Catalan v. The TJX Companies, Inc. et al
| Rosario Catalan |
| The TJX Companies, Inc. and BDG Larkfield Associates LLC |
| 2:2022cv02786 |
| May 12, 2022 |
| US District Court for the Eastern District of New York |
| Gary R Brown |
| Arlene R Lindsay |
| P.I.: Other |
| 28 U.S.C. ยง 1441 Notice of Removal |
| None |
Docket Report
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| Civil Case Terminated; Case remanded to Suffolk County Supreme Court. (Cubano, Jazmin) |
Order of Remand to State Court. As the Court previously noted, as one of the defendants is a New York corporation, there is an absence of complete diversity in this matter. In response to the Court's inquiry, defendants makes only conclusory claims of fraudulent joinder. Plaintiff credibly disputes this claim, arguing -- quite persuasively -- that the defendant-landlord may well have liability in this action. See Ruiz v. Forest City Enter., Inc., No. 09 CV 4699, 2010 WL 3322505, at *3 (E.D.N.Y. Aug. 20, 2010) (holding that the defendant, an out-of-possession property owner, did not prove that it was fraudulently joined because the plaintiff's complaint, alleging that the injury she sustained on the premises was caused by the defendant's negligence, was sufficient to state a claim and whether the defendant fit into one of the two circumstances where an out-of-possession property owner can be liable for injuries sustained on the premisesthe owner retained control over the premises or is contractually obligated to perform maintenance or repairswas a question of fact that could not be resolved on the motion for remand); see also FrankShaevich v. United Artists Theatre Circuit, Inc., No. 15 Civ. 6990, 2016 WL 183911 (E.D.N.Y. Jan. 14, 2016) (remanding the case to state court because although the defendant landlord alleged that it was an out-of-possession property owner, the defendant retained the right of re-entry in the lease, which precluded a finding that "there [was] no possibility" that the plaintiff, who was injured on the premises, could recover against the defendant). Thus, defendants, who bear the burden of demonstrating fraudulent joinder, have failed to make an adequate showing. See Ehrenreich v. Black, 994 F.Supp.2d 284, 289 (E.D.N.Y. 2014) ("Any possibility of recovery, even if slim, militates against a finding of fraudulent joinder; only where there is 'no possibility' of recovery is such a finding warranted.") (citation omitted); this matter is remanded to the Suffolk County Supreme Court, and the Clerk is respectfully directed to close the file. Ordered by Judge Gary R. Brown on 6/17/2022. c/ecf (Cowan, Timothy)
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Filing 9
SCHEDULING ORDER: Rule 26 Meeting Report due by 7/15/2022. See the attached Order for details. Ordered by Magistrate Judge Arlene R. Lindsay on 6/14/2022. (Attachments: #1 Rule 26(f) Form) c/ecf (Imrie, Robert)
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| Filing 8 STATE COURT RECORD Received from Supreme Court of the State of NY, County of Suffolk, 618427/2021. (Ortiz, Grisel) |
| Filing 7 RESPONSE TO ORDER TO SHOW CAUSE by Rosario Catalan (Sorce, Joseph) |
| Filing 6 RESPONSE TO ORDER TO SHOW CAUSE by BDG Larkfield Associates LLC, The TJX Companies, Inc. (Attachments: #1 Exhibit Verified BP, #2 Exhibit S&C, #3 Exhibit Accident Report, #4 Exhibit Lease, #5 Exhibit Amendment to Lease, #6 Exhibit Order) (Hannon, Ian) |
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ORDER TO SHOW CAUSE: In light of Battaglia v. Shore Parkway Owner LLC, 249 F. Supp. 3d 668 (E.D.N.Y. 2017) and the cases cited therein, defendants are to file a letter brief within five days setting forth their position as to whether this case was properly removed. In particular, where here, as in Battaglia there are serious factual questions that must be resolved in order to determine the propriety o the removal of a case involving a non-diverse party, the Court must examine the removing defendants contentions. Id. at 673; see also Stan Winston Creatures, Inc. v. Toys R Us, Inc., 314 F.Supp.2d 177, 182 (S.D.N.Y. April 17, 2003) (explaining that whether or not the complaint adequately alleges facts to establish that the non-diverse defendant would be liable under state substantive law is properly resolved on a motion to dismiss, not on a motion for remand); see also 14B Wright, Miller & Cooper, 3721 at 331 (A defendant may not use removal proceedings as an occasion to adjudicate the substantive issues of a case.). In the alternative, defendants are to inform the Court if they consent to a remand. If defendants do not so consent, plaintiff may file a responsive letter brief within five days of receipt of defendants submission. Ordered by Judge Gary R. Brown on 5/26/2022. c/ecf (Cowan, Timothy)
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| Filing 5 NOTICE of Appearance by Joseph M. Sorce on behalf of Rosario Catalan (notification declined or already on case) (Sorce, Joseph) |
| Filing 4 NOTICE of Appearance by Ian E. Hannon on behalf of BDG Larkfield Associates LLC, The TJX Companies, Inc. (aty to be noticed) (Attachments: #1 Certificate of Service) (Hannon, Ian) |
| 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. (Landow, Concetta) |
| Filing 2 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. (Landow, Concetta) |
| Case Assigned to Judge Gary R. Brown and Magistrate Judge Arlene R. Lindsay. 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 1 NOTICE OF REMOVAL by All Defendants from Supreme Suffolk, case number 618427/2021. ( Filing fee $ 402 receipt number ANYEDC-15561412) Was the Disclosure Statement on Civil Cover Sheet completed -Yes (Attachments: #1 Exhibit A - S&C, #2 Exhibit B - Answers, #3 Exhibit C - Responses, #4 Civil Cover Sheet) (Leibowitz, Allison) Modified on 5/13/2022 (Landow, Concetta). |
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