D A Optical Inc. et al v. Bank of America Corporation et el
| DI Optical Inc., DK Optical Inc., AD Optical Inc, Dany I. Kogan, D A Optical Inc. and DI Optical Inc |
| Doe 1, Bank of America Corporation, Doe 2 and Bank Of America, N.A. |
| 1:2018cv04977 |
| August 31, 2018 |
| US District Court for the Eastern District of New York |
| Brian M Cogan |
| Contract: Other |
| 28 U.S.C. § 1332 |
| Plaintiff |
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| Filing 8 CLERK'S JUDGMENT dated 10/11/18 that this case is dismissed. ( Ordered by Jalitza Poveda, Deputy Clerk on behalf of Douglas C. Palmer, Clerk of Court on 10/11/2018 ) (Guzzi, Roseann) |
ORDER DISMISSING CASE. The Court has given plaintiffs the opportunity to amend the defective jurisdictional allegations in the complaint but the amended complaint still violates basic rules of pleading facts sufficient to show jurisdiction. First, it alleges that the corporate plaintiff is "registered" to do business in New York State, but the case law unanimously recognizes that "registration" in a particular state is not the same as incorporation in a state and only the latter controls for purposes of pleading citizenship. See, e.g., Portillo v. Chipotle Mexican Grill, Inc., No. EDCV1701497, 2018 WL 637386, at *1 (C.D. Cal. Jan. 31, 2018); Ohio Cas. Ins. Co. v. Hillesland, No. CIV. A. 99-722, 1999 WL 358912, at *1 (E.D. Pa. June 3, 1999) (collecting cases). Second, the amended complaint pleads the individual plaintiff's "residence," but it is equally well settled that residence does not determine citizenship for diversity purposes since a person can have multiple residences but only one citizenship. See H.K. Huilin Int'l Trade Co. v. Kevin Multiline Polymer Inc., 907 F. Supp. 2d 284, 289 (E.D.N.Y. 2012) (quoting Lee v. Coss, 201 F.3d 431, 431 (2d Cir. 1999) (quoting Canedy v. Liberty Mut. Ins. Co., 126 F.3d 100, 103 (2d Cir. 1997))). Third, plaintiffs allege that defendants are a national banking association with a principal place of business in North Carolina. But the Second Circuit has held that "a national bank is a citizen only of the state listed in its articles of association as its main office," not also the state of its principal place of business. OneWest Bank, N.A. v. Melina, 827 F.3d 214, 219 (2d Cir. 2016). Finally, plaintiffs also misstate New York law by contending that dismissal of this case for lack of subject matter jurisdiction would bar them from filing this action in New York Supreme Court because of the statute of limitations. That is simply not accurate. See CPLR 205. In view of plaintiffs' inability to properly allege facts showing diversity, and the absence of any reason why the New York Supreme Court is not an adequate forum for this case, the case is dismissed for lack of subject matter jurisdiction. The Clerk is directed to enter judgment accordingly. Ordered by Judge Brian M. Cogan on 10/10/2018. (Cogan, Brian)
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| Filing 7 AMENDED COMPLAINT against All Plaintiffs, filed by Dany I. Kogan, DI Optical Inc, D A Optical Inc., DK Optical Inc., AD Optical Inc. (Niman, Igor) |
| Filing 6 RESPONSE TO ORDER TO SHOW CAUSE by AD Optical Inc, D A Optical Inc., DI Optical Inc, DK Optical Inc., Dany I. Kogan (Niman, Igor) |
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ORDER re: #5 Motion to Adjourn Conference. Plaintiff is advised that the Order to Show Cause is not a hearing, rather the Court directed plaintiff to respond to the Order to Show Cause. The request to file a response until 10/9/2018 is granted. Ordered by Judge Brian M. Cogan on 10/3/2018. (Weisberg, Peggy)
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| Filing 5 MOTION to Adjourn Conference with respect to Order to Show Cause by all Plaintiffs by D A Optical Inc.. (Niman, Igor) |
| Filing 4 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Williams, Erica) |
| 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. (Williams, Erica) |
| Filing 2 CASE MANAGEMENT STATEMENT CIVIL COVER SHEET (Niman, Igor) |
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ORDER TO SHOW CAUSE. The complaint fails to invoke this Court's diversity jurisdiction, as it alleges neither the principal place of business of the corporate plaintiff nor the citizenship of the individual plaintiff. Plaintiffs are thereby ORDERED TO SHOW CAUSE by 10/3/2018 why this action should not be dismissed for lack of subject matter jurisdiction. Ordered by Judge Brian M. Cogan on 9/25/2018. (Weisberg, Peggy)
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| NOTICE: This case is administratively closed and will be deleted if a Civil Cover Sheet is not submitted by September 24, 2018. (Williams, Erica) |
| ***SECOND NOTICE*** - the Clerk's Office cannot assign this case without a completed Civil Cover Sheet. Counsel is directed to forward a completed Civil Cover Sheet, answering ALL questions on the second page including the ***NY-E DIVISION OF BUSINESS RULE 50.1(d)(2)*** and the ***CERTIFICATION OF ARBITRATION ELIGIBILITY*** sections. Also include any Proposed Summons. These documents can be found under the event Other Documents - Proposed Summons/Civil Cover Sheet. (Williams, Erica) |
| NOTICE - the Clerk's Office cannot assign this case without a completed Civil Cover Sheet. Counsel is directed to forward a completed Civil Cover Sheet, answering ALL questions on the second page including the ***NY-E DIVISION OF BUSINESS RULE 50.1(d)(2)*** and the ***CERTIFICATION OF ARBITRATION ELIGIBILITY*** sections. Also include any Proposed Summons. These documents can be found under the event Other Documents - Proposed Summons/Civil Cover Sheet. (Williams, Erica) |
| Case Assigned to Judge Brian M. Cogan. 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. (Williams, Erica) |
| Filing 1 COMPLAINT against DK Optical Inc., AD Optical Inc, Dany I. Kogan filing fee $ 400, receipt number 0207-10698456 Was the Disclosure Statement on Civil Cover Sheet completed -NO,, filed by DI Optical Inc.. (Niman, Igor) |
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