Diack et. al. v. Navien, Inc.
| Michael Diack and Pipe Doctor Plumbing, Heating, and Air Conditioning, Inc. |
| Navien, Inc. |
| 2:2022cv00164 |
| January 11, 2022 |
| US District Court for the Eastern District of New York |
| Gary R Brown |
| James M Wicks |
| Other Statutes: Arbitration |
| 28 U.S.C. § 1332 Diversity-Notice of Removal |
| None |
Docket Report
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| Filing 18 Minute Order for proceedings held before Magistrate Judge James M. Wicks: CIVIL CAUSE FOR STATUS CONFERENCE. Counsel For Plaintiff: Allen Schwartz. Counsel For Defendant: Brian D. Koosed and Priya Chadha. Status Conference held on 3/9/2022 at 3:00 PM. After discussion with the parties, the Court adopted the parties' proposed briefing schedule for Respondents' motion to transfer, as follows: Respondent shall serve, not file, its motion on or before 3/17/22; Respondents shall serve, not file, their opposition on or before 4/8/22; Respondent may serve its reply, if any, on or before 4/20/22. The parties shall bundle file all papers on 4/20/22. (FTR Log #3:01-3:10 (tel.).)(Ortiz, Grisel) |
SCHEDULING ORDER: A telephonic status conference is scheduled for 3/9/2022 at 3:00 pm. The parties should dial 866-434-5269 and enter 9025281# at the prompt. So Ordered by Magistrate Judge James M. Wicks on 3/7/2022. (Sanders, Scott)
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ORDER ADOPTING REPORT AND RECOMMENDATIONS for #6 Motion for Pre Motion Conference, filed by Pipe Doctor Plumbing, Heating, and Air Conditioning, Inc., Michael Diack, #15 Report and Recommendations; denying #6 Motion for Pre Motion Conference; adopting Report and Recommendations as to #15 Report and Recommendations. After careful review, the well-reasoned decision of Judge Wicks is affirmed in all respects. Ordered by Judge Gary R. Brown on 3/4/2022. c/ecf (Cowan, Timothy)
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| Filing 17 MEMORANDUM in Opposition re #16 Objection to Report and Recommendations filed by Navien, Inc.. (Attachments: #1 Certificate of Service) (Koosed, Brian) |
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ORDER re #16 Objection to Report and Recommendations filed by Pipe Doctor Plumbing, Heating, and Air Conditioning, Inc., Michael Diack. Respondent is directed to respond to DE 16 on or before 2/28/2022. Ordered by Judge Gary R. Brown on 2/19/2022. c/ecf (Johnston, Linda)
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| Filing 16 OBJECTION to #15 Report and Recommendations filed by Michael Diack, Pipe Doctor Plumbing, Heating, and Air Conditioning, Inc.. (Attachments: #1 Exhibit Notice of Objection to R&R) (Schwartz, Allen) |
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Filing 15
REPORT AND RECOMMENDATIONS re #6 Petitioners' Motion to Remand. The undersigned respectfully recommends that Petitioners' motion to remand be denied. Please see the attached Report and Recommendation for further information. So Ordered by Magistrate Judge James M. Wicks on 2/5/2022. (Sanders, Scott) (Main Document #15 replaced on 2/7/2022- to correct a typographical error) (Ortiz, Grisel).
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Filing 14
ORDER: The parties' stipulation to extend the temporary restraining order is hereby so-ordered. See attached for further information. So Ordered by Magistrate Judge James M. Wicks on 2/5/2022. (Sanders, Scott)
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| Filing 13 STATUS REPORT and Stipulation with Request to So-Order by Michael Diack, Pipe Doctor Plumbing, Heating, and Air Conditioning, Inc. (Attachments: #1 Exhibit) (Schwartz, Allen) |
| Filing 12 Minute Order for proceedings held before Magistrate Judge James M. Wicks: CIVIL CAUSE FOR STATUS CONFERENCE. Counsel For Plaintiff: Allen Schwartz. Counsel For Defendant: Brian D. Koosed and Kodey M. Haddox. Status Conference held on 2/2/2022. The parties discussed the pending motion to remand. As stated on the record, the parties shall file a joint letter on or before 2/4/22 informing the Court of their desire to either stipulate to an extension of the TRO for an extended period or to consent to the undersigned for all purposes. Should the parties wish to consent to magistrate jurisdiction: 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 is a blank copy of the applicable consent form that should be signed and filed electronically only if all parties wish to consent and it is signed by all parties. This consent 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 a consent form unless all parties have signed the consent.(FTR Log #3:01-3:18 (tel.).)(Ortiz, Grisel) |
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SCHEDULING ORDER: A telephonic status conference is scheduled for today, 2/2/2022, at 3:00pm. The parties should dial (866)434-5269 and enter 9025281# at the prompt. So Ordered by Magistrate Judge James M. Wicks on 2/2/2022. (Sanders, Scott)
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ORDER REFERRING MOTION: #6 Emergency MOTION for pre motion conference re #1 Notice of Removal,, TRO and Preliminary Injunction filed by Pipe Doctor Plumbing, Heating, and Air Conditioning, Inc., Michael Diack, #7 Letter MOTION for pre motion conference as to Navien's anticipated motion to transfer or in the alternative to dismiss or stay filed by Navien, Inc. All pretrial proceedings and motions in this case, including (i) the pending Show Cause Order dated 1/13/2022; (ii) the Petitioners' motion for a premotion conference as well as the motion itself seeking remand to the State Court and preliminary injuctive relief, DE 6; and (iii) Respondent's motion for a premotion conference as well as the motion itself seeking, once any jurisdictional issues are resolved, transfer of this action to the U.S. District Court for the Central District of California pursuant to 28 U.S.C. 1404(a) or in the alternative, dismissal pursuant to Rule 12(b)(6) or stay, DE 7,are hereby referred to the Honorable James M. Wicks for resolution with the Court's thanks.Given the exigent circumstances present in this case, the parties may wish to consent to Judge Wicks for all purposes. In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are reminded that, if all parties consent, a United States Magistrate Judge may: (1) conduct all proceedings in this civil action (including a jury or nonjury trial) and to order the entry of a final judgment; or (2) conduct all proceedings and enter a final order on a particular motion. A consent form should be signed and filed electronically only if all parties wish to consent and it is signed by all parties. Consent forms may be accessed at the following links:http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdfhttp://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085A.pdf.You may withhold your consent without adverse substantive consequences. DO NOT return or file a consent form unless all parties have signed the consent.Ordered by Judge Gary R. Brown on 2/1/2022.c/ecf Motions referred to James M. Wicks. (Johnston, Linda)
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| Filing 11 Letter MOTION for Temporary Restraining Order Extension on Consent by Michael Diack, Pipe Doctor Plumbing, Heating, and Air Conditioning, Inc.. (Schwartz, Allen) |
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ORDER granting #11 Motion for TRO. Given the complexities presented by this matter, the consent application is GRANTED with the thanks of the Court. Ordered by Judge Gary R. Brown on 1/24/2022. (Brown, Gary)
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| Filing 10 MEMORANDUM in Support re #6 Emergency MOTION for pre motion conference re #1 Notice of Removal,, TRO and Preliminary Injunction, #1 Notice of Removal,, #8 Response in Opposition to Motion, and Court's Show Cause Order filed by Michael Diack, Pipe Doctor Plumbing, Heating, and Air Conditioning, Inc.. (Schwartz, Allen) |
| Filing 9 Corporate Disclosure Statement by Michael Diack, Pipe Doctor Plumbing, Heating, and Air Conditioning, Inc. (Schwartz, Allen) |
| Filing 8 RESPONSE in Opposition re #6 Emergency MOTION for pre motion conference re #1 Notice of Removal,, TRO and Preliminary Injunction filed by Navien, Inc.. (Attachments: #1 Declaration of Eddie Huh, #2 Exhibit 1 - Email) (Koosed, Brian) |
| Filing 7 Letter MOTION for pre motion conference as to Navien's anticipated motion to transfer or in the alternative to dismiss or stay by Navien, Inc.. (Koosed, Brian) |
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ORDER deferring ruling on #6 Motion for Pre Motion Conference. The Court will defer a ruling on plaintiffs' application for preliminary injunctive relief pending the resolution of the outstanding Show Cause Order concerning remand. Indeed, some of the issues raised in plaintiffs' papers heighten the concerns already raised by the Court and the need for swift resolution. As such, the response to the Show Cause Order is hereby accelerated--defendant is to file its response to the Court Order by close of business Monday, January 17, while plaintiffs are to reply by close of business January 19, 2022. Ordered by Judge Gary R. Brown on 1/14/2022. c/ecf (Cowan, Timothy)
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| Filing 6 Emergency MOTION for pre motion conference re #1 Notice of Removal,, TRO and Preliminary Injunction by Michael Diack, Pipe Doctor Plumbing, Heating, and Air Conditioning, Inc.. (Attachments: #1 Exhibit State Court Petition Seeking to Stay and Enjoin Arbitration with Exhibits (Marked as Ex. A in Letter), #2 Exhibit State Court Diack Affirmation in Support of OTSC to Stay and Enjoin Arbitration with Exhibits (Marked as Ex. B in Letter), #3 Exhibit State Court Memorandum of Law in Support of OTSC to Stay and Enjoin Arbitration (Marked as Ex. C in Letter), #4 Exhibit State Court Schwartz Affirmation in Support of OTSC to Stay and Enjoin Arbitration (Marked as Ex. D in Letter), #5 Exhibit State Court Supplemental Schwartz Affirmation in Support of OTSC to Stay and Enjoin Arbitration (Marked as Ex. E in Letter), #6 Exhibit State Court OTSC Granting TRO (Marked as Ex. F in Letter)) (Schwartz, Allen) |
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SHOW CAUSE ORDER. In this action, defendant Navien, Inc. has filed a removal petition, based solely upon diversity jurisdiction, of a state court action seeking only to stay a pending arbitration. While Navien makes clear that the underlying litigation involves alleged damages exceeding $75,000, the question remains as to whether the instant action satisfies the jurisdictional minimum. Where, as here, jurisdiction is asserted by a defendant in a removal petition, it follows that the defendant has the burden of establishing that removal is proper. United Food & Commercial Workers Union, Local 919 v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir.1994). Moreover, removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand. Leslie v. BancTec Serv. Corp., 928 F.Supp. 341, 347 (S.D.N.Y.1996). There is at least some authority suggesting that where, as here, a judgment in either partys favor is of no monetary value, the federal court is without subject matter jurisdiction. Am. Standard, Inc. v. Oakfabco, Inc., 498 F. Supp. 2d 711, 718 (S.D.N.Y. 2007). Defendant is to show cause in writing by January 20, as to why this case should not be remanded to state court. Plaintiff shall file a response thereto on or before January 27. Ordered by Judge Gary R. Brown on 1/13/2022. (Brown, Gary)
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| Filing 5 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 4 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 James M. Wicks. 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 3 NOTICE of Appearance by Brian David Koosed on behalf of Navien, Inc. (notification declined or already on case) (Koosed, Brian) |
| Filing 2 Corporate Disclosure Statement by Navien, Inc. identifying Corporate Parent Kyungdong Navien Co., Ltd. for Navien, Inc.. (Koosed, Brian) |
| Filing 1 NOTICE OF REMOVAL by Navien, Inc. from Supreme Court of the State of New York, County of Nassau, Case Number 615602/2021. ( Filing fee $ 402 receipt number ANYEDC-15185010). Was the Disclosure Statement on the Civil Cover Sheet completed - Yes. (Attachments: #1 Exhibit 1 - Demand for Arbitration, #2 Exhibit 2 - Plaintiffs' Order to Show Cause and Petition, #3 Certificate of Service, #4 Civil Cover Sheet) (Koosed, Brian) Modified on 1/12/2022 (Flanagan, Doreen). |
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