Gargano v. Murphy et al
| John Gargano |
| Brenda Gargano Murphy, Brittany Doyle and Heather Prestia |
| 1:2022cv00242 |
| January 14, 2022 |
| US District Court for the Eastern District of New York |
| Brooklyn Office |
| Pamela K Chen |
| Peggy Kuo |
| Other Statutory Actions |
| 28 U.S.C. ยง 1331 Fed. Question |
| Plaintiff |
Docket Report
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| Document Text |
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ORDER: On January 26, 2022, the Court dismissed Plaintiff's action with leave to amend within thirty (30) days. (See Dkt. #5 .) On February 23, 2022, Plaintiff timely filed an amended complaint which removes Heather Pestia as a defendant and alleges sufficient facts to demonstrate that the amount in controversy exceeds $75,000.00. (See First Amended Complaint, Dkt. 6, at ECF 7 (alleging over $188,000 in damages for Plaintiff's artwork and personal belongings allegedly being held by Defendants).) While the amended complaint still does not clearly allege a federal or state cause of action, the Court finds that the allegations asserted in the amended complaint are not frivolous and therefore cannot be dismissed sua sponte because Plaintiff has paid the filing fee rather than requesting permission to proceed in forma pauperis. See Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362 (2d Cir. 2000) ("[W]e hold that district courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]"). Accordingly, the Clerk of Court is respectfully directed to issue an amended summons and mail the amended summons along with a copy of the amended complaint and this Order to Plaintiff. Plaintiff is directed to serve the amended summons and the amended complaint on Defendants pursuant to Rule 4(m) of the Federal Rules of Civil Procedure which provides that service must be effected within 90 days the complaint was filed, here, by May 24, 2022. Plaintiff is warned that if service is not made on Defendants, or if Plaintiff fails to show good cause why such service has not been effected, the Court will dismiss this action without prejudice. Ordered by Judge Pamela K. Chen on 2/28/2022. (Mahkamova, Shirin)
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| Filing 6 AMENDED COMPLAINT w/Demand for Trial by Jury against Brenda Gargano Murphy, Brittany Doyle; filed by pro se John Gargano, dated 2/23/2022. (Latka-Mucha, Wieslawa) |
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Filing 5
ORDER: For the reasons stated in the attached Memorandum and Order, Plaintiff's claims are dismissed without prejudice. The Court grants Plaintiff thirty (30) days to file an amended complaint. If Plaintiff fails to amend the complaint within thirty (30) days as directed by this Memorandum and Order, or otherwise show good cause for his failure, judgment shall be entered dismissing the action without prejudice. Although Plaintiff paid the filing fee to bring the action, the Court certifies pursuant to 28 U.S.C. 1915 (a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Pamela K. Chen on 1/26/2022. (Mahkamova, Shirin)
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| Filing 4 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) |
| Filing 3 Summons Issued as to All Defendants. (Neptune, Pierre) |
| Filing 2 FILING FEE: $ 402.00, receipt number 4653162550. (Neptune, Pierre) |
| Filing 1 COMPLAINT against All Defendants Was the Disclosure Statement on Civil Cover Sheet completed -No,, filed by John Gargano. (Attachments: #1 Civil Cover Sheet) (Neptune, Pierre) |
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