Beltran v. Smith et al
| Nathia Beltran |
| Timothy Smith and US Foods, Inc. |
| 2:2021cv07123 |
| December 27, 2021 |
| US District Court for the Eastern District of New York |
| Gary R Brown |
| Anne Y Shields |
| Motor Vehicle |
| 28 U.S.C. ยง 1332 Diversity-Personal Injury |
| None |
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ORDER Order of Remand to State Court. Following review of this matter as well as defendants response to this Courts Show Cause Order, it appears that defendants removed this action nearly 20 months after its filing, and nine months after service. This runs afoul of two provisions of the remand statute. First, 28 U.S.C. 1446(a) requires that "the notice of removal shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. Furthermore, section 1446(c) provides that [a] case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action. Defendants claim of bad faith on the part of plaintiff are unavailing, and suggestion that defendant was unaware of the magnitude of the case is simply spurious. Indeed, plaintiffs complaint, which describes a collision between defendants automobile and the plaintiff, a pedestrian, alleges that plaintiff suffered severe and serious personal injuries to mind and body, and further, was subjected to great physical pain and mental anguish, amounting to serious injury as defined under Section 5102(d) of the Insurance Law, in addition to economic loss greater than basic economic loss, meaning that plaintiffs economic loss alone exceeded $50,0000 under Section 5102(a) of the Insurance Law. It is unimaginable that defendants were unaware of the plain likelihood that the jurisdictional minimum had been satisfied, requiring, at a minimum, that defendants proceed with greater dispatch to make inquiry in this regard. Finally, defendants claim of unfairness in connection with a remand are unfounded, particularly given the state courts facility with personal injury litigation. As such, the case is REMANDED to the Nassau County Supreme Court. Ordered by Judge Gary R. Brown on 1/10/2022. (Brown, Gary)
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| Filing 6 Letter to Judge Brown to Show Cause Why the Case Should Not Be Remanded by Timothy Smith, US Foods, Inc. (Attachments: #1 Exhibit Summons and Verified Complaint, #2 Exhibit S and C recd by US Foods, #3 Exhibit Verif Ans to Verif Complaint, #4 Exhibit Combined Demands, #5 Exhibit 7-14-2021 gf ltr w green slip recd by pl for responses, #6 Exhibit 9-13-2021 gf ltr w green slip that pl recd 2nd gf ltr, #7 Exhibit 11-9-2021 gf ltr and green slip that it was sent to pl for d..., #8 Exhibit pl response to combined demands, #9 Exhibit Notice of Removal to EDNY) (Robinson, Noelle) |
| Filing 5 NOTICE of Appearance by Patrick Denis Geraghty on behalf of Timothy Smith, US Foods, Inc. (aty to be noticed) (Geraghty, Patrick) |
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ORDER TO SHOW CAUSE - In recent days, defendants removed this case from the Nassau County Supreme Court, where it has been pending since June 2020, which removal is predicated upon the notion that defendants learned for the first time in a CPLR filing made within the last 30 days that plaintiff's claims for personal injury exceeded the $75,0000 jurisdictional minimum. See DE 1. However, in plaintiff's complaint, plaintiff represented that her damages are "an amount exceeding the monetary jurisdictional limits of all lower courts which would otherwise have jurisdiction over this action." Compl. 28, 31. Thus, defendants claim that they learned of amount in dispute within the last 30 days appears incorrect. Accordingly, counsel for defendants shall show cause in writing on or before close of business January 7, 2022, why this case should not be REMANDED to the state court or, in the alternative, whether defendants consent to such remand. Ordered by Judge Gary R. Brown on 12/30/2021. c/ecf (Cowan, Timothy)
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| 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. (Landow, Concetta) |
| 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. (Landow, Concetta) |
| Filing 4 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Davis, Kimberly) |
| Filing 3 Civil Cover Sheet.. Re #2 Corporate Disclosure Statement, #1 Notice of Removal,, by Timothy Smith, US Foods, Inc. (Robinson, Noelle) |
| Filing 2 Corporate Disclosure Statement by Timothy Smith, US Foods, Inc. identifying Corporate Parent US Foods Holding Corp. for US Foods, Inc.. (Robinson, Noelle) |
| Filing 1 NOTICE OF REMOVAL by Timothy Smith, US Foods, Inc. from Supreme Nassau, case number 606056/2020. ( Filing fee $ 402 receipt number ANYEDC-15145918) (Attachments: #1 Exhibit Summons and Verified Complaint, #2 Exhibit stip extending time to answer, #3 Exhibit stip further extending time to answer, #4 Exhibit Verified Answer, #5 Exhibit Demand for Bill of Particulars and Combined Demands, #6 Exhibit pl B of P-Combined Responses-Demands and Notices) (Robinson, Noelle) |
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