Fox v. Kawasaki Motors, Ltd. et al
| Elizabeth Fox |
| Kawasaki Motors, Ltd. and Kawasaki Motors Corp., USA |
| 2:2024cv06568 |
| September 18, 2024 |
| U.S. District Court for the Eastern District of New York |
| Nusrat Jahan Choudhury |
| Arlene R Lindsay |
| Marine Product Liability |
| 28 U.S.C. ยง 1332 Diversity-Notice of Removal |
| Defendant |
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Filing 8
ORDER re #6 : The request for an additional 90 days from the date of service to respond to the amended complaint is granted. The parties are directed to complete the attached Rule 26(f) meeting plan within two weeks of defendants' response. The parties may incorporate the agreed upon discovery deadlines in the report and the Court will consider them when the scheduling order is issued.Ordered by Magistrate Judge Arlene R. Lindsay on 10/22/2024. c/ecf (RI)
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ORDER: On September 19, 2024, the Court ordered Defendants to show cause in writing why this Court should not remand this case to state court for lack of subject matter jurisdiction because Plaintiff Elizabeth Berner had failed to establish Plaintiff's citizenship and thus failed to establish diversity of citizenship in this case. (Elec. Order, Sept. 19, 2024.) On October 3, 2024, Defendants timely submitted an attorney declaration that included as exhibits: an email from Plaintiff's counsel confirming that Plaintiff is a citizen of New York, a blog post describing Plaintiff as residing in New York, and a LexisNexis Smartlinx Person Report providing Plaintiff's address in New York. (See ECF No. 7.) An individual party's citizenship depends on its domicile, which is the place where that individual has a true, fixed home and principal establishment, and to which, whenever that person is absent from the jurisdiction, he or she has the intention of returning. 13E Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 3612 (3d ed. 2021); Van Buskirk v. United Grp. of Cos., Inc., 935 F.3d 49, 53 (2d Cir. 2019). In order to determine an individual's domicile, courts consider factors including:current residence; voting registration; driver's license and automobile registration; location of brokerage and bank accounts; membership in fraternal organizations, churches, and other associations; places of employment or business;... payment of taxes;... whether a person owns or rents his place of residence; the nature of the residence (i.e., how permanent the living arrangement appears);... and the location of a person's physician, lawyer, accountant, dentist, stockbroker, etc.Lever v. Lyons, No. 16-cv-5130, 2021 WL 302648, at *7 (E.D.N.Y. Jan. 28, 2021) (citations omitted); see also Lawrence Moskowitz CLU Ltd. v. ALP, Inc., 830 F. App'x 50, 51 (2d Cir. 2020) ("[T]he determination of domicile considers factors such as voting, taxes, property, bank accounts, places of business or employment.") (citation omitted).Defendants' submission of email confirmation from counsel, a blog post, and a LexisNexis Smartlinx Person Report has established that Plaintiff is a citizen of New York for the purposes of diversity jurisdiction. The Court has previously found that Defendants demonstrated that Defendant Kawasaki Motors Corp. USA is a citizen of Delaware and California, while Defendant Kawasaki Motors, Ltd. is a citizen of Japan. (See Elec. Order, Sept. 19, 2024.) Accordingly, Defendants have established that the parties to this action are diverse.The Court also finds that Defendants have demonstrated that the amount in controversy is at least $75,000. (See ECF No. 1.) Thus, Defendant has demonstrated that this Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 1332(a). Ordered by Judge Nusrat J. Choudhury on 10/17/2024. (ASB)
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| Filing 7 AFFIDAVIT/AFFIRMATION Affidavit of James S. Coons, Esq. by Kawasaki Motors Corp., USA, Kawasaki Motors, Ltd. (Attachments: #1 Exhibit A - October 2, 2024 Email Exchange, #2 Exhibit B - Blog Post, #3 Exhibit C - Smartlinx Report Excerpt) (Coons, James) |
| Filing 6 STIPULATION Stipulation of Waiver of Service and Extension of Deadlines Regarding Kawasaki Motors, Ltd. by Kawasaki Motors, Ltd. (Coons, James) Modified on 10/22/2024 (RI). |
| Filing 5 ANSWER to Complaint Answer to Plaintiff's First Amended Complaint and Additional Defenses by Kawasaki Motors Corp., USA. (Coons, James) |
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ORDER TO SHOW CAUSE The Court has reviewed the Notice of Removal (ECF No. #1 ) which invokes this Court's diversity jurisdiction pursuant to 28 U.S.C 1332(a). The Notice of Removal properly alleges the citizenships of Defendant Kawasaki Motors Ltd. ("Kawasaki Motors") and Defendant Kawasaki Motors Corp., USA ("Kawasaki Motors USA"). (ECF No. 1 paras 9-10.) The Notice of Removal alleges that Kawasaki Motors USA is a corporation incorporated in Delaware with a principal place of business in California. (ECF No. 1 para 9.) Therefore, Kawasaki Motors USA is a citizen of Delaware and California. See Bayerische Landesbank v. Aladdin Cap. Mgmt. LLC, 692 F.3d 42, 48 (2d Cir. 2012) ("For diversity purposes, a corporation is considered a citizen of the state in which it is incorporated and the state of its principal place of business."). The Notice of Removal properly alleges that Kawasaki Motors is a citizen of Japan because it is a Japanese company with a principal place of business in Japan. (ECF No. 1 para 10.) The Notice of Removal fails, however to properly allege Plaintiff's citizenship. The Notice of Removal alleges that "[o]n information and belief, Plaintiff is a citizen of the State of New York." (ECF No. 1 para 8.) Allegations made on information and belief are insufficient to establish citizenship. See Snyder Corp. v. Fitness Ridge Worldwide, LLC, 2018 U.S. Dist. LEXIS 47514 at *5 (W.D.N.Y. 2018) (establishment of diversity requires affirmative statements of the identity and citizenship of all parties and the members thereof: conclusory statements upon information and belief are insufficient); see also Enteado v. Hi-Power Cycles, LLC, 2016 U.S. Dist. LEXIS 28880 at *2 (D.N.J. 2016) (allegations of more than one principal place of business for a corporation, and/or allegations of diverse citizenship made upon information and belief, are insufficient to establish diversity jurisdiction).By October 3, 2024, Defendants shall show cause in writing why this Court should not remand this action to state court for lack of subject matter jurisdiction pursuant to 28 U.S.C. 1447(c) ("I]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."). Facts showing diversity jurisdiction must be established by sworn affidavit. Ordered by Judge Nusrat J. Choudhury on 9/19/2024. (DE)
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| Filing 4 Corporate Disclosure Statement by Kawasaki Motors Corp., USA, Kawasaki Motors, Ltd. identifying Corporate Parent Kawasaki Heavy Industries, LTD. for Kawasaki Motors Corp., USA, Kawasaki Motors, Ltd.. (Coons, James) |
| Filing 3 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 2 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. (LJ) |
| Filing 1 NOTICE OF REMOVAL by All Defendants from New York Supreme Court Nassau County, case number 614204/2024. Was the Disclosure Statement on Civil Cover Sheet completed -Yes ( Filing fee $ 405 receipt number ANYEDC-18293267) (Attachments: #1 Civil Cover Sheet) (Coons, James) Modified on 9/18/2024 (LJ). |
| Case Assigned to Judge Nusrat Jahan Choudhury and Magistrate Judge Arlene R. Lindsay. 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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