Wallace v. LVNV Funding, LLC et al
| Eugennie Wallace |
| LVNV Funding, LLC, Kirschenbaum & Phillips, P.C. and The City of New York |
| 1:2024cv01270 |
| February 20, 2024 |
| US District Court for the Eastern District of New York |
| Dora Lizette Irizarry |
| Taryn A Merkl |
| Consumer Credit |
| 28 U.S.C. § 1441 Notice of Removal |
| Defendant |
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ORDER denying #11 Motion for Extension of Time to File Response/Reply #10 MOTION to Dismiss -- It is abundantly clear that none of the parties in this case have familiarized themselves with my Rules, the Local Rules of the Court or the Federal Rules of Civil Procedure. As an initial matter, Local Rule 6.1(b) requires that responses to motions to dismiss in lieu of an answer must be made within fourteen (14) days of service of the motion, which in this case was April 10, 2024. As such, the request for an extension was made late.Secondly, Section II(D) of my Individual Rules require that any requests for extensions of deadlines must be made at least three (3) days prior to the deadline the parties seek to extend. Again, the request was made five (5) days after the deadline.Finally, what the parties filed as a "motion" in fact was a stipulation by and among the parties to extend the briefing schedule as a fait accompli, and not really requesting leave of the Court. As stated above, it violates my Individual Rules, which require that the request be made by LETTER MOTION NOT STIPULATION, and include, among other things: the reason for request, the original deadline, the number of previous extension requests and whether they were granted or denied, whether the adversary consents and why if not, and the reason for the extension. In other words, the parties may not just agree among themselves to extend a deadline, but rather must seek true leave of the Court and provide good cause for the application.Accordingly, the request for the extension is denied without prejudice to renew by April 22, 2024 in a manner that complies with this Order. SO ORDERED by Judge Dora Lizette Irizarry on 4/16/2024. (Irizarry, Dora)
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ORDER AMENDING CAPTION/DOCKET SHEET -- While the City of New York is listed as a defendant in the caption of this action, it is not listed in the complaint or in the Civil Cover Sheet or any other document as a defendant and, thus, is listed in error. Accordingly, the Clerk of the Court is directed to amend the caption to delete the listing of the City of New York as a defendant. SO ORDERED by Judge Dora Lizette Irizarry on 4/16/2024. (Irizarry, Dora)
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| Filing 11 MOTION for Extension of Time to File Response/Reply as to #10 MOTION to Dismiss by Eugennie Wallace. (Tariq, Subhan) |
| Filing 10 MOTION to Dismiss by Kirschenbaum & Phillips, P.C., LVNV Funding, LLC. (Attachments: #1 Declaration, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F, #8 Memorandum in Support, #9 Proposed Order) (Dicicco, Jacquelyn) |
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ORDER STRIKING #9 Motion to Dismiss -- Defendants LVNV Funding, LLC and Kirschenbaum & Phillips, P.C. ("Defendants") clearly have not familiarized themselves with the Court's Individual Rules specifying that previously filed documents should not be attached as exhibits, but rather referred to by their docket entry numbers. See, Judge Irizarry's Individual Rules and Practices ("Individual Rules"), Section IV(D). In addition, Defendant's motion relies on documents that are not included within for the four corners of the complaint, which is discussed further below. For these reasons, Defendants' Motion to Dismiss is STRICKEN with leave to refile.Defendants are reminded that, under the applicable standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court's "review is limited to the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). To the extent that Defendant's memorandum of law relies on documents that are beyond the four corners of the complaint, the grounds for their consideration must be supported by appropriate legal precedent. Defendants are on notice that the motion may be stricken again if the Court cannot properly consider cited materials that are outside the four corners of the complaint at this stage.By NO LATER THAN APRIL 3, 2024 Defendants shall file a proper motion that complies with the Court's Individual Rules, the Court's Local Rules and the Fed. R. Civ. P. Defendants are reminded that they must forward to chambers a hard courtesy copy of their motion immediately upon filing SO ORDERED by Judge Dora Lizette Irizarry on 3/21/2024. (Irizarry, Dora)
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| Filing 9 STRICKEN MOTION to Dismiss Complaint by Kirschenbaum & Phillips, P.C., LVNV Funding, LLC. (Attachments: #1 Declaration, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F, #8 Exhibit G, #9 Exhibit H, #10 Proposed Order, #11 Memorandum in Support) (Dicicco, Jacquelyn). Entry modified on 3/26/2024 to indicate the motion to dismiss is stricken pursuant to electronic order dtd. 3/21/2024. (MLR). |
| Case Assigned to Judge Dora Lizette Irizarry and Magistrate Judge Taryn A. Merkl. Magistrate Judge Taryn A. Merkl 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 Court is in receipt of Defendants' letter motion #6 indicating their intention to move to dismiss, and requesting an extension of time, on consent. The request for an extension of time is granted. Defendants shall respond to the complaint by 3/22/2024. The parties are reminded that any motion practice must be initiated in accordance with the Individual Rules of the assigned District Judge. In addition, Clerk of Court is respectfully directed to assign a District Judge under Administrative Order 2023-23. Ordered by Magistrate Judge Taryn A. Merkl on 3/8/2024. (ES)
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| NOTICE to Assign District Judge: The Clerk of Court is directed to reassign this case to a district judge pursuant to Judge Merkl's 3/8/2024 Order. (ES) |
| Filing 8 NOTICE of Appearance by Jonathan M. Robbin on behalf of Kirschenbaum & Phillips, P.C. (aty to be noticed) (Robbin, Jonathan) |
| Filing 7 NOTICE of Appearance by Jacquelyn Alena Dicicco on behalf of Kirschenbaum & Phillips, P.C. (aty to be noticed) (Dicicco, Jacquelyn) |
| Filing 6 Letter re Intention to Move to Dismiss by Kirschenbaum & Phillips, P.C., LVNV Funding, LLC (Dicicco, Jacquelyn) |
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ORDER: The Court is in receipt of the supplemental filing #5 . Defendant LVNV shall answer or otherwise respond to the complaint by 3/6/2024.The parties are reminded that 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 Court's 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. The parties are also respectfully reminded that, unless all parties consent to Magistrate Judge jurisdiction, if a party intends to file a motion to dismiss under Rule 12(b), that party must file a letter no longer than one page indicating such intent in order to facilitate assignment of this case to a District Judge as the presiding judge. See Admin. Order No. 2023-23 at 2. Any such letter shall be filed by 3/5/2024. Ordered by Magistrate Judge Taryn A. Merkl on 3/4/2024. (ES)
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| Filing 5 NOTICE by LVNV Funding, LLC re #1 Notice of Removal, SUPPLEMENTAL NOTICE OF REMOVAL (Robbin, Jonathan) |
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ORDER: In the notice of removal #1 , Defendants note that "removal is timely... because Defendant has filed this Notice of Removal within 30 days of its receipt of Plaintiff's Complaint." However, Defendants do not specify the date on which they received service of the summons and complaint. Defendants are directed to submit a supplemental filing by 3/6/2024 indicating the date of service. Additionally, in removal actions, Federal Rule of Civil Procedure 81(c)(2) requires the defendant to file an answer 21 days after service of the initial pleading or 7 days after the notice of removal was filed, whichever is longer. Defendants filed their notice of removal in this case on 2/20/2024, but have failed to indicate when they were served as noted, and have not answered or otherwise responded to the complaint, which was originally filed in state court on 1/17/2024. Defendants are hereby directed to file an answer or otherwise respond to the complaint by 2/28/2024 or 21 days from the date they received service, whichever is longer. Ordered by Magistrate Judge Taryn A. Merkl on 2/22/2024. (ES)
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| Filing 4 NOTICE of Appearance by Jacquelyn Alena Dicicco on behalf of LVNV Funding, LLC (aty to be noticed) (Dicicco, Jacquelyn) |
| Filing 3 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (CV) |
| Filing 2 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) |
| Filing 1 NOTICE OF REMOVAL by LVNV Funding, LLC from Civil Court of New York, Queens County, case number 24-cv-1410. ( Filing fee $ 405 receipt number ANYEDC-17584364) (Attachments: #1 Exhibit A, #2 Civil Cover Sheet) (Robbin, Jonathan) |
| 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) |
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