Tarantola v. Bombardier Transportation (Holdings) USA, Inc.
| Monica Tarantola |
| Bombardier Transportation (Holdings) USA, Inc. |
| 1:2022cv03361 |
| June 7, 2022 |
| US District Court for the Eastern District of New York |
| Brian M Cogan |
| Tort Product Liability |
| 28 U.S.C. ยง 1332 Diversity-Notice of Removal |
| None |
Docket Report
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Filing 7
ORDER granting #6 Motion for Refund of Fees Paid Electronically Ordered by Clerk of Court on 6/22/2022. (Marziliano, August)
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| Filing 6 MOTION for pre motion conference for Refund of Duplicate Fees Paid Electronically by Bombardier Transportation (Holdings) USA, Inc.. (Braude, Daniel) Modified on 6/22/2022 (Marziliano, August). |
| Filing 5 Letter to Court re Remand to State Court by Bombardier Transportation (Holdings) USA, Inc. (Braude, Daniel) |
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Order of Remand to Supreme Court, Queens County, case number 707393/202, on the ground that the case was untimely removed. Ordered by Judge Brian M. Cogan on 6/15/2022. (Cogan, Brian)
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| Filing 4 MOTION for pre motion conference for Refund of Fees Paid Electronically by Bombardier Transportation (Holdings) USA, Inc.. (Braude, Daniel) |
| 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) |
| 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) |
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CORRECTED ORDER TO SHOW CAUSE. Bombardier is ORDERED TO SHOW CAUSE by 6/15/2022 why this case should be remanded to state court as untimely removed pursuant to 28 U.S.C. 1441(a)(2) and 1446 (b)(1). If Bombardier's theory that MTA and PANYNJ were sham defendants joined only to defeat removal is correct -- and the record before the Court compels the conclusion that it is -- then it didnt take an Order by the State Court dismissing those defendants to make the case removable. A defendant can always remove a case, notwithstanding the presence of non-diverse co-defendants (let alone diverse but local forum defendants), if they have been fraudulently joined. See, e.g. Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460 (2d Cir. 1998). Dismissal of non-diverse parties by State Court Order is only required to make the case removable when there are claims against the non-diverse parties upon which a plaintiff may recover. See DNJ Logistic Grp., Inc. v. DHL Exp. (USA), Inc., 727 F. Supp. 2d 160, 165 (E.D.N.Y. 2010). Courts have found that where the statute of limitations has clearly run, that there is no possibility of recovery, and that such defendants are fraudulently joined. E.g. Francis v. AccuBanc Mortg. Corp., No. 19-cv-902, 2019 WL 2498315, at *2 (S.D.N.Y. June 14, 2019). This means that Bombardier's time to remove started to run when it became apparent to Bombardier that plaintiff had fraudulently joined MTA and PANYMJ for the purpose of defeating removal, which was far earlier than the state court's order dismissing MTA on 6/1/2022. Indeed, aside from the state court's dismissal orders, the record that Bombardier offers to support its claim of sham joinder is the same record that it had long ago. Specifically, plaintiff's demand for more than $75,000 in damages was made on 09/29/2021. Plaintiff's offers to dismiss the local defendants only if Bombardier agreed not to remove first occurred on 11/29/2021 and then again on 3/15/2022. PANYNJ moved to dismiss on clearly proper statute of limitations grounds on 04/30/2021 (and, in any event, the state court granted dismissal on 12/07/2021). And plaintiff failed to oppose MTA's two motions to dismiss in November 2021 and February 2022, respectively. Thus, at the very latest, Bombardier knew or should have known that the case was removable no later than February 2022 when plaintiff failed to oppose its motion to dismiss (and probably substantially earlier). It waited until both the 30-day period for removal and the one-year restriction on removing diversity cases had run. Just as a plaintiff cannot prevent removal by fraudulently naming defendants whose presence defeats removal, a defendant cannot use the plaintiff's fraudulent joinder to evade the time limits that Congress mandated for the removal of diversity cases. Although the Court is skeptical that Bombardier can advance a persuasive argument that the case was timely removed, it shall have the opportunity to do so on or before 6/15/2022. Ordered by Judge Brian M. Cogan on 6/8/2022. (Weisberg, Peggy) Modified on 6/8/2022 (Weisberg, Peggy).
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| Case Assigned to Judge Brian M. Cogan. 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) |
| Filing 1 NOTICE OF REMOVAL by Bombardier Transportation (Holdings) USA, Inc. from Supreme Court of the State of New York, County of Queens, case number 707393/2021. ( Filing fee $ 402 receipt number CNYEDC-15638857) (Attachments: #1 Gregorio Email Requesting Stipulation to Not Remove to Federal Court as a Condition of Granting Voluntary Discontinuance to Time-Barred Co-Defendant, #2 Summons & Complaint, #3 Bombardiers Verified Answer, #4 Port Authoritys Motion to Dismiss, #5 Order Granting Port Authoritys Motion to Dismiss, #6 MTAs Initial Motion to Dismiss, #7 Order Denying MTAs Initial Motion to Dismiss, #8 MTAs Renewed Motion to Dismiss, #9 Order Granting MTAs Renewed Motion to Dismiss, #10 Declaration of Kathryn E. Kimball, #11 Plaintiffs Initial Demand, #12 Demand for Discontinuance of MTA, #13 Braude-Gregorio Email Chain through March 15, 2022, #14 Civil Cover Sheet) (Braude, Daniel) |
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| Plaintiff: Monica Tarantola | |
| Represented By: | Alaina A. Gregorio |
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| Defendant: Bombardier Transportation (Holdings) USA, Inc. | |
| Represented By: | Daniel M Braude |
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