ERG Property Advisors, LLC et. al. v. Walsh
| ERG Capital Advisors, LLC and ERG Property Advisors, LLC |
| Andrew Walsh |
| 2:2021cv00188 |
| January 13, 2021 |
| US District Court for the Eastern District of New York |
| Gary R Brown |
| Anne Y Shields |
| Securities/Commodities |
| 28 U.S.C. § 1441 - Petition for Removal: Securities Fraud |
| None |
Docket Report
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| Filing 9 RESPONSE to Motion re #8 First MOTION for pre motion conference re Order on Motion for Pre Motion Conference,,,,,,, #7 Letter to Judge Brown re: prospective request /motion for post Removal discovery to aid in Opposition to remand letter in response to March 11, 2021 letter filed by Plaintiffs' counsel, including, in respect of a good faith effort to reduce issues on Remand filed by All Defendants. (Rosenberg, Jeffrey) |
ORDER finding as moot #8 Motion for Pre Motion Conference and REMANDING CASE to State Court. Before the Court are pre-motion submissions in connection with a motion by plaintiffs to remand as well as a curious application by defendant styled as a "motion for post Removal discovery to aid in Opposition to remand letter." In order to comply with the dictates of Rule 1, and avoid the costs and delays associated with continued needless litigation, the Court determines, in its discretion, to treat the submissions as fully submitted motions. Defendant's bases for removal of this action - a complaint filed in state court containing only state law claims -- is explicitly tenuous, as it is acknowledged in the removal petition that "counsel has not found any instance in which this Court determined that in similar circumstances Removal was appropriate." DE 1. Counsel's belated application for discovery to support the removal raises further question about the good faith belief supporting removal. Instead of legal authority, defendant's counsel simply urges that "this Court should eschew its normal circumscribed approach to search only the 'four comers' of the Complaint to discern if there are 'substantial federal issues' to support Removal." DE 1. However, with only certain exceptions (which are inapplicable here) clear case law requires that the Court consider only the well-pleaded allegations of the complaint, and certainly, cannot sustain removal based upon the filing of counterclaims, particularly where such counterclaims have not, as yet, been pled. Calabro v. Aniqa Halal Live Poultry Corp., 650 F.3d 163, 165 (2d Cir. 2011) (where "complaint contained no federal claim, the district court determined that it lacked subject-matter jurisdiction over the case and therefore remanded the case back to state court"). This Court has no subject matter jurisdiction over this matter, and therefore the case is REMANDED to state court. While plaintiffs have, understandably, requested an award of costs and expenses in connection with this removal and remand, since the Court resolved this matter at a preliminary stage, and such amounts are relatively de minimus, that motion is denied. The Clerk is directed to close the case. Ordered by Judge Gary R. Brown on 3/12/2021. (Brown, Gary)
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| Filing 8 First MOTION for pre motion conference re Order on Motion for Pre Motion Conference,,,,,,, #7 Letter to Judge Brown re: prospective request /motion for post Removal discovery to aid in Opposition to remand by Andrew Walsh. (Rosenberg, Jeffrey) |
| Filing 7 Letter to the Honorable Gary R. Brown by ERG Capital Advisors, LLC, ERG Property Advisors, LLC (Shapiro, Daniel) |
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SCHEDULING ORDER RE #6 Motion for Pre Motion Conference. The pre-motion telephone conference scheduled for March 11, 2021 IS ADOURNED TO MARCH 16, 2021 at 11:00 a.m. before Judge Gary R. Brown, at which time the parties should be prepared to address plaintiffs' anticipated motion to remand this action pursuant to 28 U.S.C. 1447 to Supreme Court, State of New York, County of Nassau, DE 4. In addition, the parties should be prepared to address defendant's request for a pre-motion conference preceding plaintiffs' motion in order to "unmask the delusive nature of: (i) the State Court Complaint; (ii) the Shapiro Letter; and (iii) the postured underpinnings of the Remand Motion; and (C) to provide an outline of the essential facts willfully omitted by the Shapiro Letter." DE 6.The parties are to call (888) 363-4734 using ACCESS CODE 4132441 five minutes prior to the designated time.The parties are on notice that in appropriate cases, the pre-motion letters and the responses, along with the parties' arguments made at the pre-motion conference, may be construed at the discretion of the Court as the motion itself. Arguments not raised in the pre-motion letters and responses or during the pre-motion conference shall be deemed waived. See In re Best Payphones, Inc., 450 F. App'x 8, 15 (2d Cir. 2011).At the conference, the Court will issue a briefing schedule if necessary. Plaintiffs are directed to respond to DE 6 in accordance with the undersigned's individual rules by March 12, 2021. Before requesting an adjournment, the parties shall meet and confer and submit a joint letter with several proposed dates. The parties and other attendees to the conference are also reminded that the recording of any proceeding of the Court, including this conference, is prohibited under Local Rule 1.8. Ordered by Judge Gary R. Brown on 3/10/2021. c/ecf (Johnston, Linda)
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| Filing 6 First MOTION for pre motion conference re Order on Motion for Pre Motion Conference,,,,,, Letter response to request for Pre-Motion conference by Andrew Walsh. (Rosenberg, Jeffrey) |
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ORDER withdrawing #5 Motion for Pre Motion Conference. Pursuant to the undersigned's individual rules, prior to filing any motion returnable before the undersigned, parties are required to file a letter of no more than two pages briefly outlining the motion and requesting a pre-motion conference. See II.f.1. Defendant's pre-motion response letter is fifteen pages and thus far exceeds this two-page limit. In addition, the Court notes the response letter was untimely. Accordingly, the pre-motion response letter, DE 5, is hereby DEEMED WITHDRAWN with leave to renew BY 12:00 P.M. ON MARCH 10, 2021 and consistent with II.f.1. Ordered by Judge Gary R. Brown on 3/9/2021. c/ecf (Johnston, Linda)
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| Filing 5 Notice of MOTION for pre motion conference re Order on Motion for Pre Motion Conference,,,,,, RESPONSE TO LETTER MOTION OF PLTF by Andrew Walsh. (Attachments: #1 Exhibit, #2 Exhibit, #3 Exhibit, #4 Exhibit, #5 Exhibit, #6 Exhibit, #7 Exhibit, #8 Exhibit) (Rosenberg, Jeffrey) |
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ORDER granting #4 Motion for Pre Motion Conference. A pre-motion telephone conference is scheduled for March 11, 2021 at 11:00 a.m. before Judge Gary R. Brown, at which time the parties should be prepared to address plaintiffs' anticipated motion to remand this action pursuant to 28 U.S.C. 1447 to Supreme Court, State of New York, County of Nassau, DE 4. The parties are to call (888) 363-4734 using ACCESS CODE 4132441 five minutes prior to the designated time.The parties are on notice that in appropriate cases, the pre-motion letter and the response, along with the parties' arguments made at the pre-motion conference, may be construed at the discretion of the Court as the motion itself. Arguments not raised in the pre-motion letter and response or during the pre-motion conference shall be deemed waived. See In re Best Payphones, Inc., 450 F. App'x 8, 15 (2d Cir. 2011).At the conference, the Court will issue a briefing schedule if necessary. Defendant is directed to respond to DE 4 in accordance with the undersigned's individual rules by February 3, 2021. Before requesting an adjournment, the parties shall meet and confer and submit a joint letter with several proposed dates. The parties and other attendees to the conference are also reminded that the recording of any proceeding of the Court, including this conference, is prohibited under Local Rule 1.8. Ordered by Judge Gary R. Brown on 1/19/2021. c/ecf (Johnston, Linda)
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| Filing 4 Letter MOTION for pre motion conference by ERG Capital Advisors, LLC, ERG Property Advisors, LLC. (Attachments: #1 Exhibit A-Summons and Complaint Filed in State Court Action) (Shapiro, Daniel) |
| Filing 3 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. (Flanagan, Doreen) |
| Filing 2 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. (Flanagan, Doreen) |
| Case Assigned to Judge Gary R. Brown and Magistrate Judge Anne Y. Shields. 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. (Flanagan, Doreen) |
| Filing 1 NOTICE OF REMOVAL by All Defendants Andrew Walsh from Supreme Court of the State of New York, County of Nassau, Case Number 614326/2020. Was the Disclosure Statement on the Civil Cover Sheet completed - Yes. ( Filing fee $ 402 receipt number ANYEDC-13984545) (Attachments: #1 Exhibit, #2 Civil Cover Sheet) (Rosenberg, Jeffrey) Modified on 1/14/2021 (Flanagan, Doreen). |
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