Dynasty Capital 26 LLC v. Lily's Green Garden, Inc. et al
| Dynasty Capital 26 LLC |
| Lily's Green Garden, Inc., Gerald Jacob Goldberg and Joseph Samuel Goldberg |
| 1:2022cv02507 |
| May 2, 2022 |
| US District Court for the Eastern District of New York |
| Ann M Donnelly |
| Marcia M Henry |
| Other Statutes: Arbitration |
| 09 U.S.C. ยง 1 U.S. Arbitration Act |
| None |
Docket Report
RSS Track this Docket
This docket was last retrieved on September 26, 2022. A more recent docket listing may be available from PACER.
| Document Text |
|---|
| Civil Case Terminated. (Greene, Donna) |
| Filing 7 NOTICE of Voluntary Dismissal by Dynasty Capital 26 LLC (Rosen, Gene) |
ORDER TO SHOW CAUSE: Pursuant to Fed. R. Civ. P. 4(m), a plaintiff is required to serve a defendant within 90 days from the filing of the complaint. On 05/02/2022, Plaintiff filed the Complaint and the Clerk of Court issued summonses as to all defendants. (ECF Nos. 1, 4). On 05/03/2022, the Honorable Ann M. Donnelly ordered Plaintiff to file a separate (and appropriately docketed) motion seeking leave for alternative service because Defendants allegedly consented to such methods. (See 05/03/2022 Order.) To date, Plaintiff has not filed such a motion or proof of service pursuant to Fed. R. Civ. P. 4(l). By 10/06/2022, Plaintiff shall file one of the following: (1) a motion for leave for alternative service; (2) proof of service on all Defendants (and an affirmation that said service is compliant with Fed. R. Civ. P. 4(e); or (3) a two-page letter showing cause why the undersigned should not recommend dismissal without prejudice for failure to prosecute. Failure to respond timely to this Order or to timely request an extension may result in adverse consequences, including the aforementioned recommended dismissal. So Ordered by Magistrate Judge Marcia M. Henry on 09/23/2022. (Yousuf, Maria)
|
|
ORDER denying #3 motion for "order to show cause for preliminary injunction in aid of temporary arbitration and temporary restraining order.""No ex parte order, or order to show cause to bring on a motion, will be granted except upon a clear and specific showing by affidavit of good and sufficient reasons why a procedure other than by notice of motion is necessary." Gullas v. 37-31 73rd St. Owners Corp., No. 12-CV-2301, 2012 WL 1655520, at *1 (E.D.N.Y. May 10, 2012) (quoting Loc. Civ. R. 6.1(d)). "A temporary restraining order may be issued without notice only if 'specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.'" FEI Hong Kong Co. Ltd. v. GlobalFoundries, Inc., No. 20-CV-2342, 2020 WL 1444956, at *2 (S.D.N.Y. Mar. 25, 2020) (quoting Fed. R. Civ. P. 65(b)(1)(A)). The plaintiff has not made a clear and specific showing by affidavit of good and sufficient reasons why ex parte relief is necessary. The plaintiff alleges that "it is evident that Defendants engaged in a fraudulent scheme to steal from Plaintiff and other receivables purchasers like Plaintiff, and giving them advance notice will only allow them to conceal or dissipate assets, rendering the relief requested ineffectual." (ECF No. 3-1 at 1.) The plaintiff further alleges that "the merchant cash advance industry" will "scour the legal system's electronic filings" and send the defendants "dozens of solicitations from debt settlement companies warning them to conceal their assets." (Id. at 2.) The plaintiff offers no evidence to support these allegations, nor explains why the defendants would conceal or dissipate their assets. The plaintiff asserts that its application "could not have been brought to the Courts attention earlier" because it "just initiated the arbitration for which aid in the form of injunctive relief is being sought," but the plaintiff caused an arbitration demand to be emailed to the defendant on April 27, 2022 - nearly a week ago. (ECF No. 1-6.) In short, the plaintiff's allegations are not enough for this Court to issue a TRO.In the alternative, the plaintiff argues that this Court must grant its ex parte application for a TRO because the defendants "contractually consented" to a TRO and that the arbitration award "will be rendered ineffectual" without injunctive relief. (ECF No. 3-2 at 7.) A district court may "preserve the meaningfulness of the arbitration through a preliminary injunction." Gen. Mills, Inc. v. Champion Petfoods USA, Inc., No. 20-CV-181, 2020 WL 915824, at *3 (S.D.N.Y. Feb. 26, 2020) (quoting Blumenthal v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 910 F.2d 1049, 1053 (2d Cir. 1990)). "The standard for an injunction seeking to preserve the status quo pending arbitration is the same as for preliminary injunctions generally." Convergen Energy LLC v. Brooks, No. 20-CV-3746, 2020 WL 5549039, at *18 (S.D.N.Y. Sept. 16, 2020) (citing Benihana, Inc. v. Benihana of Tokyo, LLC, 784 F.3d 887, 894-95 (2d Cir. 2015)). But the plaintiff does not identify any authority or otherwise explain, as it must, why an agreement between private parties regarding the availability of ex parte relief would bind this Court. See New York Packaging II LLC v. Mustang Mktg. Grp. LLC, No. 21-CV-01629, 2022 WL 604136, at *5 (E.D.N.Y. Mar. 1, 2022) (explaining that a preliminary injunction is an "extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." (quoting Sussman v. Crawford, 488 F.3d 136, 139 (2d Cir. 2007)).The plaintiff asserts that this Court has diversity jurisdiction over the case. (ECF No. 1 5; ECF No. 3-2 at 6.) The plaintiff alleges that it - a limited liability company ("LLC") - is a New York citizen, while the defendants - a corporation and two individuals - are California citizens. (Id. 1-4.) It is not clear whether the corporate defendant is also an LLC. (See ECF No. 1-1 at 2 (referring to "Lilys Green Garden Inc" as a "limited liability company").) In any event, alleging that an LLC is a citizen of a different state is "insufficient to invoke diversity jurisdiction." Kenshoo, Inc. v. Aragon Advert., LLC, No. 22-CV-764, 2022 WL 504189, at *1 (E.D.N.Y. Feb. 18, 2022) (collecting cases). The plaintiff must identify each member of the LLC and properly plead each member's citizenship. See Barnes v. Fort Hamilton Fam. Homes, 524 F.Supp.3d 40, 42 (E.D.N.Y. 2021) ("For diversity purposes, LLCs have the imputed citizenship of each of their members.").In addition to its ex parte application for a TRO, the plaintiff seeks leave for alternative service because the defendants allegedly consented to such methods. (ECF No. 3-2 at 10-11.) The plaintiff is directed to refile its request as a separate motion, which the Court will then address. Ordered by Judge Ann M. Donnelly on 5/3/2022. (Rosenthal, Joshua)
|
| Filing 6 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Bowens, Priscilla) |
| Filing 5 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 4 Summons Issued as to All Defendants. (Bowens, Priscilla) |
| Filing 3 Unsigned Order to Show Cause by Dynasty Capital 26 LLC (Attachments: #1 Declaration Gene W. Rosen, Esq., #2 Memorandum in Support) (Rosen, Gene) |
| Filing 2 Proposed Summons.Civil Cover Sheet.. by Dynasty Capital 26 LLC (Attachments: #1 Civil Cover Sheet) (Rosen, Gene) |
| Filing 1 COMPLAINT against Gerald Jacob Goldberg, Joseph Samuel Goldberg, Lily's Green Garden, Inc. filing fee $ 402, receipt number ANYEDC-15526145 Was the Disclosure Statement on Civil Cover Sheet completed -YES,, filed by Dynasty Capital 26 LLC. (Attachments: #1 Exhibit Exhibit 1 - Arbitration Agreement, #2 Exhibit Exhibit 2 - UCC, #3 Exhibit Exhibit 3 - Payment History, #4 Exhibit Exhibit 4 - Commercial Arbitration Rules, #5 Exhibit Exhibit 5 - Demand for Arbitration, #6 Exhibit Exhibit 6 - Notice of Arbitration Filing) (Rosen, Gene) |
| Case Assigned to Judge Ann M Donnelly and Magistrate Judge Marcia M. Henry. 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) |
Access additional case information on PACER
Use the links below to access additional information about this case on the US Court's PACER system. A subscription to PACER is required.
Access this case on the New York Eastern District Court's Electronic Court Filings (ECF) System
- Search for Party Aliases
- Associated Cases
- Attorneys
- Case File Location
- Case Summary
- Docket Report
- History/Documents
- Parties
- Related Transactions
- Check Status
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
