Ocean Vacation, LLC et al v. Najarian et al
| Ocean Vacation, LLC, Ocean Vacations Realty Trust and Nicholas J. Fiorillo |
| Daniel Najarian, Christopher Fiumara, Crowd Lending LLC, Crowd Lending Fund 1, LLC, Washington Fund et al, David Grassano, Neil Cohen, Daniel P. McLaughlin and Daniel P McLaughlin Auctioneers |
| 1:2022cv12160 |
| December 20, 2022 |
| US District Court for the District of Massachusetts |
| Indira Talwani |
| Real Property: Foreclosure |
| 12 U.S.C. § 191 Bank Foreclosure |
| None |
Docket Report
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This docket was last retrieved on February 17, 2023. A more recent docket listing may be available from PACER.
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| Filing 40 Filing fee/payment: $ 505.00, receipt number 10000228 for #16 Notice of Appeal, (Phillips, Sophie) |
| Filing 39 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at #https://www.mad.uscourts.gov/caseinfo/transcripts.htm (McDonagh, Christina) |
| Filing 38 Transcript of Show Cause Hearing held on February 2, 2023, before Judge Indira Talwani. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Robert Paschal at rwp.reporter@gmail.com. Redaction Request due 3/8/2023. Redacted Transcript Deadline set for 3/20/2023. Release of Transcript Restriction set for 5/16/2023. (McDonagh, Christina) |
| Filing 37 Electronic Clerk's Notes for proceedings held before Judge Indira Talwani: Show Cause Hearing held on 2/10/2023. Case called. Court had colloquy with plaintiff and counsel. Mr. Fiorillo made statements for the record and was heard by the Court. No sanctions as to Mr. Fiorollo were issued where he was represented by counsel. An Order sanctioning Attorney Kreuzer per the Show Cause Hearing held on 2/2/2023 will issue. (Court Reporter: Robert Paschal at rwp.reporter@gmail.com.)(Attorneys present: Nicholas Fiorillo Pro Se, Neil Kreuzer,) (MacDonald, Gail) |
| Filing 36 USCA Case Number 23-1146 for #34 Notice of Appeal, filed by Nicholas J. Fiorillo. (Paine, Matthew) |
| Filing 35 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re #34 Notice of Appeal. (Paine, Matthew) |
| Filing 34 NOTICE OF APPEAL as to 33 Order on Motion to Continue, by Nicholas J. Fiorillo NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at #http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at #http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at #http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 3/2/2023. (Kelly, Danielle) |
| Filing 33 Judge Indira Talwani: ELECTRONIC ORDER entered finding no cause for further delay, Nicholas Fiorillos Motion for Continuance #32 filed this afternoon is DENIED. The hearing on the Order to Show Cause will proceed by video conference tomorrow, February 10, 2023, at 3:30 p.m., as scheduled. (Talwani, Indira) |
| Filing 32 Plaintiff's MOTION for Continuance of February 10, 2023 Hearing by Nicholas J. Fiorillo. (Attachments: #1 Affidavit of Nicholas Fiorillo)(Kelly, Danielle) |
| Filing 31 Judge Indira Talwani: ELECTRONIC ORDER denying without prejudice Attorney Neil Kreuzer's motion #30 seeking a court order expediting production of transcript. Counsel seeking a transcript, expedited or otherwise, must contact the court reporter to order the transcript and make payment arrangements. The motion #30 includes no statement that counsel has followed the required steps or that a paid request for an expedited transcript has been refused by the court reporter. Accordingly, no judicial action is required at this time. (Kelly, Danielle) |
| Filing 30 MOTION expedited transcript by Ocean Vacation, LLC.(Kreuzer, Neil) |
| Filing 29 ELECTRONIC NOTICE OF RESCHEDULING: Show Cause Hearing set for 2/7/2023, is RESET for 2/10/2023 03:30 PM in Courtroom 9 (Remote only) before Judge Indira Talwani. This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the courtroom deputy of the session as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html.For questions regarding access to hearings, you may refer to the general orders and public notices of the Court available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov.(MacDonald, Gail) |
| Filing 28 Judge Indira Talwani: ELECTRONIC ORDER granting in part and denying in part Nicholas Fiorillo's Motion for Continuance of February 7, 2023 Hearing #27 . In light of Mr. Fioriollo's out-of-state travel, the clerk shall reset the February 7, 2023 hearing on the Order to Show Cause to a date later this week, to be conducted by videoconference. The request is otherwise denied. (MacDonald, Gail) |
| Filing 27 Plaintiff's MOTION for Continuance of February 7, 2023 Hearing by Nicholas J. Fiorillo. (Attachments: #1 Text of Proposed Order, #2 Exhibit)(Kelly, Danielle) |
| Filing 26 USCA Case Number 23-1129 for #24 Notice of Appeal, filed by Ocean Vacation, LLC. (Paine, Matthew) |
| Filing 25 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re #24 Notice of Appeal. (Paine, Matthew) |
| Filing 24 NOTICE OF APPEAL by Ocean Vacation, LLC Filing fee: $ 505, receipt number AMADC-9704382 Fee Status: Not Exempt. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at #http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at #http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at #http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 2/27/2023. (Kreuzer, Neil) |
| Filing 23 Electronic Clerk's Notes for proceedings held before Judge Indira Talwani: Show Cause Hearing held on 2/2/2023. Case called. Neil Kreuzer appeared. The Court had a colloquy with Attorney Kreuzer. The Court provided Atty Kreuzer with a printed copy of 28 U.S. Code 1443. The Court stated that an order directing the attorney how to file in this court is the only sanction that will issue, for now: An order was issued in open court sanctioning Atty Kreuzer and ordering that all future filings made in this court by Atty Kreuzer must identify the party on whose behalf he is filing. Atty Kreuzer may not file any documents in this court together with pro se litigant Nicholas J. Fiorillo, or any other pro se litigant. If any filings are made in the future that are made together with any pro se litigant, or that do not identify for whom the filing is being made, Atty Kreuzer will be further sanctioned. (Court Reporter: Robert Paschal at rwp.reporter@gmail.com.)(Attorneys present: Neil Kreuzer,) (MacDonald, Gail) |
| Filing 22 RESPONSE to Orders of The Court, Document 4 (12/20/22) and Document 10 (1/27/23) CORRECTED VERSION filed by Ocean Vacation, LLC. (Kreuzer, Neil) Modified on 2/3/2023: Corrected docket text to properly reflect document (Kelly, Danielle). |
| Filing 21 RESPONSE to Orders of The Court, Document 4 (12/20/22) and Document 10 (1/27/23) filed by Ocean Vacation, LLC. (Kreuzer, Neil) Modified on 2/3/2023: Corrected docket text to properly reflect document (Kelly, Danielle). |
| Filing 20 USCA Case Number 23-1114 for #16 Notice of Appeal, filed by Nicholas J. Fiorillo. (Paine, Matthew) |
| Filing 19 ELECTRONIC NOTICE of Hearing. Show Cause Hearing as to Nicholas J. Fiorillo set for 2/7/2023 10:00 AM in Courtroom 9 (In person only) before Judge Indira Talwani. (MacDonald, Gail) |
| Filing 18 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re #16 Notice of Appeal. (Paine, Matthew) |
| Filing 17 Judge Indira Talwani: ELECTRONIC ORDER entered denying #15 Motion "Nicholas Fiorillo's motion to appear telephonically or via video conference [Doc. No. 15] is DENIED. In light of Fiorillo's absence from the district the clerk shall reset the hearing on the order to show cause as to Fiorillo only for next week. The hearing will proceed tomorrow as scheduled as to Attorney Kreuzer. The clerk shall mail a copy of this order to Nicholas Fiorillo and Neil Kreuzer, and email a copy of the order to Attorneys Kreuzer, Michael A. Satterwhite (attorney for plaintiffs in the underlying action) and Jeremy Moskowitz (attorney for the defendants in the underlying action) at the email addresses associated with their cm/ecf accounts." (PSSA, 5) |
| Filing 16 Second NOTICE OF APPEAL as to 4 Order by Nicholas J. Fiorillo NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at #http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at #http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at #http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 2/21/2023. (Attachments: #1 Cover Letter)(Kelly, Danielle) |
| Filing 15 Plaintiff's MOTION to Appear Telephonically or via Video Conference by Nicholas J. Fiorillo. (Kelly, Danielle) |
| Filing 14 Case file sent to Essex County Superior Court. (Kelly, Danielle) |
| Filing 13 Judge Indira Talwani: ORDER entered. ORDER OF REMAND. Please see attached. (Kelly, Danielle) |
| Filing 12 ELECTRONIC NOTICE of Hearing. Show Cause Hearing set for 2/2/2023 02:30 PM in Courtroom 9 (In person only) before Judge Indira Talwani. See Order to Show Cause at Doc. No. #11 (PSSA, 5) |
| Filing 11 Judge Indira Talwani: ORDER entered. ORDER TO SHOW CAUSE (see attached order) Show Cause Hearing set for 2/2/2023 02:30 PM in Courtroom 9 (In person only) before Judge Indira Talwani.(PSSA, 5) |
| Filing 10 Judge Indira Talwani: ELECTRONIC ORDER entered. "The court previously directed the clerk to remand this case to Essex County Superior Court for lack of subject matter jurisdiction. Elec. Order 4 . On further review of the state court action, the court notes that the removal was also improper where the individual purporting to remove the action, Nicholas Fiorillo, individually, was not a party to the action, and where the caption of the notice of removal also included defendants who were not parties to the state court action. Where the 30 day period following the courts order of remand set forth in Local Rule 81.1(d) has passed, the clerk shall now remand the case consistent with Local Rule 81.1(c). The court retains jurisdiction, however, to address sanctions as to Nicholas Fiorillo and his counsel of record, Neil Kreuzer, in connection with their Notice of Removal #1 . The clerk shall mail a copy of this order to Nicholas Fiorillo and Neil Kreuzer, and email a copy of the order to Attorneys Kreuzer, Michael A. Satterwhite (attorney for plaintiffs in the underlying action) and Jeremy Moskowitz (attorney for the defendants in the underlying action) at the email addresses associated with their cm/ecf accounts."(PSSA, 5) |
| Filing 9 Corporate Counsel's Response to the Courts Order to Show Cause filed by Ocean Vacation, LLC. (Attachments: #1 Affidavit of Neil Kreuzer)(Kreuzer, Neil) Modified on 1/9/2023: Corrected docket text (Kelly, Danielle). |
| Filing 8 Corporate Counsel's Response to the Courts Order to Show Cause filed by Ocean Vacation, LLC. (Attachments: #1 Affidavit Affidavit of Neil Kreuzer)(Kreuzer, Neil) Modified on 1/9/2023: Corrected docket text (Kelly, Danielle). |
| Filing 7 AFFIDAVIT in Support re #6 Response to Order to Show Cause. (Paine, Matthew) |
| Filing 6 RESPONSE TO ORDER TO SHOW CAUSE 4 by Nicholas J. Fiorillo. (Paine, Matthew) |
| Filing 5 Civil Cover Sheet by Nicholas J. Fiorillo. (Attachments: #1 Category Form, #2 Cover Letter)(Kelly, Danielle) |
| Filing 4 Judge Indira Talwani: ELECTRONIC ORDER entered. ELECTRONIC ORDER: Denial of Pending Motions, Order of Remand, and Order to Show Cause"Plaintiff Nicholas Fiorillo purports to remove a civil action, Ocean Vacations Realty Trust et al. v. Najarian et al., Civ. No. 2277CV01168A, from Essex County Superior Court. Pursuant to 28 U.S.C. 1447(c), with respect to removed actions, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." Although plaintiff purports to remove the action pursuant to 28 U.S.C. 1441, 1443 and 1446, those statutes only permit defendants, and not plaintiffs, to remove an action. See Sreedhar v. Google LLC, No. CV 22-10322-RGS, 2022 WL 1539013, at *2 (D. Mass. May 16, 2022) (Stearns, J.) ("[O]nly a defendant has the power of removal.") (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)). Put another way, "the law is clear that [a state court plaintiff] may not remove [her] own [state] action." Black v. Kilmartin, No. CA 11-265 M, 2011 WL 2971548, at *1 (D.R.I. July 6, 2011) (collecting cases), report and recommendation adopted, No. CA 11-265M, 2011 WL 2971359 (D.R.I. July 20, 2011). To be sure there are narrow exceptions where Congress has permitted a plaintiff to remove an action, see 28 U.S.C. 1454(b)(1) (permitting removal in patent, plant variety protection, and copyright to be removed by "any party"), but those limited exceptions do not apply here. All pending motions are DENIED as MOOT and the clerk is directed to remand this case pursuant to Local Rule 81.1(d). The court notes that this is the second time Nicholas Fiorillo has improperly attempted to remove a civil action in which he is a plaintiff to this Court. See Ocean Vacations Realty Trust et al v. Green et al, 1:22-cv-11774-ADB. The court notes further that although the papers in this matter have not been filed through cm/ecf, they include the typed signature and signature block of attorney Neil Kreuzer. Accordingly, before the clerk returns this case to Essex County Superior Court, Fiorillo and Attorney Kreuzer shall show cause by January 6, 2023 as to why either or both should not be sanctioned, pursuant to Federal Rule of Civil Procedure 11, for these filings." (PSSA, 5) |
| Filing 3 ELECTRONIC NOTICE of Case Assignment. Judge Indira Talwani 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 Jennifer C. Boal. (Finn, Mary) |
| Filing 2 MOTION for Preliminary Injunction, MOTION for Temporary Restraining Order ( Responses due by 1/3/2023) by Nicholas J. Fiorillo. (Attachments: #1 Affidavit in support of motion, #2 cover letter)(Castilla, Francis) |
| Filing 1 NOTICE OF REMOVAL by All Plaintiffs from Essex County Superior Court, case number 2277CV01768. (Attachments: #1 Exhibit)(Castilla, Francis) |
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