Padula v. Ebay et al
| George Padula |
| Ebay and Maxarmory |
| 1:2021cv05391 |
| September 28, 2021 |
| US District Court for the Eastern District of New York |
| Margo K Brodie |
| Sanket J Bulsara |
| Contract: Other |
| 28 U.S.C. § 1332 Diversity-Breach of Contract |
| Plaintiff |
Docket Report
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ORDER. It is ORDERED that the action is hereby administratively closed, without prejudice with leave to reopen the action within thirty days of the conclusion of arbitration proceeding. Ordered by Chief Judge Margo K. Brodie on 3/15/2023. (WV)
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Filing 41
ORDER ADOPTING REPORT AND RECOMMENDATIONS for #27 Motion to Compel filed by Ebay and #31 Motion to Compel filed by Maxarmory. The Court adopts the R&R, grants Defendants' motions to compel arbitration and stays all proceedings pending the outcome of arbitration. So Ordered by Chief Judge Margo K. Brodie on 1/24/2023. (FP)
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ORDER denying as moot #31 Motion to Dismiss. The motion is denied as moot in view of #41 the Courts order granting Defendants motions to compel arbitration. Ordered by Chief Judge Margo K. Brodie on 1/24/2023. (AB)
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Filing 40
REPORT AND RECOMMENDATION: For the reasons described in the attached Report and Recommendation, the Court respectfully recommends that Defendants' motions to compel arbitration #27 & #31 be granted pursuant to 9 U.S.C. 4 and that this action be stayed pursuant to 9 U.S.C. 3. Any objections to the Report and Recommendation must be filed with the Clerk of the Court within 14 days of service of this report. Failure to file objections within the specified time waives the right to appeal any judgment or order entered by the District Court in reliance on this Report and Recommendation. See 28 U.S.C. 636(b)(1); Fed. R. Civ. P. 72(b)(2); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) ("[F]ailure to object timely to a magistrate[ ] [judge's] report operates as a waiver of any further judicial review of the magistrate[ ] [judge's] decision." (quotations omitted)). So Ordered by Magistrate Judge Sanket J. Bulsara on 12/29/2022. (MD)
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ORDER REFERRING MOTIONS: The Court respectfully refers #31 Defendant Maxarmory's Motion to Compel Arbitration/Motion to Dismiss for Failure to State a Claim and #27 Defendant Ebay's Motion to Compel Arbitration and Stay Proceedings or in The Alternative to Dismiss The Amended Complaint to Magistrate Judge Sanket J. Bulsara. Ordered by Chief Judge Margo K. Brodie on 11/30/2022. (AB)
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ORDER: The settlement conference scheduled for 6/29/2022 is adjourned sine die in light of the stay of discovery currently in place. So Ordered by Magistrate Judge Sanket J. Bulsara on 6/23/2022. (Bruckner, Ian)
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| Filing 39 Letter MOTION to Stay re #33 Order on Motion to Stay,, to confirm stay of Settlement Positions due 6/24 and adjournment of 6/29 Settlement Conference, by Ebay. (Thompson, Duvol) |
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ORDER terminating as moot #17 Motion for Pre Motion Conference; finding as moot #18 Motion for Pre Motion Conference. See Order dated March 7, 2022. Ordered by Chief Judge Margo K. Brodie on 6/21/2022. (Valentin, Winnethka)
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| Filing 38 REPLY to Response to Motion re #31 First MOTION to Compel ArbitrationFirst MOTION to Dismiss for Failure to State a Claim filed by Maxarmory. (Attachments: #1 Exhibit A, #2 Exhibit B) (Levitt, Paul) |
| Filing 37 AFFIDAVIT/DECLARATION in Support re #31 First MOTION to Compel ArbitrationFirst MOTION to Dismiss for Failure to State a Claim , REPLY to Response to Motion re #31 First MOTION to Compel ArbitrationFirst MOTION to Dismiss for Failure to State a Claim filed by Maxarmory. (Levitt, Paul) |
| Filing 36 REPLY in Support re #27 MOTION to Compel Arbitration and Stay Proceedings or in The Alternative to Dismiss The Amended Complaint, filed by Ebay. (Thompson, Duvol) |
| Filing 35 REPLY in Opposition to Defendant MAXARMORY's Motion to Compel filed by George Padula. (Forcina, Elio) |
| Filing 34 REPLY in Opposition to Defendant EBAY's Motion to Compel filed by George Padula. (Forcina, Elio) |
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Filing 33
ORDER: The motion to stay discovery #32 is hereby granted. The parties' stipulation is so ordered. As indicated in the attached stipulation and order, all discovery deadlines in this action are stayed until further order of the Court. Within fourteen (14) days after ruling on the motions to compel arbitration or in the alternative to dismiss the Amended Complaint, the parties will meet and confer in good faith to revise the discovery schedule and will submit a proposed scheduling stipulation for this Court's review and approval. So Ordered by Magistrate Judge Sanket J. Bulsara on 4/12/2022. (Bruckner, Ian)
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ORDER: Due to a scheduling conflict, the settlement conference scheduled for 6/29/2022 will be held at 2:30 P.M. in Courtroom 324 North before Magistrate Judge Sanket J. Bulsara. All parties must be present. Parties are to submit their respective ex parte settlement positions to the Chambers email address no later than 6/24/2022 at 5:00 P.M. Counsel are to refer to the Settlement Section of this Court's Individual Rules in preparation for the conference, which is available on the Court's website. So Ordered by Magistrate Judge Sanket J. Bulsara on 4/11/2022. (Bruckner, Ian)
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| Filing 32 MOTION to Stay discovery pending the Court's decision and order on eBay and Defendant Maxarmory's respective Motions, by Ebay. (Attachments: #1 Exhibit A - Joint Stipulation and Proposed Order to Stay Discovery) (Thompson, Duvol) |
| Filing 31 First MOTION to Compel Arbitration, First MOTION to Dismiss for Failure to State a Claim by Maxarmory. (Attachments: #1 Declaration, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Memorandum in Support) (Levitt, Paul) |
| Filing 30 MEMORANDUM in Support re #27 MOTION to Compel Arbitration and Stay Proceedings or in The Alternative to Dismiss The Amended Complaint, filed by Ebay. (Thompson, Duvol) |
| Filing 29 AFFIDAVIT/DECLARATION in Support re #27 MOTION to Compel Arbitration and Stay Proceedings or in The Alternative to Dismiss The Amended Complaint, filed by Ebay. (Attachments: #1 Exhibit A - Plaintiff's Amended Complaint) (Thompson, Duvol) |
| Filing 28 AFFIDAVIT/DECLARATION in Support re #27 MOTION to Compel Arbitration and Stay Proceedings or in The Alternative to Dismiss The Amended Complaint, filed by Ebay. (Attachments: #1 Exhibit A - eBay's User Agreement effective August 30, 2019, #2 Exhibit B - Oct. 2015 User Agreement) (Thompson, Duvol) |
| Filing 27 MOTION to Compel Arbitration and Stay Proceedings or in The Alternative to Dismiss The Amended Complaint, by Ebay. (Attachments: #1 Proposed Order) (Thompson, Duvol) |
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ORDER granting #26 Proposed Briefing Schedule. The Court adopts the parties' proposed briefing schedule for Defendants' motion to compel arbitration and in the alternative to dismiss. Defendants shall file their motions on or before March 31, 2022; Plaintiff shall serve his opposition on or before April 22, 2022; and Defendants shall serve and file their replies, if any, on or before May 4, 2022. The Court also grants the parties' stipulation extending Defendants' time to answer the Amended Complaint. Defendants' deadline to file an Answer is extended until seven days after the Court decides Defendants' motion to compel arbitration and in the alternative to dismiss. Ordered by Chief Judge Margo K. Brodie on 3/19/2022. (Collins, Natalie)
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| Filing 26 Letter to the Hon. Margo K. Brodie dated March 17, 2022 from Duvol M. Thompson re: the Joint Briefing Schedule for the Motion to Compel Arbitration and in the Alternative to Dismiss by Ebay (Thompson, Duvol) |
| Filing 25 Corporate Disclosure Statement by Ebay (Thompson, Duvol) |
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ORDER denying #17 , #18 Defendants' requests for a pre-motion conference. The parties are directed to confer and file a proposed briefing schedule for Defendants' motion to compel arbitration or in the alternative to dismiss on or before March 17, 2022. Ordered by Chief Judge Margo K. Brodie on 3/7/2022. (Collins, Natalie)
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| Filing 24 Letter in Response to Defendants' Motions to Compel Arbitration and Stay the Litigation and in the Alternative Dismiss by George Padula (Attachments: #1 Exhibit Proof of Purchase) (Forcina, Elio) |
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SCHEDULING ORDER: The Courts adopt the parties' proposed Rule 26(f) Report #23 with the exception of the proposed settlement conference date. Deadlines set based on parties' submitted joint Rule 26(f) Report and are as follow: Time to amend the pleadings shall be completed by 7/8/2022; completion of all discovery by 12/1/2022; the last date to take the first step in dispositive motion practice shall be 1/13/2023. A settlement conference will be held on 6/29/2022 at 10:30 A.M. in Courtroom 324N before Magistrate Judge Sanket J. Bulsara. All parties must be present. Parties are to submit their respective ex parte settlement positions via Chamber's email no later than three days before 6/29/2022. Counsel are to refer to the Settlement Section of this Court's Individual Rules in preparation for the conference, which is available on the Court's website. So Ordered by Magistrate Judge Sanket J. Bulsara on 3/2/2022. (Manson, Eddie)
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| Filing 23 REPORT of Rule 26(f) Planning Meeting (Thompson, Duvol) |
| Minute Entry for proceedings held before Magistrate Judge Sanket J. Bulsara: A telephonic initial conference was held on 2/25/2022. All parties were present. As discussed on the record the parties are directed to submit a revised Rule 26(f) report; or a motion to stay discovery by 3/2/2022. (AT&T Log #11:09-11:20.) (Manson, Eddie) |
| Filing 22 Proposed Scheduling Order Rule 26(f) Phase 1 Discovery by Maxarmory (Levitt, Paul) |
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ORDER granting #21 letter motion for extension of time to file answer to Defendants letters. Plaintiff is ordered to respond to Defendants letters on or before March 3, 2022. Ordered by Chief Judge Margo K. Brodie on 2/22/2022. (Collins, Natalie)
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| Filing 21 Letter MOTION for Extension of Time to File Answer to Defendant's letters by George Padula. (Forcina, Elio) |
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RE-SCHEDULING ORDER: Due to a scheduling conflict the telephonic-initial conference scheduled for 2/25/2022 at 10:30 A.M. will now be held at 11:00 A.M. before Magistrate Judge Sanket J. 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 conference. Counsel are directed to complete the attached Rule 26(f) Report #14 and electronically file same with the Court no later than two days before 2/25/2022. Should the parties wish to adopt a plan for discovery different from the structure in the Rule 26(f) Report, they may do so only if they file a letter explaining why such a plan is appropriate in this case. Upon receipt of this email counsel shall confirm with each other of the date and time of this telephonic initial conference. So Ordered by Magistrate Judge Sanket J. Bulsara on 2/18/2022. (Manson, Eddie)
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ORDER re #17 Ebay's pre-motion conference letter, #18 Maxarmory's pre-motion conference letter. The Court orders Plaintiff to respond to Defendants' letters on or before February 24, 2022. Ordered by Chief Judge Margo K. Brodie on 2/17/2022. (Collins, Natalie)
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ORDER: The motions to extend the time to answer and the time to file a Rule 26(f) Report by defendant Ebay #19 and defendant Maxarmory #20 are hereby denied. So Ordered by Magistrate Judge Sanket J. Bulsara on 2/16/2022. (Bruckner, Ian) (Manson, Eddie)
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ORDER: The Court upon further consideration does extend Defendants' time to answer the Amended Complaint #6 to 3/21/2022, but does not adjourn the initial conference or the Rule 26(f) report. Any further extensions of the deadline to answer will be discussed at the upcoming initial conference. So Ordered by Magistrate Judge Sanket J. Bulsara on 2/16/2022. (Bruckner, Ian)
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| Filing 20 Second MOTION for Extension of Time to File Answer re #6 Amended Complaint, #14 Scheduling Order,,, , Second MOTION for Extension of Time to File Response/Reply as to #6 Amended Complaint, #14 Scheduling Order,,, by Maxarmory. (Levitt, Paul) |
| Filing 19 Letter MOTION for Extension of Time to File Answer re #6 Amended Complaint and adjourn the filing of the Rule 26(f) report, by Ebay. (Thompson, Duvol) |
| Filing 18 First MOTION for pre motion conference by Maxarmory. (Levitt, Paul) |
| Filing 17 MOTION for pre motion conference with respect to eBay's intention to file a pre-answer motion to compel arbitration under the terms of the eBay User Agreement by Ebay. (Thompson, Duvol) |
| Filing 16 SUMMONS Returned Executed by George Padula. Maxarmory served on 12/6/2021, answer due 2/18/2022. (Forcina, Elio) |
| Filing 15 SUMMONS Returned Executed by George Padula. Ebay served on 12/17/2021, answer due 2/18/2022. (Forcina, Elio) |
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Filing 14
SCHEDULING ORDER: A telephonic initial conference will be held at 10:30 A.M. on 2/25/2022 before Magistrate Judge Sanket J. 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 conference. Counsel are directed to complete the attached Rule 26(f) Report and electronically file same with the Court no later than two days before 2/25/2022. Should the parties wish to adopt a plan for discovery different from the structure in the Rule 26(f) Report, they may do so only if they file a letter explaining why such a plan is appropriate in this case. Upon receipt of this email counsel shall confirm with each other of the date and time of this telephonic initial conference. So Ordered by Magistrate Judge Sanket J. Bulsara on 1/10/2022. (Manson, Eddie)
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ORDER: The Motion for an Extension of Time to Answer #13 is hereby granted. The deadline for defendant Ebay Inc. to answer, move, or otherwise respond to the Amended Complaint #6 is extended to 2/18/2022. So Ordered by Magistrate Judge Sanket J. Bulsara on 1/7/2022. (Bruckner, Ian)
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| Filing 13 Letter MOTION for Extension of Time to File Answer re #6 Amended Complaint by Ebay. (Attachments: #1 Proposed Order Stipulation and Order Regarding Extension of Time to Respond to Amended Complaint) (Thompson, Duvol) |
| Filing 12 NOTICE of Appearance by Duvol Maurice Thompson on behalf of Ebay (aty to be noticed) (Thompson, Duvol) |
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ORDER: Counsel for Defendant Maxarmory has filed a motion seeking an extension of time to answer #11 that purports to attach a stipulation to that effect. No stipulation was filed on ECF (an erroneous document was filed on ECF instead). Nonetheless, in light of the motion, which indicates both sides have agreed to the stipulation, the time for Maxarmory to answer or otherwise respond to the Amended Complaint #6 is extended to 2/18/2022. In light of the absence of objection from Plaintiff, and the delayed and recent retention of counsel by Maxarmory, the Court concludes that the factors set forth in Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993) permit filing of a delayed answer and counsel against entry of a default. So Ordered by Magistrate Judge Sanket J. Bulsara on 1/3/2022. (Bruckner, Ian)
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| Filing 11 First MOTION for Extension of Time to File Answer re #6 Amended Complaint by Maxarmory. (Attachments: #1 Proposed Order) (Levitt, Paul) |
| Filing 10 NOTICE of Appearance by Paul E. Levitt on behalf of Maxarmory (aty to be noticed) (Levitt, Paul) |
| Filing 9 Summons Issued as to Ebay, Maxarmory. (Piper, Francine) |
| Filing 8 EXHIBIT by George Padula. Related document: #6 Amended Complaint filed by George Padula. (Forcina, Elio) |
| Filing 7 Proposed Summons. Re #6 Amended Complaint, #1 Complaint, by George Padula (Forcina, Elio) |
| Filing 6 AMENDED COMPLAINT against Ebay, Maxarmory, filed by George Padula. (Forcina, Elio) |
| Filing 5 Letter in Response to the Court's Order to Show Cause by George Padula (Forcina, Elio) |
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ORDER TO SHOW CAUSE: The Complaint #1 does not allege facts sufficient to infer that this Court has subject matter jurisdiction over this case. None of the claims asserted arise under the Constitution or federal law. As such, this Court thus only has subject matter jurisdiction over this case if there is diversity of citizenship and an amount in controversy exceeding $75,000. 28 U.S.C. 1332(a). "The party seeking to invoke jurisdiction under 28 U.S.C. 1332 bears the burden of demonstrating that the grounds for diversity exist and that diversity is complete." Advani Enters., Inc. v. Underwriters at Lloyds, 140 F.3d 157, 160 (2d Cir. 1998). "That party must allege a proper basis for jurisdiction in his pleadings and must support those allegations with competent proof if a party opposing jurisdiction properly challenges those allegations or if the court sua sponte raises the question." Linardos v. Fortuna, 157 F.3d 945, 947 (2d Cir. 1998) (citations and quotations omitted). Here, the information provided in the Complaint is insufficient to show that there is complete diversity of citizenship. The Complaint merely alleges the addresses of the two corporate defendants. (Compl. 2-3). That is not sufficient. A corporation's citizenship "is determined by its place of incorporation or its principal place of business[.]" United Food & Com. Workers Union, Loc. 919 v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 302 (2d Cir. 1994). Neither has been pled here. To the extent Plaintiff intends to asset diversity jurisdiction pursuant to the Class Action Fairness Act, 28 U.S.C. 1332(d), the broad and conclusory allegations in Count V that Plaintiff is bringing a claim on behalf of a classone that is undefined or limited in any manner and whose members' citizenship is unknownis not sufficient to confer diversity jurisdiction. See generally Dancel v. Groupon, Inc., 940 F.3d 381, 385 (7th Cir. 2019). Plaintiff is ordered to show cause by 10/8/2021 in a letter not exceeding three (3) pages explaining why the case should not be dismissed for lack of subject matter jurisdiction. To the extent Plaintiff intends to amend the Complaint to add allegations sufficient to establish subject matter jurisdiction, Plaintiff's letter must identify those facts. So Ordered by Magistrate Judge Sanket J. Bulsara on 10/1/2021. (Bruckner, Ian)
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| Filing 4 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Neptune, Pierre) |
| 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. (Neptune, Pierre) |
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ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Sanket J. Bulsara for all further proceedings. Chief Magistrate Cheryl L. Pollak no longer assigned to 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. Ordered by Chief Judge Margo K. Brodie on 9/30/2021. (Bowens, Priscilla)
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| Your proposed summons was not issued for the following reason: The date field on the proposed summons was completed. Leave the date field on the PDF blank. Please correct and resubmit using Proposed Summons/Civil Cover Sheet. (Neptune, Pierre) |
| Filing 2 Civil Cover Sheet.. Re Notice: Re: Incomplete Civil Cover Sheet, #1 Complaint, by George Padula (Forcina, Elio) |
| Notice: Re: Incomplete Civil Cover Sheet. The Clerk's Office cannot assign this case without a completed Civil Cover Sheet (MISSING SECOND PAGE). All questions *** INCLUDING the CERTIFICATION OF ARBITRATION ELIGIBILITY*** section on the second page must be answered. Please resubmit Civil Cover Sheet. This event can be found under the event Other Documents - Proposed Summons/Civil Cover Sheet. (Neptune, Pierre) |
| Case Assigned to Chief Judge Margo K. Brodie and Chief Magistrate Cheryl L. Pollak. 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. (Neptune, Pierre) |
| Filing 1 COMPLAINT against Ebay, Maxarmory filing fee $ 402, receipt number ANYEDC-14881591 Was the Disclosure Statement on Civil Cover Sheet completed -NO,, filed by George Padula. (Attachments: #1 Civil Cover Sheet Civil Cover Sheet, #2 Proposed Summons Request for Summons, #3 Exhibit Exhibits A-C) (Forcina, Elio) |
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