De Biase et al v. Lesser et al
| Nicholas R. De Biase and Lucian R. Rawls |
| 246 Bay Partnership, Ken Lesser and Casey McNamara |
| 2:2018cv05285 |
| September 20, 2018 |
| US District Court for the Eastern District of New York |
| Steven I Locke |
| Joanna Seybert |
| Torts to Land |
| 28 U.S.C. § 1332 Diversity-Torts to Land |
| Plaintiff |
Docket Report
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This docket was last retrieved on November 15, 2018. A more recent docket listing may be available from PACER.
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ELECTRONIC ORDER denying #15 Motion to Dismiss for Lack of Jurisdiction; granting #15 Motion for Extension of Time to Answer; re #13 Response to Order to Show Cause. As shown by Plaintiffs' response to the Court's October 11, 2018 Electronic Order to Show Cause, complete diversity--and therefore, subject matter jurisdiction--is currently lacking. For the purpose of establishing subject matter jurisdiction, Plaintiff De Biase requests leave to amend his Complaint to remove himself as a plaintiff and to properly plead the citizenship of the remaining parties in this matter. Defendant McNamara asks the Court not to allow De Biase's requested amendment and to dismiss this matter for lack of jurisdiction. Specifically, he expresses concern that the dismissal of De Biase, a co-owner of the property at issue, could lead to the re-litigation of this matter in another forum at a later date. In light of the foregoing, Plaintiffs are granted the opportunity to file an amended complaint to remove De Biase as a plaintiff and to properly plead jurisdiction. However, if they elect to do so, De Biase must also file a stipulation of dismissal with prejudice, in accordance with Federal Rule of Civil Procedure 41(a)(1)(A)(ii), of his claims against Defendants so that he may not re-litigate the same issues against the same Defendants in another forum. If Plaintiffs wish to file an amended complaint, they must confer with all appearing defendants for the purpose of securing a stipulation of dismissal, and they must file their amended complaint and stipulation of dismissal on or before December 7, 2018. If Plaintiffs do not file an amended complaint and stipulation of dismissal on or before that date, this action will be dismissed without prejudice for lack of subject matter jurisdiction. Finally, considering the posture of this action, Defendants' time to respond to the amended complaint, if necessary, is extended to December 21, 2018. The Clerk of the Court is directed to mail a copy of this Electronic Order to the pro se Plaintiffs. Ordered by Judge Joanna Seybert on 11/15/2018. (Torreblanca, David)
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| Filing 16 ANSWER to #1 Complaint by Ken Lesser. (Dinstell, Scott) |
| Filing 15 Letter MOTION to Dismiss for Lack of Jurisdiction in support of the Court Order to Show Cause, Letter MOTION for Extension of Time to File Answer by Casey McNamara. (Mazzei, Robert) |
| Filing 14 NOTICE of Appearance by Scott R. Dinstell on behalf of Ken Lesser (aty to be noticed) (Dinstell, Scott) |
| Filing 13 RESPONSE TO ORDER TO SHOW CAUSE by Nicholas R. De Biase, Lucian R. Rawls (Attachments: #1 Exhibit VA Driver License, #2 Exhibit VA Motor Vehicle Registration, #3 Exhibit VA Voter Registration, #4 Exhibit VA Tax Return - 1st pg, #5 Exhibit Federal Tax Return - 1st pg, #6 Exhibit VA Bank Statement, #7 Exhibit Social Security Statement - 1st pg) (De Biase, Nicholas) |
| Filing 12 RESPONSE TO ORDER TO SHOW CAUSE by Nicholas R. De Biase, Lucian R. Rawls (De Biase, Nicholas) |
| Filing 11 NOTICE of Appearance by Robert Michael Mazzei on behalf of Casey McNamara (aty to be noticed) (Mazzei, Robert) |
| Filing 10 SUMMONS Returned Executed by Nicholas R. De Biase. 246 Bay Partnership served on 10/13/2018, answer due 11/5/2018. (De Biase, Nicholas) |
| Filing 9 SUMMONS Returned Executed by Nicholas R. De Biase. Ken Lesser served on 10/13/2018, answer due 11/5/2018. (De Biase, Nicholas) |
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ELECTRONIC ORDER granting #8 Motion for Leave to Allow Pro Se to Electronically File. Pro se Plaintiff De Biase's request for leave to electronically file documents in this matter is GRANTED. He shall register for ECF, which is available online at www.pacer.gov. Ordered by Judge Joanna Seybert on 10/19/2018. (Torreblanca, David)
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| Filing 8 Letter MOTION for leave to allow Pro Se to Electronically File by Nicholas R. De Biase. (Florio, Lisa) |
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ELECTRONIC ORDER TO SHOW CAUSE. Show Cause Response due by 10/26/2018. Plaintiffs' Complaint alleges that the Court has jurisdiction over this matter pursuant to 28 U.S.C. 1332, which requires that the amount in controversy exceed $75,000 and that the parties be diverse in citizenship. However, the Complaint alleges only that one of the Plaintiffs has a "residence" in New York and the other has a "residence" in Virginia; that the individual defendants "own[]... real property" and do business in New York; and that the partnership defendant "own[s]... real property" and does business in New York. Because (1) a statement of an individual's residence is not sufficient to establish citizenship, which depends on his or her domicile; (2) for purposes of diversity jurisdiction, a partnership's citizenship depends on the citizenship of each of its partners; and (3) diversity jurisdiction exists when all plaintiffs are citizens of states diverse from those of all defendants, diversity jurisdiction appears to be absent. First, the citizenship of the individual parties is not sufficiently pled. Second, the citizenship of the partnership defendant is not sufficiently pled. Third, assuming the pleadings sufficiently alleged the parties' citizenship, complete diversity appears to be lacking. Accordingly, Plaintiffs are ordered to show cause in writing on or before October 26, 2018 why this action should not be dismissed for lack of subject matter jurisdiction. Their failure to do so will result in dismissal of this case. The Clerk of the Court is directed to mail a copy of this Electronic Order to the pro se Plaintiffs. Ordered by Judge Joanna Seybert on 10/11/2018. (Torreblanca, David)
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| Filing 7 Letter from J. Grady to Nicholas R. De Biase dated 9/28/2018 Re: THIS LETTER ACKNOWLEDGES RECEIPT OF YOUR CIVIL ACTION(S). DOCKET NUMBER(S) AND JUDGE(S) HAVE BEEN ASSIGNED AS INDICATED ABOVE. (Valle, Christine) |
| Filing 6 Letter from J. Grady to Lucian R. Rawls dated 9/28/2018 Re: THIS LETTER ACKNOWLEDGES RECEIPT OF YOUR CIVIL ACTION(S). DOCKET NUMBER(S) AND JUDGE(S) HAVE BEEN ASSIGNED AS INDICATED ABOVE. (Valle, Christine) |
| Filing 5 Notice of Related Case; 18-cv-4402-JS-SIL (Cox, Dwayne) |
| Filing 4 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. (Cox, Dwayne) |
| Filing 3 Pro Se Consent to Electronic Notification by Nicholas R. De Biase (Cox, Dwayne) |
| Filing 2 Summons Issued as to All Defendants. (Cox, Dwayne) |
| Filing 1 COMPLAINT against All Defendants Was the Disclosure Statement on Civil Cover Sheet completed -No,, filed by Nicholas R. De Biase, Lucian R. Rawls. (Attachments: #1 Civil Cover Sheet) (Cox, Dwayne) |
| FILING FEE: $ 400.00, receipt number 4613132478 (Cox, Dwayne) |
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