Poyer et al v. Snow Teeth Whitening LLC et al
| Melissa Poyer, Joanne Moynihan, Nicole Petker and Kimberly Marino |
| Snow Teeth Whitening LLC doing business as Snow, Snow Cosmetics LLC doing business as Snow, Foresold LLC doing business as Foresold and Joshua Elizetxe |
| 2:2022cv01506 |
| March 18, 2022 |
| US District Court for the Eastern District of New York |
| Joan M Azrack |
| Steven Tiscione |
| Fraud or Truth-In-Lending |
| 28 U.S.C. § 1332 Diversity-(Citizenship) |
| Plaintiff |
Docket Report
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This docket was last retrieved on September 14, 2023. A more recent docket listing may be available from PACER.
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Filing 43
ORDER: On February 3, 2023, Defendants filed a motion to dismiss the Complaint for lack of Article III standing pursuant to Federal Rule of Civil Procedure 12(b)(1), which was referred to Magistrate Judge Steven Tiscione for a Report and Recommendation ("R&R") that same day. (See February 3, 2023 Referral Order.) On May 5, 2023, Magistrate Judge Tiscione issued an R&R wherein he recommended that Defendants motion to dismiss be granted in part and denied in part. (ECF No. #33 .) Now before the Court are Plaintiffs objections to Magistrate Judge Tiscione's R&R, which recommends that the Court grant Defendants motion in part and deny it in part, and dismiss, withprejudice, all of Plaintiffs claims for lack of standing, with the exception of the LED light enhancement claim brought by Plaintiff Petker individually and on behalf of the prospective class. (ECF No. #35 .) After conducting a review of the full record (including the motion papers, R&R, and objections) and applicable law, the Court adopts Magistrate Judge Tiscione's R&R in its entirety as the opinion of the Court. The Court finds no clear error in the portions of Magistrate Judge Tiscione's R&R to which there are no objections. Next, the Court turns to the portion of the R&R to which Plaintiffs have objected. Specifically, Plaintiffs object to the R&R's recommendations that the individual and class claims brought by Plaintiffs Poyer and Marino should be dismissed with prejudice, for lack of Article III standing.1 (See ECF Nos. #33 , #35 .) After conducting a de novo review of the full record (including the motion papers, R&R, and objections) and applicable law, the Court agrees with Magistrate Judge Tiscione's recommendations, and therefore adopts the R&R in its entirety as the opinion of the Court. Accordingly, the Court grants Defendants motion in part and denies it in part, and dismisses, with prejudice, the individual and class claims brought by Plaintiffs Poyer, Moynihan, and Marino. However, Plaintiff Petker's individual and class-brought LED light enhancement claim shall proceed. SEE ATTACHED ORDER for details. So Ordered by Judge Joan M. Azrack on 9/14/2023. Ordered by Judge Joan M. Azrack on 9/14/2023. (LC)
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ORDER granting #42 Motion to Substitute Attorney. Attorney Douglas Sleater Curran and Tracy O. Zinsou terminated. So Ordered by Magistrate Judge Steven Tiscione on 8/25/2023. (LV)
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| Filing 42 MOTION to Substitute Attorney by Joshua Elizetxe, Foresold LLC, Snow Cosmetics LLC, Snow Teeth Whitening LLC. (Renner, Deborah) |
| Filing 41 NOTICE of Appearance by Deborah Hilarie Renner on behalf of Joshua Elizetxe, Foresold LLC, Snow Cosmetics LLC, Snow Teeth Whitening LLC (aty to be noticed) (Renner, Deborah) |
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Filing 40
ORDER denying #34 Motion for Reconsideration re #34 Letter MOTION for Reconsideration re #33 REPORT AND RECOMMENDATIONS re #32 Fully Briefed MOTION to Dismiss filed by Snow Cosmetics LLC, Snow Teeth Whitening LLC, Joshua Elizetxe, Foresold LLC filed by Snow Cosmetics LLC, Snow Teeth Whitening LLC, Joshua Elizetxe, Foresold LLC. Ordered by Magistrate Judge Steven Tiscione on 6/5/2023. (GD)
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| Filing 39 MEMORANDUM in Opposition re #35 Objection to Report and Recommendations filed by Joshua Elizetxe, Foresold LLC, Snow Cosmetics LLC, Snow Teeth Whitening LLC. (Curran, Douglas) |
| Filing 38 RESPONSE in Opposition re #34 Letter MOTION for Reconsideration re #33 REPORT AND RECOMMENDATIONS re #32 Fully Briefed MOTION to Dismiss filed by Snow Cosmetics LLC, Snow Teeth Whitening LLC, Joshua Elizetxe, Foresold LLC filed by All Plaintiffs. (Mintz, Steven) |
| Filing 37 RESPONSE in Opposition re #36 Letter MOTION for Extension of Time to File Objections to May 5, 2023 Report and Recommendation filed by All Plaintiffs. (Mintz, Steven) |
| Filing 36 Letter MOTION for Extension of Time to File Objections to May 5, 2023 Report and Recommendation by Joshua Elizetxe, Foresold LLC, Snow Cosmetics LLC, Snow Teeth Whitening LLC. (Curran, Douglas) |
| Filing 35 OBJECTION to #33 Report and Recommendations filed by Kimberly Marino, Joanne Moynihan, Nicole Petker, Melissa Poyer. (Mintz, Steven) |
| Filing 34 Letter MOTION for Reconsideration re #33 REPORT AND RECOMMENDATIONS re #32 Fully Briefed MOTION to Dismiss filed by Snow Cosmetics LLC, Snow Teeth Whitening LLC, Joshua Elizetxe, Foresold LLC by Joshua Elizetxe, Foresold LLC, Snow Cosmetics LLC, Snow Teeth Whitening LLC. (Curran, Douglas) |
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Filing 33
REPORT AND RECOMMENDATIONS re #32 Fully Briefed MOTION to Dismiss filed by Snow Cosmetics LLC, Snow Teeth Whitening LLC, Joshua Elizetxe, Foresold LLC. Objections to R&R due by 5/19/2023. Ordered by Magistrate Judge Steven Tiscione on 5/5/2023. (GD)
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| MOTIONS REFERRED: #32 Fully Briefed MOTION to Dismiss referred to Steven Tiscione, see Order of Judge Joan M. Azrack dated 10/25/2022.(LC) |
| Filing 32 Fully Briefed MOTION to Dismiss by Joshua Elizetxe, Foresold LLC, Snow Cosmetics LLC, Snow Teeth Whitening LLC. (Attachments: #1 Memorandum in Support of Defendant's Motion, #2 Declaration of D. Curran ISO MTD, #3 Exhibit Ex. 1 to Curran Decl., #4 Exhibit Ex. 2 to Curran Decl., #5 Exhibit Ex. 3 to Curran Decl., #6 Exhibit Ex. 4 to Curran Decl., #7 Exhibit Ex. 5 to Curran Decl., #8 Memorandum in Opposition to Defendant's MTD, #9 Memorandum in Support Reply ISO MTD) (Curran, Douglas) |
| Filing 31 Minute Order for Pre-Motion Conference held on 11/10/2022 before Magistrate Judge Steven Tiscione: Brody for Plaintiffs; Curran, Zinson for Defendants. The Letter Motion requesting a PreMotion Conference #28 and Joint Motion for pre-motion conference re proposed briefing schedule #30 are granted. The Court sets the following briefing schedule for Defendants' Motion to Dismiss: Defendants will serve the initial motion on Plaintiffs by December 16, 2022; Plaintiffs will serve their opposition on Defendants by January 20, 2023; and Defendants shall serve their reply and file the fully-briefed motion by February 3, 2023. (Not Recorded.) (LV) |
| Filing 30 Joint MOTION for pre motion conference re proposed briefing schedule by Joshua Elizetxe, Foresold LLC, Snow Cosmetics LLC, Snow Teeth Whitening LLC. (Curran, Douglas) |
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A premotion hearing will be held at 12:30 p.m. on November 10, 2022 before the undersigned by phone. Counsel for all parties must participate and shall connect to the conference through dial-in number 888-557-8511 with access code 3152145. THE PARTIES ARE REMINDED that audio or video recording of proceedings by any party other than the Court, is strictly prohibited by Local Civil Rule 1.8. Violation of this rule may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed appropriate by the Court. So Ordered by Magistrate Judge Steven Tiscione on 10/25/2022. (LV)
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ORDER REFERRING MOTION: The Court hereby refers #28 Defendant's request for a pre-motion conference and any resulting motions to Judge Tiscione for a report and recommendation. Ordered by Judge Joan M. Azrack on 10/25/2022. (QN)
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| Filing 29 RESPONSE in Opposition re #28 Letter MOTION to Dismiss for Lack of Standing Pursuant to Fed. R. Civ. P. 12(b)(1) - Request for Pre-Motion Conference filed by Kimberly Marino, Joanne Moynihan, Nicole Petker, Melissa Poyer. (Mintz, Steven) |
| Filing 28 Letter MOTION to Dismiss for Lack of Standing Pursuant to Fed. R. Civ. P. 12(b)(1) - Request for Pre-Motion Conference by Joshua Elizetxe, Foresold LLC, Snow Cosmetics LLC, Snow Teeth Whitening LLC. (Curran, Douglas) |
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ORDER granting #27 Motion to Stay: In anticipation of Defendant's motion to dismiss, the discovery schedule set by this Court during the conference held on June 21, 2022 is stayed pending resolution of the motion. So Ordered by Magistrate Judge Steven Tiscione on 9/29/2022. (Vasquez, Lea)
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| Filing 27 Letter MOTION to Stay Discovery Pursuant to Joint Stipulation by Joshua Elizetxe, Foresold LLC, Snow Cosmetics LLC, Snow Teeth Whitening LLC. (Attachments: #1 Stipulation & [Proposed] Order to Stay Discovery) (Curran, Douglas) |
| Filing 26 Minute Entry for Settlement Conference held on 9/9/2022 before Magistrate Judge Steven Tiscione: Brody, Lawler, Mintz for Plaintiff; Curran, Zinsou for Defendants. Settlement discussions were held but the parties were unable to reach a disposition at this time. Parties will advise the Court when a further settlement conference would be productive. (Vasquez, Lea) |
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Due to a conflict in the Court's calendar, the settlement conference scheduled for 11:00 a.m. on September 9th will instead begin at 11:30 a.m. on the same date. An updated link for the conference will be distributed by the Court directly to counsel. So Ordered by Magistrate Judge Steven Tiscione on 9/8/2022. (Vasquez, Lea)
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ORDER granting #23 Motion to Appear by Video Conference. The in-person settlement conference scheduled for September 9th will instead be held by Zoom with all parties. The Court will distribute a conferencing link to all counsel who in turn are to distribute the link ONLY to clients with full settlement authority who will be participating in the conference. THE PARTIES ARE REMINDED that audio or video recording of proceedings by any party other than the Court, is strictly prohibited by Local Civil Rule 1.8. Violation of this rule may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed appropriate by the Court. So Ordered by Magistrate Judge Steven Tiscione on 8/29/2022. (Vasquez, Lea)
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| Filing 23 Letter MOTION to Appear by Telephone or Otherwise Participate Remotely in September 9 Settlement Conference by Kimberly Marino, Joanne Moynihan, Nicole Petker, Melissa Poyer. (Kazan, Barry) |
| Filing 22 Minute Order for Motion Hearing held on 6/21/2022 before Magistrate Judge Steven Tiscione: Brody, Kazan for Plaintiff; Curran, Zinsou for Defendants. Plaintiffs' Letter Motion for Discovery #20 is denied. Defendants' Letter Motion for Discovery #21 is granted. The Court sets the following discovery deadlines: Deadline for completion of Rule 26(a) initial disclosures - 6/24/22; Completion of Phase I discovery - 8/19/22; Deadline for motions to join new parties or amend pleadings - 9/15/22; First requests for production of documents and interrogatories due by - 9/30/22; All fact discovery to be completed by 1/17/23; Exchange of expert reports - 2/17/23; Expert depositions completed by - 3/20/23; All discovery completed by - 3/20/23; Final date to take first step in dispositive motion practice - 4/19/23. An in-person settlement conference will be held on September 9, 2022 at 11:00 a.m. in Courtroom 910 of the Central Islip Courthouse. Parties are to submit their respective settlement positions via ex parte electronic filing no later than September 6, 2022. Counsel are to refer to the Settlement Section of this Court's Individual Rules in preparation for the conference. (Vasquez, Lea) |
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SCHEDULING ORDER: The Initial Conference originally scheduled for today at 11:00 AM is now scheduled for today, 6/21/2022 at 2:00 PM. Parties shall connect to the conference through dial-in number 888-557-8511 with access code 3152145. So Ordered by Magistrate Judge Steven Tiscione on 6/21/2022. (White, Samuel)
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| Filing 21 Letter MOTION for Discovery to Set Discovery Schedule by Joshua Elizetxe, Foresold LLC, Snow Cosmetics LLC, Snow Teeth Whitening LLC. (Curran, Douglas) |
| Filing 20 Letter MOTION for Discovery to Set Discovery Schedule by Kimberly Marino, Joanne Moynihan, Nicole Petker, Melissa Poyer. (Attachments: #1 Exhibit Proposed Discovery Plan Worksheet) (Kazan, Barry) |
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The initial conference scheduled for June 20th will instead be held at 11:00 a.m. on June 21, 2022 before the undersigned. Counsel shall use the same dial-in information previously provided. So Ordered by Magistrate Judge Steven Tiscione on 6/15/2022. (Vasquez, Lea)
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| Filing 19 NOTICE of Appearance by Barry M. Kazan on behalf of All Plaintiffs (aty to be noticed) (Kazan, Barry) |
| Filing 18 Letter in Response to May 20 Letter by Kimberly Marino, Joanne Moynihan, Nicole Petker, Melissa Poyer (Kazan, Barry) |
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Filing 17
SCHEDULING ORDER: An initial conference will be held by phone before the undersigned at 11:30 a.m. on June 20, 2022. Counsel for all parties must participate and shall connect to the conference through dial-in number 888-557-8511 with access code 3152145. The attached Discovery Plan Worksheet is to be completed by counsel and electronically filed with the Court by June 16th.THE PARTIES ARE REMINDED that audio or video recording of proceedings by any party other than the Court, is strictly prohibited by Local Civil Rule 1.8. Violation of this rule may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed appropriate by the Court. So Ordered by Magistrate Judge Steven Tiscione on 5/23/2022. (Vasquez, Lea)
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| Filing 16 ANSWER to #1 Complaint, by All Defendants. (Attachments: #1 Exhibit 1) (Curran, Douglas) |
| Filing 15 Letter to Judge Tiscione by Joshua Elizetxe, Foresold LLC, Snow Cosmetics LLC, Snow Teeth Whitening LLC (Curran, Douglas) |
| Filing 14 Corporate Disclosure Statement by Joshua Elizetxe, Foresold LLC, Snow Cosmetics LLC, Snow Teeth Whitening LLC (Curran, Douglas) |
| Filing 13 NOTICE of Appearance by Tracy O. Zinsou on behalf of All Defendants (aty to be noticed) (Zinsou, Tracy) |
| Filing 12 NOTICE of Appearance by Douglas Sleater Curran on behalf of All Defendants (aty to be noticed) (Curran, Douglas) |
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ORDER REASSIGNING CASE. Case reassigned to Judge Joan M. Azrack for all further proceedings. Judge Gary R. Brown no longer assigned to case 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. Ordered by Chief Judge Margo K. Brodie on 4/13/2022. (Bowens, Priscilla)
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| Filing 11 NOTICE of Appearance by Ryan William Lawler on behalf of All Plaintiffs (aty to be noticed) (Lawler, Ryan) |
| Filing 10 WAIVER OF SERVICE Returned Executed by Melissa Poyer, Kimberly Marino, Nicole Petker, Joanne Moynihan. Joshua Elizetxe waiver sent on 3/21/2022, answer due 5/20/2022. (Brody, Adam) |
| Filing 9 WAIVER OF SERVICE Returned Executed by Melissa Poyer, Kimberly Marino, Nicole Petker, Joanne Moynihan. Foresold LLC waiver sent on 3/21/2022, answer due 5/20/2022. (Brody, Adam) |
| Filing 8 WAIVER OF SERVICE Returned Executed by Melissa Poyer, Kimberly Marino, Nicole Petker, Joanne Moynihan. Snow Cosmetics LLC waiver sent on 3/21/2022, answer due 5/20/2022. (Brody, Adam) |
| Filing 7 WAIVER OF SERVICE Returned Executed by Melissa Poyer, Kimberly Marino, Nicole Petker, Joanne Moynihan. Snow Teeth Whitening LLC waiver sent on 3/21/2022, answer due 5/20/2022. (Brody, Adam) |
| Filing 6 NOTICE of Appearance by Adam Kahan Brody on behalf of All Plaintiffs (aty to be noticed) (Brody, Adam) |
| Filing 5 Notice of Related Case: The Civil Cover Sheet filed in this civil action indicates a related case. (Jakubowski, Laura) |
| Filing 4 Summons Issued as to All Defendants. (Jakubowski, Laura) |
| 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. (Jakubowski, Laura) |
| Filing 2 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. (Jakubowski, Laura) |
| Case Assigned to Judge Gary R. Brown 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. (Jakubowski, Laura) |
| Filing 1 COMPLAINT against All Defendants filing fee $ 402, receipt number ANYEDC-15389994 Was the Disclosure Statement on Civil Cover Sheet completed -NO,, filed by Melissa Poyer, Kimberly Marino, Nicole Petker, Joanne Moynihan. (Attachments: #1 Civil Cover Sheet, #2 Proposed Summons, #3 Proposed Summons, #4 Proposed Summons, #5 Proposed Summons) (Mintz, Steven) |
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