the next case on the calendar is the perfect team overreacted to all of the issues that were raised by the by the perfect team defendants in this action so i'd like to start with the tax question the one question i was raised at deposition during deposition testified that she earned approximately three thousand dollars a month in wages and tips on her unemployment application forms she entered a share and thirty seven thirty eight hundred dollars per month and she you know adhered to her story in order to test her credibility which is going to be vital in this case because the only written documents in this case are the record of the tips and the log of the net pay she received each pay period there were no time records and so the time record her testimony regarding her it even at the hours that the lesser hour which you did not dispute there there was no traverse of what she earned during posed times and since you're raising the question of whether you should get her tax things to prove that the question of what you drew a verse directly is exactly important worst you are now arguing before us different the hours the affidavits were submitted shows that she worked only about forty something hours a week not fifty five hours a week and the reason why these affidavits were smith is because the individual different issue from the tax yes yes all i was trying to start off were guarding that was that i wanted to ask in a scholar simple question which was if you over reported on the and unemployment did you under report on your taxes because it's consistently over reported that's one thing there's nothing to say about that but she over reported was beneficial to her but under reported ones beneficial to her that would be relevant to our credibility and the during the arguments during the objections that were filed with that i kept pointing out that i believe that she's going to under report and she's not denying that the decision to bar the making sure i understand your argument your argument is that the affidavits that you were not that were stricken were would have created a material issue of fact on this point on the hour so she worked yes and i'm going to get to that you know how is there any discretion in the district court's decision that you shouldn't be permitted to submit those affidavits at the time you did yes i think to start the answer i need to take one step back to provide background which is that there was a sanctions motion  where and leaving aside the grounds for assuming that for argument that's all correct that you know should the darkness were late or that you know the defense to have certain information the proper remedy for that shouldn't be to prevent the defendants from taking the top positions of these other plaintiffs there's no connection between them that that that doesn't help in a sense if one of the  inferences thing else that seems to me a you know there was plenty there so a bit far more severe sanctions have been granted in many cases i would agree but what i'm trying to say is heard on a factual finding about delay the magistrate judge and the district court burden a factual finding as to whether it was delay how are we possibly to do anything of that s you deny that there's a delay but i'll accept that for purposes of our discussion now even if there's a delay how long was this delay it could and there was a bankruptcy stay in the middle of this discovery we the defendants never missed a deposition all the documents that we have turned over within the first few months it wasn't that there was later on there was more documents forthcoming the document discovery in this case and  maybe may of twenty eleven i appeared in this case in general of twenty eleven so in three months we gave them the only documents that were presented in this case all the documents in this case came in the first three months the techno cook her income records and that fewer than half of twenty into raga tories and claim that thirty categories of documents were were not available in so it's hard to believe that the district court clearly erred  finding that there was a record of not complying with discovery in this matter the on december thirtieth i believe in twenty ten and in may twenty first of two thousand and eleven and i just want to go the order plaintiff's attorneys is that no it's too late and so that's the next thing the third one was they're saying this thirty categories of documents what are these thirty kind of course of darkness that we say we don't have the don't have they never kept time records  bank records so everything that they're trying to say that they don't have most of it just doesn't exist because these are sophisticated businessmen they started a restaurant there their skill is not in maintaining records and so the point i'm trying to get to about these records and in these issues is not that there was more forthcoming but even the right course that they're trying to say they wanted the records from the transfer alleged transfer from perfect even if there were such records what the argument they're trying to make is that there's a successor a liability from a perfect  none of the right christi show whether or not mr chang or miss wong exercised functional control exercised operational control over a miss the point one has nothing at all to do with the other and so that's  judgment was put on the table there is no time for for me to go and search for these other people i'm stunned that we were not able to take the deposition of parties in this case especially who was still in the case  four months that with that i had to submit my opposition to a motion for summary judgment so we did all that we could but i'd get more if i could it's not right that each of these decisions that  prejudiced the defendant from putting on defense keep rolling on two to knock out each next stage of the litigation and i see my time is up the statements about misc out hours worked and the wages that she earned were undisputed in the record you can find the defendants fifty six point one statement on those issues a a eleven seventy seven and a eleven seventy eight in the special appendix the district court addressed these issues at special appendix pages eighty seven and eighty nine to ninety two  especially on page ninety one the core point here is that the miscounts claims are simple her claims are that the defendants failed to pay her what they ow her under federal and new york labor law the summary judgment was the district court awarded her summary judgment based on a handful on a small handful of undisputed facts about her hours and her wages those wages amounted to less than two dollars per hour now on appeal the district sorry on appeal the defendants argue that the district court overlooked pieces of evidence that would have created disputes of fact the trouble is that most of the facts that the district court relied on are ones that the defendants flat out conceded as as your honour's have acknowledged the only evidence that defendants claim the district court overlooked was either the evidence that was properly struck from the record or evidence that the district court carefully theory here that the district court over reacted the district court did no such thing the district court handled this case carefully examined the record and its discovery decisions were well founded and certainly not an abuse of discretion turning to those discoveries decisions that the defendants have raised they they first argued that they should have been that allow caldicott her tax returns as the court has recognized the district corps properly determined that that the defendant should not be able to ask miss gallup out those records because there is no there are entire entirely irrelevant to this case defendant suggestion that her credibility was at issue is that with the fact that defendants conceded the hours that she worked and the wages that she was paid and their allegation that there was a does anything depended on her credibility then that would be a violations here that imposed the way and cost on misc we summarize some of those on page eight of our brief the district court was well within its discretion to impose those sanctions a nd as for the defendants deemed that they were prevented from developing their case that discovery here lasted for two years the fens had every opportunity to develop their case they took written discovery they deposed my scout twice even after the close of discovery they indicated to the district to the lower court that they may wish to seek additional discovery the lower court outlined a process for them to do that if they wished and they never did that so none of the district courts discovery decisions was an abuse of discretion the last issue that they phrased on appeal is the attorneys fees issue where you get to the attorney why would that was within the scope of the district court's discretion short the those and let me try to provide some context here after two years of discovery after two years of discovery the plaintiffs move for summary judgment the in response in opposition to summary judgment defendants submitted ten affidavits in an attempt to create a dispute of material fact those affidavits were from affiance who had not been properly disclosed during discovery two of those affiance had not been disclosed that all defendants argument with respect to the remaining eight is that they were disclosed in a list of thirty five former employee employees or former employees of the restaurant in response to an interactive tory defendants do not mention the fact that in their twenty six point one in their rule twenty six disclosure they stated that they did not plan to rely on any witnesses so when it came time for summary judgment they submitted these affidavit from never before disclosed affiance and the district court properly rule that evidence that had been that had been withheld during this long period of discovery should not be and it was the district court granted that motion to strike that that was not an abuse of discretion turning to the last issue attorney's fees the defendants complaints that the attorney's fees here are too high fail for two principal reasons first that it was the defendant's conduct that drove much of the cost of this litigation as the lower court acknowledged the defendants were solely responsible for much of the time that plaintiffs council had to spend on this matter that's a quote from special appendix page one sixty five and second the award was the result of careful analysis by the district court and incorporated several substantial plaintive was getting counsel fees which were way out of proportion to what was involved in the case as in arbor hill but that here a certain amount was being sought and presumably council fees consistent with that would have been charged but then the defendant added on expenses in order to fight that into counsel fees are not granted in v situations a defendant can almost always destroy a small claim by making over claims that would in discovery making over things would cause it to be much too expensive to be worthwhile being court did not appease that's discretion so in conclusion i'd like to come back to the fact that miss gal is a restaurant worker who's now in her eight year of trying to recover the pay that defendant so her and we ask this court to affirm the lower court's judgment for her and allow or to recover fair pay for her labor and none of the arguments the fence raise on appeal present and the hurdle to doing that thank you paragraph fifty three all it says is that plaintiff regularly work more than forty hours per week for all the time she worked out perfect team and that should work more than forty hours a week it doesn't say she works sixty hours a week sixty one hours a week or fifty five dollars per week next paragraph is that from april twenty first two thousand and eight to june first two thousand and nine plaintiffs regularly work six days per week of the restaurant she did regularly shift you might have to have one depending on when you work you also have a milk break so she doesn't although her shift from beginning to end is ten hours she didn't work ten hours a day she worked eight hours a day seven a half hours a day so when you add that up it's not fifty for and that's the point and that's actually true but that's not what we're pointing out over here that the plaintiffs engage themselves in so much over regions so many motions that was unnecessary we've told them we don't it if it wasn't then of course the attorneys fees would fall over a certain way yes but that's true but that's responding to what you're saying but what i'm trying to say is that this these plaintiffs for example spent a quarter of their time fifty thousand dollars pursuing a strategy of getting prejudgment tashkent there has to to my research never been successful no you know there's no paying client that would spend fifty thousand dollars to pursue this kind of a case to pursue that kind of action there's the restaurants there everything's running why would you go and take these kinds of steps so you have no evidence you in four three claims and i prevail upon two claims it's not a claim by claim analysis by how much money they received she was seeking a hundred and seventy nine thousand dollars for one year of work and she and she recovered only forty only give a ten and fifteen percent discount for the their lack of some people withdrawing that's wholly insufficient for only this recovery because it's not like she had the alternative claim seven alternative claims and she prevailed on one thousand nuff we have here we have your briefing on this if there are no other questions from my colleagues we've been very generous with the time so i thank you for your argument thank you both and will take the