S&S NY Holdings, Inc. et al v. Able Energy, Inc. et al
| S&S NY Holdings, Inc. and Funding Group, LLC |
| Able Energy, Inc., Abel Oil Company, Frank Nocito, Gregory Frost, Kenneth N. Miller, Westerly Acquisition Corp., Westerly Acquisition LLC, Vincent J. Franzone and 10 E Resort Development Corp |
| 1:2011cv02388 |
| April 7, 2011 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of State |
| Katherine B Forrest |
| Securities/Commodities |
| 15 U.S.C. § 78 |
| Plaintiff |
Docket Report
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This docket was last retrieved on December 3, 2012. A more recent docket listing may be available from PACER.
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| Filing 41 STIPULATION OF DISMISSAL WITH PREJUDICE: IT IS HEREBY STIPULATED AND AGREED, subject to terms of signed stipulation of settlement, by and between their respective undersigned attorneys, Plaintiffs, S&S NY Holdings, Inc. and Funding Group, LLC, and Defendants Westerly Acquisition, LLC. Vincent J. Franzone and 10 E Resort Development Corp., constituting all parties who have appeared in the captioned action and who have not previously been dismissed from the action, that the above-captioned action is dismissed in all respects with prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure with each party to bear their own attorneys' fees, expenses and costs. (Signed by Judge Katherine B. Forrest on 12/3/2012) (djc) |
Filing 40
ORDER: that this action be conditionally discontinued without prejudice and without costs; provided, however, that within thirty (30) days of the date of this Order, the parties may submit to the Court their own Stipulation of Settlement and Dismissal for the Court to So Order. Otherwise, within such time Plaintiffs may apply by letter for restoration of the action to the active calendar of this Court in the event that the settlement is not consummated. Upon such application for reinstatement, Defendants shall continue to be subject to the Court's jurisdiction, the Court shall promptly reinstate the action to its active docket, and the parties shall be directed to appear before the Court, without the necessity of additional process, on a date within ten days of the application, to schedule remaining pretrial proceedings and/or dispositive motions, as appropriate. This Order shall be deemed a final discontinuance of the action with prejudice in the event that Plaintiffs have not requested restoration of the case to the active calendar within such thirty-day period. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and to close this case. (Signed by Judge Katherine B. Forrest on 11/29/2012) (djc)
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Filing 39
ORDER:The parties shall appear for a status conference in the above matter on Monday, November 26, 2012, at 3:00 p.m., Courtroom 15A, 500 Pearl Street, New York, NY 10007. The parties shall be prepared to discuss setting a schedule for dispositive motions and trial., ( Status Conference set for 11/26/2012 at 03:00 PM in Courtroom 15A, 500 Pearl Street, New York, NY 10007 before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 11/14/2012) (lmb)
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Filing 38
ORDER: In response, the plaintiff submitted a letter on August 28, 2012 supplying information regarding the citizenship of the defendants for the purposes of diversity jurisdiction. The Court is satisfied that this letter sets forth an adequate basis for diversity jurisdiction under 28 U.S.C. 1332.The Court will therefore reinstate the action with respect to the defendants named above. The Clerk of Court is hereby ORDERED to reopen this action. SO ORDERED: (Signed by Judge Katherine B. Forrest on 9/07/2012) (ama)
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| ***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. #37 HAS BEEN REJECTED. Note to Attorney Alexander Karasik : THE CLERK'S OFFICE DOES NOT ACCEPT LETTERS FOR FILING, either through ECF or otherwise, except where the judge has ordered that a particular letter be docketed. Letters may be sent directly to a judge. (ka) |
| Filing 37 FILING ERROR - ELECTRONIC FILING OF NON-ECF DOCUMENT - FIRST RESPONSE to August 27, 2012 Order. Document filed by Funding Group, LLC, S&S NY Holdings, Inc.. (Attachments: #1 Exhibit Exhibit A of Aug 28 Letter to Judge Forrest)(Karasik, Alexander) Modified on 8/30/2012 (ka). |
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Filing 36
ORDER: Accordingly, consistent with the Court's August 10 Order, plaintiffs' claims against defendants Westerly Acquisition LLC, Vincent J. Franzone and 10 E. Resort Development Corp. are hereby DISMISSED for lack of subject matter jurisdiction. Based on the docket, there is also no indication that defendants Able Energy, Inc., Abel Oil Company, Frank Nocito and Westerly Acquisition Corp. have ever been served; they have not appeared in this action. As more than 120 days have elapsed since plaintiffs filed their amended complaint on January 14, 2011, plaintiffs' claims against those defendants are also DISMISSED, pursuant to Federal Rule 4(m).The Clerk of the Court is directed to close this action. (Signed by Judge Katherine B. Forrest on 8/27/2012) (lmb)
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Filing 35
ORDER: In its July 27, 2012 Memorandum and Order, the Court having directed plaintiffs to submit a letter setting forth S & S's principal place of business and the citizenship of each member of the LLC (Docket No. 34 at 15); and Plaintiffs having failed to submit such a letter to date; it is hereby ORDERED that if plaintiffs fail to submit such a letter on or before August 17, 2012, the Court will assume that there is no basis for subject-matter jurisdiction over the remaining claims in this case and will dismiss the action. (Signed by Judge Katherine B. Forrest on 8/10/2012) (js)
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Filing 34
MEMORANDUM AND ORDER. For the aforementioned reasons, defendant Frost's motion to dismiss the Amended Complaint is GRANTED. The control person liability claim against Frost is dismissed with prejudice. The parties should not construe the dismissal of the control person liability claim against Frost as condoning the conduct in which Frost is alleged to have engaged. Quite simply, the allegations do not support the claim asserted against Frost in the Amended Complaint. The allegations may support other claims against Frost-., breach of contract. Plaintiffs should assess (in timely fashion) what, if any, action they should take in light of the Court's decision on the motion to dismiss. No later than August 3, 2012, plaintiffs must submit a letter in accordance with Rule 6(C) of Judge Forrest's Individual Practices in Civil Cases, regarding both S&S's principal place of business and setting forth the citizenship of each member of the LLC. The Clerk of Court is directed to terminate the motion to dismiss at Docket No. 17, (listed as Doc. No. 18) and to terminate Gregory Frost as a defendant in this action. (Signed by Judge Katherine B. Forrest on 7/27/2012) (rjm)
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| Filing 33 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by 10 E Resort Development Corp.(Semaya, Ted) |
| Filing 32 ANSWER to #11 Amended Complaint,,. Document filed by 10 E Resort Development Corp, Vincent J. Franzone, Westerly Acquisition LLC.(Semaya, Ted) |
| ***NOTE TO ATTORNEY TO E-MAIL PDF. Note to Attorney Alexander Karasik for noncompliance with Section 14.3 of the S.D.N.Y. Electronic Case Filing Rules & Instructions. E-MAIL the PDF for Document #1 Complaint to: caseopenings@nysd.uscourts.gov. (rjm) |
| Filing 31 SUPPLEMENTAL MEMORANDUM OF LAW in Opposition re: #18 MOTION to Dismiss. Contains original Memo of Law in Opposition along with accompanying Exhibits A, B, & C. Document filed by Funding Group, LLC, S&S NY Holdings, Inc.. (Attachments: #1 Exhibit Exhibit A - Part 1, #2 Exhibit Exhibit A - Part 2, #3 Exhibit Exhibit A - Part 3, #4 Exhibit Exhibit A - Part 4, #5 Exhibit Exhibit A - Part 5, #6 Exhibit Exhibit A - Part 6, #7 Exhibit Exhibit B, #8 Exhibit Exhbit C - Part 1, #9 Exhibit Exhibit C - Part 2)(Karasik, Alexander) |
| Filing 30 REPLY AFFIDAVIT of Gregory Frost in Support re: #18 MOTION to Dismiss.. Document filed by Gregory Frost. (Attachments: #1 Exhibit Exhibit A, #2 Exhibit Exhibit B, #3 Exhibit Exhibit C)(Frost, Gregory) |
| Filing 29 REPLY MEMORANDUM OF LAW in Support re: #18 MOTION to Dismiss.. Document filed by Gregory Frost. (Frost, Gregory) |
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Filing 28
ENDORSED LETTER addressed to Judge Katherine B. Forrest from Gregory D. Forrest dated 3/5/2012 re: Counsel for defendant writes In view of Plaintiffs' complete disregard for the Scheduling Order, I request that the Court grant my motion and dismiss the Amended Complaint against me with prejudice. Specifically, Plaintiffs' counsel did not request that I consent to his late filing, make an application to the Court seeking such delay nor did he advise me of his late filing in total disregard of his professional obligations to the Court and me. In the event that the Court does not grant such relief, I respectfully request that my time to file reply papers in support of the motion currently required to be filed on March 9, 2012 pursuant to the Scheduling Order be extended to and through March 14, 2012. Thank you for your consideration. ENDORSEMENT: The Court declines to dismiss the amended complaint against defendant Frost with prejudice but grants his extension request with regard to the reply brief. defendant Frost shall serve and file his reply on or before March 14, 2012. ( Replies due by 3/14/2012.) (Signed by Judge Katherine B. Forrest on 3/6/2012) (js)
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| ***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - NON-ECF DOCUMENT ERROR. Note to Attorney Alexander Karasik. Document Nos. #24 , #25 , #26 , #27 are Exhibits. These documents are NOT filed via ECF. Exhibits are ONLY filed as attachments to a supporting document. Re-File a Supplemental Memorandum of Law and add Exhibits A-C as Attachments. (ldi) |
| Filing 27 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - FIRST MEMORANDUM OF LAW in Opposition re: #18 MOTION to Dismiss.. Document filed by Funding Group, LLC, S&S NY Holdings, Inc.. (Attachments: #1 Exhibit C Complaint P 1, #2 Exhibit C Complaint P 2)(Karasik, Alexander) Modified on 3/5/2012 (ldi). |
| Filing 26 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - MEMORANDUM OF LAW in Opposition re: #18 MOTION to Dismiss. Exhibit A - 2. Document filed by Funding Group, LLC, S&S NY Holdings, Inc.. (Karasik, Alexander) Modified on 3/5/2012 (ldi). |
| Filing 25 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - MEMORANDUM OF LAW in Opposition re: #18 MOTION to Dismiss. Exhibit A - 1. Document filed by Funding Group, LLC, S&S NY Holdings, Inc.. (Karasik, Alexander) Modified on 3/5/2012 (ldi). |
| Filing 24 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - MEMORANDUM OF LAW in Opposition re: #18 MOTION to Dismiss. Exhibit B. Document filed by Funding Group, LLC, S&S NY Holdings, Inc.. (Karasik, Alexander) Modified on 3/5/2012 (ldi). |
| Filing 23 AFFIDAVIT of George Stephanis in Opposition re: #18 MOTION to Dismiss.. Document filed by Funding Group, LLC, S&S NY Holdings, Inc.. (Karasik, Alexander) |
| Filing 22 MEMORANDUM OF LAW in Opposition re: #18 MOTION to Dismiss.. Document filed by Funding Group, LLC, S&S NY Holdings, Inc.. (Karasik, Alexander) |
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Filing 21
ORDER: This case has been reassigned to the undersigned for all purposes. It is hereby ordered that once defendant Gregory Frost's motion to dismiss the Amended Complaint is fully briefed (Dkt. No. 18), courtesy copies should be submitted in accordance with Rule 2(C) of Judge Forrest's Individual Practices in Civil Cases. (Signed by Judge Katherine B. Forrest on 2/10/2012) (ab)
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| Filing 20 NOTICE OF CASE REASSIGNMENT to Judge Katherine B. Forrest. Judge Richard J. Holwell is no longer assigned to the case. (sjo) |
| Filing 19 AFFIDAVIT OF SERVICE served on Plaintiffs on January 26, 2012. Document filed by Gregory Frost. (Frost, Gregory) |
| Filing 18 MOTION to Dismiss. Document filed by Gregory Frost. Responses due by 2/29/2012(Frost, Gregory) |
| Filing 17 MEMORANDUM OF LAW in Support re: #13 MOTION to Dismiss.. Document filed by Gregory Frost. (Frost, Gregory) |
| Filing 16 AFFIDAVIT of Gregory Frost in Support re: #13 MOTION to Dismiss.. Document filed by Gregory Frost. (Attachments: #1 Exhibit Part 1, #2 Exhibit Part 2, #3 Exhibit Part 3)(Frost, Gregory) |
| ***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Gregory D. Frost to RE-FILE Document #14 Memorandum of Law in Support of Motion. ERROR(S): Document linked to filing error. (ldi) |
| ***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Note to Attorney Gregory D. Frost to RE-FILE Document #15 Affidavit in Support of Motion. Use the event type Affidavit of Service Other found under the event list Service of Process. (ldi) |
| ***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Gregory D. Frost to RE-FILE Document #13 MOTION to Dismiss. ERROR(S): Supporting documents must be filed separately, each receiving their own document number. Affidavit in Support of Motion is found under the event list Replies, Opposition and Supporting Documents. (ldi) |
| Filing 15 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - AFFIDAVIT of Affidavit of Service in Support re: #13 MOTION to Dismiss. Document filed by Gregory Frost. (Frost, Gregory) Modified on 1/27/2012 (ldi). |
| Filing 14 FILING ERROR - DEFICIENT DOCKET ENTRY - MEMORANDUM OF LAW in Support re: #13 MOTION to Dismiss.. Document filed by Gregory Frost. (Frost, Gregory) Modified on 1/27/2012 (ldi). |
| Filing 13 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION to Dismiss. Document filed by Gregory Frost. Responses due by 2/29/2012 (Attachments: #1 Affidavit Affidavit of Gregory Frost in Support, #2 Exhibit Exhibit Part 1, #3 Exhibit Exhibit Part 2, #4 Exhibit Exhibit Part 3)(Frost, Gregory) Modified on 1/27/2012 (ldi). |
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Filing 12
SCHEDULING ORDER: Pursuant to the status conference of December 19, 2011, the court adopts the following schedule: Defendant Frost will submit a motion to dismiss the amended complaint by January 30, 2012. Plaintiffs will file papers in opposition by February 29, 2012. Defendant will submit his reply by March 9, 2012. A status conference will be held on February 10, 2012 at 2:OO PM in Courtroom 17B. All parties shall attend. (Signed by Judge Richard J. Holwell on 12/19/2011) (mro)
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| Minute Entry for proceedings held before Judge Richard J. Holwell: Pretrial Conference held on 12/19/2011. Amended Complaint out for service as to all parties. Frank Nicito was served at his farm house; Vincent Franzone has not beed served; All corporate parties have been served. Franzone has counsel, and proposed settlement terms to plaintiffs. Plaintiffs represent that they intend to move for default as to all defendants who haven't responded. Defendant Frost will move to dismiss complaint by 1/30/12. Opposition by 2/29/12. Reply by 3/9/12. Status conference scheduled for 2/10/12 at 2PM. (mro) |
| ***NOTE TO ATTORNEY TO E-MAIL PDF. Note to Attorney Alexander Karasik for noncompliance with Section 14.3 of the S.D.N.Y. Electronic Case Filing Rules & Instructions. E-MAIL the PDF for Document #11 Amended Complaint, to: caseopenings@nysd.uscourts.gov. (mro) |
| Filing 11 AMENDED COMPLAINT amending #1 Complaint against Abel Oil Company, Able Energy, Inc., Gregory Frost, Frank Nocito, Westerly Acquisition Corp., Westerly Acquisition LLC, Vincent J. Franzone, 10 E Resort Development Corp with JURY DEMAND.Document filed by Funding Group, LLC, S&S NY Holdings, Inc. Related document: #1 Complaint filed by S&S NY Holdings, Inc., Funding Group, LLC.(mro) (Additional attachment(s) added on 12/20/2011: #1 Amended Complaint Part 2, #2 EX A, #3 EX A PART 2, #4 EX B, #5 EX C PART 1, #6 EX C PART 2, #7 EX D, #8 EX E, #9 EX F PART 1, #10 EX F PART 2, #11 EX G, #12 EX H, #13 EX I, #14 EX J, #15 EX K, #16 EX L, #17 EX M, #18 EX N) (ama). |
| Filing 10 ENDORSED LETTER addressed to Judge Richard J. Holwell from Gregory D. Frost dated 11/22/2011 re: Counsel writes to clarify plaintiffs' counsel's statement to the Court and counsel anticipate with this Clarification that counsel will be copied on all future correspondence and papers sent or served by plaintiffs' counsel to the Court and others in this action. ENDORSEMENT: Frost's motion will be addressed at the 12/9 11:00 a.m. conference. The Clerk of Court shall note Frost's appearance on 7/12/11, and shall provide him with future correspondence via ECF. His ECF login is Frost10. (Status Conference set for 12/19/2011 at 11:00 AM before Judge Richard J. Holwell.) (Signed by Judge Richard J. Holwell on 12/9/2011) (jfe) |
| Filing 9 ENDORSED LETTER addressed to Judge Richard J Holwell from Alexander Karasik dated 9/26/2011 re: Request to add two additional defendants to the complaint. ENDORSEMENT: Plaintiffs are granted leave to amend the summons and complaint. (Signed by Judge Richard J. Holwell on 10/24/2011) (cd) |
| Filing 8 STIPULATION OF DISCONTINUANCE: IT IS HEREBY STIPULATED AND AGREED by and between the undersigned that this action against Defendant Kenneth N. Miller is hereby discontinued with prejudice and without costs to either part as against the other. (Signed by Judge Richard J. Holwell on 9/19/2011) (laq) |
| Minute Entry for proceedings held before Judge Richard J. Holwell: Interim Pretrial Conference held on 9/16/2011. Plaintiff to request to amend complaint as to new defendants in case. To notify the Court of settlement or to attend conference set for 11/18/11 at 10:00 am. (ft) |
| ***NOTE TO ATTORNEY TO E-MAIL PDF. Note to Attorney Kenneth Miller for noncompliance with Section 18.4 of the S.D.N.Y. Electronic Case Filing Rules & Instructions. E-MAIL the PDF for Document #7 Stipulation of Voluntary Dismissal, to: judgments@nysd.uscourts.gov. (Document does not dismiss entire action). (dt) |
| Filing 7 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - STIPULATION OF VOLUNTARY DISMISSAL It is hereby stipulated and agreed by and between the parties and/or their respective counsel(s) that the above-captioned action is voluntarily dismissed, with prejudice against the defendant(s) All Plaintiffs and without costs to either party pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. Document filed by Kenneth N. Miller.(Miller, Kenneth) Modified on 9/9/2011 (dt). |
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Filing 6
SCHEDULING ORDER: Status Conference set for 9/16/2011 at 10:30 AM before Judge Richard J. Holwell. (Signed by Judge Richard J. Holwell on 7/28/11) (cd)
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Filing 5
SCHEDULING ORDER: Status Conference set for 9/16/2011 at 10:30 AM before Judge Richard J. Holwell. (Signed by Judge Richard J. Holwell on 7/28/11) (cd)
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Filing 4
SCHEDULING ORDER: A status conference shall be held on September 16, 2011 at 10:30 a.m. So Ordered (Signed by Judge Richard J. Holwell on 7/28/2011) (js)
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| Minute Entry for proceedings held before Judge Richard J. Holwell: Pretrial Conference held on 7/28/2011. The Court discussed discovery issues. Next Pretrial Conference set for 9/16/2011 at 10:30 AM before Judge Richard J. Holwell. (mro) |
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Filing 3
ORDER FOR INITIAL PRETRIAL CONFERENCE: Initial Conference set for 6/17/2011 at 10:30 AM in Courtroom 17B, 500 Pearl Street, New York, NY 10007 before Judge Richard J. Holwell. (Signed by Judge Richard J. Holwell on 5/6/2011) (jpo)
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| Filing 2 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Funding Group, LLC, S&S NY Holdings, Inc.(ama) |
| Filing 1 COMPLAINT against Abel Oil Company, Able Energy, Inc., Gregory Frost, Kenneth N. Miller, Frank Nocito, Westerly Acquisition Corp. (Filing Fee $ 350.00, Receipt Number 003466)Document filed by Funding Group, LLC, S&S NY Holdings, Inc.(ama) (Additional attachment(s) added on 4/23/2012: #1 Complaint Part 2) (ama). |
| SUMMONS ISSUED as to Abel Oil Company, Able Energy, Inc., Gregory Frost, Kenneth N. Miller, Frank Nocito, Westerly Acquisition Corp. (ama) |
| Case Designated ECF. (ama) |
| Magistrate Judge James C. Francis IV is so designated. (ama) |
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