Leroy et al v. United States of America et al
| Jeffry Leroy and Shirley Licin |
| United States of America, MD Heather Hume, MD Mindy Brittner, MD Mira John, Mount Sinai Hospital, MD Mary Toussaint-Milord, MD Kaniz B. Banu, MD Mahreen Akram, CNM Jamie Celestin-Edwards, Brookdale Hospital Medical Center, MD Jill Berkin and MD Kevin Troy |
| 1:2021cv06615 |
| November 29, 2021 |
| US District Court for the Eastern District of New York |
| Eric R Komitee |
| Taryn A Merkl |
| Cheryl L Pollak |
| Allyne R Ross |
| Personal Inj. Med. Malpractice |
| 28 U.S.C. § 1331 Fed. Question: Medical Malpractice |
| None |
Docket Report
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| Filing 14 NOTICE OF APPEAL as to 13 Order on Motion for Pre Motion Conference,,,,,,,,,,, Order on Motion for Extension of Time to File Response/Reply,,,,,,,,,,,,,,,,,,,,, by Mahreen Akram, Kaniz B. Banu, Brookdale Hospital Medical Center, Jamie Celestin-Edwards, Mary Toussaint-Milord. Filing fee $ 505, receipt number ANYEDC-15216256. Appeal Record due by 2/4/2022. (Attachments: #1 Exhibit Docket Order, #2 Certificate of Service) (Lawless, Megan) |
| Electronic Index to Record on Appeal sent to US Court of Appeals. #14 Notice of Appeal, Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (Jones, Vasean) |
| Civil Case Terminated. See DE#13 (Galeano, Sonia) |
Filing 13
ORDER: Defendants have submitted a letter requesting a pre-motion conference regarding a remand of this matter or in the alternative, an expedited briefing schedule. The Court finds that neither a pre-motion conference nor briefing schedule is proper because the Court does not have original jurisdiction to hear parties' case. This is the same case as Leroy v. Hume , No. 20-cv-5325, which this Court remanded to state court on August 12, 2021 for lack of subject matter jurisdiction. See id. , ECF No. 38. The Court then found that the three bases for removal to federal court proffered by defendants -- complete preemption of plaintiffs' claims under the Public Readiness and Emergency Preparedness (PREP) Act, substantial federal question under the PREP Act, and federal officer jurisdiction -- failed as a matter of law. On November 29, 2021, this case was removed to federal court again, this time by the United States, which substituted by operation of law as a party defendant. The United States asserted a new basis for removal -- the Federal Tort Claims Act -- and their removal re-removed all of plaintiffs' claims against other defendants. Thereafter, plaintiffs dismissed their claims against the United States with prejudice. Defendants indicate they oppose remand and have asked to reargue the same bases for removal already asserted before and denied by this Court. Under the law of the case doctrine, the Court's previous finding that it lacked original jurisdiction to hear parties' action still holds, and the Court does not find a "clear conviction of error with respect to a point of law on which its previous decision was predicated." Fogel v. Chestnutt , 668 F.2d 100, 109 (2d Cir. 1981) (internal quotations and citations omitted). The Court disagrees with defendants that the Third Circuit decision in Maglioli v. Alliance HC Holdings LLC , 16 F.4th 393 (3d Cir. 2021) disturbs its previous decision in this case. Maglioli is not governing precedent. Moreover, Maglioli supports, not contradicts, the Court's conclusion that plaintiffs' state law claims are not preempted by the PREP ACT. See id. at 409-10 (finding that the PREP Act did not completely preempt plaintiffs' state law negligence claims). Accordingly, the Court lacks jurisdiction to hear parties' case at this juncture. This action is remanded to state court, and the Clerk of Court is directed to inform Kings County Supreme Court of this order by close of business on 1/7/22. Ordered by Judge Allyne R. Ross on 1/5/2022. (Reiser, Samantha)
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ORDER REASSIGNING CASE. Case reassigned to Judge Allyne R. Ross and Chief Magistrate Cheryl L. Pollak for all further proceedings. Judge Eric R. Komitee, Magistrate Judge Taryn A. Merkl 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 1/5/2022. (Bowens, Priscilla)
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| Filing 12 First MOTION for pre motion conference re #11 Letter in opposition to plaintiff's letter to remand back to State Court by Mahreen Akram, Kaniz B. Banu, Brookdale Hospital Medical Center, Jamie Celestin-Edwards, Mary Toussaint-Milord. (Braverman, Dylan) |
| Filing 11 Letter in response to Defendants' Motion for Extension of Time to Respond by Jeffry Leroy, Shirley Licin (Merson, Jordan) |
| Filing 10 NOTICE of Appearance by Charles K Faillace on behalf of Mahreen Akram, Kaniz B. Banu, Brookdale Hospital Medical Center, Jamie Celestin-Edwards, Mary Toussaint-Milord (aty to be noticed) (Faillace, Charles) |
| Filing 9 NOTICE of Appearance by Dylan C. Braverman on behalf of Mahreen Akram, Kaniz B. Banu, Brookdale Hospital Medical Center, Jamie Celestin-Edwards, Mary Toussaint-Milord (aty to be noticed) (Braverman, Dylan) |
| Filing 8 First MOTION for Extension of Time to File Response/Reply by Mahreen Akram, Kaniz B. Banu, Brookdale Hospital Medical Center, Jamie Celestin-Edwards, Mary Toussaint-Milord. (Lawless, Megan) |
| Filing 7 NOTICE of Appearance by Larry D. Bloomstein on behalf of Jill Berkin, Heather Hume, Mira John, Mount Sinai Hospital, Kevin Troy (aty to be noticed) (Bloomstein, Larry) |
| Filing 6 NOTICE of Voluntary Dismissal by Jeffry Leroy, Shirley Licin as to United States of America only and Remand (Merson, Jordan) |
| Filing 5 MOTION for pre motion conference by Mahreen Akram, Kaniz B. Banu, Brookdale Hospital Medical Center, Jamie Celestin-Edwards, Mary Toussaint-Milord. (Lawless, Megan) |
| Filing 4 NOTICE of Appearance by Megan A. Lawless on behalf of Mahreen Akram, Kaniz B. Banu, Brookdale Hospital Medical Center, Jamie Celestin-Edwards, Mary Toussaint-Milord (aty to be noticed) (Lawless, Megan) |
| Filing 3 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Bowens, Priscilla) |
| Filing 2 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. (Bowens, Priscilla) |
| Filing 1 NOTICE OF REMOVAL by United States of America from Kings County Supreme Court, case number 519076/2020. (Attachments: #1 Civil Cover Sheet, #2 Exhibit A, Summons and Verified Complaint, Kings County Supreme Court 519076/2020, #3 Exhibit B, Certification of Scope of Employment, #4 Exhibit Notice of Filing of Notice of Removal, #5 Exhibit Letter to Clerk of Court) (Speight, Melanie) |
| Case Assigned to Judge Eric R. Komitee and Magistrate Judge Taryn A. Merkl. 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. (Bowens, Priscilla) |
| This case has been opened in the Eastern District of New York. If you plan to continue representing your client(s), you must be admitted to practice before this court. You must do so by applying for Pro Hac Vice or permanent admission. To apply for Pro Hac Vice admission, you must first register for an ECF login and password. Please visit the Court's website at www.nyed.uscourts.gov/attorney-admissions for guidance. Once registered, you must electronically file a Motion to Appear Pro Hac Vice. You must pay the required pro hac vice fee online. (Bowens, Priscilla) |
| Notice of Related Case: The Civil Cover Sheet filed in this civil action indicates a related case. (Bowens, Priscilla) |
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