule 6(b)(l)(B) may be filed at any time. However, there is a strict deadline of one year from the date of the entry of judgment for the movant to file a motion under Rule 60(b). Case 1:20-cv-10203-CM Document 2 Filed Page 5Page of 7 5 of 7 Case 1:20-cv-10203-CM Document 3 12/04/20 Filed 12/09/20 Fed. R. Civ. P. 60(c)(l ). Here, thirty days not only fall short of the strict deadline ofone year, the delay also occurred in the midst of a pandemic where courts, specifically in New York, were closed or operating in a less functioning capacity. l 5. Thirdly, thei:_e is no danger of prejudice to the non-moving party for _!he exact reason. Here, the Defendants are in possession of most if not all discovery that is needed to go forward in this proceeding and the thirty days delay does oat give rise to the risk that it is not possible to have a fair trial. 16. Lastly, there is no comprehensible reason as to why the movant would act in bad faith by not filing a federal complaint any sooner. WHEREFORE, it is respectfully requests that the Court grant the within motion in its entirety, and for such other and further relief as to the Court m just and equitable Dated: Brooklyn, New York December 2nd, 2020 argas, Esq. Attorney for Petitioner 26 Court Street, Suite 1406 Brooklyn, New York 11242 (718) 596-0025 Charlie@cvargaslaw.com Case 1:20-cv-10203-CM Document 2 Filed312/04/20 Page 6 of 7 6 of 7 Case 1:20-cv-10203-CM Document Filed 12/09/20 Page UNJTED STATF.S DISTRICT COURT SOUTHERN DISTRICT COUNTY o:, raw YORK _ _ _ _ _,_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _J; 1976 J. J. DELL GROCERY CORP., _ V. Case No. AFJIDAVIT or .PLAINTIDF 1) UNITED STATES DEPARTMENT OF AGRICULTURE; 2) FOOD AND NUIIUTION SERVICE; - - -- - - - - -- - - - - - -:x I, RAFAEL VARGAS D/B/A 1976 J. J. DELI GROCERY CORP. sworn under penalty of perjw-y, that: 1.1 am the business owner of said store, Rafael De Jesus Vargas. 2. [ make this application in support of filing my complaint to with the United States Disu.ct Court, Southern Dis1rict of New York. 3 That I was unfamiliu- wjtb the federal laws and electronic filing as it rela~ to this cue. 4. That oo in late July 2020, [ su&red a major heart attack and was hospitalized for approximately 4 to S days. 5. That ( was bedridden. for most of August and September of this year and started to go beck to work on a small time basis in the beginning of November of 2020. 6. That I was informed by my previous attorneys in October 2020 that I had lost my case on the administra,tion level but I was WlS\ll'O bow to proceed fighting my case. 7. I contacted 1he Law Otiice of Charlie Vargas. P.C. to assist me in this matter to proceed pursing th.is case on the federal level. R. I understand now that the filing of this complaint comes after the 3-0 days of my prior attorney receiving the final agency decision in early October 2020. of recovering from a .heart attack, my difficulty in 9. Due to my fragile ~ reading Bnglish, and the stresses associated with managing a store during a pandemic and without the ability 1o conduct £BT transactio.n.s, l am requesting that this court grant me the opportunity to pursue my claim in federal court. to. It i3 my undcQtanding that at this e:uly $t\ge of the litigation, there is oo appa.reat impact oo the proceedings or prejudice to the defendants caused by the late tiling by a few weeks. 11. That the lale filing was due to an excusable oegle<;t WHEREFORE, I, pray that tb.e Comt grant the within motio1J, as well as such other and further relief as may be just and proper. I . . • • f • • : :- ( I• I , .• • f I • t ' . I • I •• SW°"} to :, ,.1:_ me u= BEU<JS COtSCOU ,· <lay of December ioizo r : •. ' • . •' \ 1. ' N01ARYPU8UC, srATEOfNEWYORK NO. 01coso21oos au,Bied n New Y01k eoonty ComnusiOI\ Ele?i'el 02/17~ Case 1:20-cv-10203-CM Document 2 Filed 312/04/20 Page 7 of 7 7 of 7 Case 1:20-cv-10203-CM Document Filed 12/09/20 Page VERIFICATION I, RAFAEL VARGAS D/BIA 1'76 J. J. DELC GROCERY CORP, being duly sworn deposes and state the foUowing under oath and penalty: I am party to this action and a named Plaintiff in court number [ have rea.d the Complaint by my attorney, Charlie A. Vargas. Esq. that is to be filed in U.S. District Court, Southern District of New York. l make this verincation in this matter based on my knowledge of the affairs surrounding this matter. As to the matters alleged herein, r verify that upon information and belief they are true and accurate to the best of my knowledge. Dat.ed: Bronx, New Yonc Decanber 1• . 2020 SWORN TO BEFORE ME THIS DAY OF DECEMBER.2020 .' 03 . \' ' .I . •. Notary ' BELKIS COISCOU NOTARY PUBLIC, STATE OF NEW YORI< NO, 01 COS02103S Ou.wficd in New YOik C®nl'f ComrntSStCI\ e.x,,tres 0211712<D..,_;
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