L&M Construction/Dry Wall Inc. v. Wells Fargo Bank, N.A. et. al.
| L&M Construction/Dry Wall Inc. |
| Wells Fargo Bank, N.A., Capital One Bank, N.A. and JOHN DOE |
| 2:2021cv00537 |
| February 1, 2021 |
| US District Court for the Eastern District of New York |
| Sandra J Feuerstein |
| Steven Tiscione |
| Banks and Banking |
| 28 U.S.C. ยง 1441 Notice of Removal |
| None |
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| Filing 8 Minute Entry for proceedings held before Judge Sandra J. Feuerstein: Status Conference held on 3/8/2021: Plaintiff and defendants counsel present. Case called. OTHER: In light of the dismissal of all claims over which this Court has original jurisdiction, and upon the consent of the parties, the Court declines to exercise supplemental jurisdiction over the remaining claims in this action and remands this case to the Supreme Court of the State of New York, County of Nassau. (Cubano, Jazmin) |
| Civil Case Terminated; Case closed. Remanded to the Supreme Court of the State of New York, County of Nassau. (Certified C/M to 100 Supreme Court Dr. Minola). (Cubano, Jazmin) |
ORDER TO SHOW CAUSE: Pursuant to 28 U.S.C. 1441(a), Defendant Wells Fargo Bank, N.A. ("Wells Fargo") removed this action to this Court on the basis that this Court has original jurisdiction under 28 U.S.C. 1331 because the original complaint asserted a cause of action arising under the Electronic Funds Transfer Act, 15 U.S.C. 1693 et seq. Based upon the amended complaint filed on 3/1/2021, plaintiff has abandoned its single claim under federal law, which constitutes a "dismissal" of all claims over which the district court has original jurisdiction for purposes of 28 U.S.C. 1367(c)(3). Chapman v. Crane Co. , 694 F. Appx 825, 827-28 (2d Cir. May 31, 2017) (summary order); see also Valencia ex rel. Franco v. Lee , 316 F.3d 299, 306-07 (2d Cir. 2003) ("Plainly there were judicial economies to be achieved by declining to exercise supplemental jurisdiction when plaintiffs expressly abandoned their federal claims in October 1998" because although most of the anticipated pretrial discovery had already been completed, "[n]o substantive motions had been filed; no judicial opinions had been issued; and the case was not yet ready for trial.") Given, inter alia , the dismissal of the claim giving rise to this Court's original jurisdiction at an early stage of the proceedings, before discovery has even commenced; the fact that no dispositive motions have been decided (although Wells Fargo served a motion to dismiss the original complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, plaintiff filed an amended complaint as a matter of course within 21 days after service of such motion pursuant to Rule 15(a)(1)(B) of the Federal Rules of Civil Procedure); and the interests of comity, which militate in favor of remand because the case is predominately a matter of state law, the Court is considering to sua sponte decline to exercise supplemental jurisdiction over the remaining claims in this action on the basis that the values of judicial economy, convenience, fairness, and comity would be promoted by remanding this case to the Supreme Court of the State of New York, County of Nassau (the "state court") pursuant to Carnegie-Mellon Univ. v. Cohill , 484 U.S. 343, 350 (1988). See, e.g. Chapman , 694 F. Appx at 829. Accordingly, the parties are hereby, ORDERED TO SHOW CAUSE, during the initial telephone conference before this Court on March 8, 2021 at 10:00 a.m., why this Court should not sua sponte decline to exercise supplemental jurisdiction and remand this case to the state court. Ordered by Judge Sandra J. Feuerstein on 3/2/2021. c/ECF (Adell, April)
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| Filing 7 AMENDED COMPLAINT FIRST against Wells Fargo Bank, N.A., filed by L&M Construction/Dry Wall Inc.. (Benjamin, Jeffrey) |
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ORDER denying #6 Motion for Leave to File: The application is denied as unnecessary because pursuant to Fed. R. Civ. P. 15(a)(1)(B), "A party may amend its pleading once as a matter of course within... 21 days after service of a motion under Rule 12(b)," and plaintiff has until 3/1/2021 to file the amended complaint. Ordered by Judge Sandra J. Feuerstein on 2/23/2021. c/ECF (Adell, April)
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| Filing 6 First MOTION for Leave to File Document (First Amended Complaint) by L&M Construction/Dry Wall Inc.. (Benjamin, Jeffrey) |
| Filing 5 Letter to Judge Feuerstein regarding service of motion to dismiss upon all parties by Wells Fargo Bank, N.A. (Daley, Althea) |
| Filing 4 AFFIDAVIT of Service for Scheduling Order, Notice of Removal and State Court Notice of Filing of Notice of Removal served on Capital One Bank, N.A. on February 4, 2021, filed by Wells Fargo Bank, N.A.. (Daley, Althea) |
| 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 Sandra J. Feuerstein and Magistrate Judge Steven Tiscione. 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) |
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SCHEDULING ORDER: Telephone Initial Conference set for 3/8/2021 at 10:00 AM before Judge Sandra J. Feuerstein. The parties shall appear with authority, or with individuals with authority, to settle this matter. At the designated time, the parties shall call Chambers' teleconferencing number, (877) 336-1280 , and follow the automated instructions; the access code is: 7215690 . The removing defendant shall serve a copy of this order upon defendant Capital One Bank, N.A. and file proof of such service with the Court.Ordered by Judge Sandra J. Feuerstein on 2/2/2021. c/ECF (Adell, April)
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| Filing 1 NOTICE OF REMOVAL by Wells Fargo Bank, N.A. from Supreme Court of the State of New York, County of Nassau, Case Number 608951/2020. Was the Disclosure Statement on the Civil Cover Sheet completed - Yes. ( Filing fee $ 402 receipt number ANYEDC-14082073) (Attachments: #1 Exhibit A - State Court Summons with Notice, #2 Exhibit B - State Court Court Notice of Appearance & Demand for Complaint, #3 Exhibit C - State Court Complaint, #4 Notice of Filing of Notice of Removal, #5 Civil Cover Sheet) (Daley, Althea) Modified on 2/2/2021 (Flanagan, Doreen). |
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