Vishno v. Maui's Best Downhill LLC et al
| Randi Cheryl Vishno and Jeremy Gordon Vishno |
| Maui's Best Downhill LLC, John Does 1-5, John Doe Corporations 1-5, John Doe Partnerships 1-5, Roe Non-Profit Corporations 1-5, Roi Governmental Agencies 1-5, Dillon M. Barnes and Joseph E. Rapp |
| 1:2021cv00339 |
| August 10, 2021 |
| US District Court for the District of Hawaii |
| KENNETH J MANSFIELD |
| JILL A OTAKE |
| P.I.: Other |
| 28 U.S.C. § 1391 |
| None |
Docket Report
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This docket was last retrieved on September 22, 2021. A more recent docket listing may be available from PACER.
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| Filing 22 EO: The Court GRANTS Mr. Krueger's #21 Letter of request to continue the Rule 16 Scheduling Conference. The Telephonic Rule 16 Scheduling Conference previously set for 10/18/2021 IS CONTINUED TO 11/18/2021 at 9:30 a.m. before MAGISTRATE JUDGE KENNETH J. MANSFIELD. Scheduling conference statements are due by 11/11/2021.In accordance with the United States District Court for the District of Hawaii's latest Temporary General Order Regarding District of Hawaii Response to COVID-19 Emergency and the Order Authorizing the Use of Telephonic and Video Hearings, due to the ongoing COVID-19 pandemic and public health emergency, including the anticipated long term need to maintain certain social distancing and other measures intended to protect the public, court employees, and counsel from being exposed to the COVID-19 virus, while at the same time regulating civil matters in a manner consistent with equity and fairness, the hearing will be held telephonically. Parties are to participate via telephone through our AT&T Service. Call-in information for this conference is below. Parties must connect to the conference at least five (5) minutes prior to the scheduled start time of the hearing.Dial in number is 1-877-848-7030Access Code is 2123668 (MAGISTRATE JUDGE KENNETH J. MANSFIELD)(bbb) |
| Filing 21 LETTER from James Krueger requesting a continuance on the Rule 16 Scheduling Conference. (bbb) |
| Filing 20 SUMMONS Returned Executed by Jeremy Gordon Vishno, Randi Cheryl Vishno. Maui's Best Downhill LLC served on 9/10/2021. (Krueger, James) |
| Filing 19 EO: Based on the allegations presented in the First Amended Complaint -- not the arguments in Plaintiffs' #15 Reply to the Court's Order to Show Cause why the Case Should not be Dismissed Without Prejudice, which are supported by non-precedential and inapposite authority -- the Court takes no further action on its #7 Order to Show Cause. (JUDGE JILL A. OTAKE)(shm) |
| Filing 18 Summons Issued as to Dillon M. Barnes, Maui's Best Downhill LLC, Joseph E. Rapp. (emt, ) |
Filing 17
ORDER GRANTING MOTION TO APPEAR PRO HAC VICE AS TO GREGORY M. SHEFFER, ESQ. re #16 - Signed by MAGISTRATE JUDGE KENNETH J. MANSFIELD on 8/23/2021. (emt, )
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| Filing 16 MOTION for Pro Hac Vice Gregory M. Sheffer, Esq. Filing fee $ 300, receipt number 0975-2568793.James Krueger appearing for Plaintiffs Jeremy Gordon Vishno, Randi Cheryl Vishno (Krueger, James) |
| Filing 15 REPLY Plaintiffs' Reply to Court's Order to Show Cause Why This Action Should Not Be Dismissed Without Prejudice filed by Jeremy Gordon Vishno, Randi Cheryl Vishno. (Krueger, James) |
| Filing 14 FIRST AMENDED COMPLAINT against All Defendants, filed by Jeremy Gordon Vishno, Randi Cheryl Vishno. (Attachments: #1 Main Document (Proposed) Summons In A Civil Action)(Krueger, James) Modified on 8/24/2021 (emt, ). |
| Filing 13 EO: In response to the Court's 8/18/21 Entering Order, Plaintiffs filed a #12 Verification Concerning Court's August 18, 2021 Order Concerning Extension of Time to Conduct Discovery and Supplementing Plaintiffs' Response to Order to Show Cause Why This Action Should Not Be Dismissed Without Prejudice, contending that the Court should have authorized early discovery (depositions of three individuals) because it is the only means by which they can ascertain Defendants citizenship(s). Plaintiffs' Request reflects a fundamental misapprehension of their obligation to establish subject matter jurisdiction at the time an action is commenced and of the availability of the early discovery process. Plaintiffs appear to believe that they are entitled to conduct early discovery merely by requesting it, despite the fact that they have not cited the applicable legal standard nor explained how they satisfy the same. Accordingly, the Request is DENIED. The Court will not entertain any further informal requests. If Plaintiffs seek relief, they must file formal motions supported by governing legal standards. (JUDGE JILL A. OTAKE)(shm) |
| Filing 12 REQUEST Plaintiff's Verification Concerning Court's August 18, 2021 Order Concerning Extension of Time to Conduct Discovery and Supplementing Plaintiffs' Response to Order to Show Cause Why This Action Should Not Be Dismissed Without Prejudice; Exhibit 1 by Jeremy Gordon Vishno, Randi Cheryl Vishno. (Attachments: #1 Exhibit Exhibit 1)(Krueger, James) |
| Filing 11 EO: On 8/16/21, Plaintiffs filed a #10 Request for Extension of Time to Obtain/Submit Materials Concerning Court's Ordered Deadline on Order to Show Cause Regarding Diversity Jurisdiction, seeking a three-week extension, or until 9/10/21, to provide Defendant's citizenship. As a preliminary matter, the Court addresses Plaintiffs' assertion that they are preparing declarations regarding their domicile. This is unnecessary, as the Court only addressed its concerns about the lack of sufficient allegations regarding Defendant's citizenship(s). ECF No. 9. Plaintiffs argue that they need to conduct discovery -- namely Defendant's deposition -- to do so, and cannot meet the current 8/20/21 deadline established by the Court. Federal Rule of Civil Procedure 26(d)(1) governs the timing of discovery. Plaintiffs may not unilaterally conduct discovery at this stage of the proceedings, and they have not filed a proper motion regarding early discovery. Moreover, based on the record, Defendant has yet to be served. The Court reminds Plaintiffs that they bear the burden of establishing jurisdiction, see Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994), and "[s]ubject matter jurisdiction must exist as of the time the action is commenced." Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). As such, Plaintiffs are not entitled to additional time to acquire information that should have been discovered prior to the commencement of litigation. The Court could have dismissed the case at the outset, but gave Plaintiffs two opportunities to provide the requisite information. The Court will grant a limited extension of time until 8/27/21 to provide Defendant's citizenship(s). Failure to do so will result in the dismissal of this action. Accordingly, the Request is GRANTED IN PART AND DENIED IN PART. (JUDGE JILL A. OTAKE)(shm) |
| Filing 10 REQUEST Extension of Time to Obtain/Submit Materials Concerning Court's Ordered Deadline on Order to Show Cause Regarding Diversity Jurisdiction by Jeremy Gordon Vishno, Randi Cheryl Vishno. (Krueger, James) |
| Filing 9 EO: In response to the Court's #7 Order to Show Cause, Plaintiffs represent that they are citizens of Connecticut. ECF No. 8. They claim that Defendant has two members, based on the Articles of Organization, and assume those members are citizens of Hawai'i because the Articles of Organization list the same Maui address for them both. The listed address is also a business address associated with Defendant, so it does not establish the members' citizenship(s). See Motel Inn, LLC v. 9223-6678 Quebec Inc, Case No. CV 20-8203 PA (MAAx), 2020 WL 8509662, at *1 (C.D. Cal. Sept. 10, 2020) ("Indeed, the Statement of Information upon which Defendants rely does not even appear to provide information concerning the residence of either of the alleged members of Plaintiff, and instead lists a business address for them that is identical to Plaintiff's corporate address. As a result, Defendants' allegations related to Plaintiff's citizenship are insufficient to invoke this Court's diversity jurisdiction."). An individual's state citizenship is determined by his state of domicile, not his state of residence. See Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). "A person's domicile is her permanent home, where she resides with the intention to remain or to which she intends to return." Id. (citation omitted). To establish diversity jurisdiction, Plaintiff must confirm Defendant's members' citizenship(s) by 8/20/21. Failure to do so will result in the dismissal of this action for lack of subject matter jurisdiction. (JUDGE JILL A. OTAKE)(otake1) |
| Filing 8 RESPONSE TO ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED WITHOUT PREJUDICE ; AFFIDAVIT of Randi Cheryl Vishno; AFFIDAVIT of Jeremy Gordon Vishno re #7 by Jeremy Gordon Vishno, Randi Cheryl Vishno. (Attachments: #1 Exhibit 1)(Krueger, James) Modified on 8/17/2021 (emt, ). |
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Filing 7
ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED WITHOUT PREJUDICE - Signed by JUDGE JILL A. OTAKE on 8/11/2021. Plaintiffs must file a response to this Order to Show Cause by August 25, 2021, identifying their current citizenship, as well as Defendants members and their citizenships. If any of the members are themselves LLCs and/or unincorporated associations, Plaintiffs shall also identify those entities and provide their citizenships. Failure to timely or satisfactorily respond to this Order to Show Cause will result in a finding that Plaintiffs have failed to carry their burden of establishing subject matter jurisdiction and the Court will dismiss the action without prejudice. Show Cause Response due by 8/25/2021. (emt, )
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| Filing 6 EO: The parties are directed to review the General Civil Case Procedures Before Judge Otake on the court's website. (JUDGE JILL A. OTAKE)(shm) |
| Filing 5 CIVIL Waiver of Service Packet ~ Notice to Parties Regarding Service Pursuant to Rule 4 of the Federal Rules of Civil Procedure. (Attachments: #1 AO 398 Notice of Lawsuit and Request to Waive Service of Summons, #2 AO 399 Waiver of Service of Summons)(emt, ) |
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Filing 4
Order Setting Rule 16 Scheduling Conference is set for 09:30AM on 10/18/2021 before MAGISTRATE JUDGE KENNETH J. MANSFIELD - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 8/10/2021. (Attachments: #1 Memo from Clerk Re: Corporate Disclosures) ATTACH THE SCHEDULING ORDER TO THE INITIATING DOCUMENT (COMPLAINT/NOTICE OF REMOVAL). THE SCHEDULING ORDER AND MEMO RE: CORPORATE DISCLOSURES MUST BE SERVED WITH THE DOCUMENT. (emt, )
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| Filing 3 Summons Issued as to Maui's Best Downhill LLC. (emt, ) |
| Filing 2 NOTICE of Case Assignment: Please reflect Civil case number CV 21-00339 JAO-KJM on all further pleadings. (emt, ) |
| Filing 1 COMPLAINT against All Plaintiffs All Defendants ( Filing fee $ 402 receipt number 0975-2563960.), filed by Randi Cheryl Vishno, Jeremy Gordon Vishno. (Attachments: #1 Civil Cover Sheet, #2 (Proposed) Summons In A Civil Case)(Krueger, James) Modified on 8/10/2021 (emt, ). |
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