United National Insurance Company v. 104 Belmont LLC et al
| United National Insurance Company |
| 104 Belmont LLC, Alex Brown, Town of Hempstead and Advanced Framing Construction, Inc. |
| 1:2022cv03669 |
| June 21, 2022 |
| US District Court for the Eastern District of New York |
| Sanket J Bulsara |
| LaShann DeArcy Hall |
| Insurance |
| 28 U.S.C. § 1332 Diversity-Insurance Contract |
| None |
Docket Report
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ORDER: The Court is in receipt of Third-Party Defendant's letter #21 dated 8/18/2022. Third-Party Defendant Advanced Framing Construction, Inc.'s request to extend the time for counsel to appear on its behalf is granted. Third-Party Defendant has until 9/1/2022 to retain counsel and for counsel to file a notice of appearance on the docket. So Ordered by Magistrate Judge Sanket J. Bulsara on 8/19/2022. (Dikkers, Maxwell)
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| Filing 21 Letter requesting extension of time to retain counsel by Advanced Framing Construction, Inc. (O'Leary, Erin) |
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ORDER: The Motion for an Extension of Time to Answer #20 is denied without prejudice to renewal. Defendant 104 Belmont LLC ("Defendant") seeks to extend the time to answer, move, or otherwise respond to the Complaint. Defendant's answer was due on 7/19/2022, and Defendant filed an answer on 8/17/2022. Because it filed an answer after the time to do so has passed, Defendant must file a motion by 9/1/2022 that explains why, under the standards set forth in Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993), a belated answer is permissible, and why a default should not be entered. Liang v. Home Reno Concepts, LLC, 803 F. App'x 444, 446 n.2 (2d Cir. 2020) ("If an answer is filed late, the court may treat the issue as one of default. See John v. Sotheby's, Inc., 141 F.R.D. 29, 35 (S.D.N.Y. 1992) ('The filing of a late answer is analogous to a motion to vacate a default.') (citing Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981)). The court may then consider whether, under the factors discussed in Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993), default should be vacated."). So Ordered by Magistrate Judge Sanket J. Bulsara on 8/18/2022. (Dikkers, Maxwell)
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| Filing 20 First MOTION for Extension of Time to File Answer re Order, #19 Answer to Complaint, #17 Request for Certificate of Default, #18 Clerk's Entry of Default, Request to vacate Clerk's Entry of Default by 104 Belmont LLC. (Attachments: #1 Exhibit A - Stipulation to Extend Time to Answer) (Agulnick, Scott) |
| Filing 19 ANSWER to #1 Complaint, by 104 Belmont LLC. (Agulnick, Scott) |
| Filing 18 Clerk's ENTRY OF DEFAULT It appearing from the docket maintained in this action that defendant 104 Belmont LLC, Advanced Framing Construction, Inc. has failed to appear or otherwise defend this action, the default of defendant 104 Belmont LLC, Advanced Framing Construction, Inc. is hereby noted pursuant to Rule 55a of the Federal Rules of Civil Procedure. (Poveda, J.) |
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ORDER: Plaintiff shall file any motion for default judgment within 60 days of entry of default by the Clerk of Court. So Ordered by Magistrate Judge Sanket J. Bulsara on 8/7/2022. (Dikkers, Maxwell)
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| Filing 17 Request for Certificate of Default by United National Insurance Company (Attachments: #1 Affirmation in Support of Request for Certificate of Default, #2 Exhibit A- Complaint, #3 Exhibit B - Issued Summonses, #4 Exhibit C- AOS - Advanced Framing, #5 Exhibit D - AOS - 104 Belmont, #6 Proposed Clerk's Certificate of Default) (Verveniotis, Steven) |
| Filing 16 ANSWER to #1 Complaint, by Alex Brown. (Alvarez, Jonathan) |
| Filing 15 NOTICE of Appearance by Jonathan Alvarez on behalf of Alex Brown (aty to be noticed) (Alvarez, Jonathan) |
| Filing 14 SUMMONS Returned Executed by United National Insurance Company. Alex Brown served on 7/15/2022, answer due 8/5/2022. (Verveniotis, Steven) |
| Filing 13 ANSWER to #1 Complaint, by Town of Hempstead. (Attachments: #1 Affidavit of Service) (Vatter, Christopher) |
| Filing 12 SUMMONS Returned Executed by United National Insurance Company. Town of Hempstead served on 6/23/2022, answer due 7/14/2022. (Verveniotis, Steven) |
| Filing 11 SUMMONS Returned Executed by United National Insurance Company. 104 Belmont LLC served on 6/28/2022, answer due 7/19/2022. (Verveniotis, Steven) |
| Filing 10 SUMMONS Returned Executed by United National Insurance Company. Advanced Framing Construction, Inc. served on 6/28/2022, answer due 7/19/2022. (Verveniotis, Steven) |
| Filing 9 RESPONSE TO ORDER TO SHOW CAUSE by United National Insurance Company (Verveniotis, Steven) |
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Filing 8
SCHEDULING ORDER: A telephonic initial conference will be held at 3:00 P.M. on 9/09/2022 before Magistrate Judge Sanket J. Bulsara. The parties are directed to call the toll-free number 877-336-1274. The access code is 6534420. The parties shall dial in five (5) minutes before the conference. Counsel are directed to complete the attached Rule 26(f) Report and electronically file same with the Court no later than 9/06/2022. Should the parties wish to adopt a plan for discovery different from the structure in the Rule 26(f) Report, they may do so only if they file a letter explaining why such a plan is appropriate in this case. Upon receipt of this email counsel shall confirm with each other of the date and time of this telephonic initial conference. So Ordered by Magistrate Judge Sanket J. Bulsara on 6/28/2022. (Manson, Eddie)
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ORDER TO SHOW CAUSE: Plaintiff filed a Complaint (Dkt. No. #1 ) alleging that this Court has diversity jurisdiction under 28 U.S.C. 1332 because the amount in controversy exceeds $75,000 and the parties are diverse. (Id. para. 6). "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). Plaintiff alleges that it is incorporated and has its principal place of business in Pennsylvania, and that all defendants are citizens of New York--including defendant 104 Belmont LLC, which has its principal place of business in Baldwin, New York. (Dkt. No. 1, paras. 1-5). Despite its name, Plaintiff avers that 104 Belmont LLC is a domestic corporation. 104 Belmont LLC does the same in a third-party pleading it previously filed in state court, which is attached to the Complaint. (Dkt. No. 1-2 para. 1). Plaintiff does not disclose the members of 104 Belmont LLC or their citizenship. The Court is thus unable to conclude whether there is diversity of citizenship among the parties named. Additionally, 28 U.S.C. 1332(a) limits federal diversity jurisdiction to actions "where the matter in controversy exceeds the sum or value of $75,000[.]" No actual amount is alleged in the Complaint or any document attached thereto. The Complaint alleges that this Court has subject matter jurisdiction based on diversity, stating that there are "amounts in controversy in excess of $75,000, exclusive of interest and costs[.]" (Compl. para. 6). Such a conclusory statement is insufficient. E.g., De Garcia v. Tropicana Ent. Inc., No. 22-CV-12, 2022 WL 375996, at *2 (E.D.N.Y. Feb. 8, 2022); Valente v. Garrison From Harrison LLC, No. 15-CV-6522, 2016 WL 126375, at *1 (E.D.N.Y. Jan. 11, 2016) (allegation that Plaintiff "seeks damages that exceed 'the amount recoverable in the lower courts'" insufficient "because it merely indicates an amount in controversy in excess of $25,000, which represents the jurisdictional limitation of the lower civil courts of New York."). For these reasons, the Court is unable to conclude whether it possesses diversity jurisdiction pursuant to 28 U.S.C. 1332(a). By 7/5/2022, Plaintiff must show cause why this action should not be dismissed by filing a letter no longer than 3 pages that identifies all members of 104 Belmont LLC and their citizenship, and provides a non-conclusory allegation of damages, or file an amended pleading correcting these deficiencies. So Ordered by Magistrate Judge Sanket J. Bulsara on 6/28/2022. (Bruckner, Ian)
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| Filing 7 NOTICE of Appearance by Christopher E. Vatter on behalf of Town of Hempstead (aty to be noticed) (Vatter, Christopher) |
| 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) |
| Case Assigned to Judge LaShann DeArcy Hall 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. (Bowens, Priscilla) |
| Filing 3 Corporate Disclosure Statement by United National Insurance Company identifying Other Affiliate United National Specialty Insurance Company, Other Affiliate Penn-Star Insurance Company, Other Affiliate Global Indemnity Group, Other Affiliate United National Casualty Insurance Company, Other Affiliate Penn-America Group, Other Affiliate Penn Independent Corp. for United National Insurance Company. (Verveniotis, Steven) |
| Filing 2 Proposed Summons. Re #1 Complaint, by United National Insurance Company (Verveniotis, Steven) |
| Filing 1 COMPLAINT against 104 Belmont LLC, Advanced Framing Construction, Inc., Alex Brown, Town of Hempstead filing fee $ 402, receipt number ANYEDC-15679400 Was the Disclosure Statement on Civil Cover Sheet completed -Yes,, filed by United National Insurance Company. (Attachments: #1 Exhibit Ex. A - Complaint, #2 Exhibit Ex. B - Third-Party Complaint, #3 Civil Cover Sheet Civil Cover Sheet) (Verveniotis, Steven) |
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