Tuttle et al v. Home Depot U.S.A., Inc.
| Anthony Tuttle and Kimberly Tuttle |
| Home Depot U.S.A., Inc. |
| 3:2023cv01173 |
| September 13, 2023 |
| US District Court for the Northern District of New York |
| Lawrence E Kahn |
| Miroslav Lovric |
| Contract: Other |
| 28 U.S.C. § 1446 Breach of Contract- Insurance |
| None |
Docket Report
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This docket was last retrieved on October 31, 2023. A more recent docket listing may be available from PACER.
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Filing 17
TEXT ORDER: The Court has received Plaintiffs' second motion for remand. Dkt. No. #16 ("Second Motion"). The Court construes this Second Motion as a motion for reconsideration of the Court's Text Order dated October 24, 2023. Dkt. No. 13 ("October Order"). After further review, the Court directs Defendant to file a response to this Second Motion and explain why remand is not required pursuant to 28 U.S.C. 1446(c)(1). Defendant must file its response by November 21, 2023. The Court accordingly suspends the briefing schedule set in the October Order pending resolution of the question of remand. SO ORDERED by Senior Judge Lawrence E. Kahn on 10/31/2023. (Copy served via regular mail) (dpk)
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| Filing 16 MOTION to Remand filed by Anthony Tuttle. Response to Motion due by 11/20/2023. Reply to Response to Motion due by 11/27/2023 (Attachments: #1 State Court Affidavit of Service and Notice of Motion, #2 State Court Notice of Motion){Filed via MFT, Motion references Exhibits A thru F, Clerk notes that only 2 exhibits were received with the motion, but may be referencing docket entries #14 and #15 .} (egr) |
| Filing 15 State Court Records filed by Anthony Tuttle, Kimberly Tuttle. (Attachments: #1 State Court Record: Filed Summons and Complaint, #2 State Court Record: Affidavit of Service and Notice of Motion of Summary Judgment, #3 State Court Record: Affidavit of Service)(egr) |
| Filing 14 State Court Records filed by Anthony Tuttle, Kimberly Tuttle. (Attachments: #1 State Court Exhibit 1, #2 State Court Exhibit 2, #3 State Court Exhibit 3, #4 State Court Exhibit 4)(egr) |
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Filing 13
TEXT ORDER: The Court has received Plaintiffs' motion for remand. Dkt. No. #11 ("Motion"). Plaintiffs argue that removal was improper under 28 U.S.C. 1446(c)(1), which provides that cases should not be removed more than one year after commencement. See id. at 1-3. However, Defendant asserts - and Plaintiffs do not dispute - that this case only became removable on August 17, 2023, when Plaintiffs served an amended complaint seeking damages that satisfied the amount-in-controversy requirement. See Dkt. No. 1 at 1-2; see also Dkt. No. 1-1 at 2. Defendant's removal on September 13, 2023, was therefore timely pursuant to 28 U.S.C. 1446(b)(3). Plaintiffs' Motion is therefore DENIED. However, the Court also notes that Defendant's answer, Dkt. No. #8 , does not comply with this Court's Local Rules or the Federal Rules of Civil Procedure. Most importantly, Federal Rule of Civil Procedure 7(b) provides that all requests for a court order must be made by motion. Defendant has asked this Court to dismiss Plaintiffs' amended complaint, see id. at 6, but has neither filed a motion to dismiss nor provided the accompanying memorandum of law required by Local Rule 7.1(b). Defendant is directed to cure this defect by filing either an amended answer or a pre-answer motion, such as a motion to dismiss, by no later than November 23, 2023. Defendant is advised that this filing must comply with all pleading requirements, including the use of numbered paragraphs pursuant to Federal Rule of Civil Procedure 10(b). Finally, Defendant has advised the Court that there is a motion for summary judgment pending in the state court action, and they argue that this motion "requires action by a Judge of this Court." Dkt. No. #6 . However, Local Rule 81.4 provides that "[t]he Court will not consider a motion that a party filed in state court unless that party refiles the motion in this Court in accordance with the Local Rules of Practice for the Northern District of New York." Plaintiffs have not re-filed their motion for summary judgment in this Court, and this Court will therefore not consider it. SO ORDERED by Senior Judge Lawrence E. Kahn on 10/24/2023. (Copy served via regular mail) (dpk)
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| Filing 12 TEXT ORDER: In light of the filing of Motion to Remand #11 and the motion currently still pending before the District Judge, the Rule 16 Initial Conference scheduled for 10/26/2023 before Magistrate Judge Miroslav Lovric is STAYED without date. SO ORDERED by U.S. Magistrate Judge Miroslav Lovric on 10/20/2023. (copy of Text Order served on pro se Plaintiffs via regular mail) (jdc) |
| Filing 11 MOTION to Remand with attached exhibits filed by Anthony Tuttle. Response to Motion due by 10/16/2023. Reply to Response to Motion due by 10/23/2023 (egr) |
| Filing 10 CIVIL CASE MANAGEMENT PLAN by Anthony Tuttle, Kimberly Tuttle. (hmr) |
| Filing 9 RESPONSE TO NOTICE OF REMOVAL by Anthony Tuttle, Kimberly Tuttle re #1 Notice of Removal. (hmr) |
| Filing 8 ANSWER to Complaint and Affirmative Defenses by Home Depot U.S.A., Inc..(Doran, John) |
| Filing 7 FRCP 7.1 CORPORATE DISCLOSURE STATEMENT by Home Depot U.S.A., Inc.. (Doran, John) |
| Filing 6 NOTICE by Home Depot U.S.A., Inc. Notice of Pending Motions (Doran, John) |
| Filing 5 CERTIFICATE OF SERVICE by Home Depot U.S.A., Inc. re #3 G.O. 25 Filing Order, #1 Notice of Removal, (Doran, John) |
| ***Answer due date updated for Home Depot U.S.A., Inc. answer due 9/20/2023. (egr) |
| TEXT NOTICE: The Initial Conference scheduled for 10/26/2023 at 1:00PM before Magistrate Judge Miroslav, in person, at 15 Henry Street, 1st Floor Courtroom, Binghamton, New York. (Served on Pro Se Plaintiff's via regular mail) (jdc ) |
| Filing 4 PRO SE HANDBOOK, LOCAL RULES, GENERAL ORDER 25 and PRO SE NOTICE issued and mailed at time complaint was filed. (egr) |
| Filing 3 G.O. 25 FILING ORDER ISSUED: Initial Conference set for 10/26/2023 at 1:00 PM in Binghamton before Magistrate Judge Miroslav Lovric. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 10/19/2023. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (egr) |
| Filing 2 STATE COURT COMPLAINT relating to #1 Notice of Removal, filed by Plaintiff(s) in State of New York Supreme Court: County of Tompkins. (egr) |
| Filing 1 NOTICE OF REMOVAL from State of New York Supreme Court County of Tompkins, case number 2022-0138 (Filing fee $402 receipt number ANYNDC-6443693) filed by Home Depot U.S.A., Inc. (Attachments: #1 Amended State Court Summons and Complaint, #2 Civil Cover Sheet)(egr) |
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