Christopher v. Mendez et al
| Anya Christopher |
| Herlyn Matus Mendez, Ean Holdings, LLC, Enterprise Holdings, Inc. and Elrac, LLC |
| 1:2023cv04861 |
| June 29, 2023 |
| US District Court for the Eastern District of New York |
| Marcia M Henry |
| Rachel P Kovner |
| Motor Vehicle |
| 28 U.S.C. § 1442 Petition for Removal |
| None |
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ORDER REMANDING CASE: On 7/19/23, Magistrate Judge Henry ordered defendant Herlyn Mendez to show cause why subject matter jurisdiction exists. See 7/19/23 Order to Show Cause. The Court has received defendant Mendezs #7 response, which fails to establish that subject matter jurisdiction exists. In that response, defendant Mendez seeks to invoke diversity jurisdiction and argues that the amount-in-controversy requirement is met--even though plaintiff's complaint does not state an amount of damages--because plaintiff failed to respond to a notice to admit that the amount in controversy exceeds $75,000. See #7 Letter in Resp. to Order to Show Cause 2; [1-4] Notice to Admit. Specifically, Defendant Mendez asserts that, because under N.Y. C.P.L.R. 3123 a requested admission "shall be deemed admitted" if a party fails to respond within twenty days, plaintiff's failure to respond to his request within that timeline is sufficient to establish that the amount-in-controversy requirement has been met. #7 Letter in Resp. to Order to Show Cause 2. In a removal case such as this one, the removing party "has the burden of proving that it appears to a 'reasonable probability' that the claim is in excess of the jurisdictional amount." Tongkoog Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) (quoting Moore v. Betit, 511 F.2d 1004, 1006 (2d. Cir. 1975). "[I]f the jurisdictional amount is not clearly alleged in the plaintiff's complaint, and the defendant's notice of removal fails to allege facts adequate to establish the amount in controversy exceeds the jurisdictional amount, the federal courts lack diversity jurisdiction as a basis for removing the plaintiffs action from state court." Lupo v. Hum. Affs. Intl, Inc., 28 F.3d 269, 27374 (2d Cir. 1994). A plaintiff's "failure to respond to requests conceding that the amount in controversy exceeds $75,000 is insufficient to establish that the jurisdictional amount is satisfied." Remy v. Savoie, No. 17-CV-0663 (DLI) (RER) 2017 WL 639251, at *2 (E.D.N.Y. Feb. 16, 2017) (collecting cases). Defendant Mendez therefore cannot rely on plaintiff's silence to establish the amount in controversy. And because plaintiff's complaint includes only "boilerplate allegations" regarding her injuries, the Court cannot draw any conclusion from the complaint as to the monetary value of the damages plaintiff seeks. Torres v. OBrien-Briggs, No. 20-CV-5360 (PKC) (RLM), 2020 WL 7024368, at *3 (E.D.N.Y. Nov. 30, 2020) (collecting cases). This action is accordingly remanded to the Supreme Court of the State of New York, Kings County. Ordered by Judge Rachel P. Kovner on 8/17/2023. (SP)
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| Filing 7 Letter in response to judges order to show cause by Herlyn Matus Mendez (Savidge, Edward) |
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ORDER TO SHOW CAUSE re #1 : Pursuant to Fed. R. Civ. P. 12(h)(3), the Court must dismiss an action if it determines at any time that it lacks subject matter jurisdiction. Further, this Court has an obligation to examine its subject matter jurisdiction i>sua sponte. Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006). Here, the Notice of Removal and Complaint raise multiple jurisdictional issues. First, neither the Notice of Removal nor the Complaint establish the complete diversity of the parties because they fail to state the limited liability company ("LLC") parties' citizenship. (See ECF Nos. 1, 1-1.) The Notice only states that, "upon information and belief, defendants, EAN Holdings, LLC, Enterprise Holdings, Inc and Enterprise Rent-A-Car are residents of Delaware and Missouri." (ECF No. 1.) The Complaint only claims that EAN Holdings LLC is organized in Delaware and transacts business in New York State. (ECF No. 1-1, paras 34, 68.) These statements do not establish the LLC parties' citizenship because an LLC takes the citizenship of each of its members. See Bayerische Landesbank, N.Y. Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d 42, 49 (2d Cir. 2012). A party must plead the identity and citizenship of an LLC, proceeding up the chain of ownership until the citizenship of every individual or corporation with a direct or indirect interest in the LLC party is alleged. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 60 (2d Cir. 2016) (allegation that an LLC "is a citizen of a different state" is deficient "because it contains no allegation as to the identity or citizenship" of the members); Mariano v. 61-63 Bond St. F > B, No. 22-CV-7189 (DLI)(RML), 2023 WL 2329854, at *2 (E.D.N.Y. Mar. 2, 2023) (finding complaint devoid of allegations as to identity or citizenship of LLC defendant's members where it only alleged where LLC defendant was organized); see also Local Civ. R. 81.1(1) (requiring notice of removal based on diversity of citizenship to set forth for an LLC the residence and domicile "for all its partners and members"). Second, the Notice of Removal and its attachments fail to establish that the amount in controversy exceeds $75,000. See 28 U.S.C. 1332(a). The Notice of Removal claims that "the amount in controversy between the parties exceeds $75,000" without explaining the factual basis for this statement. (ECF No. 1.) Further, on June 2, 2023, Defendant Herlyn Matus Mendez sent Plaintiff a Notice to Admit, requesting that Plaintiff admit that the amount in controversy exceeds $75,000. (ECF No. 1-4.) However, as conceded in the Notice of Removal, Plaintiff has not yet responded to the Notice to Admit. (ECF No. 1.) And the Complaint alleges "the amount of damages sought herein exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction herein." (ECF No. 1-1, paras. 3134.) The Complaint makes no mention of "seventy-five thousand dollars" or any other amount in controversy, as required under N.Y. C.P.L.R. 3017(c). Instead, "[t]his mention of the 'lower courts' refers to the limitation that the lower civil courts of New York may not entertain actions seeking to recover more than $25,000." Torres v. O'Brien-Briggs, No. 20-CV-5360 (PKC)(RLM), 2020 WL 7024368, at *2 (E.D.N.Y. Nov. 30, 2020) (citation omitted). And the "largely boilerplate allegations" regarding Plaintiff's injuries "are insufficient for the Court to draw any conclusion about the amount in controversy in this case. " Id. at *3 (collecting cases). Third, Defendants do not establish the timeliness of removal to this Court. The Complaint was filed in state court on 04/28/2023, but removing Defendant Herlyn Matus Mendez does not disclose when he received the Complaint. (See ECF Nos. 1, 1-1.) Thus, Defendants have not shown that the Notice of Removal was filed within 30 days after receiving the Complaint or some other paper from which they were able to ascertain that the case was removable. 28 U.S.C. 1446(b)(1). Accordingly, by 07/31/2023, Defendants shall file a letter of no more than three pages showing cause why this action should not be dismissed for lack of subject matter jurisdiction. The submission shall include relevant facts and legal authority to address the issues raised in this Order. Failure to timely respond to this Order may result in a sua sponte recommendation to dismiss this action without prejudice for lack of subject matter jurisdiction. So Ordered by Magistrate Judge Marcia M. Henry on 07/19/2023. (MY)
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| Filing 6 NOTICE of Appearance by Karine Bogoraz on behalf of Anya Christopher (notification declined or already on case) (Bogoraz, Karine) |
| Filing 5 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (SR) |
| 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. (SR) |
| 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 Rachel P. Kovner 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. (SR) |
| Filing 3 Civil Cover Sheet.. by Herlyn Matus Mendez (Savidge, Edward) |
| NOTICE: Incomplete Civil Cover Sheet. The Civil Cover Sheet was not filled out correctly - The Clerk's Office cannot assign this case without a completed 2 Page Form Civil Cover Sheet. Please resubmit a COMPLETED Civil Cover Sheet including the SECOND PAGE (Not the Instruction Page). This event can be found under the event Other Documents - Proposed Summons/Civil Cover SheetNotice: Re: Incomplete Civil Cover Sheet. The Clerk's Office cannot assign this case without a completed 2 Page Form Civil Cover Sheet. Please submit A COMPLETED SECOND PAGE.Civil Cover Sheet. This event can be found under the event Other Documents - Proposed Summons/Civil Cover Sheet. (SR) |
| Filing 2 Civil Cover Sheet.. Re Notice: Re: Incomplete Civil Cover Sheet, by Herlyn Matus Mendez (Savidge, Edward) |
| Filing 1 NOTICE OF REMOVAL by Herlyn Matus Mendez from Supreme Court, Kings County, case number 512703/2023. ( Filing fee $ 402 receipt number ANYEDC-16844264) (Attachments: #1 Summons and Complaint, #2 Answer of Herlyn Matus Mendez, #3 Answer of EAN Holdings, LLC, Enterprise Holdings, Inc., d/b/a Enteprise Rent-A-Car and ELRAC, LLC, #4 Notice to Admit) (Savidge, Edward) |
| Notice: Incomplete Civil Cover Sheet. The Clerk's Office cannot assign this case without a completed Civil Cover Sheet. Please resubmit corrected Civil Cover Sheet. This event can be found under the event Other Documents - Proposed Summons/Civil Cover Sheet. (SR) |
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