David Grossman & Associates PLLC et al v. Kernan and Associates Law Group
| David Grossman & Associates PLLC and Dank Capital Sapi DE CV |
| Kernan and Associates Law Group |
| 2:2023cv08231 |
| November 6, 2023 |
| US District Court for the Eastern District of New York |
| Nusrat Jahan Choudhury |
| Lee G Dunst |
| Contract: Other |
| 28 U.S.C. § 1330 Breach of Contract |
| Plaintiff |
Docket Report
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ORDER. The Court received Plaintiffs' Letter Motion for Phone Conference, ECF No #22 . The letter does not state what issues Plaintiffs wish to raise with the Court and does not indicate whether Plaintiffs have conferred with Defendant. The request is DENIED with leave to renew. Plaintiffs must provide the basis for their request in any renewed Motion. The December 18, 2023 Scheduling Order remains in effect and Plaintiffs are directed to comply with this Court's rules. Ordered by Judge Nusrat J. Choudhury on 1/4/2024. (ASB)
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| Filing 22 Letter Motion by Dank Capital Sapi DE CV, David Grossman & Associates PLLC (Grossman, David) |
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Filing 21
For the reasons set forth in the attached Memorandum and Order, Plaintiffs' Motion for a Temporary Restraining Order is DENIED. Ordered by Judge Nusrat J. Choudhury on 1/2/2024. (ASB)
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ORDER. The Court received Defendant's 12(b)(6) Motion to Dismiss, ECF No. #20 . Under Rule 15(a)(1)(B), Fed. R. Civ. P., a plaintiff has 21 days after the service of a motion under Rule 12(b) to amend the complaint once as a matter of course. Accordingly, it is hereby ORDERED that Plaintiffs shall file any Amended Complaint by January 8, 2024. Plaintiffs will have no further opportunity to amend. If no Amended Complaint is filed, Plaintiffs shall serve on Defendant any opposition to the motion to dismiss by January 8, 2024. Defendant's reply, if any, shall be served on Plaintiffs by January 22, 2024. The parties must consult and comply with the Court's individual rules concerning the provision of any courtesy copy to chambers after the motion is fully briefed. The parties are also reminded that the Court's individual rules include a bundling practice, pursuant to which parties are asked to refrain from filing certain motions and responsive briefing until the motion has been fully briefed by all parties. See Individual Practice Rule 5.2.6. Ordered by Judge Nusrat J. Choudhury on 12/18/2023. (ASB)
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| Filing 20 First MOTION to Dismiss for Failure to State a Claim 12(b)(6) by Kernan and Associates Law Group. (Kernan, Patrick) |
| Filing 19 NOTICE of Appearance by Patrick Bernard Kernan on behalf of Kernan and Associates Law Group (aty to be noticed) (Kernan, Patrick) |
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ORDER granting #18 Motion for Leave to Appear Pro Hac Vice. Having reviewed the Pro Hac Vice application (DE #18 ) submitted by Patrick B. Kernan for Defendant and found it in compliance with the local rules concerning attorney admissions, the application is approved. If not already done, the attorney shall register for ECF which is available online at the NYED's homepage. Once registered, the attorney shall file a notice of appearance and ensure that she receives electronic notifications of activity in this case. The attorney shall ensure that the $150 admission fee is submitted or has been submitted to the Clerk's Office. Ordered by Magistrate Judge Lee G. Dunst on 12/12/2023. (SBE)
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| Filing 18 Second MOTION to Appear Pro Hac Vice by Patrick Kernan Filing fee $ 150, receipt number ANYEDC-17365157 by Kernan and Associates Law Group. (Kernan, Martin) |
| MINUTE ENTRY. Order to Show Cause/ TRO hearing held Friday, December 8, 2023 at 10:00 AM. Counsel for Plaintiffs failed to appear. Defendant's counsel, Patrick Kernan, did appear but counsel's Pro Hac Vice motion was denied with leave to refile. (ASB) |
| Filing 17 AFFIDAVIT/AFFIRMATION by David Grossman & Associates PLLC (Grossman, David) |
| Incorrect Case/Document/Entry Information. As per Chambers directions, the Order entered on 12/7/2023 Regarding the #15 Motion, has been deleted from the docket. A corrected Order is to follow. (GO) |
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ORDER denying #15 Motion for Leave to Appear Pro Hac Vice. Defendant's Pro Hac Vice motion at DE #15 is DENIED WITHOUT PREJUDICE. Defendant shall clearly state who is moving to be admitted. Defendant shall resubmit its application. Ordered by Magistrate Judge Lee G. Dunst on 12/8/2023. (SBE)
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ORDER granting #16 Motion for Extension of Time to Answer or file responsive pleading. Defendant's motion at DE #16 to extend the time to respond to Plaintiffs' complaint is GRANTED. Defendant shall respond to Plaintiffs' complaint by 12/15/2023. Ordered by Magistrate Judge Lee G. Dunst on 12/7/2023. (SBE)
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| Filing 16 First MOTION for Extension of Time to File Answer or responsive pleading by Kernan and Associates Law Group. (Kernan, Martin) |
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ORDER. The Court has reviewed plaintiffs' Memorandum in Support of Order to Show Cause, ECF No. #14 , which appears to respond to this Court's November 15, 2023 Order denying without prejudice plaintiffs' motion for a temporary restraining order and/or preliminary injunction for lack of a supporting memorandum of law. This Court ORDERS parties to participate in a conference regarding the motion on Thursday, December 7, 2023 at 1:00 PM via Zoom. The Court will provide a Zoom invitation closer to the conference date and time. This Zoom conference will be a public proceeding; nonparties are welcome to attend via telephone. To receive a telephone invitation, nonparties may contact Judge Choudhury's Chambers at (631) 712-5660. The parties and other attendees to the conference are also reminded that the recording of any proceeding of the Court, including this conference, is prohibited under Local Rule 1.8.Additionally, the Court orders plaintiffs to show cause by December 7, 2023 as to why this case should not be dismissed for lack of subject matter jurisdiction. Plaintiffs assert that this Court has jurisdiction under 28 U.S.C. 1332(a) because the amount in controversy exceeds $75,000 and there is diversity of citizenship among the parties. For there to be diversity of citizenship, there must be "complete diversity, i.e. all plaintiffs must be citizens of states diverse from those of all defendants." Pennsylvania Pub. Sch. Employees' Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 118 (2d Cir.), as amended (Nov. 12, 2014) (internal quotations omitted). "[I]t is well established that the party seeking to invoke jurisdiction under 28 U.S.C. 1332 bears the burden of demonstrating that the grounds for diversity exist and that diversity is complete." Herrick Co. v. SCS Commc'ns, Inc., 251 F.3d 315, 322-23 (2d Cir. 2001) (citation omitted) (quotations omitted). For purposes of diversity jurisdiction, a limited liability company has the citizenship of each of its members. Handelsman v. Bedford Vill. Assocs. Ltd. P'ship, 213 F.3d 48, 5152 (2d Cir. 2000). The Amended Complaint alleges that plaintiff David Grossman and Associates PLLC is a citizen of New York, that plaintiff Dank Capital Sapi DE CV is a foreign company headquartered in Mexico, and that defendant Kernan and Associates Law Group is a citizen of Washington, D.C. ECF No. #9 at 2. The Amended Complaint further alleges that the amount in controversy exceeds the $75,000 diversity jurisdiction requirement because the breach of contract at issue involves a contract involving a $18.5 million dollar purchase and a currently disputed $4.5 million. Id. The Amended Complaint does not, however, identify the citizenship of each member of David Grossman & Associates PLLC. Plaintiffs must address this issue in their submission due December 7, 2023. Ordered by Judge Nusrat J. Choudhury on 12/6/2023. (ASB)
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Due to a change in the Court's calendar, the pre-motion conference previously scheduled for December 7, 2023 at 1:00 PM will be held on December 8, 2023 at 10:00 AM via Zoom. The Court will provide a Zoom invitation closer to the conference date and time. This Zoom conference will be a public proceeding; nonparties are welcome to attend via telephone. To receive a telephone invitation, nonparties may contact Judge Choudhury's Chambers at (631) 712-5660. The parties and other attendees to the conference are also reminded that the recording of any proceeding of the Court, including this conference, is prohibited under Local Rule 1.8. Ordered by Judge Nusrat J. Choudhury on 12/6/2023. (ASB)
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| Filing 15 First MOTION to Appear Pro Hac Vice Filing fee $ 150, receipt number ANYEDC-17339438 by Kernan and Associates Law Group. (Kernan, Martin) |
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ORDER. The Court has received plaintiffs' order to show cause, ECF No. #14 . The Court previously denied without prejudice plaintiff's motion for a temporary restraining order, ECF No. #10 for failure to include a memorandum of law addressing whether plaintiffs have met the legal requirements for the Court's issuance of a temporary restraining order. The Court liberally construes this filing to serve as a renewed motion for a temporary restraining order and/or preliminary injunction. Any opposition by defendant to the motion must be filed by December 4, 2023. Ordered by Judge Nusrat J. Choudhury on 12/1/2023. (ASB)
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| Filing 14 MEMORANDUM in Support of Order to Show Cause filed by Dank Capital Sapi DE CV, David Grossman & Associates PLLC. (Grossman, David) |
| Filing 13 SUMMONS Returned Executed by David Grossman & Associates PLLC, Dank Capital Sapi DE CV. Kernan and Associates Law Group served on 11/17/2023, answer due 12/8/2023. (Grossman, David) |
| Filing 12 AFFIDAVIT/AFFIRMATION Affidavit of Service by Dank Capital Sapi DE CV, David Grossman & Associates PLLC (Grossman, David) |
| Filing 11 Summons Issued as to Kernan and Associates Law Group. (AMF) |
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ORDER. The Court has reviewed Plaintiffs' Amended Complaint, ECF No. #9 , and Motion for Temporary Restraining Order, ECF No. #10 . The Amended Complaint indicates that Plaintiffs bring a breach of contract claim and invoke this Court's jurisdiction under 28 U.S.C. 1332 on the basis that Plaintiff David Grossman & Associates PLLC is a citizen of New York, that Plaintiff Dank Capital SAPI DE CV is a foreign company headquartered in Mexico, and that Defendant Kernan and Associates Law Group is a citizen of Washington, D.C. The Motion for Temporary Restraining Order consists of a proposed "Order to Show Cause", the Affirmation of David Grossman of Plaintiff David Grossman & Associates PLLC, and the Affidavit of Eduardo F. Ojeda, the Manager of Plaintiff Dank Capital SAPI DE CV, describing the facts giving rise to Plaintiffs' request for an Order to Show Cause. The Order to Show Cause requests that this Court hold a hearing directing Defendant to show why this Court should not issue one or more of several temporary restraining orders (TRO): (1) a TRO "directing the delivery of $4,500,000" in Plaintiff David Grossman & Associates PLLC's Interest on Lawyer's Trust Account (IOLTA) to "Plaintiff Dank Capital SAPI DE CV free and clear of any encumbrances"; (2) a TRO ordering delivery of the $4,500,000 in IOLTA funds to Plaintiff Dank Capital SAPI DE CV upon the posting of a bond; (3) a TRO depositing the $4,500,000 in IOLTA funds with the Court pursuant to Rule 67, Fed. R. Civ. P.; and (4) a TRO requiring the parties to maintain the status quo and not move or direct others to move the $4,500,000 in IOLTA funds at issue. ECF No. #10 at 1. Plaintiffs' Motion does not, however, provide a memorandum of law showing that Plaintiffs have made the showings required for issuing temporary restraining orders of this nature and scope. As the Court noted at the November 8, 2023 hearing on Plaintiff David Grossman and Associates PLLC's initial Emergency Order to Show Cause, ECF No. #2 , the Court's issuance of a temporary restraining order of any kind is extraordinary relief that must be supported by legal authority. Plaintiffs' Motion fails to comply with the Court's November 8, 2023 instruction that any Motion for a Temporary Restraining Order or Preliminary Injunction must be "accompanied by a memorandum of law demonstrating why the requested relief is warranted and can be issued by this Court." Because Plaintiffs have failed to provide that legal authority, the Order to Show Cause, ECF No. #10 , is DENIED without prejudice. Plaintiffs may refile the motion with an accompanying memorandum of law supporting their request for a Temporary Restraining Order as described in the Order to Show Cause by 5:00 PM on November 20, 2023. Plaintiffs are further ordered to provide proof of service of the Amended Complaint, Motion for Temporary Restraining Order, and any forthcoming memorandum of law on Defendant Kernan and Associates Law Group by 5:00 PM on November 20, 2023. Ordered by Judge Nusrat J. Choudhury on 11/15/2023. (ASB)
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| Incorrect Case/Document/Entry Information. Amended Complaint originally entered as DE 9 (AMENDED COMPLAINT against David Grossman & Associates PLLC, filed by David Grossman & Associates PLLC) was entered as against plaintiff instead of defendant. Entry has been deleted and corrections will be made by the clerk's office. (LJ) |
| Filing 9 AMENDED COMPLAINT against Kernan and Associates Law Group, filed by David Grossman & Associates PLLC, Dank Capital Sapi DE CV. (LJ) |
| Filing 10 MOTION for Temporary Restraining Order by David Grossman & Associates PLLC. (Attachments: #1 Affidavit David Grossman, #2 Affidavit Dank, #3 Exhibit, #4 Exhibit, #5 Exhibit, #6 Exhibit, #7 Exhibit, #8 Exhibit) (Grossman, David) |
| Filing 8 Proposed Summons.Civil Cover Sheet.. by David Grossman & Associates PLLC (Grossman, David) |
| Proposed Summons #7 was not issued; See 11/8/2023 MINUTE ENTRY Emergency Motion Conference. (CV) |
| MINUTE ENTRY. Emergency motion conference held on Wednesday, November 8, 2023 at 4:44 PM in courtroom 1040 before Judge Nusrat J. Choudhury on the petitioner's motion for declaratory judgment and order to show cause.David C. Grossman appeared for petitioner. The Court Reporter was Paul Lombardi. The Court reviewed the issues raised in the petitioner's Complaint and Emergency Order to Show Cause filings. The Court asked the petitioner to identify the specific cause of action that the petitioner seeks to enforce and the basis for this Court's subject matter jurisdiction. The petitioner explained that the goal of the litigation is for petitioner to be able to access and transfer funds in his IOLTA account without triggering sanctions or criminal charges. Because the Complaint does not, on its face, identify a specific cause of action or basis for the Court's subject matter jurisdiction, the Court DENIES the relief requested but GRANTS the petitioner leave to amend the complaint by November 22, 2023. Following amendment of the Complaint, petitioner may seek any appropriate relief so long as the request is presented in the appropriate form, such a Motion for a Temporary Restraining Order or Preliminary Injunction accompanied by a memorandum of law demonstrating why the requested relief is warranted and can be issued by this Court. Petitioner is further ordered to ensure defendants, and any interested parties, are served with the amended complaint and any subsequent filings pursuant to the Federal Rules of Civil Procedure.Emergency Motion Conference held before Judge Nusrat J. Choudhury on 11/8/2023. (ASB) Modified on 11/9/2023 (BMM). |
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ORDER. The Court has reviewed petitioner's "Complaint for Declaratory Judgment" (ECF No. #1 ) and "Proposed Motion for a Declaratory Judgment" (ECF No. #2 ), which is framed as seeking "emergency" relief. These submissions do not establish that this Court has subject matter jurisdiction over this action or set forth the legal argument supporting petitioner's request for relief. This Court ORDERS petitioner to participate in a conference regarding the motion on Wednesday, November 8, 2023 at 4:45 PM in Courtroom 1040 at the Central Islip Courthouse. Petitioner must be prepared to address the motion and the Court's jurisdiction over the matter. Please review the Court's Individual Practice Rules prior to the conference. Ordered by Judge Nusrat J. Choudhury on 11/8/2023. (ASB)
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| Filing 7 Proposed Summons. by David Grossman & Associates PLLC (Grossman, David) |
| Filing 6 Clerk's Notice Re: Consent. A United States Magistrate Judge has been assigned to this case and is available to conduct all proceedings. In accordance with Rule 73 of the Federal Rules of Civil Procedure, Local Rule 73.1, the parties are notified that if all parties consent, the assigned Magistrate Judge is available to conduct all proceedings in this action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to this 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. Any party may withhold its consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent.The form may also be accessed at the following link: #https://img.nyed.uscourts.gov/files/forms/MJConsentForm.pdf (LJ) |
| Filing 5 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. (LJ) |
| Filing 4 Civil Cover Sheet.. by David Grossman & Associates PLLC (Grossman, David) |
| Case Assigned to Judge Nusrat Jahan Choudhury 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. (LJ) |
| A summons was not issued for the following reason: No summons provided, please submit summons. The event can be found under the event Other Documents - Proposed Summons/Civil Cover Sheet. (LJ) |
| Filing 3 Civil Cover Sheet.. by David Grossman & Associates PLLC (Grossman, David) |
| Filing 2 Proposed MOTION for Declaratory Judgment by David Grossman & Associates PLLC. (Attachments: #1 Affidavit David Grossman, #2 Affidavit Dank, #3 Exhibit A, #4 Exhibit B, #5 Exhibit C, #6 Exhibit D, #7 Exhibit E) (Grossman, David) |
| Filing 1 COMPLAINT for Declaratory Judgment against David Grossman & Associates PLLC filing fee $ 402, receipt number ANYEDC-17255660 Was the Disclosure Statement on Civil Cover Sheet completed -NO,, filed by David Grossman & Associates PLLC. (Grossman, David) |
| Notice: Re: Civil Cover Sheet. The Civil Cover Sheet filed as DE #3 was not filled out correctly - specifically on page 2 the NY-E Division of Business Rule 1(c) section of the document; Question 1 was answered as yes and no. Please select only one answer. Counsel is directed to submit a corrected Civil Cover Sheet using the event Proposed Summons/Civil Cover Sheet. (LJ) |
| Notice: Re: Civil Cover Sheet. A Civil Cover Sheet was not filed; the Clerk's Office cannot assign this case without a Civil Cover Sheet. Counsel is directed to submit the Civil Cover Sheet using the event Proposed Summons/Civil Cover Sheet. (LJ) |
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