Kaye et al v. Barry S. Franklin & Associates, P.A. et al
| Barry Kaye and Ahron Berlin |
| Barry S. Franklin & Associates, P.A., Barry S. Franklin, Olivia Retenauer, Richard J. McCord, Certilman Balin Adler & Hyman, LLP, Robert Nosek, Margalit Schneorson, Michael H. Cohen, Cohen & Schneorson Investment LLC, Furr and Cohen, P.A., Alan R. Crane, Esq., John Doe #1 through John Doe #10 and Jane Doe #1-10 |
| 1:2023cv03125 |
| April 25, 2023 |
| US District Court for the Eastern District of New York |
| Lois Bloom |
| Diane Gujarati |
| Fraud or Truth-In-Lending |
| 28 U.S.C. § 1441 Petition for Removal- Fraud |
| None |
Docket Report
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| Case transferred from New York Eastern has been opened in New York Eastern Bankruptcy Court as case number 23-1043-jmm. (TLH) |
| Filing 15 Notice of Civil Case Referral/Transfer to the U.S. Bankruptcy Court for the Eastern District of New York. (IH) |
Filing 13
ORDER: The Court held a telephone conference in this removal action on May 23, 2023. Plaintiffs Ahron Berlin and Barry Kaye appeared pro se; Alan R. Crane appeared on behalf of all defendants; and Robert Nosek appeared on behalf of Richard J. McCord as an interested party in his role as trustee in the related bankruptcy action, In re Menachem Schneorson, No. 22-BK-40433 (JMM) (Bankr. E.D.N.Y.). Upon review of the record and for the reasons stated during the conference, the Court finds that defendants' removal is proper under 28 U.S.C. 1452(a). Furthermore, the parties' dispute involves "an issue already before the bankruptcy court." In re Strathmore Grp., LLC, 522 B.R. 447, 454 (Bankr. E.D.N.Y. 2014). Therefore, referral of this action to the bankruptcy court is in the interest of justice. "[T]he adjustment of rights and duties within the bankruptcy process itself is uniquely and exclusively federal and...the highly complex laws needed to constitute the bankruptcy courts and regulate the rights of debtors and creditors also underscore the need to jealously guard the bankruptcy process from even slight incursions and disruptions brought about by state malicious prosecution actions." Empery Tax Efficient, LP v. MusclePharm Corp., Civ. No. 23-CV-74, 2023 WL 2580006, at *12 (S.D.N.Y. Mar. 21, 2023) (citation, internal quotations marks, and alterations omitted). This action, including plaintiffs' motion to remand, is hereby referred to the Bankruptcy Court for the Eastern District of New York pursuant to 28 U.S.C. 157(a) and this Court's Standing Orders of Reference dated August 28, 1986 and December 5, 2012. See attached Order. Ordered by Magistrate Judge Lois Bloom on 5/23/2023. (EW)
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| Minute Entry for proceedings held before Magistrate Judge Lois Bloom: Telephone Conference held on 5/23/2023 (AT&T Log #12:09-12:33). (EW) |
| Filing 12 CERTIFICATE OF SERVICE by Barry S. Franklin & Associates, P.A., Michael H. Cohen, Cohen & Schneorson Investment LLC, Alan R. Crane, Esq, Barry S. Franklin, Furr and Cohen, P.A., Olivia Retenauer, Margalit Schneorson re #11 Response to Motion, (Crane, Alan) |
| Filing 11 RESPONSE to Motion re #9 Notice of MOTION to Remand of Removed Case filed by Barry S. Franklin & Associates, P.A., Michael H. Cohen, Cohen & Schneorson Investment LLC, Alan R. Crane, Esq, Barry S. Franklin, Furr and Cohen, P.A., Olivia Retenauer, Margalit Schneorson. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D) (Crane, Alan) |
| Filing 14 Supplemental Opposition Response re #9 Notice of MOTION to Remand of Removed Case filed by Ahron Berlin. (IH) |
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Filing 10
ORDER: The Court is in receipt of plaintiffs' motion to remand this action to state court. ECF No. #9 . Defendants shall respond to plaintiffs' motion by noon on May 22, 2023. The Court will address this matter at the May 23, 2023 conference. See ECF No. 7. See attached Order. Ordered by Magistrate Judge Lois Bloom on 5/17/2023. (EW)
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| Filing 9 Notice of MOTION to Remand of Removed Case by Ahron Berlin. (IH) |
| Filing 8 CERTIFICATE OF SERVICE by Barry S. Franklin & Associates, P.A., Michael H. Cohen, Cohen & Schneorson Investment LLC, Alan R. Crane, Esq, Barry S. Franklin, Furr and Cohen, P.A., Olivia Retenauer, Margalit Schneorson re #7 Scheduling Order,,,,,,,,, (Crane, Alan) |
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Filing 7
ORDER: The Court is in receipt of defendants' response to the Order to Show Cause. ECF No. #6 . Defendants argue that removal is proper under 28 U.S.C. 1441, because plaintiffs' allegations in the state court complaint relate to a "part of [a] company business that is bankruptcy assets[,]" and that a "quick calculation" of the assets "is no less than [$]384,174.00." ECF No. 1-1 at 11. However, for removal to be proper under Section 1441, plaintiffs must serve defendants "a paper that explicitly specifies the amount of monetary damages sought." Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38 (2d Cir. 2010). For the reasons set forth in the attached Order, the Court is not persuaded that defendants have demonstrated a proper basis for diversity jurisdiction under Section 1441. However, in the alternative, defendants argue that removal is proper under 28 U.S.C. 1452(a), because plaintiffs' case is related to bankruptcy proceedings in this District. ECF No. 6 at 3-4. Section 1452(a) provides for removal from state court to federal court of actions "related to" a bankruptcy. Defendants state that both plaintiffs and defendants are parties to a bankruptcy case in this District, In Re Menachem Schneorson, Case No. 22-40433 (Bankr. E.D.N.Y.), and that the Court in that case retained jurisdiction to "hear and determine claims related to the...bankruptcy estate's interests in Cohen & Schneorson Investments, LLC." ECF No. 6 at 4. Defendants also argue that plaintiffs' claims are related to a "potential settlement" reached in the bankruptcy case.The Court shall hold a telephone conference at noon on May 23, 2023 to address this matter. The parties shall call the Chambers telephone conference line at (888) 363-4734 and use the access code 4444221 promptly at 12:00 p.m. on May 23, 2023. Parties are advised that they must contact each other before making any request for an adjournment to the Court. Any request for an adjournment must be electronically filed with the Court at least seventy-two (72) hours before the scheduled conference. Defendants shall serve a copy of this Order on plaintiff and file proof of service on the docket forthwith. See attached Order. Ordered by Magistrate Judge Lois Bloom on 5/9/2023. (EW)
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| Filing 6 RESPONSE TO ORDER TO SHOW CAUSE by Barry S. Franklin & Associates, P.A., Michael H. Cohen, Cohen & Schneorson Investment LLC, Alan R. Crane, Esq, Barry S. Franklin, Furr and Cohen, P.A., Olivia Retenauer, Margalit Schneorson (Attachments: #1 Exhibit "A" Memorandum Decision on Margalit Schneorson's Motion for Remand and Abstention) (Crane, Alan) |
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Filing 5
ORDER: Defendants removed plaintiffs' malicious prosecution and common law fraud case from Kings County Supreme Court on April 25, 2023, invoking the Court's diversity jurisdiction under 28 U.S.C. 1332. ECF No. 1. Defendants assert that removal is proper because the amount in controversy "appears to be more than $75,000." ECF No. 1 para. 8. However, the Second Circuit has held that "the removal clock does not start to run until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary damages sought." Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38 (2d Cir. 2010) (emphasis added). A defendant cannot establish the amount in controversy merely by deducing a plaintiff's damages based on the injuries alleged. Id. Plaintiffs' complaint does not specify the amount of damages sought, ECF No. 1-1, and defendants do not provide any document or writing that establishes the amount in controversy. King v. Romero, No. 22-CV-10935, 2022 WL 18009943, at *2 (S.D.N.Y. Dec. 30, 2022).But even if the amount in controversy was met, defendants fail to demonstrate complete diversity of citizenship in this matter. A claim is only removable under 28 U.S.C. 1441(a) if each defendant is a citizen of a different state from each plaintiff. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). While defendants allege that "[n]one of [them] are citizens of New York," plaintiffs' citizenship is unknown. ECF No. 1 para. 8; Worthy v. Schering Corp., 607 F. Supp. 653, 655 (E.D.N.Y. 1985).Accordingly, defendants are ordered to show good cause by May 12, 2023 why this matter should not be remanded to state court for lack of subject matter jurisdiction. See attached Order. Ordered by Magistrate Judge Lois Bloom on 5/1/2023. (EW)
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ORDER granting #2 Motion for Leave to Appear Pro Hac Vice. The attorney shall register for ECF, registration is available online at www.pacer.gov. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Ordered by Magistrate Judge Lois Bloom on 5/1/2023. (EW)
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| Filing 4 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (SR) |
| Filing 3 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. (SR) |
| Filing 2 MOTION to Appear Pro Hac Vice Filing fee $ 150, receipt number ANYEDC-16633325 by Barry S. Franklin & Associates, P.A., Michael H. Cohen, Cohen & Schneorson Investment LLC, Alan R. Crane, Esq, Barry S. Franklin, Furr and Cohen, P.A., Olivia Retenauer, Margalit Schneorson. (Attachments: #1 Certificate of Good Standing, #2 Affidavit In Support of Motion to Admit Counsel Pro Hac Vice) (Crane, Alan) |
| Filing 1 NOTICE OF REMOVAL by Barry S. Franklin & Associates, P.A., Michael H. Cohen, Cohen & Schneorson Investment LLC, Alan R. Crane, Esq, Barry S. Franklin, Furr and Cohen, P.A., Olivia Retenauer, Margalit Schneorson from Supreme Court of the State of New York County of Kings, case number 0507609/2023. ( Filing fee $ 402 receipt number ANYEDC-16632620) (Attachments: #1 Summons with Notice, #2 Exhibit A to Summons With Notice, #3 Exhibit B to Summons With Notice, #4 Notice of Appearance and Demand for Complaint - Trustee, #5 Notice of Removal - Trustee, #6 Affidavit of Service - Trustee, #7 Civil Cover Sheet) (Crane, Alan) |
| 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. (SR) |
| Case Assigned to Judge Diane Gujarati and Magistrate Judge Lois Bloom. 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. Motions referred to Lois Bloom. (SR) |
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