Kroner v. Cowan Systems, LLC et al
| Anna Kroner |
| Cowan Systems, LLC and Hamzah Abdellah |
| 1:2023cv05073 |
| July 5, 2023 |
| US District Court for the Eastern District of New York |
| James R Cho |
| Dora Lizette Irizarry |
| Motor Vehicle |
| 28 U.S.C. § 1332 Diversity-Tort/Motor Vehicle (P.I.) |
| Plaintiff |
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| Filing 10 Corporate Disclosure Statement by Hamzah Abdellah, Cowan Systems, LLC (Schwartzstein, Adam) |
ORDER re #9 RESPONSE TO ORDER TO SHOW CAUSE --- Defendants' response to this Court's Order to Show Cause ("OTSC Response") is deficient because it still fails to establish Defendant Cowan Systems, LLC's ("Cowan Systems") citizenship. Defendants allege that Cowan Systems' sole member is Cowan Transport Holdings LLC ("Cowan Transport"), which has ten individual members and two trust members, but they have not provided sufficient information to establish the citizenship of either trust member. OTSC Resp., Dkt. Entry No. #9 , at 2-3."The citizenship of a trust depends on the type of trust at issue. For 'traditional trusts,' which 'establish a mere fiduciary relationship and, as such, [are] incapable of suing or being sued in [their] own name,' citizenship is determined by the citizenship of each of the trust's trustees. For non-traditional trusts, citizenship is generally based on the citizenship of all of the trust's members, including its beneficiaries." FD Special Opps. V, LLC v. Silver Arch Cap. Partners, LLC, 2022 WL 16837967, at *2 (S.D.N.Y. Nov. 9, 2022) (quoting Raymond Loubier Irrevocable Tr. v. Loubier, 858 F.3d 719, 729, 731-32, n.8 (2d Cir. 2017)).Here, Defendants allege that both trusts are Maryland citizens because both are "organized under the laws of the State of Maryland" and have one trustee and member, Joseph W. Cowan, who also is a Maryland citizen. See, OTSC Resp. at 2-3; Affidavit, Dkt. Entry No.9-2, at ECF p. 27, 6-7, 9-10 (emphasis added). However, these allegations do not provide sufficient information for this Court to determine the "types of trusts [in question] and, accordingly, whether the trusts' citizenship is determined by the citizenship of all of their members or only their trustees." See, FD Special Opps., 2022 WL 16837967, at *3. They also leave unclear whether Defendants' use of the word "member" in this context encompasses trust beneficiaries or not. Moreover, one of Cowan Transport's individual members, Dan Evans, attested in an affidavit attached to the OTSC Response that he is "the sole trustee and member" of both trusts, which contradicts the allegation that Joseph W. Cowan is the sole trustee and member of both trusts. See, Affidavit at ECF p. 6, 7, 10.In an effort to proceed on the merits, Defendants are provided with one FINAL opportunity to show cause why this action should not be remanded for failure to establish subject matter jurisdiction BY NO LATER THAN SEPTEMBER 5, 2023. Additionally, Defendants' disclosure statement made pursuant to the recently enacted Fed. R. Civ. P. 7.1(a)(2) remains deficient as it does not state Defendant Abdellah's citizenship See, Rev'd. Discl. Stmt., Dkt. Entry No. #8 , at 2. Accordingly, Defendants again are directed to file a disclosure statement in compliance with Fed. R. Civ. P. 7.1(a)(2) BY NO LATER THAN AUGUST 29, 2023. SO ORDERED by Judge Dora Lizette Irizarry on 8/25/2023. (CC)
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| Minute Entry for Initial Conference proceedings held on 8/22/2023 before Magistrate Judge James R. Cho. Appearances by counsel for all parties. Plaintiff's alleged injuries discussed; plaintiff has not undergone any accident-related surgeries to date. Defendants need to conduct plaintiff's deposition and an independent medical examination before being able to engage in meaningful settlement discussions. The Court encouraged the parties to discuss settlement. The Court entered the following pretrial schedule: parties to exchange automatic disclosures by 9/22/2023; no amendment of the pleadings or joinder of additional parties permitted after 2/22/2024; parties to complete fact discovery by 2/22/2024; affirmative expert disclosures due by 4/22/2024; rebuttal expert disclosures due by 5/22/2024; and all discovery, including expert depositions, shall be completed by 5/22/2024.By 11/22/2023, parties shall submit a joint status report that informs the Court whether they would like a referral to Court-annexed mediation or a settlement conference at that time. (AT&T Conference Bridge.) (TT) typographical error modified on 8/28/2023 (TT). |
| Filing 9 RESPONSE TO ORDER TO SHOW CAUSE by Hamzah Abdellah, Cowan Systems, LLC (Attachments: #1 proof of plaintiff's residence, #2 affidavits of members of LLC and certificates of conformity, #3 updated civil cover sheet) (Schwartzstein, Adam) |
| Filing 8 Corporate Disclosure Statement by Hamzah Abdellah, Cowan Systems, LLC (Schwartzstein, Adam) |
| Filing 7 Proposed Scheduling Order by Hamzah Abdellah, Cowan Systems, LLC (Schwartzstein, Adam) |
| Filing 6 CERTIFICATE OF SERVICE by Hamzah Abdellah, Cowan Systems, LLC (Attachments: #1 Notice of Removal) (Schwartzstein, Adam) |
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ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION --- ORDER TO SHOW CAUSE RESPONSE DUE 8/17/23 --- Defendants removed this action from the Supreme Court of the State of New York, Kings County, asserting this Court's diversity jurisdiction. Pursuant to 28 U.S.C. 1332(a), subject matter jurisdiction based on diversity exists "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States." While Defendants established that the amount in controversy exceeds $75,000, they have not established the citizenship of Plaintiff, an individual, or Defendant Cowan Systems, LLC, a limited liability company ("LLC").As to Plaintiff, Defendants allege, without more, that she is a resident of New York. See, Removal Notice, Dkt. Entry No. #1 , 3. This is insufficient because "[a]llegations of residency alone cannot establish citizenship." See, Removal Notice, Dkt. Entry No. #1 , 3; Canedy v. Liberty Mutual Ins. Co., 126 F.3d 100, 103 (2d Cir.1997). "[A]n individual's citizenship for diversity purposes is determined by his or her domicile, not his or her residence." Century Metal Recycling, Pvt. Ltd. v. Dacon Logistics, LLC, 2013 WL 5929816, at *2 (D. Conn. Nov. 4, 2013) (citing Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir. 2000)). As to Defendant Cowan Systems, LLC, Defendants allege that it is "a Maryland limited liability company with its principal place of business in the State of Maryland." See, Removal Notice, 3. This is insufficient because an LLC takes the citizenship of each of its members. See, Bayerische Landesbank, N.Y. Branch v. Aladdin Cap. Mgmt. LLC, 692 F.3d 42, 49 (2d Cir. 2012). Thus, to establish the citizenship of an LLC, a litigant must "identify both the LLC's members and their citizenship," which includes alleging "the citizenship of natural persons who are members of [the LLC]and the place of incorporation and principal place of business of any corporate entities who are members of [the LLC]." 136-61 Roosevelt LLC v. Starbucks Corp., 2021 WL 2779287 at *1 (EDNY July 2, 2021) (internal citations and quotation marks omitted); New Millennium Cap. Partners, III, LLC v. Juniper Grp. Inc., 2010 WL 1257325, at *1 (S.D.N.Y. Mar. 26, 2010).Moreover, Defendants failed to identify their citizenships in their disclosure statement made pursuant to the recently enacted Fed. R. Civ. P. 7.1(a)(2) and failed to identify Plaintiff's citizenship in the civil cover sheet. See, Discl. Stmt., Dtk. Entry No. #2 ; Civil Cover Sheet, Dkt. Entry No. 1-1. Thus, BY NO LATER THAN AUGUST 17, 2023, Defendants shall: (1) file a properly executed Rule 7.1 statement and civil cover sheet; and (2) show cause why this action should not be dismissed for lack of subject matter jurisdiction. Lastly, as it is unclear whether Defendants served Plaintiff with the removal papers, Defendants must serve Plaintiff with such papers BY NO LATER THAN AUGUST 10, 2023 and immediately thereafter file proof of service with the Court. SO ORDERED by Judge Dora Lizette Irizarry on 8/3/2023. (CC)
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Filing 5
SCHEDULING ORDER: A telephonic initial conference will be held on 8/22/2023 at 11:30 a.m. before Magistrate Judge James R. Cho. Counsel for all parties must participate. Defendants counsel is directed to immediately confirm this conference date and time with plaintiff's counsel. Counsel are directed to complete the attached Proposed Scheduling Order and electronically file same with the Court no later than 8/18/2023. Each party is directed to call toll free (888) 808-6929 and use access code 1065334. Adjournment requests will not be considered unless made in accordance with this Court's Individual Rules. Ordered by Magistrate Judge James R. Cho on 7/7/2023. (Attachments: #1 Chamber's Individual Rules) (TT)
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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. (KD) |
| 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. (KD) |
| Case Assigned to Judge Dora Lizette Irizarry and Magistrate Judge James R. Cho. 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. (KD) |
| 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. (KD) |
| Filing 2 Corporate Disclosure Statement by Hamzah Abdellah, Cowan Systems, LLC (Schwartzstein, Adam) |
| Filing 1 NOTICE OF REMOVAL by All Defendants ( Filing fee $ 402 receipt number ANYEDC-16857537) (Attachments: #1 Civil Cover Sheet, #2 summons and complaint, #3 answer, #4 demand for damages, #5 response to demand for damages) (Schwartzstein, Adam) |
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