Austin v. Recover-Care Healthcare
| Neshon Nicole Austin |
| Recover-Care Healthcare and Recover-Care Healthcare LLC doing business as Recover-Care Heartland |
| 5:2023cv04037 |
| May 8, 2023 |
| US District Court for the District of Kansas |
| Daniel D Crabtree |
| Rachel E Schwartz |
| Contract: Other |
| 28 U.S.C. § 1332 Diversity-Breach of Contract |
| Both |
Docket Report
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This docket was last retrieved on March 19, 2024. A more recent docket listing may be available from PACER.
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Filing 24
RESPONSE by Plaintiff Neshon Nicole Austin: Re #12 Motion for Judgment on the Pleadings (Attachments: #1 Exhibit B - Affidavit (Response for Summary Judgment), #2 Exhibit 1, #3 Exhibit 2, #4 Exhibit 3, #5 Exhibit 4, #6 Exhibit 5, #7 Exhibit 6, #8 Exhibit 7, #9 Exhibit 8, #10 Exhibit 9, #11 Exhibit 10, #12 Exhibit 11, #13 Exhibit 12, #14 Exhibit 13, #15 Exhibit 14, #16 Exhibit 15, #17 Exhibit 16, #18 Exhibit 17, #19 Exhibit 18, #20 Exhibit 19, #21 Exhibit 20, #22 Exhibit 21, #23 Exhibit 22, #24 Exhibit 23, #25 Exhibit 24)(msb)
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Filing 23
CASE MANAGEMENT ORDER. The Court notes that Defendant filed a #12 motion for judgment on the pleadings, which the District Judge will treat as a motion for summary judgment. ECF No. 21. In light of the pending motion for summary judgment, the Court finds good cause to delay the issuance of an order setting a scheduling conference and the issuance of a scheduling order. If the motion for summary judgment is denied, within seven calendar days of that order, the parties must (1) serve their Rule 26(a)(1)(A) initial disclosures, and email copies of the initial disclosures to the Magistrate Judge's chambers at ksd_schwartz_chambers@ksd.uscourts.gov; and (2) submit a redline and a clean version of the proposed scheduling order in Word format to the Magistrate Judge's chambers. After receipt, the Court will set a scheduling conference. Signed by Magistrate Judge Rachel E. Schwartz on 6/28/2023. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(jrh)
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Filing 22
NOTICE of DEFENDANT TO PRO-SE LITIGANT WHO OPPOSES MOTION FOR SUMMARY JUDGMENT by Recover-Care Healthcare LLC re #12 MOTION for Judgment on the Pleadings (Attachments: #1 Exhibit A, DEFENDANT'S MOTION FOR JUDGMENT AND ITS REPLY IN SUPPORT, #2 Exhibit B, FEDERAL RULES OF CIVIL PROCEDURE RULE 56, #3 Exhibit C, DISTRICT OF KANSAS RULE 56.1)(Welder, David)
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Filing 21
MEMORANDUM AND ORDER The court notifies the parties that it will treat defendant's Motion for Judgment on the Pleadings (Doc. #12 ) as one seeking summary judgment under Fed. R. Civ. P. 56. But before converting the motion in this fashion, the court must give all parties "a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d); see also Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (explaining that a court must "giv[e] proper notice to the parties" when it converts Rule 12(b)(6) motion to summary judgment motion). Thus, the court allows the parties to support their positions on the now converted summary judgment motion. if either party wishes to submit additional materials to support its position, it must submit that material no later than Friday, 7/14/2023. By establishing this deadline, the court does not suggest additional materials are necessary. But out of caution, the court establishes this deadline to ensure that both plaintiff and defendant know when the court will deem the motion as one ripe for decision. Separately, the court instructs defendant to provide notice of summary judgment to plaintiff--a pro se litigant--as required by our Local Rule 56.1. See D. Kan. Rule 56.1(d). Signed by District Judge Daniel D. Crabtree on 6/27/2023. (mam)
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Filing 20
REPLY TO RESPONSE TO MOTION by Defendant Recover-Care Healthcare LLC re: #12 Motion for Judgment on the Pleadings, (Attachments: #1 Exhibit C AFFIDAVIT OF ZISHA MARGULIES)(Welder, David)
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Filing 19
ORDER regarding #15 Amended Response to Order to Show Cause. The Magistrate Judge previously ordered Plaintiff to amend Plaintiff's #7 response to the Court's #4 order to show cause because Plaintiff filed an amended complaint and named an LLC Defendant, but did not name or allege the citizenship of the LLC Defendant's member(s). ECF No. 9. While Plaintiff's #15 amended response did not address all of the concerns raised by the Court, Defendant's #17 Amended Rule 7.1(a)(2) Disclosure Statement does address those concerns. At this time, the Magistrate Judge will not recommend the District Judge dismiss this case for lack of subject matter jurisdiction. Signed by Magistrate Judge Rachel E. Schwartz on 6/9/2023. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(jrh)
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Filing 18
RESPONSE by Plaintiff Neshon Nicole Austin re #12 Motion for Judgment on the Pleadings, (Attachments: #1 Exhibit 1 Limited Liability Co, #2 Exhibit 2 Assignment, #3 Exhibit 3 Client Staffing Agreement, #4 Exhibit 4 Email, #5 Exhibit 5 Email, #6 Exhibit 6 Text Message, #7 Exhibit 7 Emails, #8 Exhibit 8 Emails, #9 Exhibit 9 Invoices, #10 Exhibit 10 Email, #11 Exhibit 11 Email, #12 Exhibit 12 Email, #13 Exhibit 13 Email, #14 Exhibit 14 Email, #15 Exhibit 15 Email, #16 Exhibit 16 Invoice, #17 Exhibit 17 Email, #18 Exhibit 18 Email)(nao)
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Filing 17
CORPORATE DISCLOSURE STATEMENT by Recover-Care Healthcare LLC identifying NONE as corporate parent (DEFENDANT'S AMENDED DISCLOSURE) (Welder, David)
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Filing 16
ORDER regarding #11 Corporate Disclosure Statement. On May 19, 2023, Defendant Recover-Care Healthcare LLC filed a disclosure statement that states that Defendant Recover-Care Healthcare LLC has one member, Zisha Margulies, "who is a resident of the State of New York." Id. But "[a] 'resident' of a state is not equivalent to a 'citizen' of a state. Rather, an individual 'is a citizen of a state if the person is domiciled in that state.'" Lee v. Kaup Kattle Co., No. 19-2600-JAR-ADM, 2021 WL 6932209, at *1 (D. Kan. Apr. 22, 2021) (quoting Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014)). Therefore, on or before June 9, 2023, the Court orders Defendant to file an amended Rule 7.1(a)(2) disclosure statement, which must identify Zisha Margulies' citizenship. Signed by Magistrate Judge Rachel E. Schwartz on 6/5/2023. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(jrh)
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Filing 15
AMENDED RESPONSE re #4 Notice and Order to Show Cause by Plaintiff Neshon Nicole Austin. (jal)
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Filing 14
SUMMONS RETURNED EXECUTED -- Personal Service by Neshon Nicole Austin upon Recover-Care Healthcare LLC served on 5/10/2023, answer due 5/31/2023. (nao)
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Filing 13
ANSWER to #5 Amended Complaint by Recover-Care Healthcare LLC.(Welder, David)
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Filing 12
MOTION for Judgment on the Pleadings by Defendant Recover-Care Healthcare LLC (Attachments: #1 Exhibit List INDEX TO EXHIBITS, #2 Exhibit A, AFFIDAVIT OF MOSHE HALBERSTAM, #3 Exhibit 1 TO EXH. A, NOTICE OF ASSIGNMENT, #4 Exhibit 2 TO EXH. A, QUALITY NURSING INVOICE, #5 Exhibit B, AFFIDAVIT OF ZISHA MARGULIES)(Welder, David)
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Filing 11
CORPORATE DISCLOSURE STATEMENT by Recover-Care Healthcare LLC identifying NONE as corporate parent . (Welder, David)
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Filing 10
ORDER requiring Defendant's Rule 7.1(a)(2) Disclosure Statement. Revised Rule 7.1(a)(2) and (b)(1) of the Federal Rules of Civil Procedure requires that in "an action in which jurisdiction is based on diversity under 28 U.S.C. 1332(a), a party or intervenor must, unless the court orders otherwise, file a disclosure statement. The statement must name--and identify the citizenship of--every individual or entity whose citizenship is attributed to that party or intervenor" and a party must file the disclosure statement "with its first appearance[.]" Although Defendant has appeared in this case, Defendant has not yet filed a Rule 7.1 disclosure statement. The Court therefore orders Defendant to file a Rule 7.1(a)(2) disclosure statement on or before May 26, 2023. Such disclosure statement must fully comply with Rule 7.1(a)(2), as recently amended, and must name and identify the citizenship of every individual or entity whose citizenship is attributed to Defendant. Signed by Magistrate Judge Rachel E. Schwartz on 5/18/2023. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(jrh)
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Filing 9
ORDER regarding #7 Response to Order to Show Cause. The Magistrate Judge previously ordered Plaintiff to show cause why the case should not be dismissed for lack of subject matter jurisdiction because Plaintiff did not adequately allege the citizenship of the parties in the complaint. Plaintiff's #7 response to the show-cause order and #5 amended complaint raise new jurisdictional concerns regarding the citizenship of the parties. Plaintiff now pleads in his amended complaint that Defendant Recover-Care Healthcare is a Delaware LLC with its principal place of business in New York. ECF No. 5 at 1, 2. But an LLC's citizenship is determined by that of its members. Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d 1233, 1234 (10th Cir. 2015). To establish diversity of citizenship, Plaintiff must "specifically identify and state the citizenship of each member of each unincorporated association." Gwilt v. Harvard Square Ret. & Assisted Living, 537 F. Supp. 3d 1231, 1245 (D. Colo. 2021) (collecting cases). Therefore, on or before June 2, 2023, the Court orders Plaintiff to file an amended response to the Court's show-cause order to address the Court's concerns. Any response to the show-cause order must identify (1) the new LLC Defendant's member(s), and (2) the citizenship of each LLC Defendant's member(s). Signed by Magistrate Judge Rachel E. Schwartz on 5/18/2023. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(jrh)
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Filing 8
ENTRY OF APPEARANCE by David Joseph Welder on behalf of Recover-Care Healthcare, Recover-Care Healthcare LLC. (Welder, David)
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Filing 7
RESPONSE re #4 Notice and Order to Show Cause by Plaintiff Neshon Nicole Austin. (jal)
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Filing 6
AMENDED CIVIL COVER SHEET re #5 Amended Complaint by Plaintiff Neshon Nicole Austin. (jal)
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Filing 5
AMENDED COMPLAINT against Recover-Care Healthcare LLC, filed by Plaintiff Neshon Nicole Austin. (jal)
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SUMMONS ISSUED as to Recover-Care Healthcare LLC. (Returned to plaintiff for service). Notice, Consent, and Reference of a Civil Action to a Magistrate Judge Form provided to counsel for service with complaint. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (jal)
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Filing 4
NOTICE AND ORDER TO SHOW CAUSE. Show Cause Response due by 5/30/2023. Signed by Magistrate Judge Rachel E. Schwartz on 5/11/2023. (kas)
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Filing 3
DOCKET ANNOTATION: Plaintiff Neshon Nicole Austin is a registered pro se participant with ECF notifications only. (gw)
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SUMMONS ISSUED as to Recover-Care Healthcare. (issued and Returned to plaintiff for service) Notice, Consent, and Reference of a Civil Action to a Magistrate Judge Form provided to counsel for service with complaint.. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (msb)
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Filing 2
CIVIL COVER SHEET: Re #1 Complaint by Plaintiff Neshon Nicole Austin. (msb)
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Filing 1
COMPLAINT (Summons Issued) with trial location of Topeka filed by Neshon Nicole Austin.(msb)
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NOTICE OF JUDGE ASSIGNMENT: Case assigned to District Judge Daniel D. Crabtree and Magistrate Judge Rachel E. Schwartz for all proceedings. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) NOTICE OF MAGISTRATE JUDGE AVAILABILITY: A United States magistrate judge is available to conduct all proceedings in this civil action if all parties voluntarily consent. Information & consent forms are available at http://www.uscourts.gov/forms/civil-forms/notice-consent-and-reference-civil-action-magistrate-judge (msb)
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FILING FEE PAID in the amount of $ 402, receipt number 500000635 (msb)
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