100 Mile Fund, LLC v. 17 Lexington Avenue, LLC et al
| 100 Mile Fund, LLC |
| 17 Lexington Avenue, LLC, James Kennelly and Charles McInnis |
| 2:2023cv02369 |
| March 28, 2023 |
| US District Court for the Eastern District of New York |
| Nina R Morrison |
| Steven Tiscione |
| Contract: Other |
| 28 U.S.C. § 1332 Diversity-Notice of Removal |
| None |
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ORDER. Pursuant to the parties' joint motion #10 , this action is hereby remanded to the Supreme Court of the State of New York, Nassau County. Ordered by Judge Nina R. Morrison on 4/12/2023. (BC)
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| Filing 10 MOTION to Remand to State Court by 17 Lexington Avenue, LLC, James Kennelly, Charles McInnis. (Attachments: #1 Proposed Order - Consent Order) (Baldinger, Bruce) |
| Filing 9 NOTICE Designating Case To Arbitration. This case has been designated to participate in the Court Annexed Arbitration Program pursuant to Local Civil Rule 83.7(d) which requires the Clerk of Court to designate and process for compulsory arbitration all civil cases (excluding social security cases, tax matters, prisoners' civil rights cases, and any action based on an alleged violation of a right secured by the Constitution of the United States or if jurisdiction is based in whole or in part on Title 28 U.S.C. sec. 1343) wherein money damages only are being sought in an amount not in excess of $150,000.00 exclusive of interest and costs. Damages are presumed not to be in excess of the arbitration limit unless a certification is filed in accordance with Local Civil Rule 83.7(d)(3). (RC) |
| CASE REFERRED to Arbitration. (RC) |
| Filing 8 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. (LJ) |
| Filing 7 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (SR) (Additional attachment(s) added on 3/31/2023: #1 Additional Corrections) (LJ). |
| Case Assigned to Judge Nina R. Morrison 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. (LJ) |
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ORDER. The Court is in receipt of Plaintiff's request for a pre-motion conference #3 and Defendants' response #5 . The Court sees three potential deficiencies in Defendants' notice of removal. First, under the Forum Defendant Rule, actions may not be removed from state court "if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. 1441(b)(2). This action was filed in the Supreme Court of the State of New York, Nassau County. ECF No. 1 par. 1. Although Defendants plead that removal is proper because "no defendant is a citizen of the state in which this action is brought," ECF No. 1 par. 13, they also plead that Defendants Kennelly, McInnis, and 17 Lexington Avenue, LLC are all citizens of the State of New York. ECF No. 1 pars. 10-12.Second, notwithstanding the contested citizenship of William Procida, Defendants plead in their notice that Ellicott Lofts, who is not referenced in Defendants' Exhibit B, ECF No. #2 , but whom Defendants seem to believe is a member of Plaintiff LLC, "is a citizen of the State of New York." ECF No. 1 par. 7. Because each of the named Defendants is also a citizen of New York, see ECF No. 1 pars. 10-12, Ellicott Lofts' New York citizenship alone would defeat diversity jurisdiction in this action, if it is indeed a member of Plaintiff LLC, as complete diversity would be lacking. Cf. ICON MW, LLC v. Hofmeister, 950 F. Supp. 2d 544, 546 (S.D.N.Y. 2013) ("In the instant case, complete diversity of parties is lacking because some of the members of ICON are citizens of Kentucky and Hofmeister is also a citizen of Kentucky.").Third, as noted in Plaintiff's letter, there remains a factual dispute as to the citizenship of William Procida, who is a member of Plaintiff LLC. If, as Plaintiff contends, Procida was a citizen of New York either at the time this action was filed in state court or at the time of removal, this Court would lack diversity jurisdiction over this action. See Chapman v. Crane Co., 694 F. App'x 825, 828 (2d Cir. 2017) ("[W]hen diversity of citizenship is the basis of removal, diversity must exist not only at the time the action was filed in the state court, but also at the time the case is removed to federal court.").The parties shall therefore proceed as follows. First, the parties shall confer and determine whether remand is appropriate in light of the relevant law cited by this Court. If the parties conclude that remand is appropriate, they shall file a joint remand motion on or before April 10, 2023. If the parties do not reach agreement, Plaintiff shall file an affidavit from William Procida on or before April 10, 2023 averring his state of residence both as of the date this action was filed in state court and as of the date this action was removed. Defendants shall then file a letter on or before April 17, 2023 showing cause as to why this action should not be remanded. Ordered by Judge Nina R. Morrison on 3/31/2023. (BC)
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| Filing 6 AFFIDAVIT/DECLARATION in Support re #3 Letter MOTION for pre motion conference re #1 Notice of Removal, and lack of subject matter jurisdiction Declaration of William Procida Regarding New York Citizenship filed by 100 Mile Fund, LLC. (Hollander, Rebecca) |
| Filing 5 RESPONSE to Motion re #3 Letter MOTION for pre motion conference re #1 Notice of Removal, and lack of subject matter jurisdiction filed by 17 Lexington Avenue, LLC, James Kennelly, Charles McInnis. (Baldinger, Bruce) |
| Filing 4 NOTICE of Appearance by Rebecca Wallis Goldfis Hollander on behalf of 100 Mile Fund, LLC (aty to be noticed) (Hollander, Rebecca) |
| Filing 3 Letter MOTION for pre motion conference re #1 Notice of Removal, and lack of subject matter jurisdiction by 100 Mile Fund, LLC. (Yellin, Michael) |
| Filing 2 EXHIBIT B - SEC Form D by 17 Lexington Avenue, LLC, James Kennelly, Charles McInnis. Related document: #1 Notice of Removal, filed by 17 Lexington Avenue, LLC, Charles McInnis, James Kennelly. (Baldinger, Bruce) |
| Filing 1 NOTICE OF REMOVAL by 17 Lexington Avenue, LLC, James Kennelly, Charles McInnis from County of Nassau, case number 604019/2023. ( Filing fee $ 402 receipt number ANYEDC-16542547) Was the Disclosure Statement on Civil Cover Sheet completed -Yes (Attachments: #1 Exhibit Exhibit A - Complaint, #2 Civil Cover Sheet) (Baldinger, Bruce) Modified on 3/31/2023 (LJ). |
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