Foster v. Wal-Mart Stores East, LP et al
| Denton Foster |
| Wal-Mart Stores East, LP and Wal-Mart Stores, Inc. |
| 2:2023cv05802 |
| July 31, 2023 |
| US District Court for the Eastern District of New York |
| Lee G Dunst |
| Dora Lizette Irizarry |
| P.I.: Other |
| 28 U.S.C. § 1442 Notice of Removal |
| Defendant |
Docket Report
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ORDER re #10 Defendant's Response to Order to Show Cause; #12 Plaintiff's Response to Defendant and Consent to Removal; and #14 Endorsing Stipulation of Dismissal as to Defendant, WAL-MART STORES, INC. ONLY --- On August 15, 2023, the Court issued an Order to Show Cause why this case should not be remanded to state court for lack of subject matter jurisdiction. Based upon the parties' responses, the Court finds that the Court has subject matter over this diversity action and, as stipulated by the parties, this action is dismissed against Defendant Wal-Mart Stores, Inc. ONLY. As further stipulated by the parties, the Clerk of the Court is directed to amend the caption of this matter to include the name of WAL-MART STORES EAST, LP only as the defendant. SO ORDERED by Judge Dora Lizette Irizarry on 9/8/2023. (Irizarry, Dora)
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| Filing 14 STIPULATION by Denton Foster (Jean-Jacques, Michelle) |
| Filing 13 Corporate Disclosure Statement by Denton Foster (Jean-Jacques, Michelle) |
| Filing 12 Letter Response to Defendant's "OTSC Response" and Consent by Denton Foster (Jean-Jacques, Michelle) |
| Filing 11 Corporate Disclosure Statement by Wal-Mart Stores East, LP identifying Corporate Parent Walmart Inc., Other Affiliate Wal-mart de Mexico, Other Affiliate SEIYU for Wal-Mart Stores East, LP. (O'Connor, Patricia) |
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ORDER re #10 RESPONSE TO ORDER TO SHOW CAUSE --- Plaintiff shall file a letter either responding to the allegations of bad faith set forth in Defendant Wal-Mart Stores East, LP's ("Wal-Mart East") response to the Order to Show Cause ("OTSC Response") or providing consent to removal BY NO LATER THAN AUGUST 28, 2023. In the letter, Plaintiff also shall respond to Wal-Mart East's request to amend the caption "to reflect that Wal-Mart Stores East, LP [is] the only defendant." If Plaintiff consents to the request to amend the caption, Plaintiff shall file a stipulation of dismissal, signed by all parties, dismissing Walmart Inc. as a defendant BY NO LATER THAN AUGUST 29, 2023.Additionally, Plaintiff and Defendants still have failed to file disclosure statements in compliance with Fed. R. Civ. P. 7.1(a)(2), as directed. In its OTSC Response, Wal-Mart East states that it filed a "Rule 7.1 Statement" at Dkt. Entry No. #4 . However, the statement Wal-Mart East points to complies with Fed. R. Civ. P. 7.1(a)(1) only. As Fed. R. Civ. P. 7.1(a)(2) applies to all parties in a diversity action, the parties again are directed to file disclosure statements in compliance with Fed. R. Civ. P. 7.1(a)(2) BY NO LATER THAN AUGUST 29, 2023. Repeated orders from the Court to comply with Court directives should not be necessary and are a waste of the Court's limited time and resources. SO ORDERED by Judge Dora Lizette Irizarry on 8/24/2023. (CC)
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| Filing 10 RESPONSE TO ORDER TO SHOW CAUSE by Wal-Mart Stores East, LP, Wal-Mart Stores, Inc. (Sheridan, Richard) |
| Filing 9 AFFIDAVIT of Service (Proof of Notice to State Court regarding Notice of Removal), filed by Wal-Mart Stores East, LP, Wal-Mart Stores, Inc.. (Sheridan, Richard) |
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ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE REMANDED TO STATE COURT --- Show Cause Response due by 8/22/2023 - On July 31, 2023, Defendant Wal-Mart Stores East, LP ("Wal-Mart East") removed this action from New York State Supreme Court, Queens County ("state court"), asserting this Court's diversity jurisdiction pursuant to 28 U.S.C. 1332(a). While it has established that the amount in controversy exceeds $75,000 and there is diversity of citizenship, it has failed to establish compliance with several procedural removal requirements.First, Wal-Mart East has failed to comply with 28 U.S.C. 1446(c)(1), which provides, in pertinent part, that a case "may not be removed" on diversity grounds "more than 1 year after" the action's commencement "unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action", in which case removal is permissible. 28 U.S.C. 1446(c)(3)(B). Here, the removal papers show that Wal-Mart East served Plaintiff with a N.Y. C.P.L.R. 3017(c) demand on June 15, 2022, only days after the action's commencement on June 9, 2022, but did not receive Plaintiff's response demanding $3,000,000 until July 5, 2023, over one year later. See, Removal Notice, Dkt. Entry No. 1; Compl., Dkt. Entry No. 1-1 at ECF pages 2-9; Demand, Dkt. Entry No. 1-3. Thus, Wal-Mart East established that it removed the action promptly after receiving the first paper showing its removability. See, 28 U.S.C. 1446(b)(3) (allowing removal within 30 days of receipt of first paper showing removability). However, Wal-Mart East has failed to address that, in doing so, it removed the action over one year after the action's commencement and, therefore, to avoid remand, it must show Plaintiff acted in "bad faith" to prevent timely removal. See, 28 U.S.C. 1446(c)(1). Second, 28 U.S.C. 1446(b)(2)(A) requires that, when an action is removed on diversity grounds, "all defendants who have been properly joined and served must join in or consent to the removal of the action." Taylor v. Medtronic, Inc., 15 F.4th 148, 150 (2d Cir. 2021) (citing 28 U.S.C. 1446 (b)(2)(A)). Under this rule, known as "the rule of unanimity," each defendant independently must express written consent to removal by either joining in the removal notice or "subsequently provid[ing]their unambiguous written consent to removal[.]" Id. at 150-51; Metro. Transp. Auth. v. U.S. Fid. & Guar. Co., 2015 WL 1730067, at *4 (S.D.N.Y. Apr. 14, 2015). Here, the Complaint, civil cover sheet, and docket text identify a second defendant in addition to Wal-Mart East, i.e., Wal-Mart Stores, Inc. (Wal-Mart). Defense counsel has appeared on behalf of both Defendants and the docket text of the removal notice states that removal is "by" both Defendants. See&, Def. NOA, Dkt. Entry No. 7. However, the removal notice itself makes no mention of Wal-Mart and defense counsel signed it as "[a]ttorneys for Defendant," not Defendants. Moreover, in the Answer, Wal-Mart East identifies itself as "Wal-Mart Stores East, LP i/s/h/a 'Wal-Mart Stores East, LP and Wal-Mart Stores, Inc.'" See, Answer, Dkt. Entry No 1-1 at ECF pages 11-15. Thus, it is unclear whether Defendants are separate entities and, if so, whether the rule of unanimity is satisfied.Accordingly, BY NO LATER THAN AUGUST 22, 2023, Wal-Mart East must show cause why this action should not be remanded for failure to remove this action timely and comply with the rule of unanimity. Additionally, as it is unclear whether it filed the necessary removal papers in state court, as required by 28 U.S.C. 1446(d), it must do so BY NO LATER THAN AUGUST 18, 2023 and immediately thereafter file proof of service with the Court. Lastly, as Plaintiff and Defendants have failed to file disclosure statements in compliance with Fed. R. Civ. P. 7.1(a)(2), they must do so BY NO LATER THAN AUGUST 18, 2023. See, Fed. R. Civ. P. 7.1(a)(2), (b). SO ORDERED by Judge Dora Lizette Irizarry on 8/15/2023. (Irizarry, Dora)
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| Filing 8 NOTICE of Appearance by Michelle Jean-Jacques on behalf of Denton Foster (aty to be noticed) (Jean-Jacques, Michelle) |
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ORDER: Attorney Mark J. Linder is directed to seek admission to the Eastern District of New York or to file a motion for pro hac vice appearance for this case by 9/6/2023. Ordered by Magistrate Judge Lee G. Dunst on 8/7/2023. (CT)
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| Filing 7 NOTICE of Appearance by Richard M. Sheridan on behalf of All Defendants (aty to be noticed) (Sheridan, Richard) |
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SCHEDULING ORDER: The Court will hold an Initial Conference on 11/14/2023 at 10:15 AM in Courtroom 830 of the U.S. District Court E.D.N.Y. Long Island Courthouse, located at 100 Federal Plaza, Central Islip, New York. The parties are directed to follow Judge Dunst's Individual Practice Rules, which are available on the Court's website, and submit a proposed discovery plan/scheduling order at least five business days prior to the initial conference pursuant to Judge Dunst's Individual Practice Rule IV.A.1. Ordered by Magistrate Judge Lee G. Dunst on 8/2/2023. (CT)
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| Filing 6 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. (CL) |
| Filing 5 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. (CL) |
| Case Assigned to Judge Dora Lizette Irizarry and Magistrate Judge Lee G. Dunst. 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. (CL) |
| Filing 4 Corporate Disclosure Statement by Wal-Mart Stores East, LP, Wal-Mart Stores, Inc. identifying Other Affiliate Wal-Mart Stores, Inc., Other Affiliate Wal-Mart De Mexico, Other Affiliate SEIYU for Wal-Mart Stores East, LP, Wal-Mart Stores, Inc.. (O'Connor, Thomas) |
| Filing 3 Civil Cover Sheet.. by Wal-Mart Stores East, LP, Wal-Mart Stores, Inc. (O'Connor, Thomas) |
| Filing 2 DEMAND for Trial by Jury by Wal-Mart Stores East, LP, Wal-Mart Stores, Inc. (O'Connor, Thomas) |
| Filing 1 NOTICE OF REMOVAL by Wal-Mart Stores East, LP, Wal-Mart Stores, Inc. from Supreme Court, Queens County, case number 712195/2022.Was the Disclosure Statement on Civil Cover Sheet completed -Yes ( Filing fee $ 402 receipt number ANYEDC-16945296) (Attachments: #1 Exhibit A-Summons and Complaint and Verified Answer, #2 Exhibit B-Combined Demands, #3 Exhibit C-Response to 3017 Demand) (O'Connor, Thomas) Modified on 8/1/2023 (CL). |
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