Cintron v. Excel Building Services LLC et al
| Rosa Cintron |
| Excel Building Services LLC, Defendant Atlantic Center Fort Greene Associates, L.P. and Burlington Stores, Inc., |
| 1:2023cv06721 |
| September 8, 2023 |
| US District Court for the Eastern District of New York |
| Rachel P Kovner |
| Cheryl L Pollak |
| P.I.: Other |
| 28 U.S.C. ยง 1441 Petition for Removal- Personal Injury |
| Plaintiff |
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| Document Text |
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| Civil Case Terminated. (IH) |
ORDER REMANDING CASE: Defendant Burlington Stores Inc. removed this case from state to federal court. #1 Notice of Removal. On September 14, 2023, the Court issued an order directing defendant to show cause why this case should not be remanded for lack of subject matter jurisdiction. Sept. 14, 2023 Order. Defendant has filed a #6 response indicating that it does not object to remand. The case is therefore remanded to the Supreme Court of the State of New York, Kings County, for lack of subject matter jurisdiction. The Clerk of Court is respectfully directed to mail a certified copy of this order to the clerk of the New York state court. Ordered by Judge Rachel P. Kovner on 9/26/2023. (SP)
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| Filing 6 RESPONSE TO ORDER TO SHOW CAUSE by Burlington Stores, Inc., (Miller, Matthew) |
| Filing 5 NOTICE of Appearance by Matthew George Miller on behalf of Burlington Stores, Inc., (aty to be noticed) (Attachments: #1 Certificate of Service) (Miller, Matthew) |
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ORDER TO SHOW CAUSE: Defendant Burlington Stores, Inc. is directed to show cause by 9/28/2023 why this action should not be remanded to state court. District courts may sua sponte remand a case for procedural defects identified within 30 days of removal, see Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 131 (2d Cir. 2006), or for lack of jurisdiction, see 28 U.S.C. 1447(c). The removal of this action appears to be improper for two reasons. First, the Notice of Removal does not indicate that "all defendants who have been properly joined and served" in the action have "join[ed] in or consent[ed] to the removal of this action" as required by 28 U.S.C. 1446(b)(2)(A). See generally #1 Not. of Removal. Second, the Notice of Removal does not establish that jurisdiction exists. Burlington invokes the Courts diversity jurisdiction, id. 8, which requires that the amount in controversy exceed $75,000. 28 U.S.C. 1332(a). 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)). Burlington cites plaintiffs complaint, which requests "damages... for an amount which exceeds the jurisdictional limits of all other Courts which would otherwise have jurisdiction herein." [1-1] Not. of Removal, Ex. A, 16. But the complaint's mention of other courts could "refer[] to the limitation that the lower civil courts of New York may not entertain actions seeking to recover more than $25,000." Torres v. OBrien Briggs, No. 20-CV-5360 (PKC) (RLM), 2020 WL 7024368, at *2 (E.D.N.Y. Nov. 30, 2020). Nor does the Notice of Removal establish complete diversity of the parties. Defendant Excel Building Services is a limited liability company, which "is deemed to be a citizen of each state of which its members are citizens." Marsh USA Inc. v. Millett, No. 22-CV-6656 (JMF), 2022 WL 4280345, at *1 (S.D.N.Y. Sept. 15, 2022); see Handelsman v. Beford Vill. Assocs. L.P., 213 F.3d 48, 51-52 (2d Cir.). "In pleading an LLCs citizenship, the identity and citizenship of each member has to be specifically alleged," meaning that the party asserting jurisdiction "must allege the identity and citizenship of [the LLCs] members, proceeding up the chain of ownership until it has alleged the identity and citizenship of every individual and corporation with a direct or indirect interest in the LLC." United States Liab. Ins. Co. v. M Remodeling Corp., 444 F. Supp. 3d 408, 410 (E.D.N.Y. 2020) (collecting cases). But Burlington itself acknowledges that it "cannot allege the citizenship of the members" of Excel. Not. of Removal 13. And it is the removing party who "bears the burden of demonstrating that the grounds for diversity exist and that diversity is complete." Advani Enters., Inc. v. Underwriters at Lloyds, 140 F.3d 157 (2d Cir. 1998). Accordingly, Burlington shall show cause by 9/28/2023 why this action should not be remanded to state court. Failure to respond will likely result in remand. Ordered by Judge Rachel P. Kovner on 9/14/2023. (SP)
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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) |
| 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) |
| Case Assigned to Judge Rachel P. Kovner 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. (KD) |
| Filing 2 Corporate Disclosure Statement by Burlington Stores, Inc., (Attachments: #1 Certificate of Service) (Merlino, David) |
| Filing 1 NOTICE OF REMOVAL by Burlington Stores, Inc., from Supreme, case number 522739/2023. ( Filing fee $ 402 receipt number ANYEDC-17068782) (Attachments: #1 Exhibit A - Summons and Complaint - State Court, #2 Exhibit B - Public Inquiry, #3 Civil Cover Sheet, #4 Certificate of Service) (Merlino, David) |
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