Hill v. Chavez et al
| Tia Hill |
| Elmer Chavez and Smart Trucking Services, Inc. |
| 1:2023cv07556 |
| October 10, 2023 |
| US District Court for the Eastern District of New York |
| Taryn A Merkl |
| Motor Vehicle |
| 28 U.S.C. § 1441 Notice of Removal |
| None |
Docket Report
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ORDER: Defendants filed discovery material on ECF (ECF No. 11) Reminder: Discovery materials unrelated to pending disputes or motions before this Court are not to be filed on ECF. The Clerk's Office is instructed to take down document 11. Ordered by Magistrate Judge Taryn A. Merkl on 12/7/2023. (KC)
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| Filing 11 RESPONSE to Discovery Request from DAVID PASTERNAK by Elmer Chavez, Smart Trucking Services, Inc.. (Attachments: # 1 Exhibit Police Report, # 2 Exhibit Appraisal of vehicle and photographs) (Pasternak, David) |
| Filing 10 First MOTION to Substitute Attorney by Elmer Chavez, Smart Trucking Services, Inc.. (Pasternak, David) |
| Filing 9 NOTICE of Appearance by David Seth Pasternak on behalf of Elmer Chavez, Smart Trucking Services, Inc. (aty to be noticed) (Pasternak, David) |
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Minute Entry and Order: A telephonic Initial Conference was held on 11/21/2023 before Magistrate Judge Taryn A. Merkl. Appearances by Robert Renna for Plaintiff and David Pasternak for Defendant. The parties confirmed that they have held their Rule 26(f) conference and that Plaintiff has completed their initial disclosures and provided HIPAA authorizations. The Court also reminded the parties of their obligations to preserve and, if appropriate, produce electronically stored information during discovery. As stated on the record, the parties' discovery plan is adopted, in part, as follows. Defendant shall complete exchange of any Rule 26(a) initial disclosures by 12/6/2023. First requests for documents and interrogatories shall be exchanged by 12/26/2023. Phase I discovery shall be completed by 1/22/2024. The deadline for joining additional parties and amending the pleadings as of right is 2/20/2024. Fact discovery shall be completed on or before 4/10/2024. The parties are directed to file a joint status report certifying the close of fact discovery by 4/16/2024. Exchange of expert disclosures shall be completed by 5/16/2024. Exchange of rebuttal expert reports shall be completed by 6/17/2024. Expert depositions shall be completed by 7/17/2024. All expert discovery shall be completed by 8/2/2024, and certification of the completion of all discovery shall be filed on ECF by 8/16/2024. The last date to take the first step in dispositive motion practice is 9/16/2024, and must be done in accordance with the Individual Rules of the presiding judge. By 12/22/2023, the parties are directed to indicate whether they consent to jurisdiction by the undersigned Magistrate Judge for all purposes. As discussed at the conference, this case has been assigned to a Magistrate Judge pursuant to the Court's Direct Assignment Pilot Program, which is governed by Administrative Order 2023-23. The Administrative Order, answers to Frequently Asked Questions about the Pilot Program, information about consenting to a Magistrate Judge, and a biography of the Magistrate Judge assigned to this case are on the Courts website at # https://www.nyed.uscourts.gov/edny-direct-assignment-pilot-program. The parties are respectfully directed to confer regarding whether both parties consent to jurisdiction by the undersigned Magistrate Judge. If the parties so consent, the parties should file the consent form available at # https://www.uscourts.gov/forms/civil-forms/notice-consent-and-reference-civil-action-magistrate-judge. A telephonic Pre-Settlement Status Conference will be held on 2/5/2024 at 10:00am before Magistrate Judge Taryn A. Merkl. The Court notes, that because it is a pre-settlement status conference, the parties are not required to attend. Counsel are directed to call the toll-free number (877) 336-1839. The access code is 3914302. Counsel shall dial in five (5) minutes before the scheduled conference. Ordered by Magistrate Judge Taryn A. Merkl on 11/21/2023. (AT&T Log #2:03-2:27.) (ES)
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| Status Conference set for 2/5/2024 10:00 AM before Magistrate Judge Taryn A. Merkl. (ES) |
| Filing 8 CASE MANAGEMENT STATEMENT Proposed Case Management Worksheet (Renna, Robert) |
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Filing 7
SCHEDULING ORDER: A telephonic Initial Conference will be held on 11/21/2023 at 2:00 p.m.. The parties are directed to call the toll-free number (877) 336-1839. The access code is 3914302. The parties shall dial in five (5) minutes before the scheduled conference. Counsel are directed to complete the attached Case Management Worksheet and electronically file same with the Court no later than 11/14/2023. Should the parties wish to adopt a plan for discovery different from the structure in the worksheet, they may do so only if they file a letter explaining why such a plan is appropriate in this case. The parties should be prepared to address the amount in controversy and propriety of removal at the conference. This case has been assigned to a Magistrate Judge pursuant to the Court's Direct Assignment Pilot Program, which is governed by Administrative Order 2023-23. The Administrative Order, answers to Frequently Asked Questions about the Pilot Program, information about consenting to a Magistrate Judge, and a biography of the Magistrate Judge assigned to this case are on the Courts website at # https://www.nyed.uscourts.gov/edny-direct-assignment-pilot-program. In advance of the Initial Conference, the parties are respectfully directed to confer regarding whether both parties consent to jurisdiction by the undersigned Magistrate Judge. If the parties so consent, the parties should file the consent form available at # https://www.uscourts.gov/forms/civil-forms/notice-consent-and-reference-civil-action-magistrate-judge. Ordered by Magistrate Judge Taryn A. Merkl on 10/26/2023. (KC)
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| Filing 6 AFFIDAVIT/AFFIRMATION Supplemental affirmation in support of removal application by Smart Trucking Services, Inc. (Lenoff, Michael) |
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ORDER TO SHOW CAUSE: Defendants assert diversity jurisdiction under 28 U.S.C. 1332. (See Notice of Removal, ECF No. 1, at pp. 23). In alleging that the amount in controversy is satisfied, Defendants assert that "the Complaint does not demand a specific dollar amount in damages and therefore asserts the necessary amount in controversy pursuant to 28 U.S.C. 1446(c)(2)(A)(ii)." (Id. at 3). "To remove a case based on diversity jurisdiction, the diverse defendant must aver that all of the requirements of diversity jurisdiction have been met." Brown v. Eli Lilly & Co., 654 F.3d 347, 356 (2d Cir. 2011) For diversity jurisdiction to exist, the amount in controversy must exceed $75,000. The party asserting diversity jurisdiction "has the burden of establishing the existence of the jurisdictional amount in controversy." Villafana v. So, No. 13-CV-180, 2013 WL 2367792, at *1 (S.D.N.Y. May 29, 2013) (quotation marks omitted). "While a [party] need not 'prove the amount in controversy to an absolute certainty,' the [party] 'has the burden of proving that it appears to be a reasonable probability that the claim is in excess of the statutory jurisdictional amount." Justino v. Wal-Mart Stores, Inc., No. 21-CV-2130 (PMH), 2021 WL 961764, at *1 (S.D.N.Y. Mar. 15, 2021) (quotation marks omitted); see also Ramos v. Golden Touch Transportation of NY Inc., No. 21-CV-5676 (LDH) (TAM), 2022 WL 2467590, at *5 (E.D.N.Y. Mar. 11, 2022), report and recommendation adopted, 2022 WL 4551567 (E.D.N.Y. Sept. 29, 2022). "[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 that the amount in controversy exceeds the jurisdictional amount, federal courts lack diversity jurisdiction as a basis for removing the plaintiff's action from state court." Id. (quotation marks omitted). Moreover, "[i]n this Circuit, a case filed in state court does not become removable 'until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary damages sought.'" Henriquez v. NRT Transp. LLC, No. 19-CV-3320 (ARR) (RLM), 2019 WL 3083161, at *1 (E.D.N.Y. June 25, 2019) (quoting Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38 (2d Cir. 2010)), report and recommendation adopted, No. 19-CV-3320 (ARR) (RLM), 2019 WL 3081188 (E.D.N.Y. July 15, 2019). Here, the jurisdictional amount is not clearly alleged in Plaintiff's complaint, and Defendants' notice of removal fails to allege facts sufficient to support their claim that the amount in controversy is satisfied. Defendants are respectfully directed to file a supplemental submission alleging facts adequate to establish that the amount in controversy is satisfied by 10/25/2023. Plaintiff may submit a response by 11/1/2023. Ordered by Magistrate Judge Taryn A. Merkl on 10/12/2023. (ES)
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| Filing 5 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (CV) |
| Filing 4 Clerks Notice Re: Consent. A magistrate judge has been assigned as the presiding judge in this case as part of a Pilot Program, governed by EDNY Administrative Order 2023-23. In accordance with Rule 73 of the Federal Rules of Civil Procedure, Local Rule 73.1, the parties are notified that if all parties consent, the assigned Magistrate Judge is available to conduct all proceedings in this action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to this 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 is also available here: #https://www.nyed.uscourts.gov/edny-direct-assignment-pilot-program. Any party may withhold its consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. Unless all parties consent to the Magistrate Judge jurisdiction by the deadline set forth in the Administrative Order 2023-23, a District Judge will be assigned to the case. The parties are directed to review the terms of Administrative Order 2023-23 and other materials related to the Pilot Program on the Courts website: #https://www.nyed.uscourts.gov/edny-direct-assignment-pilot-program. (CV) |
| Case Assigned to Magistrate Judge Taryn A. Merkl. 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. (CV) |
| 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. (CV) |
| Filing 3 NOTICE of Appearance by Michael J. Lenoff on behalf of All Defendants (notification declined or already on case) (Lenoff, Michael) |
| Filing 2 Corporate Disclosure Statement by Elmer Chavez, Smart Trucking Services, Inc. identifying Corporate Parent Smart Trucking Services, Inc. for Elmer Chavez, Smart Trucking Services, Inc.. (Lenoff, Michael) |
| Filing 1 NOTICE OF REMOVAL by All Defendants from Supreme Court, case number 526211/2023. ( Filing fee $ 402 receipt number ANYEDC-17167036) (Attachments: #1 Exhibit, #2 Civil Cover Sheet) (Lenoff, Michael) |
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