A federal judge in New Jersey has imposed a $10,000 sanction on a lawyer whose excuse for missing a court filing deadline was refuted by vacation photos on her Instagram account.

Lina Franco, a labor and employment lawyer in a New York-based solo practice, was local counsel to a group of restaurant workers in a wage-and-hour case, Ha v. Baumgart Cafe, when she failed to meet a Nov. 23, 2016, deadline to file a motion for conditional certification of a collective action under the Fair Labor Standards Act. On Dec. 9, 16 days after the motion was due, Franco filed the motion along with a request for an extension of time.

In her request for an extension, Franco said she missed the deadline because she made an unexpected trip to Mexico City to tend to a family emergency. Her request was accompanied with what appeared to be an itinerary from travel website despegar.com showing her flight from New York to Mexico City on Thursday, Nov. 21, 2016, and a return flight on Dec. 8 of that year.

On Dec. 12, defense lawyers in the case raised objections before U.S. District Judge Esther Salas about the lateness of the motion, and pointed out discrepancies in her account. Her purported flight itinerary showed her taking a flight to Mexico City on Thursday, Nov. 21, but defense lawyer Benjamin Xue pointed out that Nov. 21 was a Monday, not a Thursday. In addition, Franco's public Instagram account showed her in New York, and then in Miami, during the period she claimed to be in Mexico, Xue asserted in court.

Exhibits filed by the defendants showed screenshots from Franco's Instagram account during the period she claimed to be caring for her sick mother in Mexico. The photos appear to show Franco having Thanksgiving dinner in New York, and later, in Miami, visiting a bar, attending an art exhibit and working on a laptop computer next to a pool.

Franco later admitted to Salas that she was “not honest” with the court or the other attorneys in the case and that she was not in Mexico on the dates she had claimed to be in that country. She told the court she visited Mexico City earlier in November to attend to her sick mother, and that her emotional distress over her mother's illness caused her to miss the filing deadline and submit the false itinerary. She also withdrew from the case, citing differences with co-counsel John Troy of Flushing, New York, who was admitted pro hac vice in the New Jersey matter. Franco is admitted in New Jersey.

Salas terminated the motion for certification on the request of Franco, but allowed the plaintiffs to proceed with the motion after Troy sought reconsideration of the order for its dismissal. Then, on March 27, Salas denied the motion for certification.

The suit, brought on behalf of three restaurant workers, claims minimum wage and overtime violations by the owners of four restaurants operating under the name Baumgart's Cafe in the New Jersey locales of Livingston, Edgewater, Englewood and Ridgewood. Lawyers representing the four restaurants and their owners sought sanctions against Franco and Troy.

U.S. Magistrate Judge Michael Hammer said sanctions against Franco were warranted because she “deliberately misled the Court and the other attorneys in this case” and because she falsely claimed that she discussed her decision to withdraw the motion with her co-counsel and clients.

However, Hammer denied the defense motion for sanctions against Troy, rejecting the defendants' claims that he should be held jointly and severally liable for Franco's misconduct. The judge noted that when Troy learned the motion was filed out of time, he promptly contacted the court and explained that he had emailed the completed motion papers to Franco for filing on Nov. 23, 2016. Franco did not dispute that assertion, Hammer said.

The three defense lawyers on the case sought $44,283 in fees and costs—$25,470 for Douglas Weiner of Lipman Plesur in New York; $11,603 for Xue of Xue & Associates in New York; and $7,201 for S.M. Chris Franzblau of Franzblau Dratch in Livingston, New Jersey.  But Hammer called their requests “unreasonably high,” finding defendants “suffered no irremediable prejudice as a result of the belated filing or Ms. Franco's misrepresentations to the Court.” He found the defendants' billings “frequently redundant and duplicative.” and ordered them to split the $10,000 evenly.

Franco said in an interview she will seek to appeal the sanctions order. She said she showed “poor judgment” and added that she was “sorry it happened.” But she also said she was denied her right under Rule 11 of the Federal Rules of Civil Procedure for a “safe harbor” because she withdrew the motion for certification within 21 days of filing it. She also said she plans to challenge the judge's decision to sanction her but not Troy, arguing that a lawyer admitted on a pro hac vice basis in a New Jersey case has a duty to supervise the local counsel he hires.

Defense lawyer Franzblau said Hammer showed compassion toward Franco in light of her acknowledgment of wrongdoing. He said that he disagreed with the judge's decision not to sanction Troy but added, “it is what it is—the important thing was the motion” was granted.

As for the other defense lawyers, Xue declined to comment and Weiner did not return a phone message.

At the law office of plaintiffs lawyer Troy, his co-counsel, Aaron Schweitzer, said the firm would not comment.