Goldowsky et al v. Gareri et al
| Michael P Goldowsky and Gold Medal Technologies Heart Inc |
| PCI Inc and Aldo Gareri |
| 1:2018cv00212 |
| February 21, 2018 |
| US District Court for the Northern District of New York |
| Albany Office |
| XX US, Outside State |
| Daniel J Stewart |
| Glenn T Suddaby |
| Assault Libel & Slander |
| 28 U.S.C. § 1332 Diversity-Notice of Removal |
| Plaintiff |
Docket Report
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This docket was last retrieved on May 31, 2018. A more recent docket listing may be available from PACER.
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Filing 32
TEXT ORDER granting #31 Plaintiff Goldowsky's letter-motion and dismissing this action. Plaintiff Goldowsky has voluntarily dismissed his claims by filing a timely notice of dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). With regard to the remaining claims in the action, i.e., those of Plaintiff Gold Medal Technologies Heart Inc. ("Plaintiff GMT Heart"), those claims are dismissed for failure to prosecute pursuant to Fed. R. Civ. P. 41(b) because (a) Plaintiff GMT Heart has, since the action's transfer to the District on 02/21/2018, failed to obtain counsel admitted in this District, (b) it has been advised by its former counsel of its need to obtain new counsel (Dkt. No. #30 ), Defendants are likely to be prejudiced by further delay in this action (which has been pending since 08/07/2017), and no lesser sanctions would be effective given the substance of Plaintiff Goldowsky's letter-motion (Dkt. No. #31 ). The Court notes that it cannot simply take judicial notice of the fact that Plaintiff GMT Heart has been dissolved by the State of Wyoming because Plaintiff Goldowsky does not attach the purported certificate of dissolution and it is not available to the Court online. SO ORDERED by Chief Judge Glenn T. Suddaby on 5/31/18. (lmw) (Copy served upon pro se plaintiff via regular mail)
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| Filing 31 Letter Motion from Michael Goldowsky requesting to dismiss the case and states that his corporation was dissolved in April, 2018 submitted to U.S. Magistrate Judge Daniel J. Stewart. (hmr) |
| Filing 30 Letter from Thomas W. Winslow, Esq. advising the Court that he no longer represents Plaintiffs in this matter. (Attachments: #1 Attachment 1) (mab) |
| TEXT NOTICE: The Rule 16 Initial Conference scheduled for 5/22/2018 at 9:30 AM before Magistrate Judge Daniel J. Stewart is ADJOURNED without date at this time. (Copy mailed to Pro Se Defendant). (mab) |
| Filing 29 G.O. 25 FILING ORDER ISSUED: Initial Conference set for 5/22/2018 09:30 AM in Albany before Magistrate Judge Daniel J. Stewart. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 5/15/2018. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (plp) |
| Filing 28 NOTICE of Admission Requirement as to Plaintiff; Attorney Thomas William Winslow, Esq., Email address is tom@goldfinchwinslow.com. Phone number is 843-357-9301. Admissions due by 3/7/2018. (plp) |
| Filing 27 Case transferred in from District of South Carolina; Case Number 4:17-cv-02073. electronically transferred when case opened |
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Filing 25
ORDER RULING ON REPORT AND RECOMMENDATION : The Court finds no clear error and therefore adopts and incorporates by reference the Magistrate Judge's R & R [ECF No. #23 ]. Accordingly, the Court GRANTS IN PART Defendant's motion to dismiss [ECF No. 11] and TRANSFERS this action to the United States District Court for the Northern District of New York. Signed by the Honorable R Bryan Harwell on 02/16/2018. (lsut, ) [Transferred from South Carolina on 2/21/2018.]
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| Filing 24 ***DOCUMENT MAILED: #23 REPORT AND RECOMMENDATION w/NEF placed in U.S. Mail to Aldo Gareri, 257 Scotch Bush Road, Burnt Hills, NY 12027-9786 (dsto, ) [Transferred from South Carolina on 2/21/2018.] |
| Filing 23 REPORT AND RECOMMENDATION recommending that Defendant's Motion to Dismiss (ECF No. #11 ) be granted in part. It is recommended this action be transferred to the United States District Court for the Northern District of New York for lack of personal jurisdiction in this court over Gareri. Objections to R&R due by 2/12/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Signed by Magistrate Judge Thomas E Rogers, III on 01/29/2018. (Attachments: #1 Notice of Right to File Objections)(dsto, ) [Transferred from South Carolina on 2/21/2018.] |
| Filing 21 REPLY to Response to Motion re #11 MOTION to Dismiss. Response filed by Aldo Gareri. (Attachments: #1 Supporting Documents, #2 Envelope)(dsto, ) [Transferred from South Carolina on 2/21/2018.] |
| Filing 20 ***DOCUMENT MAILED: 19 TEXT Order on Motion for Extension of Time to File Response/Reply placed in U.S. Mail to Aldo Gareri, 257 Scotch Bush Road, Burnt Hills, NY 12027-9786 (dsto, ) [Transferred from South Carolina on 2/21/2018.] |
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Filing 19
TEXT ORDER granting #16 Motion for Extension of Time. Signed by Magistrate Judge Thomas E Rogers, III on 09/28/2017.(dsto, ) [Transferred from South Carolina on 2/21/2018.]
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| Filing 18 RESPONSE in Opposition re #11 MOTION to Dismiss Response filed by Michael P Goldowsky.Reply to Response to Motion due by 9/21/2017 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: #1 Exhibit Contract between Parties, #2 Exhibit Plaintiff e-mail to Defendant, #3 Exhibit Defendant Acknowledging Plaintiff SC Residency, #4 Exhibit Defendant document targeting SC residents, #5 Exhibit Defendant document acknowledging SC business costs)(Winslow, Thomas) [Transferred from South Carolina on 2/21/2018.] |
| Filing 17 CERTIFICATE OF SERVICE by Michael P Goldowsky (Winslow, Thomas) [Transferred from South Carolina on 2/21/2018.] |
| Filing 16 First MOTION for Extension of Time to File Response/Reply re: #11 by Michael P Goldowsky. Response to Motion due by 9/22/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.Motions referred to Thomas E Rogers, III.(Winslow, Thomas) Modified on 9/11/2017 to link correct event to associated event and to correct case number.(dsto) [Transferred from South Carolina on 2/21/2018.] |
| Filing 11 MOTION to Dismiss by Aldo Gareri. Response to Motion due by 9/14/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: #1 Memo in Support, #2 Supporting Documents, #3 Envelope) (hcic, ) (Additional attachment(s) added on 9/11/2017: #4 Exhibit 1-Fundraining Contract, #5 Exhibit 2-Email to defendant, #6 Exhibit 3-Chronological events, #7 Exhibit 4-Entity Information, #8 Exhibit 5-Case Information, #9 Exhibit 6-Case Summary, #10 Exhibit 7-USPTO Patent, #11 Exhibit 8-USPTO Patent, #12 Exhibit 9-Prof. Wyatt Newman's testimonial, #13 Exhibit 10-Shareholder's Agreement, #14 Exhibit 11-Plaintiff's email, #15 Exhibit 12-Cover Letter for Service of case, #16 Exhibit 13-First page of Complaint, #17 Exhibit 14-Power Point presentation by defendant) (dsto, ). [Transferred from South Carolina on 2/21/2018.] |
| Filing 9 CERTIFICATE OF SERVICE by Michael P Goldowsky. Aldo Gareri served 8/11/2017. Answer due 9/1/2017. (Attachments: #1 Supporting Documents PS Form 311 w Defendant Signature)(Winslow, Thomas) Modified on 8/24/2017 to edit text. (dsto) [Transferred from South Carolina on 2/21/2018.] |
| Filing 8 TEXT ORDER: The Court has received and reviewed Plaintiffs' #7 amended emergency motion for temporary restraining order, preliminary injunction, and for temporary relief. Rule 65(b)(1)(B) requires the movant's attorney to certify in writing "any efforts to give notice and the reasons why it should not be required." Fed. R. Civ. P. 65(b)(1)(B). Here, Plaintiffs' counsel has indicated that his only reason for not giving notice to Defendants was because previous attempts to resolve the matter with Defendants had failed. It has been held to be an abuse of discretion to grant a temporary restraining order ex parte when there is no valid reason for proceeding ex parte without notice to the defendant. See American Can Co. v. Mansukhani, 742 F.2d 314, 321 (7th Cir. 1984). The purpose of issuing a temporary restraining order ex parte is to "preserv[e] the status quo and prevent irreparable harm just so long as is necessary to hold a hearing, and no longer." Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 439 (1974). An unsuccessful attempt to settle or resolve a matter is not a valid reason for this Court to grant the extraordinary remedy of an ex parte temporary restraining order. Accordingly, the Court declines to enter any Order without first providing Defendants with notice and an opportunity to be heard. Plaintiffs' motion for an ex parte temporary restraining order is DENIED. The Court will schedule Plaintiffs' still pending motion for preliminary injunction for a hearing upon the filing of a proof of service of the Summons, Complaint, and Motion for Preliminary Injunction on the Defendants. The Court notes that Defendants have been mailed pleadings, etc. but not served personally and no proof of service has been filed by Plaintiffs. The Court recognizes the seriousness of Plaintiffs' allegations; however, granting injunctive relief is an extraordinary remedy that should be used only sparingly. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008). This Court must therefore ensure that all substantive and procedural requirements are met before granting such extraordinary relief, particularly on an ex parte basis. Additionally, a basic requirement is that the issuing Court have jurisdiction over the parties. "[A] party cannot obtain injunctive relief against another without first obtaining in personam jurisdiction over that person or someone in legal privity with that person." R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 957 (4th Cir. 1999). "To obtain personal jurisdiction over a defendant, a court must have (1) proof of 'notice to the defendant,' (2) 'a constitutionally sufficient relationship between the defendant and the forum,' and (3) 'authorization for service of a summons on the defendant.'" Id. When injunctive relief is sought, the plaintiff must demonstrate "that there is at least a reasonable probability of ultimate success upon the question of [personal] jurisdiction when the action is tried on the merits." Catalog Marketing Servs., Ltd. v. Savitch, 873 F.2d 1438 (4th Cir. 1989). In reviewing this matter, the Court notes that Defendants reside in New York and appear to have no contacts with South Carolina. Clearly, a district court in New York would have personal jurisdiction over the Defendants. Based on the filed complaint, motion, and documents in support, it is less clear whether this Court has personal jurisdiction over these New York defendants. The unverified complaint alleges that venue is proper in South Carolina "as a substantial part of the incidents, events and/or omissions that gave rise to this action occurred in the State of South Carolina." The complaint does not specify what those incidents, events, or omissions were that "occurred in South Carolina" and does not otherwise set forth any basis for personal jurisdiction over the Defendants, nor does the affidavit of Plaintiff. An out-of-state defendant's internet activity must be expressly targeted at or directed to the forum state to establish minimum contacts necessary to support the exercise of personal jurisdiction over defendant by the district court in the forum state. Young v. New Haven Advocate, 315 F.3d 256, 262-63 (4th Cir. 2002). A person's act of placing information on the internet is not sufficient by itself to subject that person to personal jurisdiction in each state in which information is accessed. Id. at 263.Inherent in showing a clear likelihood of success on the merits is a showing that Plaintiffs could defeat a lack of personal jurisdiction defense. Personal jurisdiction may be lacking in this case. Plaintiffs' counsel should be prepared to address whether this Court has personal jurisdiction over these Defendants at any hearing on Plaintiffs' motion for preliminary injunction. Signed by Honorable R Bryan Harwell on 8/16/2017.(tmcb, ) [Transferred from South Carolina on 2/21/2018.] |
| Filing 7 Amended MOTION for Temporary Restraining Order , Amended MOTION for Preliminary Injunction ( Response to Motion due by 8/28/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. ) by Michael P Goldowsky. (Attachments: #1 Affidavit Affidavit in Support of Motion, #2 Exhibit Exhibit in Support of Motion and Affidavit-copy Defendant's On-line Posting)No proposed order.(Winslow, Thomas) [Transferred from South Carolina on 2/21/2018.] |
| Filing 6 TEXT ORDER denying, without prejudice, Plaintiffs' #5 motion for temporary restraining order. Fed. R. Civ. P. 65(b)(1)(A) requires that a motion for temporary restraining order be supported by an affidavit or verified complaint setting forth specific facts that "clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Plaintiffs have failed to include any such affidavit or verified complaint with their motion for temporary restraining order. Plaintiffs have also failed to include an attorney certification as required by Rule 65(b)(1)(B). Accordingly, Plaintiffs' #5 motion for temporary restraining order is DENIED, without prejudice. The Court notes that Plaintiffs have also moved for a preliminary injunction, which can only issue after notice to the adverse party. The Defendants have not yet appeared due to the matter just being filed. Upon an appearance by the Defendants, the Court will consider scheduling the matter at a time to be determined. Signed by Honorable R Bryan Harwell on 8/9/2017.(tmcb, ) [Transferred from South Carolina on 2/21/2018.] |
| Filing 5 MOTION for Temporary Restraining Order by Gold Medal Technologies Heart Inc, Michael P Goldowsky. Response to Motion due by 8/21/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: #1 Memo in Support, #2 Exhibit 1-Statements about Goldowsky and GMT Heart) (hcic, ) [Transferred from South Carolina on 2/21/2018.] |
| Filing 4 Summons Issued as to Aldo Gareri, PCI Inc. Service due by 11/6/2017. (hcic, ) [Transferred from South Carolina on 2/21/2018.] |
| Filing 3 Local Rule 26.01 Answers to Interrogatories with jury demand by Gold Medal Technologies Heart Inc, Michael P Goldowsky. (hcic, ) [Transferred from South Carolina on 2/21/2018.] |
| Filing 1 COMPLAINT against Aldo Gareri, PCI Inc (filing fee $400 receipt number 0420-7294565), filed by Michael P Goldowsky, Gold Medal Technologies Heart Inc. (Attachments: #1 Exhibit 1-Agreement of Parties, #2 Exhibit 2-Defamation Document-Statements) (hcic, ) [Transferred from South Carolina on 2/21/2018.] |
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