Chen v. Chan, 2015 U.S. App. LEXIS 9271 (2d Cir. June 4, 2015):

Appellant Wai Yin Chan appeals from a judgment of the district court awarding damages to the plaintiffs on their claims under the New York Labor Law ("NYLL"). Chan asserts that the district court erred by (1) excluding evidence of a purported settlement agreement between Chan and the plaintiffs at trial; (2) failing to incorporate a tip allowance or meal allowance against the general minimum wage in calculating the plaintiffs' damages; (3) relying on the federal minimum wage instead of the lower corresponding New York wage in calculating damages for certain periods of the plaintiffs' employment; and (4) failing to offset Chan's liability by payments of $2,000 to each of four plaintiffs who conceded that such payments had been made. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

First, we address the scope of our jurisdiction over this appeal. Rule 3(c)(1)(B) of the Federal Rules of Appellate Procedure requires an appellant to "designate the judgment, order, or part thereof [*2]  being appealed" in his notice of appeal. Fed. R. App. P. 3(c)(1)(B). Our jurisdiction over the subsequent proceedings is "limited by the wording of the notice." New Phone Co. v. City of N.Y., 498 F.3d 127, 130 (2d Cir. 2007). Nevertheless, we have long held that "a notice of appeal filed by a pro se litigant must be viewed liberally." Grune v. Coughlin, 913 F.2d 41, 43 (2d Cir. 1990). "As long as the pro se party's notice of appeal evinces an intent to appeal an order or judgment of the district court and appellee has not been prejudiced or misled by the notice, the notice's technical deficiencies will not bar appellate jurisdiction." Marmolejo v. United States, 196 F.3d 377, 378 (2d Cir. 1999) (internal quotation marks omitted); see also Phelps v. Kapnolas, 123 F.3d 91, 93 (2d Cir. 1997) (construing pro se notice of appeal of final disposition to create jurisdiction over earlier orders). While Chan's notice of appeal specifies that he appeals from "the Judgment of a damages calculation" entered against him, Docket No. 1 at 1, we construe his notice liberally as an appeal from the final judgment that confers jurisdiction over Chan's challenges to the district court's evidentiary rulings at trial that are subsumed in that judgment.

As to the merits of those arguments, Chan claims that the district court violated his due process rights by excluding documentary evidence and testimony regarding a purported settlement agreement between [*3]  Chan and the plaintiffs. Specifically, Chan argues that the district court erred by excluding the evidence as a discovery sanction, based solely on a representation by the plaintiffs' counsel that Chan's former lawyer never produced a copy of the agreement during discovery, without providing Chan an opportunity to contact his former attorney to verify that representation. Had Chan been permitted such an opportunity, he argues, he would have been able to establish that his former attorney included a copy of the settlement agreement as part of his Rule 26(a)(1) Initial Disclosures.

Although "district courts generally have wide discretion in deciding when sanctions are appropriate . . . , the manner in which sanctions are imposed must comport with due process requirements." Sanko S.S. Co. v. Galin, 835 F.2d 51, 53 (2d Cir. 1987). At a minimum, this means "that the delinquent party be provided with notice of the possibility that sanctions will be imposed and with an opportunity to present evidence or arguments against their imposition." Satcorp Int'l Grp. v. China Nat'l Silk Imp. & Exp. Corp., 101 F.3d 3, 6 (2d Cir. 1996) (internal quotation marks omitted); see also Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 270 (2d Cir. 1999) (requiring notice and opportunity to argue against imposition of sanctions for failure to produce documents during discovery). In this case, even though Chan had been left to [*4]  proceed pro se on the eve of trial, insisted that he had provided a copy of the agreement to his former attorney, and requested an opportunity to call his attorney to check whether the documents had been produced, the district court refused to pause the proceedings to accommodate Chan's request. It thus prevented him from obtaining potentially compelling evidence to refute the plaintiffs' representations. In such circumstances, and taking particular heed of Chan's unexpected pro se status, the district court's refusal to allow Chan to contact his former attorney denied Chan a meaningful opportunity to defend himself against the imposition of discovery sanctions. Accordingly, the case must be remanded with instructions for the district court to conduct a further inquiry into whether Chan produced the contested evidence, as part of his Rule 26(a)(1) disclosures or otherwise. Should the district court determine that the document was never produced, the original judgment, corrected as set forth below, will be reinstated. Should the court determine that Chan in fact provided the settlement agreement to the plaintiffs' counsel, however, the erroneous exclusion of evidence of that agreement from the proceedings [*5]  below entitles Chan to a new trial.¹

In addition to his evidentiary challenge, Chan raises numerous objections to the district court's calculation of the plaintiffs' damages. If the district court determines that Chan is entitled to a new trial, these challenges may of course become moot. Because the district court's initial judgment might yet be reinstated, however, and because our discussion may provide useful guidance for a new damages calculation following a second trial, we briefly review his objections.

As a general matter, we review a district court's computation of compensatory damages for clear error. Jimico Enters., Inc. v. Lehigh Gas Corp., 708 F.3d 106, 110 (2d Cir. 2013). To the extent that Chan's objections raise pure questions of law, including the "measure of damages upon which the factual computation is based," we review those claims de novo. Delchi Carrier SpA v. Rotorex Corp., 71 F.3d 1024, 1029 (2d Cir. 1995) (internal quotation marks omitted).

The district court alternately found that Chan's proffered copy of the settlement agreement was inadmissible because it was unsigned. However, the mere fact that an agreement is unsigned does not make it per se inadmissible. Such a document may be authenticated by other means, see, e.g., United States v. Tin Yat Chin, 371 F.3d 31, 37-38 (2d Cir. 2004) (observing that Fed. R. Evid. 901 only requires "sufficient proof . . . so that a [*6]  reasonable juror could find in favor of authenticity or identification," which is not "a particularly high hurdle") (internal quotation marks omitted), and may be relevant to demonstrate the existence of an agreement between the parties, see 10 Ellicott Square Court Corp. v. Mountain Valley Indem. Co., 634 F.3d 112, 124 (2d Cir. 2011) (recognizing that under New York law "[a]n unsigned contract may be enforceable, provided there is objective evidence establishing that the parties intended to be bound") (internal quotation marks omitted).

If the district court grants Chan a new trial, he should have the opportunity to demonstrate the document's admissibility.