Gadaleta et al v. Lowe's Home Centers, LLC et al
| Catrina Gadaleta and Michael Gadaleta |
| John Doe |
| Lowe's Home Centers, LLC |
| Autie Trucking LLC |
| 1:2023cv06291 |
| August 21, 2023 |
| US District Court for the Eastern District of New York |
| Dora Lizette Irizarry |
| Vera M Scanlon |
| P.I.: Other |
| 28 U.S.C. § 1441 Notice of Removal |
| Defendant |
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| Document Text |
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| Filing 15 CASE MANAGEMENT STATEMENT (Borrell, Jeffrey) |
| Filing 14 ANSWER to Complaint (Second Amended Complaint), CROSSCLAIM against Autie Trucking LLC by Lowe's Home Centers, LLC. (Lane, John) |
| Filing 13 Letter Letter to Judge Irizarry 9 21 23 by Autie Trucking LLC (Walsh, Christopher) |
| Filing 12 Answer to Second Amended Complaint ANSWER to Complaint by Autie Trucking LLC. (Walsh, Christopher) |
ORDER re #11 Corporate Disclosure Statement --- Based upon Defendant Autie Trucking LLC's ("Autie") revised disclosure statement properly alleging Autie's citizenship, this Court is satisfied that Plaintiff's post-removal service upon Autie joining Autie in this diversity action does not destroy this Court's subject matter jurisdiction. Accordingly, Autie is joined in this action and the action shall proceed. SO ORDERED by Judge Dora Lizette Irizarry on 9/18/2023. (CC)
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| Filing 11 Corporate Disclosure Statement by Autie Trucking LLC (Walsh, Christopher) |
| Filing 10 SUMMONS Returned Executed by Catrina Gadaleta. All Defendants. (Attachments: #1 Affidavit of Service) (Borrell, Jeffrey) |
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ORDER re #6 DECLARATION by Autie Trucking LLC --- Based on Autie Trucking LLC's ("Autie") declaration, this Court is satisfied that Plaintiff had not served Autie at the time of removal and, thus, the rule of unanimity's exception applies. See, Autie Decl., Dkt. Entry No. #6 . However, Autie's disclosure statement made pursuant to Fed. R. Civ. P. 7.1(a)(2) remains deficient as it does not establish Auties citizenship. See, Autie Discl. Stmt., Dkt. Entry No. #7 , at 2.An LLC, such as Autie, 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 an LLC's citizenship, 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]." 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).While Autie identified Stefan Autie as its sole member, it has failed to establish his citizenship because it alleges, without more, that he "resides at" a New Jersey address. See, Autie Discl. Stmt. at 2. This is insufficient because "an 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). Thus, Autie shall file a corrected disclosure statement in compliance with Fed. R. Civ. P. 7.1(a)(2) BY NO LATER THAN SEPTEMBER 18, 2023. SO ORDERED by Judge Dora Lizette Irizarry on 9/11/2023. (CC)
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| Filing 9 DECLARATION of John C. Lane by Lowe's Home Centers, LLC (Attachments: #1 Exhibit A - Confirmation of Filing/Service of state court Notice of Removal, #2 Exhibit B - J Enberg email to plaintiffs' counsel) (Lane, John) |
| Filing 8 Corporate Disclosure Statement by Lowe's Home Centers, LLC identifying Other Affiliate Lowe's Companies, Inc. for Lowe's Home Centers, LLC. (Lane, John) |
| Filing 7 Corporate Disclosure Statement by Autie Trucking LLC (Walsh, Christopher) |
| Filing 6 DECLARATION by Autie Trucking LLC (Attachments: #1 Exhibit Exhibit A, #2 Transmittal correspondence to Court) (Walsh, Christopher) |
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ORDER --- On August 21, 2023, Lowe's Home Centers, LLC ("Lowe's") removed the instant action asserting this Court's subject matter jurisdiction based on diversity pursuant to 28 U.S.C. 1332. When an action is removed on diversity grounds, "all defendants who have been properly joined and served must join in or consent to the removal of the action." Taylor v. Medtronic, Inc., 15 F.4th 148, 150 (2d Cir. 2021) (citing 28 U.S.C. 1446 (b)(2)(A)). Under this rule, known as "the rule of unanimity," each defendant independently must express written consent to removal by either joining in the removal notice or "subsequently provid[ing]their unambiguous written consent to removal[.]" Id. at 150-51; Metro. Transp. Auth. v. U.S. Fid. & Guar. Co., 2015 WL 1730067, at *4 (S.D.N.Y. Apr. 14, 2015). Notably, compliance with the rule of unanimity is excused for a defendant who has not been served at the time the removal petition is filed. Metro. Transp. Auth., 2015 WL 1730067, at *4.Here, the notice of removal ("Notice") provided that, at the time of removal, defendant Autie Trucking LLC ("Autie") had not been served yet, which would implicate the rule of unanimity's exception. Removal Notice, Dkt. Entry No. #1 , 11, 15. However, on August 28, 2023, counsel filed a notice of appearance on behalf of Autie. NOA, Dkt. Entry No. #4 . To date, no party has made any further filings on the docket and it remains unclear when or if Autie was served. Additionally, pursuant to the recently enacted Fed. R. Civ. P. 7.1(a)(2), "[i]n an action in which jurisdiction is based on diversity under 28 U.S.C. 1332(a), a party must, unless the court orders otherwise, file a disclosure statement" which "must name and identify the citizenship of every individual or entity whose citizenship is attributed to that party" at the time the action is filed in federal court. Fed. R. Civ. P. 7.1(a)(2). The rule requires that a party "file the disclosure statement with its first appearance, pleading, petition, motion, response, or other request addressed to the court[.]" Fed. R. Civ. P. 7.1(b). To date, both Lowe's and Autie have appeared but have not complied with Fed. R. Civ. P. 7.1.Accordingly, BY SEPTEMBER 8, 2023, Lowe's and Autie each shall file a disclosure statement in compliance with Fed. R. Civ. P. 7.1 and Autie also shall file a sworn declaration attesting to whether and when it was served with the summons and complaint. Separately, as it is unclear whether Lowe's filed the necessary removal papers in state court or provided written notice of removal to Plaintiffs, as required by 28 U.S.C. 1446(d), it must do so BY SEPTEMBER 5, 2023 and immediately thereafter file proof of service with the Court. The parties are admonished to familiarize itself with and adhere to the Federal Rules of Civil Procedure, the Local Rules of the Court, and the Individual Rules of the undersigned district judge. SO ORDERED by Judge Dora Lizette Irizarry on 8/31/2023. (CC)
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Filing 5
SCHEDULING ORDER: An In-Person Initial Conference is scheduled for 10/19/2023 at 12:00 PM in Courtroom 13A South before Magistrate Judge Vera M. Scanlon. The parties must complete the attached Joint Proposed Case Management Plan (CMP) and file it on ECF no later than 10/3/2023. As to any LLC, the Court further directs such party to file a disclosure statement under Federal Rule of Civil Procedure 7.1 within 30 days of appearing in this action. The disclosure statement should identify all of the members and their respective citizenship. See Barnes v. Fort Hamilton Family Homes, 524 F. Supp. 3d 40, 42 (E.D.N.Y. 2021) ("For diversity purposes, LLCs have the imputed citizenship of each of their members."). Ordered by Magistrate Judge Vera M. Scanlon on 8/30/2023. (MG)
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| Filing 4 NOTICE of Appearance by Christopher Jude Walsh on behalf of Autie Trucking LLC, John Doe (aty to be noticed) (Walsh, Christopher) |
| Filing 3 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (SR) |
| Filing 2 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) |
| Case Assigned to Judge Dora Lizette Irizarry and Magistrate Judge Cheryl L. Pollak. 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) |
| 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) |
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ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Vera M. Scanlon for all further proceedings. Magistrate Judge Cheryl L. Pollak no longer assigned to case 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.Ordered by Chief Judge Margo K. Brodie on 8/22/2023. (SR)
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| Filing 1 NOTICE OF REMOVAL by Lowe's Home Centers, LLC from Supreme Court of the State of New York - Richmond County, case number 151231/2023. ( Filing fee $ 402 receipt number ANYEDC-17011170) (Attachments: #1 Civil Cover Sheet, #2 Exhibit Ex A - State Court Summons With Notice and Verified Complaint, #3 Exhibit Ex B - State Court Supplemental Summons With Notice and Amended Complaint, #4 Exhibit Ex C - State Court Second Supplemental Summons and Second Amended Complaint, #5 Exhibit Ex D - State Court Summonses) (Lane, John) |
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