Tayler Ulmer v. StreetTeam Software, LLC
| Tayler Ulmer, Sergio Giancaspro, Cori Ershowsky, Alexis Geraci, Jamere Bowers and Adaku Ibekwe |
| StreetTeam Software, LLC doing business as Pollen, Network Travel Experiences, Inc., Jusexperiences UK Limited, Callum Negus-Fancey, Liam Negus-Fancey and James Ellis |
| 2:2023cv02226 |
| March 27, 2023 |
| US District Court for the Central District of California |
| Alicia G Rosenberg |
| John F Walter |
| Labor: Other |
| 05 U.S.C. § 704 Labor Litigation |
| Plaintiff |
Docket Report
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Filing 55
ORDER by Judge John F. Walter: Granting #54 Non-Resident Attorney Sagar K. Shah APPLICATION to Appear Pro Hac Vice on behalf of on behalf of Plaintiffs Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer, designating Damion D D Robinson as local counsel. (et)
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| Filing 54 Corrected APPLICATION of Non-Resident Attorney Sagar K. Shah to Appear Pro Hac Vice on behalf of Plaintiffs Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer (Pro Hac Vice Fee - $500 Previously Paid on 4/4/2023, Receipt No. ACACDC-35074252) filed by Plaintiff Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer. (Attachments: #1 Proposed Order) (Robinson, Damion) |
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Filing 53
ORDER by Judge John F. Walter: granting #52 Non-Resident Attorney Valdi Licul APPLICATION to Appear Pro Hac Vice on behalf of Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer, designating Damion Robinson as local counsel. (lom)
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| Filing 52 Corrected APPLICATION of Non-Resident Attorney Valdi Licul to Appear Pro Hac Vice on behalf of Plaintiffs Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer (Pro Hac Vice Fee - $500 Previously Paid on 4/4/2023, Receipt No. ACACDC-35074383) filed by Plaintiff Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer. (Attachments: #1 Proposed Order) (Robinson, Damion) |
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Filing 51
ORDER by Judge John F. Walter: Denying Application of Non-Resident Attorney Sagar Shah to Appear Pro Hac Vice on behalf of Plaintiffs Tayler Uhner, Sergio Giancaspro, Cori Ershowsky, Alexis Geraci, Jamere Bowers, and Adaku lbekwe. IT IS HEREBY FURTHER ORDERED that the pro hac vice application fee, if paid, not be refunded #47 . (iv)
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Filing 50
ORDER by Judge John F. Walter: Denying Application of Non-Resident Attorney Valdi Licul to Appear Pro Hac Vice on behalf of Plaintiffs Tayler Uhner, Sergio Giancaspro, Cori Ershowsky, Alexis Geraci, Jamere Bowers, and Adaku lbekwe. IT IS HEREBY FURTHER ORDERED that the pro hac vice application fee, if paid, not be refunded #48 . (iv)
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| Filing 49 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Valdi Licul to Appear Pro Hac Vice on behalf of Plaintiffs Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer (Pro Hac Vice Fee - $500 Fee Paid, Receipt No. ACACDC-350 #48 , NOTICE OF MOTION AND MOTION of Non-Resident Attorney Sagar J, Shah to Appear Pro Hac Vice on behalf of Plaintiffs Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer (Pro Hac Vice Fee - $500 Fee Paid, Rece #47 . The following error(s) was/were found: Local Rule 83-2.1.3.3(d) Certificate of Good Standing not attached for every state court listed to which the applicant has been admitted. (sbou) |
| Filing 48 APPLICATION of Non-Resident Attorney Valdi Licul to Appear Pro Hac Vice on behalf of Plaintiffs Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer (Pro Hac Vice Fee - $500 Fee Paid, Receipt No. ACACDC-35074383) filed by Plaintiffs Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer. (Attachments: #1 Proposed Order) (Robinson, Damion) |
| Filing 47 NOTICE OF MOTION AND MOTION of Non-Resident Attorney Sagar J, Shah to Appear Pro Hac Vice on behalf of Plaintiffs Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer (Pro Hac Vice Fee - $500 Fee Paid, Receipt No. ACACDC-35074252) filed by Plaintiffs Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer. (Attachments: #1 Proposed Order) (Robinson, Damion) |
| Filing 46 Notice of Appearance or Withdrawal of Counsel: for attorney Damion D D Robinson counsel for Plaintiffs Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer. Adding Damion D. D. Robinson as counsel of record for Tayler Ulmer, Sergio Giancaspro, Cori Ershowsky, Alexis Geraci, Jamere Bowers, Adaku Ibekwe for the reason indicated in the G-123 Notice. Filed by Plaintiffs Tayler Ulmer, Sergio Giancaspro, Cori Ershowsky, Alexis Geraci, Jamere Bowers and Adaku Ibekwe. (Attorney Damion D D Robinson added to party Jamere Bowers(pty:pla), Attorney Damion D D Robinson added to party Cori Ershowsky(pty:pla), Attorney Damion D D Robinson added to party Alexis Geraci(pty:pla), Attorney Damion D D Robinson added to party Sergio Giancaspro(pty:pla), Attorney Damion D D Robinson added to party Adaku Ibekwe(pty:pla), Attorney Damion D D Robinson added to party Tayler Ulmer(pty:pla))(Robinson, Damion) |
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Filing 45
STANDING ORDER by Judge John F. Walter. READ THIS ORDER CAREFULLY. IT CONTROLS THE CASE AND DIFFERS IN SOME RESPECTS FROM THE LOCAL RULES. This action has been assigned to the calendar of Judge John F. Walter. (iv)
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| Filing 44 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney Sagar Shah. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. (car) |
| Filing 43 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney Valdi Licul. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. (car) |
| Filing 42 Notice to Counsel Re Consent to Proceed Before a United States Magistrate Judge. (car) |
| Filing 41 NOTICE TO PARTIES OF COURT-DIRECTED ADR PROGRAM filed. (car) |
| Filing 40 NOTICE OF ASSIGNMENT to District Judge John F. Walter and Magistrate Judge Alicia G. Rosenberg. (car) |
| Filing 39 NOTICE OF RECEIPT OF CASE TRANSFERRED IN: Formerly Case Number: 1:22-cv-05662-DLI-CLP, from U.S. District Court Eastern District of New York (Brooklyn). The above-referenced case has been transferred to this district and assigned the above civil case number 2:23-cv-02226-JFW-AGRx. (car) |
| Filing 38 ORIGINAL file, certified copy of transfer order and docket sheet received from New York Eastern |
| Filing 37 Letter by Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 36 AFFIDAVIT of Service for Order Transferring Case served on Liam Negus-Fancey on 3/20/2023, filed by Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer. (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 35 AFFIDAVIT of Service for Order Transferring Case served on JusExperiences UK Limited on 3/20/2023, filed by Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer. (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 34 AFFIDAVIT of Service for Order Transferring Case served on James Ellis on 3/20/2023, filed by Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer. (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 33 AFFIDAVIT of Service for Order Transferring Case served on Callum Negus-Fancey on 3/20/2023, filed by Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer. (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 32 SUMMONS Returned Executed by Adaku Ibekwe, Sergio Giancaspro, Cori Ershowsky, Tayler Ulmer, Alexis Geraci, Jamere Bowers. Liam Negus-Fancey served on 3/17/2023, answer due 4/7/2023. (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 31 SUMMONS Returned Executed by Adaku Ibekwe, Sergio Giancaspro, Cori Ershowsky, Tayler Ulmer, Alexis Geraci, Jamere Bowers. JusExperiences UK Limited served on 3/17/2023, answer due 4/7/2023. (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 30 SUMMONS Returned Executed by Adaku Ibekwe, Sergio Giancaspro, Cori Ershowsky, Tayler Ulmer, Alexis Geraci, Jamere Bowers. James Ellis served on 3/17/2023, answer due 4/7/2023. (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 29 SUMMONS Returned Executed by Adaku Ibekwe, Sergio Giancaspro, Cori Ershowsky, Tayler Ulmer, Alexis Geraci, Jamere Bowers. Callum Negus-Fancey served on 3/17/2023, answer due 4/7/2023. (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Case transferred to the U.S. Courthouse for the Central District-California. Case transferred electronically via CM/ECF to the California-Central District; see Electronic Order dated 3/16/2023. ALL FILINGS ARE TO BE MADE IN THE TRANSFER COURT, DO NOT DOCKET TO THIS CASE. (ML) [Transferred from New York Eastern on 3/29/2023.] |
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ORDER Directing Compliance --- By Electronic Orders dated March 14, 2023 ("Order on Motion to Vacate") and March 16, 2023 ("Transfer Order", together "Orders"), Plaintiffs were directed to serve copies of certain filings as well as copies of the Orders themselves on Defendants by March 17, 2023 and March 20, 2023, respectively, and, immediately thereafter, file proof of such service with the Court. See, Order on Motion to Vacate, (directing service of: (1) the Amended Complaint, (2) the Court's M&O of Dismissal dated February 28, 2023, (3) Plaintiffs' Letter Motion to Vacate dated March 1, 2023, and (4) the Order on Motion to Vacate); Transfer Order (directing service of the Transfer Order).To date, Plaintiffs have filed proof of service of some of the filings on some Defendants, but not all, thus failing to comply fully with the Orders. See, Dkt. Entry Nos. 25-28 (showing proof of service of the amended complaint and Transfer Order on Defendants Network Travel Experiences, Inc. and StreetTeam Software, LLC, only). Additionally, it bears noting that Plaintiffs" "proofs of service" of the Transfer Order consist of two affidavits that do not state anywhere that the Transfer Order is what was served, indicating instead only that an unspecified "Notice of Electronic Filing" was served. See, Dkt. Entry Nos. 27-28. It is only in the docket text of the filing that the Transfer Order is mentioned.BY NO LATER THAN MARCH 28, 2023, Plaintiffs are directed to file proper proof of service on Defendants of all filings identified in the March 14, 2023 and March 16, 2023 Electronic Orders as well as this instant Electronic Order. Plaintiffs again are reminded that they have a standing obligation to serve on Defendants who have not appeared in this action copies of all filings and file proof of service thereafter. SO ORDERED by Judge Dora Lizette Irizarry on 3/22/2023. (CC) Modified on 3/22/2023 (CC). [Transferred from New York Eastern on 3/29/2023.]
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| Filing 28 AFFIDAVIT of Service for Order Transferring Case served on Defendant Network Travel Experiences, Inc. on 3/20/2023, filed by Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer. (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 27 AFFIDAVIT of Service for Order Transferring Case served on Defendant StreetTeam Software, LLC on 3/20/2023, filed by Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer. (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 26 SUMMONS Returned Executed by Adaku Ibekwe, Sergio Giancaspro, Cori Ershowsky, Tayler Ulmer, Alexis Geraci, Jamere Bowers. Network Travel Experiences, Inc. served on 3/16/2023, answer due 4/6/2023. (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 25 SUMMONS Returned Executed by Adaku Ibekwe, Sergio Giancaspro, Cori Ershowsky, Tayler Ulmer, Alexis Geraci, Jamere Bowers. StreetTeam Software, LLC served on 3/16/2023, answer due 4/6/2023. (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
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ORDER TRANSFERRING CASE TO THE U.S. DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA --- On February 28, 2023, Plaintiffs, three California residents, two New York residents, and one Wisconsin resident, filed an amended complaint ("Amended Complaint") against their former employers on behalf of themselves and all other similarly situated employees pursuant to Federal Rule of Civil Procedure 23, alleging that Defendants violated various federal, state, and local labor laws by, inter alia, terminating employees improperly and failing to pay wages owed. See, Amended Complaint ("Am. Compl."), Dkt. Entry No. 1, para. 5, 9-14, 86-123, 142-145, 157-163. Plaintiffs further allege that Defendants engaged in various violations of California law, including provisions of the California Labor Code and California Business & Professional Code, and committed common law breach of contract and fraud. Id. para. 124-141, 146-156. While Defendants are identified in the Amended Complaint as three entities and three individual officers and owners of those entities, they are alleged to be part of a single enterprise that operates in the United States ("U.S.") and United Kingdom ("U.K.") under one business name, to wit, "Pollen," through shared offices, operations, and management. Id. 1, 15-25 (naming as Defendants a Delaware corporation, a Delaware LLC, a U.K. PLLC, and three individuals residing in the U.K. deemed to be officers and owners of the entities, but explaining that they are members of a single enterprise). Plaintiffs contend that Defendants' "primary office in the United States" is located in Los Angeles, California and Plaintiffs all either worked for Defendants in Los Angeles, were staffed by Defendants from their "U.S. headquarters" in Los Angeles, or both. Id. para. 9-14, 93. Plaintiffs also allege that "Defendants terminated most employees staffed at their primary Los Angeles office, reflecting more than 33% of their workforce overall, more than 33% of the workers staffed from the Los Angeles office, and over 50 employees." Id. para. 89. Notably, while the Amended Complaint alleges violations of multiple state statutes, allegations involving violations of California state law predominate. Id. para. 74, 79, 92-116, 124-129, 142-145 (asserting seven causes of action based on violations of state statutes, four of which allege violations of California statutes in addition to other state statutes, and two of which allege violations of California statutes only). Plaintiffs also contemplate a "California Subclass" comprised of California employees. Id. para. 74.In light of the following factors, that: (1) Defendants' primary U.S. office is located in Los Angeles (Headquarters); (2) the majority of named Plaintiffs reside in Los Angeles; (3) all employees or nearly all employees were hired out of Defendants' Headquarters; (4) approximately more than one-third of the Defendants' employees in the Headquarters were fired; (5) approximately one-third of other workers hired by the Headquarters were fired; (6) a substantial part of the alleged conduct giving rise to the claims took place in Los Angeles; and (7) alleged violations of California law predominate, this action could have been brought in the first instance in the U.S. District Court for the Central District of California, which has jurisdiction over Los Angeles, California. See, 28 U.S.C. 1391(a), (b). Pursuant to 28 U.S.C. 1404(a), "[f]or the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." See, Pro Sight - Syndicate 1110 at Lloyd's v. Am. Builders & Devs., LLC, 2017 WL 10456835, at *3 (E.D.N.Y. Dec. 14, 2017) (District courts have broad discretion in making determinations of convenience under Section 1404(a) and notions of convenience and fairness are considered on a case-by-case basis.) (quoting D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106 (2d Cir. 2006)). Furthermore, courts may transfer cases sua sponte. Id. at *2 (collecting cases).Wherefore, the Court finds that it is in the interest of justice to transfer this action to the U.S. District Court for the Central District of California. See, Collins v. Kohl's Dep't Stores, Inc., 2018 WL 2926301, at *2 (D. CT. June 11, 2018) (transferring nationwide employee class action to district of defendant's headquarters, finding conduct at its headquarters to be material to all claims and, thus, the principal location of operative facts); McEvoy v. Protein Sciences Corp., 2015 WL 2330159, at *2-3 (S.D.N.Y. Mar. 23, 2015) (transferring to District of Connecticut a class action alleging violations under the FLSA and New York and Connecticut labor laws because, inter alia, defendant's principal place of business, including its management and most of its employees, was in Connecticut and defendant managed its payroll from its Connecticut facility, suggesting that a substantial part of the events giving rise to the claims occurred in Connecticut). Here, the Court finds that conduct at Defendants' Headquarters, located in Los Angeles, CA, is material to all claims and, thus, is the principal location of operative facts, including hiring, firing, management of employees and payroll management.The Clerk of the Court is directed to transfer this case to the U.S. District Court for the Central District of California and to close this case. Plaintiffs are directed to serve a copy of the instant order on Defendants BY NO LATER THAN MARCH 20, 2023 and, immediately thereafter, file proof of service with the Court. SO ORDERED by Judge Dora Lizette Irizarry on 3/16/2023. (Irizarry, Dora) [Transferred from New York Eastern on 3/29/2023.]
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| Filing 24 AMENDED Summons Issued as to James Ellis, JusExperiences UK Limited, Callum Negus-Fancey, Liam Negus-Fancey, Network Travel Experiences, Inc., StreetTeam Software, LLC. (ML) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 23 Proposed Summons. Re #15 Amended Complaint by Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
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ORDER granting in part and denying in part #22 Plaintiffs' Ltr. Mot. to Vacate #21 Order Dismissing Case; #15 Amended Complaint; Amending #21 Order of Dismissal for Lack of Subject Matter Jurisdiction --- As an initial matter, Plaintiffs filed an amended complaint (Amended Complaint) in this action on the very same day and just hours before this Court issued its Memorandum and Order (M&O) dismissing the original complaint (Complaint) for lack of subject matter jurisdiction. See, Compl., Dkt. Entry No. 1; Am. Compl., Dkt. Entry No. 15; M&O of Dismissal (M&O), Dkt. Entry No. 21. Significantly, the Amended Complaint was filed over five months after the Complaint was served on Defendant, well beyond the 21-day window within which Plaintiffs could have amended the Complaint as of right pursuant to Fed. R. Civ. P. 15(a)(1) and after this Court issued several orders to show cause why this case should not be dismissed for lack of subject matter jurisdiction. See generally, the Docket; See also, Summons Ret. Exec., Dkt. Entry No. 8 (showing service of Complaint executed on September 26, 2022). Indeed, Fed. R. Civ. P. 15(a)(1) permits a party to amend its complaint once as of right within 21 days after serving it or, if a responsive pleading is required, 21 days after service of a responsive pleading or motion under Rule 12(b), (e), or (f), whichever is earlier. To date, no defendant has appeared in this action or filed a response to the Complaint. At no time did Plaintiff seek this Court's leave before filing the Amended Complaint as required, and particularly after the Court repeatedly noted its concerns about lack of subject matter jurisdiction.Plaintiffs now seek to vacate its M&O relying on Doe #1 v. Syracuse University for the proposition that Plaintiffs were permitted to amend the Complaint as of right in this case at any time prior to Defendants serving a responsive pleading or motion. See, Pls.' Ltr. Mot. to Vacate ("Mot."), Dkt. Entry No. 22; Doe #1 v. Syracuse Univ., 335 F.R.D. 356, 359 (N.D.N.Y. 2020). Plaintiffs' reliance on Doe #1 is misplaced and their arguments unavailing. Not only are the facts in Doe #1 glaringly different from those here, but, as a court of concurrent jurisdiction, the decision of the Northern District of New York lacks precedential value. Most importantly, the decision predominantly relies on case law from outside the Second Circuit for the proposition on which Plaintiffs rely to support their contention that they could amend as of right any time before Defendants respond to the Complaint. See, Doe #1, 335 F.R.D. at 359 (relying on "courts outside this Circuit, including the First and Seventh Circuits"). This Court declines to follow the interpretation of Fed. R. Civ. P. 15(a)(1) set forth in Doe #1 because such an interpretation would divest the rule of its plain meaning. See, Trustees of I.B.E.W. Local Union No. 488 Pension Fund v. Norland Elec., Inc., 2013 WL 785333, at *2 (D. Conn. Mar. 1, 2013) (finding plaintiff's ability to amend complaint as of right expired where "21 days have elapsed since the service of Plaintiffs' Complaint on May 12, 2011, and Defendant has served no responsive pleading or motion under Rule 15(a)(1)(B)") (citing Castro v. United Sec. Inc., 2011 WL 1532012, *1 (S.D.N.Y. April 18, 2011)); See also, Lavigne v. Michaels Stores, Inc., 2015 WL 1826169, at *2-3 (D. Conn. Apr. 22, 2015). Plaintiffs would have been served better by amending the subject matter jurisdiction deprived Complaint timely as of right, which also would have conserved precious Court time and resources. See, M&O of Dismissal (finding allegations in the Complaint wholly insufficient to establish either requirement necessary to invoke this Courts subject matter jurisdiction).Nonetheless, pursuant to Fed. R. Civ. P. 15(a)(2), this Court may grant leave to amend "when justice so requires." Accordingly, while the Court declines to vacate the M&O to the extent that it finds that the Complaint lacked subject matter jurisdiction, the M&O is modified, albeit reluctantly, to the extent that, rather than dismissing the case outright and requiring Plaintiffs to file an entirely new case, the case is not dismissed and Plaintiffs Amended Complaint is permitted to stand.Accordingly, this Court's Order issued on March 1, 2023 is vacated as is that portion of the Order issued on February 28, 2023 [Dkt. Entry No. 21] dismissing the case and directing the Clerk of Court to close the case.Finally, Plaintiffs chose to litigate in this Court. Accordingly, they are obligated and expected to familiarize themselves with and adhere to the Federal Rules of Civil Procedure, the Local Rules of the Court, and the Individual Rules of the undersigned district judge. Additionally, as Defendants have not appeared in this action, Plaintiffs are directed to serve copies of the following filings on Defendants by March 17, 2023 and, immediately thereafter, file proof of service with the Court: (i) the Amended Complaint; (ii) the Court's M&O of Dismissal dated February 28, 2023; (iii) Plaintiffs' Letter Motion to Vacate dated March 1, 2023; and (iv) this Electronic Order. Plaintiffs are advised further that they have a standing obligation to serve on Defendants who have not appeared in this action copies of all filings and file proof of service thereafter. SO ORDERED by Judge Dora Lizette Irizarry on 3/14/2023. (Irizarry, Dora) [Transferred from New York Eastern on 3/29/2023.]
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| Filing 22 Letter MOTION to Vacate #21 Order, by Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer. (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
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ORDER DISMISSING CASE. Ordered by Judge Dora Lizette Irizarry on 2/28/2023. (CC) VACATED pursuant to the electronic order dtd. 3/15/2023.(ML). [Transferred from New York Eastern on 3/29/2023.]
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Filing 21
ORDER OF DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, this action is dismissed for lack of subject matter jurisdiction. Plaintiff is directed to serve a copy of this Electronic Order and Attached Written Memorandum and Order on the Defendant who has not appeared in this case. VACATED The Clerk of the Court is directed to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 2/28/2023. (Irizarry, Dora). Modified on 3/15/2023 to indicate a portion of this order is vacated pursuant to the order dtd. 3/14/2023. (ML). [Transferred from New York Eastern on 3/29/2023.]
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| Filing 20 Proposed Summons. Re #15 Amended Complaint by Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 19 Proposed Summons. Re #15 Amended Complaint by Jamere Bowers, Cori Ershowsky, Alexis Geraci, Sergio Giancaspro, Adaku Ibekwe, Tayler Ulmer (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 18 Proposed Summons. Re #15 Amended Complaint by Tayler Ulmer, Sergio Giancaspro, Cori Ershowsky, Alexis Geraci, Jamere Bowers, Adaku Ibekwe (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 17 Proposed Summons.Civil Cover Sheet.. Re #15 Amended Complaint by Tayler Ulmer (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 16 Proposed Summons. Re #15 Amended Complaint by Tayler Ulmer (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 15 AMENDED COMPLAINT against StreetTeam Software, LLC, Network Travel Experiences, Inc., JusExperiences UK Limited, Callum Negus-Fancey, Liam Negus-Fancey, James Ellis, filed by Tayler Ulmer. (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
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ORDER denying #14 Motion to Stay -- It is axiomatic that an entity, such as Defendant StreetTeam Software, LLC, who remains pro se, is not permitted to proceed without counsel in federal court. Grace v. Bank Leumi Trust Co. of N.Y., 443 F.3d 180, 192 (2d Cir. 2006) ("[I]t is settled law that a corporation may not appear in a lawsuit against it except through an attorney") (citing SEC v. Research Automation Corp., 521 F.2d 585, 589 (2d Cir.1975) (internal quotation omitted); See, also, Argento v. Santiago, 2019 WL 948186, at *2 (W.D.N.Y. Feb. 27, 2019) (explaining that the entity is an LLC "does not relieve it of the obligation to engage counsel") (collecting cases). Accordingly, Defendant's Motion to Stay, filed by its President, James Ellis, is DENIED. Defendant StreetTeam Software is directed to obtain counsel promptly. SO ORDERED by Judge Dora Lizette Irizarry on 12/5/2022. (CC) [Transferred from New York Eastern on 3/29/2023.]
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| Filing 14 Letter MOTION to Stay (For A Stay Of Defendant's Response Pending the Court's Ruling On Juridiction) (Recv'd. on 11/28/2022) (Filed Stamp Date:11/18/22), filed by StreetTeam Software, LLC. (ML) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 13 DECLARATION re Order,,,,,,,,,,, by Tayler Ulmer (Shah, Sagar) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 12 AFFIDAVIT of Service for Electronic Order served on Defendant StreetTeam Software, LLC on 10/19/2022, filed by Tayler Ulmer. (Shah, Sagar) [Transferred from New York Eastern on 3/29/2023.] |
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Filing 11
ORDER granting #10 : As detailed in the attached Order, defendant's Motion for an Extension of Time to Answer or Respond to the Complaint is granted. Defendant's time to answer or otherwise respond to the Complaint is extended to 11/15/2022. So Ordered by Chief Magistrate Judge Cheryl L. Pollak on 10/21/2022. (MK) [Transferred from New York Eastern on 3/29/2023.]
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| Filing 10 Letter MOTION for Extension of Time to File Response/Reply as to #1 Complaint filed by James Ellis, President StreetTeam Software, LLC. (ML) [Transferred from New York Eastern on 3/29/2023.] |
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ORDER STRIKING #9 Declaration In Response To Order to Show Cause and ORDER TO SHOW CAUSE --- On September 23, 2022, the Court issued an order identifying concerns that it may not have subject matter jurisdiction over this action because Plaintiff did not allege facts in the Complaint regarding the citizenship of each member of Defendant StreetTeam Software LLC, even though Plaintiff is invoking this Court's subject matter jurisdiction based on diversity. See, Compl., Dkt. Entry No. #1 . By that same order, the Court explained that a limited liability company takes the citizenship of each of its members and directed Defendant to file a declaration attesting to the citizenship of each of its member. See,Electronic Order dated September 23, 2022 (citing Bayerische Landesbank, N.Y. Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d 42, 49 (2d Cir. 2012)). Upon review, the Court finds Defendant's declaration deficient. Defendant's declaration asserts, without more, that "StreetTeam Software Limited, a limited company registered in England & Wales with registered number 09750608, is the sole member of StreetTeam Software LLC." See, Dkt. Entry No. #9 . This lone assertion is insufficient because "'if any of an LLC's members are themselves non-corporate entities, then a [party] must allege the identity and citizenship of their members, proceeding up the chain of ownership until it has alleged the identity and citizenship of every individual and corporation with a direct or indirect interest in the LLC.'" See, Sixto v. Both Trucking, LLC, 2022 WL 1124824, at *1-2 (quoting U.S. Liab. Ins. Co. v. M Remodeling Corp., 444 F. Supp. 3d 408, 410 (E.D.N.Y. 2020)). As such, the identity and citizenship of every member of StreetTeam Software Limited must be alleged in order for the Court to determine whether it has subject matter jurisdiction over this action. Additionally, because Plaintiff is "'the party asserting subject matter jurisdiction,...[it] has the burden of proving that it exists by a preponderance of the evidence.'" See, U.S. Liab. Ins. Co., 444 F. Supp. 3d at 410 (quoting Broidy Capital Mgmt. LLC v. Benomar, 944 F.3d 436, 443 (2d Cir. 2019)). Accordingly, Defendant's declaration is STRICKEN as deficient and Plaintiff is directed to file an affidavit or declaration made under penalty of perjury attesting to the citizenship of each member of the Defendant LLC and to the citizenship of any members of those members, and so on, BY NO LATER THAN November 4, 2022. Plaintiff is also directed to serve a copy of this Electronic Order on Defendant within five days of the date of this Order and immediately thereafter file proof of such service with the Court. SO ORDERED by Judge Dora Lizette Irizarry on 10/17/2022. (CC) [Transferred from New York Eastern on 3/29/2023.]
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| Filing 9 STRICKENDECLARATION In Response To Order to Show Cause dtd. 9/23/2022, filed by StreetTeam Software, LLC. (Recv'd. on 10/11/22 for filing). (ML) Modified on 10/17/2022 to indicate this filing has been stricken pursuant to Order dated 10/17/2022.(ML). Modified on 10/17/2022 (ML). [Transferred from New York Eastern on 3/29/2023.] |
| Filing 8 SUMMONS Returned Executed by Tayler Ulmer. StreetTeam Software, LLC served on 9/26/2022, answer due 10/17/2022. (Shah, Sagar) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 7 NOTICE of Appearance by Sagar Shah on behalf of Tayler Ulmer (aty to be noticed) (Shah, Sagar) [Transferred from New York Eastern on 3/29/2023.] |
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ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION --- ORDER TO SHOW CAUSE RESPONSE DUE 10/7/2022 --- The Court has concerns that it may not have subject matter jurisdiction over this action. Plaintiff did not allege facts in the Complaint regarding the citizenship of each member of Defendant StreetTeam Software LLC, even though Plaintiff is invoking this Court's subject matter jurisdiction based on diversity. See, Compl., Dkt. Entry No. #1 . A limited liability company takes the citizenship of each of its members. See, Bayerische Landesbank, N.Y. Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d 42, 49 (2d Cir. 2012). Accordingly, Defendants are directed to file an affidavit or declaration made under penalty of perjury attesting to the citizenship of each member NO LATER THAN OCTOBER 7, 2022. SO ORDERED by Judge Dora Lizette Irizarry on 9/23/2022. (Carosella, Christy) [Transferred from New York Eastern on 3/29/2023.]
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| Filing 6 Summons Issued as to StreetTeam Software, LLC. (Davis, Kimberly) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 5 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Davis, Kimberly) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 4 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Davis, Kimberly) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 3 Proposed Summons. Re #1 Complaint by Tayler Ulmer (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 2 Civil Cover Sheet.. Re #1 Complaint by Tayler Ulmer (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Filing 1 COMPLAINT against StreetTeam Software, LLC filing fee $ 402, receipt number ANYEDC-15966043 Was the Disclosure Statement on Civil Cover Sheet completed -YES,, filed by Tayler Ulmer. (Licul, Valdi) [Transferred from New York Eastern on 3/29/2023.] |
| Case Assigned to Judge Dora Lizette Irizarry and Chief Magistrate Cheryl L. Pollak. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Davis, Kimberly) [Transferred from New York Eastern on 3/29/2023.] |
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