Scott v. Affirm, Inc. et al
| Cedric Scott |
| Affirm, Inc., Synchrony Bank, Experian Information Solutions, Inc. and Equifax Information Services, LLC |
| 2:2022cv04432 |
| July 27, 2022 |
| US District Court for the Eastern District of New York |
| Allyne R Ross |
| James M Wicks |
| Consumer Credit |
| 28 U.S.C. § 1441 Notice of Removal |
| Both |
Docket Report
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ORDER ADOPTING REPORT AND RECOMMENDATIONS. On September 30, 2022, Magistrate Judge James M. Wicks issued a #23 Sua Sponte Report and Recommendation recommending that this action be remanded to state court because defendants failed to establish that plaintiff alleged a concrete, particularized injury. The deadline for filing objections has passed and no objections have been filed. Accordingly, having reviewed the record for clear error, see Estate of Ellington v. Harbrew Imports Ltd., 812 F. Supp. 2d 186, 189 (E.D.N.Y. 2011), I adopt the Report and Recommendation in its entirety and remand this action to Suffolk County Supreme Court for the State of New York. Ordered by Judge Allyne R. Ross on 10/19/2022. (NH)
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Filing 25
Order Dismissing as to Equifax Information Service, LLC ONLY Voluntary dismissal with prejudice. Party Equifax Information Services, LLC terminated. ( Ordered by Judge Allyne R. Ross on 10/13/2022 ) (RG)
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| Filing 24 NOTICE of Voluntary Dismissal by Cedric Scott As to Equifax Information Services, LLC (Richards, Nicola) |
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Filing 23
SUA SPONTE REPORT AND RECOMMENDATIONS: For the foregoing reasons, the Defendant has failed to establish that Plaintiff has alleged a concrete, particularized injury. Accordingly, the undersigned respectfully recommends that this action be remanded to Suffolk County Supreme Court for the State of New York. A copy of this Report and Recommendation is being electronically served on counsel for each of the parties. Any written objections to this Report and Recommendation must be filed with the Clerk of the Court within fourteen (14) days of service of this Report. 28 U.S.C. 636(b)(1) (2006 & Supp. V 2011); Fed. R. Civ. P. 6(a), 72(b). Any requests for an extension of time for filing objections must be directed to the district judge assigned to this action prior to the expiration of the fourteen (14) day period for filing objections. Failure to file objections within fourteen (14) days will preclude further review of this Report and Recommendation either by the District Court or the Court of Appeals. Thomas v. Arn, 474 U.S. 140, 145 (1985) ("a party shall file objections with the district court or else waive right to appeal"); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) ("failure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision") (citation omitted); see Monroe v. Hyundai of Manhattan & Westchester, 372 F. App'x 147, 14748 (2d Cir. 2010) (same). So Ordered by Magistrate Judge James M. Wicks on 9/30/2022. (Flanagan, Doreen)
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| Filing 22 NOTICE of Settlement As to Affirm, Inc. by Cedric Scott (Richards, Nicola) |
| Filing 21 RESPONSE TO ORDER TO SHOW CAUSE by Affirm, Inc. (Rao, Arjun) |
| Filing 20 RESPONSE TO ORDER TO SHOW CAUSE by Synchrony Bank (Kennedy, John) |
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Filing 19
SCHEDULING ORDER: Please See Order for Further Details. So Ordered by Magistrate Judge James M. Wicks on 9/13/2022. (Flanagan, Doreen)
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| Filing 18 Minute Order for proceedings held before Magistrate Judge James M. Wicks: CIVIL CAUSE FOR INITIAL CONFERENCE. Counsel for Plaintiff: Nicola Carlene Richards. Counsel for Defendant: Lauren McCabe (For Affirm, Inc.). Counsel for Defendant: John Patrick Kennedy (For Synchrony Bank). Initial Conference Hearing held on 9/13/2022 at 10:00 AM. Following discussion with counsel and review of the submitted worksheet, the Court adopted a Scheduling Order which is attached at DE #19 . Plaintiff raised the issue of standing which the Court, upon consideration, will address in a subsequent Order. A Status Conference has been scheduled for February 6, 2023, at 10:30 AM via the Court's Video Zoom. The Court will email the Zoom invitation closer to the conference date. A Final Pretrial Conference has been scheduled for August 28, 2023, at 9:30 AM via the Court's Video Zoom. The Court will email the Zoom invitation closer to the conference date. If Judge Allyne R. Ross requires one, a joint proposed pretrial order in compliance with Judge Ross' requirements and signed by counsel for each party must be received by the undersigned 5 business days prior to this 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 tofuture hearings, or any other sanctions deemed appropriate by the Court. (FTR Log #10:03-10:11 (Video).) (Flanagan, Doreen) |
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ORDER TO SHOW CAUSE. Defendants sought to avail themselves of the federal court and as such, bear the burden of establishing that the Court has the requisite subject matter jurisdiction. Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000); Sprout Mortgage LLC v. Consolidtaed Analytics, Inc., 21-cv-04415 (JMA) (JMW) (E.D.N.Y. Aug. 17, 2021) (defendant bears burden of establishing existence of federal subject matter jurisdiction upon removal); Pires v. Heller, No. 04 CIV. 9069 (RJH), 2004 WL 2711075, at *1 (S.D.N.Y. Nov. 24, 2004) ("In order for removal to be considered proper, the removing party must demonstrate that this Court is endowed with the requisite subject matter jurisdiction.) (quotes omitted). The Court has reviewed the pleadings through the lens of TransUnion LLC v. Ramirez, ___ U.S. ___, 141 S. Ct. 2190, 2203 (2021), and to assist the Court in its review of standing in this action the Court orders Defendants to show cause on or before September 20, 2022, as to why the undersigned should not recommend to the Honorable Allyne R. Ross that the case be remanded to the Supreme Court of the State of New York, Suffolk County for lack of subject matter jurisdiction. The Court directs Defendants to specify in writing (1) whether Plaintiff has alleged any concrete, particularized injury in fact from the statutory violations alleged in the Complaint and, if so, to set forth such alleged injury with particularity (see TransUnion LLC, 141 S. Ct. at 2203); Maddox v. Bank of New York Mellon Tr. Co., N.A., 19 F.4th 58, 60 (2d Cir. 2021); or (2) if Plaintiff does not allege any such concrete injury, in light of the Supreme Court's decision in Transunion, Defendants shall provide alternative authority or basis for the Court's subject matter jurisdiction. Plaintiff shall file any response, if necessary, within 5 days of the filing by Defendants. So Ordered by Magistrate Judge James M. Wicks on 9/13/2022. (Ruggirello, Jaclyn)
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| Filing 17 Proposed Scheduling Order /Proposed Rule 26(f) Scheduling Order by Affirm, Inc. (Rao, Arjun) |
| Filing 16 NOTICE of Settlement As to Equifax Information Services, LLC by Cedric Scott (Richards, Nicola) |
| Filing 15 ANSWER to Complaint and Affirmative Defenses by Affirm, Inc.. (Rao, Arjun) |
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ORDER granting #10 Motion for Extension of Time to Answer. The deadline for Defendant Affirm, Inc. to move, answer, or otherwise respond to the Complaint is hereby extended to on or before to September 2, 2022. So Ordered by Magistrate Judge James M. Wicks on 8/22/2022. (Ruggirello, Jaclyn)
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| Filing 14 NOTICE of Settlement As to Experian Information Solutions, Inc. by Cedric Scott (Richards, Nicola) |
| Filing 13 STATE COURT RECORD Received from County of Suffolk. (Lee, Tiffeny) |
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Filing 12
SCHEDULING ORDER: An initial conference via Zoom will be held on September 13, 2022, at 10:00 AM before Magistrate Judge James M. Wicks. The Court will email the Zoom invitation closer to the conference date. All counsel must attend. Counsel are directed to complete the attached Proposed 26(f) Scheduling Order and electronically file same with the Court no later than September 6, 2022. Should the parties wish to adopt a plan for discovery different from the structure in the discovery worksheet, they may do so only if they file a letter explaining why such a plan is appropriate in this case. 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 James M. Wicks on 8/4/2022. (Attachments: #1 Proposed Rule 26(f) Scheduling Order, #2 JMW Individual Rules) (Flanagan, Doreen) (Main Document 12 replaced on 8/4/2022) (Flanagan, Doreen).
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| Filing 11 SUMMONS Returned Executed by Cedric Scott. Experian Information Solutions, Inc. served on 7/25/2022, answer due 8/15/2022. (Richards, Nicola) |
| Filing 10 Letter MOTION for Extension of Time to File Answer re #1 Notice of Removal, /Arjun P. Rao Consent Letter Motion for a 30-day extension of time to September 2, 2022 to move, answer, or otherwise respond to the Complaint by Affirm, Inc.. (Rao, Arjun) |
| Filing 9 NOTICE of Appearance by Craig B. Sanders on behalf of Cedric Scott (aty to be noticed) (Sanders, Craig) |
| Filing 8 NOTICE of Appearance by Alain Cesar on behalf of Cedric Scott (aty to be noticed) (Cesar, Alain) |
| Filing 7 ANSWER to Complaint by Synchrony Bank. (Kennedy, John) |
| Filing 6 NOTICE of Appearance by John Patrick Kennedy on behalf of Synchrony Bank (aty to be noticed) (Kennedy, John) |
| Filing 5 CERTIFICATE OF SERVICE by Affirm, Inc. re #1 Notice of Removal, (Rao, Arjun) |
| Filing 4 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 3 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 Allyne R. Ross 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. (Jakubowski, Laura) |
| Filing 2 Corporate Disclosure Statement by Affirm, Inc. identifying Corporate Parent Affirm Holdings, Inc. for Affirm, Inc.. (Rao, Arjun) |
| Filing 1 NOTICE OF REMOVAL by Affirm, Inc. from Supreme Court of the State of New York, County of Suffolk, case number 611680/2022. ( Filing fee $ 402 receipt number ANYEDC-15790691) Was the Disclosure Statement on Civil Cover Sheet completed -Yes (Attachments: #1 Exhibit A - Summons & Complaint, #2 Civil Cover Sheet) (Rao, Arjun) Modified on 7/28/2022 (Jakubowski, Laura). |
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