Fusion Funding v. MI OPS LLC et al
| Fusion Funding, MI OPS LLC d/b/a Jr.'s Hometown Grill & Pub, Restaurant Investments LLC d/b/a Restaurant Investments, Fancy Prairie Company d/b/a Fancy Prairie Company and Robert Allen Loudermilk |
| MI OPS LLC doing business as Jr.'s Hometown Grill & Pub, Restaurant Investments LLC doing business as Restaurant Investments and Fancy Prairie Company doing business as Fancy Prairie Company |
| 1:2024cv01382 |
| February 23, 2024 |
| US District Court for the Eastern District of New York |
| James R Cho |
| Rachel P Kovner |
| Contract: Other |
| 28 U.S.C. § 1332 Diversity-Breach of Contract |
| None |
Docket Report
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ORDER DISMISSING CASE: The #19 notice of voluntary dismissal is so-ordered. The #20 motion for an extension of the deadline to respond to the order to show cause is terminated as moot. Ordered by Judge Rachel P. Kovner on 4/18/2024. (SP)
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| Filing 20 Letter MOTION for Extension of Time to File Response/Reply to Court's Order To Show Cause by Fancy Prairie Company, Restaurant Investments LLC. (Hampton, Joe) |
| Filing 19 NOTICE of Voluntary Dismissal by Fusion Funding (Wells, Steven) |
| Filing 18 Letter MOTION for Extension of Time to File Response/Reply to Court's Order To Show Cause by Fancy Prairie Company, Restaurant Investments LLC. (Hampton, Joe) |
| Filing 17 NOTICE of Appearance by Joe Hampton on behalf of Fancy Prairie Company, Restaurant Investments LLC (aty to be noticed) (Hampton, Joe) |
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ORDER: The #18 motion for an extension of the deadline to respond to the order to show cause and to file a motion to remand is granted. Defendants Restaurant Investments LLC and Fancy Prairie Company shall show cause in writing by 4/23/2024 why this action should not be remanded to state court. Plaintiff may file a motion to remand by 5/8/2024. The parties are reminded to review and adhere to the Court's Individual Rules, which require, inter alia, parties to request extensions of filing deadlines "at least two working days prior to the... filing deadline." Individual Rule I.F.3. Ordered by Judge Rachel P. Kovner on 4/8/2024. (SP) (SP)
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ORDER granting #16 Motion for Leave to Appear Pro Hac Vice. Attorney Joe M. Hampton shall register for ECF, registration is available online at www.pacer.gov. Once registered, the attorney shall file a notice of appearance to ensure electronic notification of activity in this case. Also, the attorney shall ensure the $200 admission fee be submitted to the Clerks Office via filing the event Pro Hac Vice Filing Fee. Ordered by Magistrate Judge James R. Cho on 4/3/2024. (SGC)
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| Filing 16 MOTION to Appear Pro Hac Vice of Joe M. Hampton Filing fee $ 200, receipt number ANYEDC-17733885 by Fancy Prairie Company, Restaurant Investments LLC. (Lesser, Jacqueline) |
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ORDER: The #15 motion for an extension of the deadline to respond to the order to show cause and to file a motion to remand is granted. Defendants Restaurant Investments LLC and Fancy Prairie Company shall show cause in writing by 4/8/2024 why this action should not be remanded to state court. Plaintiff may file a motion to remand by 4/15/2024. Ordered by Judge Rachel P. Kovner on 3/22/2024. (SP)
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| Filing 15 Letter MOTION for Extension of Time to File Response/Reply to Court's Order To Show Cause by Fancy Prairie Company, Restaurant Investments LLC. (Lesser, Jacqueline) |
| Filing 14 Corporate Disclosure Statement by Fusion Funding (Wells, Steven) |
| Filing 13 Letter application for extension by Fusion Funding (Wells, Steven) |
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ORDER: Plaintiff's #13 request for the extension of the deadline to file a motion to remand is granted. Plaintiff may file a motion to remand by 3/29/2024. Ordered by Judge Rachel P. Kovner on 3/14/2024. (SP)
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ORDER: The #12 request for an extension of the deadline to respond to the order to show cause is granted. Defendants Restaurant Investments LLC and Fancy Prairie Company shall show cause in writing by 3/22/2024 why this action should not be remanded to state court. Ordered by Judge Rachel P. Kovner on 3/13/2024. (SP)
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| Filing 12 Letter request for a ten day adjournment of the Court's Order To Show Cause by Fancy Prairie Company, Restaurant Investments LLC (Lesser, Jacqueline) |
| Filing 11 Corporate Disclosure Statement by Fusion Funding (Wells, Steven) |
| Filing 10 NOTICE of Appearance by Steven William Wells on behalf of Fusion Funding (aty to be noticed) (Wells, Steven) |
| Filing 9 NOTICE Designating Case To Arbitration. This case has been designated to participate in the non-binding Court Annexed Arbitration Program pursuant to Local Civil Rule 83.7: https://img.nyed.uscourts.gov/files/local_rules/localrules.pdf The Rule requires the Clerk of Court to designate and process for compulsory arbitration "all civil cases (excluding social security cases, tax matters, prisoners' civil rights cases, and any action based on an alleged violation of a right secured by the Constitution of the United States or if jurisdiction is based in whole or in part on Title 28 U.S.C. sec. 1343) wherein money damages only are being sought in an amount not in excess of $150,000.00 exclusive of interest and costs." Damages are presumed not to be in excess of the arbitration limit unless a certification is filed in accordance with Local Civil Rule 83.7. An Arbitration Hearing will be scheduled after an Answer is filed. |
| CASE REFERRED to Arbitration. (RC) |
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ORDER TO SHOW CAUSE: Defendants Restaurant Investments LLC and Fancy Prairie Company are directed to show cause in writing by 3/12/2024 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 at any time 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 filed by Restaurant Investments and Fancy Prairie 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). To the contrary, the notice of removal asserts that defendant Robert Loudermilk "is unable to consent or join in removal." #1 Notice of Removal 6. Second, the notice of removal does not establish that jurisdiction exists. Restaurant Investments and Fancy Prairie invoke the Court's diversity jurisdiction, id. 7, but have not established complete diversity of the parties. Plaintiff Fusion Funding 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 LLC's 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 LLC's] 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 defendants' notice of removal states that "the information regarding the members [of Fusion Funding] and the residence and domicile of such members is unknown to the removing party." #1 Not. of Removal 13. It is the removing party, however, 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). Restaurant Investments and Fancy Prarie shall accordingly show cause in writing by 3/12/2024 why this action should not be remanded to state court. Failure to respond will likely result in remand. Additionally, the #7 motion for a pre-motion conference is denied without prejudice pending the response to the order to show cause. Ordered by Judge Rachel P. Kovner on 2/27/2024. (SP)
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| Filing 8 CERTIFICATE OF SERVICE by Fancy Prairie Company, Restaurant Investments LLC re #1 Notice of Removal, #4 Proposed Summons/Civil Cover Sheet, #2 Corporate Disclosure Statement (Lesser, Jacqueline) |
| Filing 7 MOTION for pre motion conference by Fancy Prairie Company, Restaurant Investments LLC. (Lesser, Jacqueline) |
| 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 Clerk's Notice Re: Consent. A United States Magistrate Judge has been assigned to this case and is available to conduct all proceedings. 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. Any party may withhold its consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent.The form may also be accessed at the following link: #https://img.nyed.uscourts.gov/files/forms/MJConsentForm.pdf (KD) |
| Filing 4 Civil Cover Sheet.. Re #1 Notice of Removal, Notice: Re: Incomplete Civil Cover Sheet, #3 Proposed Summons/Civil Cover Sheet by Fancy Prairie Company, Restaurant Investments LLC (Lesser, Jacqueline) |
| NOTICE! Re: Incomplete Civil Cover Sheet. The Clerk's Office cannot assign this case without a completed 2 Page Form Civil Cover Sheet. Please submit A COMPLETED SECOND PAGE Civil Cover Sheet. This event can be found under the event Other Documents - Proposed Summons/Civil Cover Sheet. (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 James R. Cho. 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 3 Civil Cover Sheet.. Re #1 Notice of Removal, by Fancy Prairie Company, Restaurant Investments LLC (Lesser, Jacqueline) |
| Filing 2 Corporate Disclosure Statement by Restaurant Investments LLC, Fancy Prairie Company (Lesser, Jacqueline) |
| Filing 1 NOTICE OF REMOVAL by Fancy Prairie Company, Restaurant Investments LLC from Supreme Court of the State of New York, County of Kings, case number 501588/2024. ( Filing fee $ 405 receipt number ANYEDC-17601659) (Attachments: #1 Exhibit Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10) (Lesser, Jacqueline) |
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