Reynolds v. Mercy Investment Services, Inc. et al
| Amanda Reynolds |
| Mercy Investment Services, Inc., Sisters of Mercy of The Americas Mid-Atlantic Community, Inc., Mercy Education System of the Americas, Our Lady of Mercy Academy, Corp., Sister Lisa Griffith, Margaret Myhan and Patricia DiLollo |
| Allen J. Underwood |
| 2:2024cv00362 |
| January 18, 2024 |
| US District Court for the Eastern District of New York |
| Nusrat Jahan Choudhury |
| James M Wicks |
| Fraud or Truth-In-Lending |
| 28 U.S.C. § 1332 Diversity-Fraud |
| Plaintiff |
Docket Report
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Filing 18
ORDER re 15 Motion to Seal. As set forth in the attached Order, Underwood's motion to seal ECF Nos. 7 , 15 , 16 and 17 is granted. The Clerk of the Court is hereby directed to file those entries under seal. So Ordered by Magistrate Judge James M. Wicks on 2/8/2024. (DF)
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ORDER. In light of the motion to seal (ECF No. 15 ), the opposition, if any, shall be filed on or before February 2, 2024. So Ordered by Magistrate Judge James M. Wicks on 1/27/2024. (HM)
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| Filing 14 STIPULATION of Dismissal by Amanda Reynolds (Reynolds, Amanda) |
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ORDER DISMISSING CASE. The case is dismissed without prejudice pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i) in light of Plaintiff's Notice of Voluntary Dismissal, ECF No #14 , because Defendants have neither filed an Answer nor a Motion for Summary Judgment. Case Closed. Ordered by Judge Nusrat J. Choudhury on 1/23/2024. (ASB)
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| Filing 13 REPLY in Support re Order on Motion for Leave to Proceed in forma pauperis,,,,,,,,,,,,,,,,,,,,,,, filed by Amanda Reynolds. (Reynolds, Amanda) |
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The Plaintiff's Motion for Leave to Proceed in forma pauperis ("IFP"), ECF No. #11 , is DENIED and Plaintiff is directed to pay the $402.00 filing fee by January 26, 2024. The Supreme Court has long held that to qualify for IFP status, a plaintiff's "affidavit is sufficient which states that one cannot because of his poverty pay or give security for the costs [inherent in litigation] and still be able to provide himself and dependents with the necessities of life." Adkins v. E.I. Du Pont De Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted). "The purpose of the statute permitting litigants to proceed IFP is to insure that indigent persons have equal access to the judicial system." Davis v. NYC Dept. of Educ., 10-CV-3812, 2010 WL 3419671, at *1 (E.D.N.Y. August 27, 2010). The determination of whether an applicant qualifies for in forma pauperis status is within the discretion of the district court. Id. at *1. Under 28 U.S.C. 1915(e)(2)(A), the court may dismiss a case brought by a plaintiff requesting to proceed IFP if the "allegation of poverty is untrue." The purpose of this provision is to "weed[] out the litigants who falsely understate their net worth in order to obtain [IFP] status when they are not entitled to that status based on their true net worth." Vann v. Comm'r of N.Y. City Dep't of Correction, 496 F. App'x 113, 115 (2d Cir. 2012) (internal quotation marks omitted). Notably, Plaintiff's first application for IFP status contained inconsistent statements. Plaintiff reported that her current take-home pay or wages are $500 per week, but also that she is "not presently working for money." ECF No. #2 at paras. 2-3. Plaintiff reported a monthly income in the sum of $2,000, but that she has no money in cash or in an account, id. at para. 4, and no regular monthly expenses. Id. at para. 6. Plaintiff further reported that she lives with her parents, owns nothing of value, and has $500,000 in student loans as well as $5,000 in "credit debt." Id. at para. 6. Because Plaintiff's first IFP application raised questions about her ability to pay the filing fee while providing for the necessities of life, on January 20, 2024, the Court directed Plaintiff to either file the Long Form IFP application or remit the filing fee by January 26, 2024. Elec. Order, Jan. 20, 2024. This Court put Plaintiff "on notice that, given her report that she is supported financially by her parents, the court may consider the resources that the applicant has or can get from those who ordinarily provide the applicant with the necessities of life, such as from a spouse, parent, adult sibling or other next friend. Fridman v. City of New York, 195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002)." Id. (internal quotation marks omitted). For this reason, the Court ordered Plaintiff to "provide the financial information for her parents on the Long Form in addition to her own." Id. Plaintiff's Long Form IFP application fails to follow this Court's Order and fails to make the required showing that Plaintiff cannot pay the filing fee to commence this litigation while also providing for herself the necessities of life. Plaintiff now indicates that she is currently working part-time as a real estate broker and at a law firm and is earning a monthly income of around $50,000 per month. ECF No. 11 at 2, 5. Notably, the specific types of income she reports do not begin to approach that number. Id. at 1-2. Plaintiff indicates that she made "two transactions in the past twelve months totaling $34,000", however, it is not clear if she is referring to real estate transactions or some other type of transaction. Id. at 5. Plaintiff also now reports that she has $1,000 in a bank account or other financial institution, but indicates that this amount consists of student loans and a credit card, which the Court interprets as a report that Plaintiff has approximately $1,000 in debt. Id. at 2. Plaintiff further reports having monthly expenses of $1,450, including for food, clothes, recreation, medical expenses, and transportation. Id. at 4-5. Notably, Plaintiff did not provide any financial information for her parents, as the Court instructed, even though she reports on the Long Form IFP application, "I live with my parents who support me otherwise." Not only are Plaintiff's statements between the two IFP applications contradictory, she has failed to show that she has insufficient funds to pay the $402 filing fee to commence this action. Plaintiff's request to proceed IFP is therefore denied. See Chowdhury v. Sadovnik, No. 17 CV 2613, 2017 WL 4083157, at *1 (E.D.N.Y. Sept. 14, 2017) ("The question of whether a plaintiff qualifies for IFP status is within the discretion of the district court."). Accordingly, Plaintiff must pay the $402.00 filing fee by January 26, 2024 in order to proceed with this case. No summons will issue at this time and all further proceedings will be stayed until Plaintiff has complied with this Order. If Plaintiff fails to pay the filing fee within the time allowed, the complaint will be dismissed without prejudice. The Court certifies pursuant to 28 U.S.C. 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Nusrat J. Choudhury on 1/22/2024. (ASB)
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| Filing 12 AMENDED COMPLAINT against All Defendants, filed by Amanda Reynolds. (Reynolds, Amanda) |
| Filing 11 Second MOTION for Leave to Proceed in forma pauperis LONG FORM by Amanda Reynolds. (Reynolds, Amanda) |
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Filing 10
ORDER. The Court has reviewed Plaintiff's Motion for Order to Show Cause for TRO and Injunctive Relief ("TRO Motion"), ECF No. #6 . Before this Court can address the TRO Motion, it must rule on the application to proceed in forma pauperis filed by pro se Plaintiff Amanda S. Reynolds, Esq., ECF No. #2 . Upon review, the Court finds that the application raises more questions than it answers. Plaintiff reports that her current take-home pay or wages are $500 per week, yet she also indicates that she is "not presently working for money." Id. at paras. 2-3. Although Plaintiff reports monthly income in the sum of $2,000, she indicates having no money in cash or in an account, id. at para. 4, and no regular monthly expenses. Id. at para. 6. Plaintiff reports that she lives with her parents, owns nothing of value, and has $500,000 in student loans as well as $5,000 in "credit debt." Id. at para. 6. To qualify for in forma pauperis status, the Supreme Court has long held that "an affidavit is sufficient which states that one cannot because of his poverty pay or give security for the costs [inherent in litigation] and still be able to provide himself and dependents with the necessities of life." Adkins v. E.I. Du Pont De Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted). "The purpose of the statute permitting litigants to proceed IFP [in forma pauperis] is to insure that indigent persons have equal access to the judicial system." Davis v. NYC Dept. of Educ., 10-CV-3812, 2010 WL 3419671, at *1 (E.D.N.Y. August 27, 2010) (citing Gregory v. NYC Health & Hospitals Corp., 07-CV-1531, 2007 WL 1199010, at *1 (E.D.N.Y. Apr. 17, 2007)). The determination of whether an applicant qualifies for in forma pauperis status is within the discretion of the district court. Davis, 2010 WL 3419671 at *1 (citing DiGianni v. Pearson Educ., 10-CV-0206, 2010 WL 1741373, at *1 (E.D.N.Y. Apr. 30, 2010)). The court may dismiss a case brought by a plaintiff requesting to proceed in forma pauperis if the "allegation of poverty is untrue." 28 U.S.C. 1915(e)(2)(A). Accordingly, Plaintiff's application to proceed in forma pauperis is denied without prejudice and with leave to renew upon filing the enclosed "Application to Proceed in District Court without Prepaying Fees or Costs (Long Form)" (AO 239) ("Long Form"). Alternatively, Plaintiff may pay the $402.00 filing fee. Plaintiff shall either file the Long Form or remit the filing fee by January 26, 2024 or this action will be dismissed without prejudice. Plaintiff is on notice that, given her report that she is supported financially by her parents, the "court may consider the resources that the applicant has or 'can get' from those who ordinarily provide the applicant with the 'necessities of life,' such as 'from a spouse, parent, adult sibling or other next friend.'" Fridman v. City of New York, 195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002). Accordingly, Plaintiff shall provide the financial information for her parents on the Long Form in addition to her own. The Court certifies pursuant to 28 U.S.C. 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Nusrat J. Choudhury on 1/20/2024. (ASB)
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| Filing 9 Letter Letter Response to Judge Wicks re: Jurisdiction by Amanda Reynolds (Reynolds, Amanda) |
| Filing 8 Proposed Summons. Re #1 Complaint, by Amanda Reynolds (Attachments: #1 Summons Rider) (Reynolds, Amanda) |
| Filing 6 MOTION for Order to Show Cause for TRO and Injuctive Relief by Amanda Reynolds. (Attachments: #1 Attorney Affirmation in Support, #2 Proposed OTSC, #3 Exhibit A Notice to Defendants, #4 Exhibit B Complaint, #5 Exhibit C Transcript, #6 Exhibit D Sustainability Proposal, #7 Exhibit E 2019 Reaccreditation Reportq, #8 Exhibit F Bylaws) (Reynolds, Amanda) |
| Proposed Summons #5 was not issued for one of the following reasons: Did not use the correct Summons form AO 440 Rev 6/12, SUMMONS IN A CIVIL ACTION or AO 441 Rev 7/10, SUMMONS ON A THIRD-PARTY COMPLAINT; The full case caption must appear on the summons. If you use "et al" a rider must be attached with the full caption. Please correct and resubmit using Proposed Summons/Civil Cover Sheet. (CV) |
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ORDER. It is axiomatic that federal courts are of limited jurisdiction and possess only that power authorized by Constitution and statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Federal courts generally entertain cases falling into two categories, namely, cases involving a federal question, 28 U.S.C. 1331, and cases where parties are citizens of different states and the amount in controversy exceeds $75,000, 28 U.S.C. 1332. Further, it is to be presumed that a cause lies outside this limited jurisdiction and the burden of establishing the contrary rests upon the party asserting jurisdiction. Kokkonen, 511 U.S. at 377 (internal citations omitted). For actions asserting the Class Action Fairness Act ("CAFA") as a basis for federal jurisdiction, such as here, a plaintiff must demonstrate the following: (1) the amount in controversy exceeds $5 million, exclusive of interests and costs; (2) there are 100 or more class members and (3) there is minimal diversity, that is, that any member of a class of plaintiffs is a citizen of a state different from any defendant. See Krasner v. Cedar Realty Trust, Inc. et al, No. 22-cv-6945 (DLI) (JMW), 2023 U.S. Dist. LEXIS 71154, at *4 (E.D.N.Y. Apr. 24, 2023). However, with respect to minimal diversity, a court must decline to exercise jurisdiction if "two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed." 28 U.S.C. 1332 (d)(4)(B). In light of the representations made in the Complaint (ECF No. #1 ), it is unclear whether minimal diversity exists between the parties. Here, the Complaint does not indicate that Plaintiffs are from a state other than New York. In addition, Defendant Mercy Investment Services, Inc. and Defendant MESA are from Missouri and Maryland, respectively. However, Sisters of Mercy, Our Lady of Mercy Academy, the Board of Directors of Our Lady of Mercy and individual Defendants Margaret Myhan and Patricia DiLollo are all from or otherwise located in New York. Thus, because all 100 (or more) class members are from New York as well as the majority of the named Defendants, there is a possibility that the diversity required under CAFA is not present. For these reasons, on or before January 26, 2024, Plaintiffs shall file a letter on ECF outlining whether diversity under CAFA is met. So Ordered by Magistrate Judge James M. Wicks on 1/19/2024. (HM)
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| Filing 5 Proposed Summons. Re Quality Control Check - Summons, #1 Complaint, by Amanda Reynolds (Attachments: #1 Complaint verification) (Reynolds, Amanda) |
| Filing 4 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 3 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. (LJ) |
| Filing 2 MOTION for Leave to Proceed in forma pauperis by Amanda Sue Reynolds. (LJ) |
| Filing 1 COMPLAINT CLASS ACTION FOR DAMAGES AND INJUNCTIVE RELIEF, EQUITABLE ESTOPPEL against All Defendants Was the Disclosure Statement on Civil Cover Sheet completed -No,, filed by Amanda Sue Reynolds. (Attachments: #1 Summons, #2 Summons, #3 Summons, #4 Summons, #5 Summons, #6 Summons, #7 Civil Cover Sheet, #8 Motion to Waive Fees) (Reynolds, Amanda) Modified on 1/18/2024 (LJ). |
| Case Assigned to Judge Nusrat Jahan Choudhury 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. (LJ) |
| Your proposed summons was not issued for the following reason: The full case caption must appear on the summons. If you use "et al" a rider must be attached with the full caption. Please correct and resubmit using the event Proposed Summons/Civil Cover Sheet. (LJ) |
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