Estate of Adolphus Patrick Nevers et al v. Sims Municipal Recycling of New York LLC et al
| Estate of Adolphus Patrick Nevers and Viergina Nevers |
| Sims Municipal Recycling of New York LLC, Sims Arg, Inc. doing business as Sims Metal, Envision Plastics Industries LLC, Altium Packing LP, Altium Packing LLC and Uber Freight LLC |
| 1:2022cv03820 |
| June 29, 2022 |
| US District Court for the Eastern District of New York |
| Taryn A Merkl |
| Allyne R Ross |
| P.I.: Other |
| 28 U.S.C. § 1332 Diversity-Notice of Removal |
| Plaintiff |
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| Civil Case Terminated. *Certified copy of remand order mailed to Supreme Court, Kings County. (Guzzi, Roseann) |
Order of Remand to Supreme Court of the State of New York, County of Kings, case number 505456/2022.On June 29, 2022, defendants Altium Packaging LP, Altium Packaging LLC, and Envision Plastics Industries LLC (the Altium defendants) removed this case to federal court on the basis of diversity jurisdiction. I issued an Order to Show Cause the following day, requesting that that defendants identify the citizenship of the LLC defendants and establish why the case satisfies the requirements of diversity jurisdiction. In response, the Altium defendants submitted a letter alleging, in sum and substance, that each of them has citizenship in Delaware and Georgia. The letter did not, however, provide any information on the citizenship of the two other LLC defendants: Sims Municipal Recycling of New York LLC and Uber Freight LLC. It is well-established that the party asserting that diversity jurisdiction exists bears the burden of proving complete diversity. See, e.g., Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000); Finnegan v. Long Island Power Authority, 409 F. Supp. 3d 91, 9697 (E.D.N.Y. 2019); see also Platinum-Montaur Life Scis., LLC v. Navidea Biopharmaceuticals, Inc., 943 F.3d 613, 617 (2d Cir. 2019) (In light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability. (citation and quotation marks omitted)). The Altium defendants have not met their burden here: while I am satisfied that they are diverse from plaintiffs, they have not showed that complete diversity exists with regard to all defendants. I therefore remand this case to state court and direct the Clerk of Court to close the docket. Ordered by Judge Allyne R. Ross on 7/20/2022. (McLaughlin, Grace)
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| Filing 10 Letter in response to Order to Show Cause by Altium Packing LLC, Altium Packing LP, Envision Plastics Industries LLC (Attachments: #1 Exhibit Affidavit of Amy Grynol Gibbs) (Zouros, Maria) |
| Filing 9 DEMAND for Trial by Jury by Estate of Adolphus Patrick Nevers, Viergina Nevers (Simon, Lawrence) |
| Filing 8 NOTICE of Appearance by Lawrence M. Simon on behalf of All Plaintiffs (notification declined or already on case) (Simon, Lawrence) |
| Filing 7 Corporate Disclosure Statement by Sims Arg, Inc., Sims Municipal Recycling of New York LLC (Irwin, Gregory) |
| Filing 6 NOTICE of Appearance by Gregory James Irwin on behalf of Sims Arg, Inc., Sims Municipal Recycling of New York LLC (aty to be noticed) (Irwin, Gregory) |
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ORDER TO SHOW CAUSE: Plaintiffs, both Florida residents, filed suit against defendants in the Supreme Court of the State of New York, Kings County. Defendants Altium Packaging LP, Altium Packaging LLC, and Envision Plastics Industries LLC thereafter removed the case to this court on the basis of diversity jurisdiction. In addition to Altium Packaging LLC and Envision Plastics Industries LLC, Sims Municipal Recycling of New York LLC and Uber Freight LLC are named as defendants. Before I can consider the merits of plaintiffs' claims, I have an obligation to determine whether I have subject matter jurisdiction over the case. See Durant, Nichols, Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009); Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 131 (2d Cir. 2006). For diversity purposes, the citizenship of an LLC is the citizenship of each of its members. See Bayerische Landesbank v. Aladdin Cap. Mgmt. LLC, 692 F.3d 42, 49 (2d Cir. 2012). Thus, to establish that their case belongs in federal court, defendants must allege the identity and citizenship of each member of the LLCs in their notice of removal. See Barnes v. Fort Hamilton Fam. Homes, 524 F. Supp. 3d 40, 42 (E.D.N.Y. 2021). If the member of an LLC is itself an LLC, the citizenship of the members of the latter LLC "must also be given, and must be diverse." Avant Cap. Partners, LLC v. W108 Dev. LLC, 387 F.Supp.3d 320, 322 (S.D.N.Y. 2016). Neither the the notice of removal nor any other portion of the docket identifies the members of the LLC defendants or affirmatively identifies the citizenship of those members. Though the defendants who removed the case allege that they are incorporated in Delaware with principal bases of business in Georgia, these allegations are insufficient to establish my jurisdiction. Barnes, 524 F. Supp. 3d at 42. Accordingly, by July 8, 2022, defendants shall show cause why this case should not be dismissed for lack of subject matter jurisdiction. Ordered by Judge Allyne R. Ross on 6/30/2022. (McLaughlin, Grace)
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| Filing 5 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Bowens, Priscilla) |
| 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. (Bowens, Priscilla) |
| Filing 3 NOTICE of Appearance by Maria Zouros on behalf of ALTIUM PACKING LLC, ALTIUM PACKING LP, ENVISION PLASTICS INDUSTRIES LLC (aty to be noticed) (Zouros, Maria) |
| Filing 2 Civil Cover Sheet.. Re #1 Notice of Removal by ALTIUM PACKING LLC, ALTIUM PACKING LP, ENVISION PLASTICS INDUSTRIES LLC (Vitucci, Matthew) |
| Filing 1 NOTICE OF REMOVAL by ALTIUM PACKING LLC, ALTIUM PACKING LP, ENVISION PLASTICS INDUSTRIES LLC from Supreme Court Kings County, case number 505456/2022. ( Filing fee $ 402 receipt number ANYEDC-15704002) (Vitucci, Matthew) |
| Case Assigned to Judge Allyne R. Ross and Magistrate Judge Taryn A. Merkl. 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) |
| 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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