Miranda v. Luzuriaga et al
| Mayra Miranda |
| Romulo Luzuriaga and Tommy Trucking, LLC |
| 1:2021cv07148 |
| December 28, 2021 |
| US District Court for the Eastern District of New York |
| Sanket J Bulsara |
| Allyne R Ross |
| Motor Vehicle |
| 28 U.S.C. ยง 1332 Diversity-Auto Negligence |
| Both |
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Filing 8
ORDER ADOPTING #7 Sua Sponte - Report and Recommendations. This case is remanded to state court. Ordered by Judge Allyne R. Ross on 2/18/2022. (Willingham, Alexandra)
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Filing 7
REPORT AND RECOMMENDATION: For the reasons stated in the attached Report and Recommendation, the Court respectfully recommends that this action be remanded to state court for lack of subject matter jurisdiction. Any objections to the Report and Recommendation must be filed with the Clerk of Court within 14 days of receipt 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 2/3/2022. (Morrow, Emily)
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| Filing 6 DEMAND for Trial by Jury by Mayra Miranda (Attachments: #1 Certificate of Service) (Chertock, Gene) |
| Filing 5 NOTICE of Appearance by Gene Leslie Chertock on behalf of Mayra Miranda (notification declined or already on case) (Attachments: #1 Certificate of Service) (Chertock, Gene) |
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ORDER TO SHOW CAUSE: On December 28, 2021, Defendants filed a Notice of Removal (Dkt. No. 1) to federal court under 28 U.S.C. 1441. Defendants allege this Court has diversity jurisdiction under 28 U.S.C. 1332(a) because the amount in controversy exceeds $75,000 and the parties are diverse. (Id. para. 8). "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).Section 1332(a) requires complete diversity among the plaintiffs and defendants for a federal court to exercise diversity jurisdiction. Herrick Co. v. SCS Commc'ns, Inc., 251 F.3d 315, 322 (2d Cir. 2001) ("[D]iversity jurisdiction is available only when all adverse parties to a litigation are completely diverse in their citizenships."). For the purposes of diversity, a limited liability company takes the citizenship of each of its members. Bayerische Landesbank v. Aladdin Cap. Mgmt. LLC, 692 F.3d 42, 49 (2d Cir. 2012). And "[f]or purposes of diversity jurisdiction, a party's citizenship depends on [her] domicile." Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998).Defendants allege diversity because Plaintiff is a citizen of New York, Defendant Romulo Luzuriaga is a citizen of New Jersey, and Defendant "DDDE Trucking, LLC"... "is a corporation incorporated in New Jersey and with its principal place of business" in New Jersey. (Dkt. No. 1, paras. 10-12). The Court presumes this is a typographical error since the named defendant in this action is "Tommy Trucking, LLC" which the Notice of Removal states is also a citizen of New Jersey. (Id. para. 16). By its name, Tommy Trucking, LLC is a limited liability company. The Complaint does not disclose Tommy Trucking, LLC's members or their citizenships for the purposes of diversity. As a result, the Court is unable to conclude whether it possesses diversity jurisdiction pursuant to 28 U.S.C. 1332(a). Further, even if the Notice of Removal properly alleged diversity of citizenship, neither the Complaint nor the Notice of Removal establish that the amount in controversy exceeds $75,000. The Notice of Removal states that the Complaint, "while not enumerating a dollar amount, specifically demands judgment in an amount in excess of the amount set forth in 28 U.S.C. 1332(a)[.]" (Dkt. No. 1, para. 7). This is insufficient. As the Second Circuit has held, "if the jurisdictional amount is not clearly alleged in the plaintiff's complaint, and the defendant's notice of removal fails to allege facts adequate to establish that the amount in controversy exceeds the jurisdictional amount, federal courts lack diversity jurisdiction as a basis for removing the plaintiff's action from state court." Lupo v. Hum. Affs. Int'l, Inc., 28 F.3d 269, 273-74 (2d Cir. 1994). The Court is unable to conclude whether it possesses diversity jurisdiction pursuant to 28 U.S.C. 1332(a). By 1/10/2022, Defendant must show cause why this action should not be remanded. So Ordered by Magistrate Judge Sanket J. Bulsara on 1/3/2022. (Morrow, Emily)
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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. (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 Civil Cover Sheet.. by Romulo Luzuriaga, Tommy Trucking, LLC (Donohue, Robert) |
| Filing 1 NOTICE OF REMOVAL by Romulo Luzuriaga, Tommy Trucking, LLC from Brooklyn Supreme Court, case number 530180/2021. ( Filing fee $ 402 receipt number ANYEDC-15148079) (Donohue, Robert) |
| Case Assigned to Judge Allyne R. Ross 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) |
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