Rao v. Thuo et al
| Nicholas Rao |
| Peter T Bethoney, Lucy N Thiongo, Nicollette A Lynch and John T. Thuo |
| 1:2021cv10461 |
| March 17, 2021 |
| US District Court for the District of Massachusetts |
| Boston Office |
| Nathaniel M Gorton |
| Motor Vehicle |
| 42 U.S.C. § 1396 |
| Both |
Docket Report
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This docket was last retrieved on May 5, 2021. A more recent docket listing may be available from PACER.
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| Filing 37 NOTICE of Scheduling Conference Scheduling Conference, to be held by telephone, set for 6/10/2021 10:30 AM in Remote Proceeding : Boston before Judge Nathaniel M. Gorton. (Lima, Christine) |
| Filing 36 NOTICE of Withdrawal of Appearance by David M. Lentini, II (Lentini, David) |
| Filing 35 NOTICE of Withdrawal of Appearance by David M. Lentini, II (Lentini, David) |
| Filing 34 ANSWER to Crossclaim by Peter T Bethoney, Nicollette A Lynch.(Lentini, David) |
| Filing 33 ANSWER to #27 Amended Complaint , CROSSCLAIM against Lucy N Thiongo, John T. Thuo by Peter T Bethoney, Nicollette A Lynch.(Lentini, David) |
| Filing 32 NOTICE of Appearance by David M. Lentini, II on behalf of Peter T Bethoney, Nicollette A Lynch (Lentini, David) |
| Filing 31 ELECTRONIC NOTICE of Case Assignment. Judge Nathaniel M. Gorton assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge M. Page Kelley. (Danieli, Chris) |
| Filing 30 Case transferred in from District of New York Eastern; Case Number 1:20-cv-03582. |
| Case transferred to District of Massachusetts. Original file, certified copy of transfer order, and docket sheet sent. ALL FILINGS ARE TO BE MADE IN THE TRANSFER COURT, DO NOT DOCKET TO THIS CASE. (Herrera, Isaiah) |
Filing 29
MEMORANDUM and ORDER -- For the reasons set forth in the attached Memorandum and Order, the Clerk of Court is directed to TRANSFER this action to the United States District Court for the District of Massachusetts. SEE ATTACHED ORDER. Ordered by Judge Diane Gujarati on 3/16/2021. (Almonte, Kelly)
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| Filing 28 TRANSCRIPT of Proceedings held on February 25, 2021, before Judge Gujarati. Court Transcriber: Fiore Reporting and Transcription Services, Inc., Telephone number 203-929-9992. Email address: cmfiore@sbcglobal.net. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 4/1/2021. Redacted Transcript Deadline set for 4/12/2021. Release of Transcript Restriction set for 6/9/2021. (Rocco, Christine) |
| Filing 27 AMENDED COMPLAINT against All Defendants, filed by Nicholas Rao. (Nichols, Regina) |
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ORDER -- In light of Plaintiff's #26 Response to Order to Show Cause and its attached proposed amended complaint (which alleges an amount in controversy exceeding $75,000 and alleges each defendant's state of citizenship rather than merely state of residence), Plaintiff is granted leave to file, by March 9, 2021, a clean version of the amended complaint. Accordingly, Plaintiff's #25 motion for extension of time to file response/reply is denied as moot. Ordered by Judge Diane Gujarati on 3/8/2021. (Almonte, Kelly)
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| Filing 26 RESPONSE TO ORDER TO SHOW CAUSE by Nicholas Rao (Attachments: #1 Amended Complaint) (Horn, Robert) |
| Filing 25 First MOTION for Extension of Time to File Response/Reply to Court's Order to Show Cause by Nicholas Rao. (Horn, Robert) |
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ORDER TO SHOW CAUSE -- By no later than March 5, 2021, Plaintiff Nicholas Rao shall show cause why this action should not be dismissed for lack of subject matter jurisdiction, including, more particularly, why the Court has jurisdiction pursuant to 28 U.S.C. 1332. See Van Buskirk v. United Grp. of Companies, Inc., 935 F.3d 49, 53 (2d Cir. 2019) (discussing diversity requirement); Scherer v. Equitable Life Assurance Socy of U.S., 347 F.3d 394, 397 (2d Cir. 2003) (discussing amount in controversy requirement). Plaintiff, if necessary, may file an amended complaint to amend the jurisdiction-related allegations. See 28 U.S.C. 1653. The previous briefing schedule regarding Defendants' motion to dismiss is STAYED pending resolution of this issue. Ordered by Judge Diane Gujarati on 3/1/2021. (Almonte, Kelly)
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| Filing 24 Minute Entry for proceedings held before Judge Diane Gujarati: Pre-Motion Conference held on February 25, 2021. Robert Horn, who was instructed to file a notice of appearance forthwith, appeared on behalf of Plaintiff. Patrick Brophy appeared on behalf of Defendants/Cross Claimants John T. Thuo and Lucy N. Thiongo. Alexander Mise for Defendant/Cross Defendant Peter T. Bethoney. Andres Camacho for Defendant/Cross Defendant Nicollette A. Lynch. Case called. Defendants/Cross Defendants' anticipated motions to dismiss were discussed. The Court will issue a decision on whether the case will be transferred to the District of Massachusetts pursuant to 28 USC 1406(a). In the event the case is not transferred, the parties shall adhere to the following briefing schedule: Defendants/Cross Defendants' motions to dismiss shall be served by March 18, 2021; Plaintiff shall serve any opposition by April 1, 2021; Defendants/Cross Defendants' replies, if any, shall be served by April 8, 2021. Defendants/Cross Defendants shall file the fully-briefed motions on ECF by April 8, 2021. (FTR Log #20cv3582.2.25.21.) (Almonte, Kelly) |
| Filing 23 NOTICE of Appearance by Regina Cane Nichols on behalf of Nicholas Rao (notification declined or already on case) (Nichols, Regina) |
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ORDER granting #22 Consent Motion to Adjourn Conference. The pre-motion conference is adjourned to Thursday, February 25, 2021 at 2:30 p.m. Counsel for all parties shall attend the conference. The call-in information for the telephone conference is 1-877-336-1839 and the access code is 2643682. Counsel should call in to the telephone conference five minutes before the conference begins. Persons granted remote access to proceedings are reminded that photographing, recording, and rebroadcasting of any court proceeding or communication with the Court are prohibited. Violation of these prohibitions may result in sanctions. A transcript of the proceedings may be ordered from the Clerk's Office. If any party has difficulty accessing the telephone conference, please contact chambers at Gujarati_Chambers@nyed.uscourts.gov. Ordered by Judge Diane Gujarati on 2/11/2021. (Moss, Raymond)
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| Filing 22 MOTION to Adjourn Conference by Nicollette A Lynch. (Camacho, Andres) |
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ORDER granting #13 and #17 Motions for Pre-Motion Conference. A pre-motion conference will be held on Tuesday, February 16, 2021 at 2:00 p.m. Counsel for all parties, including defendants Thuo and Thiongo, shall attend the conference. The call-in information for the telephone conference is 1-877-336-1839 and the access code is 2643682. Counsel should call in to the telephone conference five minutes before the conference begins. Persons granted remote access to proceedings are reminded that photographing, recording, and rebroadcasting of any court proceeding or communication with the Court are prohibited. Violation of these prohibitions may result in sanctions. A transcript of the proceedings may be ordered from the Clerk's Office. If any party has difficulty accessing the telephone conference, please contact chambers at Gujarati_Chambers@nyed.uscourts.gov. Ordered by Judge Diane Gujarati on 2/8/2021. (Almonte, Kelly)
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ORDER: Defendant Peter T Bethoney's time to answer is stayed pending resolution of his request for a premotion conference; should a motion to dismiss be served, the time to answer is governed by Fed. R. Civ. P. 12(a)(4). So Ordered by Magistrate Judge Sanket J. Bulsara on 2/5/2021. (Farrell, Gillian)
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| Filing 21 Letter MOTION for Extension of Time to File Answer by Peter T Bethoney. (Mise, Alexander) |
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Filing 20
SCHEDULING ORDER: An telephonic-initial conference will be held at 3:00 PM on 4/09/2021 before Magistrate Judge Bulsara. The parties are directed to call the toll-free number 877-336-1274. The access code is 6534420. The parties shall dial in five (5) minutes before the 3:00 PM conference. Counsel are directed to complete the attached Discovery Plan Worksheet and electronically file same with the Court no later than two days before 4/09/2021. Should the parties wish to adopt a plan for discovery different from the structure in the discovery worksheet, they may do so only if they file a letter explaining why such a plan is appropriate in this case. So Ordered by Magistrate Judge Sanket J. Bulsara on 2/1/2021. (Manson, Eddie)
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| Filing 19 Letter in Opposition to Motion to Dismiss by Nicholas Rao (Horn, Robert) |
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ORDER: On January 19, 2021, defendant Lynch requested a pre-motion conference in anticipation of filing a motion to dismiss. See ECF No. #13 . Plaintiff failed to file a response by January 26, 2021 as required by this Court's Individual Practice Rules. See Rule III(A)(3). Moreover, on January 26, 2021, defendant Bethoney also requested a pre-motion conference. See ECF No. #17 . Accordingly, Plaintiff is DIRECTED to file one letter, not to exceed six single-spaced pages, responding to defendants' requests by February 2, 2021. Ordered by Judge Diane Gujarati on 1/28/2021. (Almonte, Kelly)
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| Filing 18 ANSWER to #1 Complaint, , CROSSCLAIM against Peter T Bethoney, Nicollette A Lynch by Lucy N Thiongo, John T. Thuo. (Brophy, Patrick) |
| Filing 17 Letter Motion to Judge Pre-Motion by Peter T Bethoney (Mise, Alexander) Modified on 2/8/2021 to correct event type. (Almonte, Kelly). |
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ORDER: The Motion to Extend Time to File an Answer #16 is granted. Defendant Peter T. Bethoney ("Defendant") has established that the factors set out in Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993), namely "(1) whether the default was willful; (2) whether setting aside the default would prejudice the adversary; and (3) whether a meritorious defense is presented," weigh in favor of granting the motion. First, Defendant has established that the default was not willful, but rather the result of counsel error. See Kaisha v. Train Wreck Ltd. Liab. Co., No. 17-CV-3625, 2018 WL 4103582, at *3 (E.D.N.Y. May 29, 2018) ("[T]he court may find a default to have been willful where the conduct of counsel or the litigant was egregious and was not satisfactorily explained." (quotation omitted)). Second, Plaintiff consented to the extension of time to file. And third, Defendant is prepared to promptly file an answer and proceed with litigation, which indicates that a meritorious defense may be present; the Court's preference is to resolve cases on the merits, not on default. Defendant is directed to file its answer by 2/5/2021. The Motion #11 is denied as moot in light of the subsequent motion. So Ordered by Magistrate Judge Sanket J. Bulsara on 1/24/2021. (Farrell, Gillian)
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| Filing 16 MOTION to Vacate Default by Peter T Bethoney. (Attachments: #1 Affidavit in Support, #2 Exhibit A-police report, #3 Exhibit B-Affidavit, #4 Exhibit C-complaint, #5 Exhibit D-aff of service, #6 Exhibit E-stipulation, #7 Memorandum in Support) (Mise, Alexander) |
| Filing 15 SUMMONS Returned Executed by Nicholas Rao. Lucy N Thiongo served on 1/15/2021, answer due 2/5/2021. (Nichols, Regina) |
| Filing 14 SUMMONS Returned Executed by Nicholas Rao. John T. Thuo served on 1/15/2021, answer due 2/5/2021. (Nichols, Regina) |
| Filing 13 First MOTION for a Pre Motion Conference re: anticipated Motion to Dismiss for Lack of Jurisdiction; MOTION to Change Venue by Nicollette A Lynch. (Camacho, Andres) Modified on 1/19/2021 to correct docket entry events and relief sought. (Almonte, Kelly) |
| Incorrect Case/Document/Entry Information -- Docket entry #13 was filed as a Motion to Dismiss and a Motion to Change Venue when it was in fact a Motion for a Pre-Motion Conference seeking leave to file future motions for said relief. The Clerk has corrected the error, therefore no corrective action is necessary. Do not refile the document. When submitting electronic filings with the court Counsel must use the appropriate event at all times. If you are unsure of the appropriate event, please contact the Clerk's Office for assistance. CM/ECF Training is available free of charge at the courthouse. For more information regarding training, counsel can contact Evelyn Levine, Training Specialist, at (718) 613 2312. (Almonte, Kelly) |
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ORDER: On 1/13/2021, Defendant Peter T Bethoney moved to extend the time to answer, move, or otherwise respond to the Complaint #1 . Defendant Peter T Bethoneys answer was due on 1/12/2021. Because the Defendant is seeking to extend the time to answer after the time to do so has passed, Defendant must file a motion by 1/22/2021 that explains why, under the standards set forth in Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993), a belated answer is permissible, and why a default should not be entered. Liang v. Home Reno Concepts, LLC, 803 F. App'x 444, 446 n.2 (2d Cir. 2020). So Ordered by Magistrate Judge Sanket J. Bulsara on 1/14/2021. (Farrell, Gillian)
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ORDER: The Motion for Extension of Time to Answer #12 is granted. Defendants Lucy N Thiongo and John T. Thuo shall answer, move, or otherwise respond to the Complaint #1 by 2/2/2021. So Ordered by Magistrate Judge Sanket J. Bulsara on 1/14/2021. (Farrell, Gillian)
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| Filing 12 Consent MOTION for Extension of Time to File Answer re #1 Complaint, by Stipulation by Lucy N Thiongo, John T. Thuo. (Martine, Anthony) |
| Filing 11 MOTION for Extension of Time to File Answer re #1 Complaint, or otherwise respond to complaint by Peter T Bethoney. (Mise, Alexander) |
| Filing 10 SUMMONS Returned Executed by Nicholas Rao. Nicollette A Lynch served on 12/30/2020, answer due 1/20/2021. (Nichols, Regina) |
| Filing 9 SUMMONS Returned Executed by Nicholas Rao. Peter T Bethoney served on 12/22/2020, answer due 1/12/2021. (Nichols, Regina) |
| Filing 8 SUMMONS Returned Executed by Nicholas Rao. Lucy N Thiongo served on 12/30/2020, answer due 1/20/2021. (Nichols, Regina) |
| Filing 7 SUMMONS Returned Executed by Nicholas Rao. John T. Thuo served on 12/30/2020, answer due 1/20/2021. (Nichols, Regina) |
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ORDER: The Motion for Extension of Time to File #6 is granted. Plaintiff is directed to file any proof of service by 1/21/2021. So Ordered by Magistrate Judge Sanket J. Bulsara on 12/22/2020. (Farrell, Gillian)
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| Filing 6 First MOTION for Extension of Time to File Affidavit of Service by Nicholas Rao. (Nichols, Regina) |
| Filing 5 STATUS REPORT by Nicholas Rao (Nichols, Regina) |
| Case Reassigned to Judge Diane Gujarati. Judge Nicholas G. Garaufis no longer assigned to the case. 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. (Mahoney, Brenna) |
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STATUS REPORT ORDER: Plaintiff filed a complaint in this case on 8/10/2020, and a summons was issued on 8/10/2020. The Plaintiff is directed to provide a status report to the Court by 12/21/2020 indicating whether service has been made on any of the Defendants, and if so, file any proofs of service. So Ordered by Magistrate Judge Sanket J. Bulsara on 12/14/2020. (Manson, Eddie)
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| Filing 4 Summons Issued as to Peter T Bethoney, Nicollette A Lynch, Lucy N Thiongo, John T. Thuo. (Davis, Kimberly) |
| Filing 3 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) |
| Filing 2 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. Additionally, case is reassigned to Office Code 1: Brooklyn as per civil cover sheet Rule 50.1(d)(2). (Rodin, Deanna) |
| Filing 1 COMPLAINT against All Defendants filing fee $ 400, receipt number ANYEDC-13185140 Was the Disclosure Statement on Civil Cover Sheet completed -NO,, filed by Nicholas Rao. (Attachments: #1 Civil Cover Sheet) (Nichols, Regina) (Main Document 1 replaced on 8/10/2020) (Rodin, Deanna). (Additional attachment(s) added on 8/10/2020: #2 Proposed Summons) (Rodin, Deanna). |
| Case Assigned to Judge Nicholas G. Garaufis and Magistrate Judge Sanket J. Bulsara. 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) |
| Incorrect Document Entry Information. The Main Document in Document Entry No. 1 (Complaint and Proposed Summons) was filed as one document. Documents were separated and re-entered as the Main Document and attachment in Document Entry No. 1. (Rodin, Deanna) |
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