Jean v. Home Depot U.S.A., Inc.
| Yvrose Jean |
| Home Depot U.S.A., Inc. |
| 1:2024cv00371 |
| January 18, 2024 |
| US District Court for the Eastern District of New York |
| Lois Bloom |
| Orelia E Merchant |
| P.I.: Other |
| 28 U.S.C. ยง 1332 Diversity-Personal Injury |
| Defendant |
Docket Report
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This docket was last retrieved on March 14, 2024. A more recent docket listing may be available from PACER.
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| Filing 11 OBJECTION to #10 Report and Recommendations filed by Home Depot U.S.A., Inc.. (Attachments: #1 Certificate of Service) (Graves, Yelena) |
Filing 10
SUA SPONTE REPORT AND RECOMMENDATION: For the reasons set forth in the attached Report, it is respectfully recommended that the Court should remand this action to state court for lack of subject matter jurisdiction and untimely removal. See attached Report. Ordered by Magistrate Judge Lois Bloom on 2/27/2024. (IK)
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| Filing 9 ANSWER to Complaint by Home Depot U.S.A., Inc.. (Attachments: #1 Certificate of Service Certificate of Service) (Graves, Yelena) |
| Case Assigned to Judge Orelia E. Merchant and Magistrate Judge Lois Bloom. Magistrate Judge Lois Bloom no longer assigned as presider to the 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. (MS) |
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ORDER: The Clerk of Court is respectfully directed to assign a District Judge to preside over this matter. (VP)
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| Filing 8 RESPONSE TO ORDER TO SHOW CAUSE by Home Depot U.S.A., Inc. (Graves, Yelena) |
| Filing 7 NOTICE of Appearance by Yelena Lena Graves on behalf of Home Depot U.S.A., Inc. (aty to be noticed) (Graves, Yelena) |
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ORDER TO SHOW CAUSE: Defendant removed this personal injury action from Kings County Supreme Court on January 18, 2024, invoking this Court's diversity jurisdiction under 28 U.S.C. 1332. ECF No. #1 . A defendant removing a matter to federal court bears "the burden of establishing that the requirements for diversity jurisdiction [are] met." Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000).Defendant asserts that removal is proper because of the nature of plaintiff's injuries, and because plaintiff's counsel "made a settlement demand of $550,000 during the course of a mediation and confirmed this demand on January 9, 2024." ECF No. 1 at 13. However, "the removal clock does not start to run until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary damages sought." Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38 (2d Cir. 2010). Defendant may not rely on the nature of plaintiff's injuries to establish the amount in controversy. See, e.g., King v. Romero, No. 22-CV-10935, 2022 WL 18009943, at *2 (S.D.N.Y. Dec. 30, 2022) (holding that bill of particulars that "discloses that Plaintiff has undergone multiple spinal surgeries" fails to establish "jurisdictional threshold" for removal to a "reasonable probability"). Moreover, defendant does not specify whether plaintiff's settlement demand was made in writing, nor does defendant attach any writing that specifies in the amount in controversy. An oral settlement demand "is not a pleading or other paper that meets the requisites of 28 U.S.C. 1446(b)" and is thus not a sufficient basis for removal. Abbas v. Kienzler, No. 10-CV-5100, 2010 WL 5441663, at *1 (E.D.N.Y. Dec. 23, 2010) (citation omitted); see also Hogue v. BJ's Wholesale Club, Inc., No. 22-CV-04829, 2022 WL 2256291, at *2 (S.D.N.Y. June 23, 2022) ("District courts in this circuit... have held that an oral settlement demand is not a sufficient basis for removal") (citation omitted); Bader v. Costco Wholesale Corp., No. 18-CV-1304, 2018 WL 6338774, at *1-2 (E.D.N.Y. Dec. 4, 2018) (finding that plaintiff's counsel's oral settlement demand did not provide a basis for removal by defendant, and therefore removal was premature). Accordingly, defendant is ordered to show good cause by January 26, 2024 why this matter should not be remanded to state court for lack of subject matter jurisdiction. Ordered by Magistrate Judge Lois Bloom on 1/19/2024. (VP)
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| Filing 6 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (KD) |
| Filing 5 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. (KD) |
| Filing 4 Corporate Disclosure Statement by Home Depot U.S.A., Inc. (Strongin, Howard) |
| Filing 3 DEMAND for Trial by Jury by Home Depot U.S.A., Inc. (Strongin, Howard) |
| Filing 2 Civil Cover Sheet.. by Home Depot U.S.A., Inc. (Strongin, Howard) |
| Filing 1 NOTICE OF REMOVAL by Home Depot U.S.A., Inc. from Supreme Court Kings County, case number 536060/2023. ( Filing fee $ 405 receipt number ANYEDC-17473953) (Attachments: #1 Exhibit Summons & Complaint, #2 Exhibit Proof of Service) (Strongin, Howard) |
| Case Assigned to Magistrate Judge Lois Bloom. 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) |
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| Plaintiff: Yvrose Jean | |
| Represented By: | Nicholas E. Warywoda |
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| Defendant: Home Depot U.S.A., Inc. | |
| Represented By: | Howard F. Strongin |
| Represented By: | Yelena Lena Graves |
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