New York Wheel Owner LLC v. Mammoet-Starneth LLC
| New York Wheel Owner LLC |
| Mammoet-Starneth LLC |
| 1:2017cv04026 |
| May 30, 2017 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| Jesse M. Furman |
| Other Contract |
| 28 U.S.C. ยง 1332 |
| Plaintiff |
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Filing
350
OPINION AND ORDER. Any party that believes, in light of the foregoing principles, that any materials currently under seal or in redacted form should remain under seal or in redacted form is ORDERED to show cause in writing, on a document-by-docum ent basis, why doing so would be consistent with the presumption in favor of public access no later than two weeks from the date of this Opinion and Order. Proposed redactions should be "narrowly tailored" to achieve the aims that justif y sealing. See, e.g., Brown, 929 F.3d at 47 (internal quotation marks omitted). Finally, each party shall ensure that all sealing and redaction requests are made in accordance with Rule 7 of the Court's current Individual Rules and Practices i n Civil Cases (and the District's ECF Rules and Instructions, the relevant parts of which were amended in 2020). If, by the deadline, no party contends that a particular document should remain under seal or in redacted form, then the parties shall promptly file that document publicly on ECF. The Clerk of Court is directed to terminate ECF No. 326. SO ORDERED. (Signed by Judge Jesse M. Furman on 6/29/21) (yv)
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Filing
343
ORDER temporarily granting 338 Letter Motion to Seal. The motion to seal is granted temporarily. The Court will assess whether to keep the materials at issue sealed or redacted when deciding the underlying motion. The Clerk of Court is directed to terminate ECF No. 338. SO ORDERED. (Signed by Judge Jesse M. Furman on 3/2/21) (yv)
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Filing
318
ORDER denying without prejudice 312 Motion to Compel. As discussed, and for the reasons stated, on the record during todays telephone conference: 1. Defendants' motion to compel discovery, ECF No. 312, is DENIED without prejudice. 2. No l ater than January 12, 2021, Defendants shall advise Plaintiffs if they intend to bring a motion for sanctions. If Defendants intend to bring a motion for sanctions, the parties must confer and file a joint letter no later than January 15, 2021, pro posing a briefing schedule that would include a deadline by which Plaintiffs must elect whether to invoke an advice-of-counsel defense and if appropriate a deadline by which additional discovery would be produced. If Defendants do not intend to bring a motion for sanctions, they must promptly file a letter on ECF so advising the Court. The Clerk of Court is directed to terminate ECF No. 312. SO ORDERED. (Signed by Judge Jesse M. Furman on 1/6/21) (yv)
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Filing
316
ORDER: The Court has reviewed the parties' papers with respect to Defendants' motion to compel New York Wheel Owner LLC ("NY Wheel") to produce certain sanctions-related discovery. See ECF Nos. 312-15. The parties are hereby OR DERED to appear for a conference on January 6, 2021, at 2:00 p.m. to discuss the motion. Among other things, the parties should be prepared to discuss: and further set forth in this Order. Set Deadlines/Hearing as to 312 MOTION to Compel Discovery . :( Motion Hearing set for 1/6/2021 at 02:00 PM before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 12/22/2020) (rro)
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Filing
307
ORDER, Defendants - who seek documents responsive to seven document requests - are hereby ORDERED to file any motion to compel production, supported by a brief not to exceed ten pages, on or before December 2, 2020. Plaintiffs shall file any oppo sition, also not to exceed ten pages, by December 9, 2020. Absent leave of Court, no reply will be permitted. Within one week of the Court's ruling on the motion to compel or, if the motion is granted, within one week of such discovery being produced, the parties shall file a joint letter proposing a briefing schedule for any motion for sanctions (or other next steps). In light of the foregoing, the conference previously scheduled for November 23, 2020, is CANCELED. SO ORDERED. ( Motions due by 12/2/2020., Responses due by 12/9/2020) (Signed by Judge Jesse M. Furman on 11/20/20) (yv)
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Filing
305
ORDER. On November 11, 2020, New York Wheel Owner LLC and New York Metropolitan Regional Center, L.P. II filed a letter in 17-CV-4026 requesting that all claims, counterclaims, and third-party claims in that case be dismissed without prejudice, with each party to bear its own costs and attorneys' fees (subject to the resolution of any motion for sanctions that Defendants may bring). See 17-CV-4026, ECF No. 303. Defendants in 17-CV-4026 confirm that they do not oppose that request. 17-CV-402 6, ECF No. 304. Accordingly, pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, the Court hereby orders that all claims, counterclaims, and third-party claims in 17-CV-4026 are DISMISSED without prejudice. On the same date November 1 1, 2020 the parties filed two new actions, reinstating, in one form or another, all of the claims at issue in 17-CV-4026. First, New York Metropolitan Regional Center, L.P. II filed a new complaint in this Court against Mammoet USA Holding, Inc. in 20-CV-9477 (which the undersigned has accepted as related to 17-CV-4026). See 20-CV-9477, ECF No. 1. Second, Defendants in 17-CV-4026 apparently filed an action in New York State court, which, they assert, would allow "all claims asserted" in 17-CV-4026 to "be litigated in a single forum given the related legal and factual issues." 17-CV-4026, ECF No. 304. In light of these developments, and to discuss the next steps in both cases, the Court will hold a telephone conference o n November 23, 2020, at 4:15 p.m. In advance of the conference, counsel should confer and, no later than November 19, 2020, file a joint letter on both dockets discussing the parties views on how the Court should proceed in 20-CV-9477 (including prop osed briefing schedules, if applicable). In that same letter, Defendants in 17-CV-4026 shall indicate whether they believe there is a basis to impose fees, costs, or other sanctions on New York Wheel Owner LLC or its counsel and, if so, proposing a p rocedure and schedule for doing so (after conferring with Plaintiffs). (On that score, this Order supersedes the Courts Order of October 29, 2020. See 17-CV-4026, ECF No. 302.) The parties should file a copy of the New York State court complaint as a n exhibit to their joint letter. The conference will be held remotely by teleconference in accordance with Rule 2(A) of the Courts Emergency Individual Rules and Practices in Light of COVID-19, available at https://nysd.uscourts.gov/hon-jesse-m-furma n. The parties should join the conference by calling the Court's dedicated conference line at (888) 363-4749 and using access code 542-1540, followed by the pound (#) key. (Members of the public and press may also attend using the same dial-in i nformation; they will not be allowed to speak during the conference.) As stated in Rule 2(C)(ii) of the Court's Emergency Individual Rules and Practices in Light of COVID-19, no later than 24 hours before the conference, the parties shall email the Court a list of counsel who may speak during the teleconference and the telephone numbers from which counsel expect to join the call. More broadly, counsel should review and comply with the rules and guidance regarding teleconferences set forth i n the Court's Emergency Individual Rules and Practices in Light of COVID-19. The Clerk of Court is directed to close 17-CV-4026. So ordered. Mammoet USA North Inc., Mammoet-Starneth LLC, New York Wheel Mezz, LLC, New York Wheel Owner LLC, New York Wheel Owner LLC, Starneth B.V., Starneth LLC, The City Of New York, The City Of New York, The City Of New York, Mammoet Holding B.V. and Mammoet USA Holding, Inc. terminated. Case Stay Lifted. (Signed by Judge Jesse M. Furman on 11/13/2020) (rjm)
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Filing
302
ORDER: As discussed on the record during the telephone conference held on October 28, 2020, the Court orders as follows: Plaintiffs shall file a motion discussing their views on how the Court should address the jurisdictional issues in this cas e on or before November 11, 2020. Defendants shall file their opposition to that motion and any cross-motion on or before November 25, 2020. Plaintiffs shall file their response in support of their motion as well as their opposition to Defendants� 39; cross-motion on or before December 11, 2020. Defendants shall file their response in support of their cross-motion on or before December 18, 2020. Unless and until the Court orders otherwise, the page lengths for the foregoing briefs are 25, 2 5, 20 (which is 5 pages shorter than the Court stated during the conference), and 10 pages, respectively. Any deadlines pertaining to discovery are STAYED until the Court resolves the jurisdictional issues discussed during today's conference. Within one week of the Court's resolution of the jurisdictional issues, Defendants shall file a letter on ECF indicating whether they believe there is a basis to impose fees, costs, or other sanctions on New York Wheel Owner LLC or its couns el and, if so, proposing a procedure and schedule for doing so (after conferring with Plaintiffs). (Cross Motions due by 11/25/2020., Motions due by 11/11/2020., Responses due by 11/25/2020, Replies due by 12/18/2020.) (Signed by Judge Jesse M. Furman on 10/29/2020) (rro)
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Filing
301
ORDER: Having reviewed the parties' joint letter, the Court is inclined to think that motion practice will indeed be necessary to sort out the implications of the unfortunate realization that there is not complete diversity in this case after al l. Prior to any motion practice, however, the parties shall appear for a telephone conference on October 28, 2020, at 3:00 p.m. to discuss the matter and next steps. The parties should join the conference by calling the Court's dedicated confere nce line at (888) 363-4749 and using access code 542-1540, followed by the pound (#)key. (Members of the public and press may also attend using the same dial-in information; theywill not be allowed to speak during the conference.) As stated in Rule 2 (C)(ii) of the Court's Emergency Individual Rules and Practices in Light of COVID-19, no later than 24 hours before the conference, the parties shall email the Court a list of counsel who may speak during the teleconference and the telephone numbers from which counsel expect to join the call. And as set forth herein. SO ORDERED., ( Telephone Conference set for 10/28/2020 at 03:00 PM before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 10/23/2020) (ama)
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Filing
299
ORDER: If the Court lacks subject-matter jurisdiction, it sees no need to make matters worse by holding an initial pretrial conference. Accordingly, the initial pretrial conference is ADJOURNED sine die. No later than October 22, 2020, the parties s hall file a joint letter (1) reporting the status of Plaintiff New York Wheel LLC's investigation into the matter and providing a firm estimate of how much additional time may be needed; and (2) as appropriate, proposing next steps with respect to the issue of jurisdiction. In the letter, Plaintiff New York Wheel LLC shall also explain when it first learned of the potential jurisdictional issue and why it did not learn of the issue earlier in the litigation. If or when the Court confirms that it has subject-matter jurisdiction, it will reschedule the initial pretrial conference. (Signed by Judge Jesse M. Furman on 10/16/2020) (nb)
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Filing
296
ORDER: In light of the COVID-19 situation, the Court will not hold the upcoming conference in this case in person. To that end, counsel should indicate in their joint letter dates and times during the week of the conference that they would be avai lable for a telephone conference. In either case, counsel should review and comply with the Court's Emergency Individual Rules and Practices in Light of COVID-19, available at https://nysd.uscourts.gov/hon-jesse-m-furman. (As further set forth in this Order.) (Signed by Judge Jesse M. Furman on 10/13/2020) (cf)
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Filing
282
OPINION AND ORDER re: 261 MOTION to Dismiss Defendants' Amended Counterclaims. filed by New York Wheel Owner LLC, New York Metropolitan Regional Center, L.P. II, 229 MOTION to Dismiss . filed by Starneth B.V., Mammoet Holding B.V., Starneth LLC, Mammoet USA Holding, Inc., Mammoet USA North Inc., 258 MOTION to Dismiss Amended Third-Party Complaint. filed by The City Of New York,, 266 MOTION for Joinder / Notice Of Motion To Join New York Wheel Mezz, LLC Pursuant To Fed. R. Civ P. 19(A) And 20 And For Leave To Serve And File Amended Counterclaims And Third-Party Complaint. filed by Mammoet USA North Inc. The City's motion and Mammoet North's motion to am end are granted in their entirety; the other motions to dismiss are granted in part and denied in part. The Court rules as follows: (1) Defendants' motion to dismiss New York Wheels Third Amended Complaint is GRANTED in part and DENIED in part. In particular, it is GRANTED to the extent that it seeks dismissal of the agency allegations in Count One and to dismiss Count Two, and it is DENIED to the extent that it seeks dismissal of the alter ego allegations in Count One and to dismiss Count Three. (2) The City's motion to dismiss Mammoet North's third-party complaint is GRANTED. (3) New York Wheel's motion to dismiss Mammoet North's counterclaims is GRANTED to the extent that it seeks dismissal of Counts One and Fou r through Eight, but it is DENIED to the extent that it seeks dismissal of Count Ten. (4) Mammoet North's motion for leave to amend its pleading and to add New York Wheel Mezz as a party is GRANTED. Mammoet North shall file its amended pleading within one week of the date of this Opinion and Order. The only remaining question is whether any party should be granted leave to amend to cure the deficiencies identified in its pleading above. Although leave to amend a complaint should be freely given "when justice so requires," Fed. R. Civ. P. 15(a)(2), it is ultimately "within the sound discretion of the district court to grant or deny leave to amend," McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 20 07). The Court declines to grant leave to amend in light of the fact that, with the possible exception of New York Wheel's claim for fraudulent inducement, the defects in the claims dismissed here are "substantive" and "better pleading will not cure" them. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Under such circumstances, amendment would be futile, and leave to amend should not be granted. See id. Moreover, also with the possible exception of New York Wh eel's claim for fraudulent inducement, the parties do not request leave to amend. See, e.g., Ritchie Capital Mgmt., LLC v. Gen. Elec. Capital Corp., 821 F.3d 349, 351-52 (2d Cir. 2016) (per curiam) (holding that it was not an abuse of discret ion to deny the plaintiffs an opportunity to amend their complaint where they "did not ask the district court for leave to amend"). New York Wheel does request leave to amend its fraudulent inducement claim in a footnote. See Pls.' MT D Opp'n 28 n.29. But an argument "relegated to a footnote... does not suffice to raise [an] issue." Pirnik v. Fiat Chrysler Autos., N.V., 327 F.R.D. 38, 43 n.2 (S.D.N.Y. 2018). In any event, New York Wheel requests leave to amend only to cure any deficiency in its complaint's allegations regarding where the alleged misrepresentations were made which is not a basis for the Court's decision. See Pls.' MTD Oppn 28 n.29. New York Wheel does not suggest that, if it were given an opportunity to amend, it would be able to cure the deficiencies identified here. Finally, many of the claims dismissed here, including the claim for fraudulent inducement, were subject to motions to dismiss at the time that this case was closed and, when it was reopened, the parties had an opportunity to draft new pleadings, with knowledge of what their opponents' arguments were likely to be. See ECF No. 67, at 5-10 (arguing that New York Wheel failed to state a claim for fraudulent inducement); ECF No. 100, at 7-10 (arguing that certain of the DBT's claims must be dismissed because the DBT did not comply with the change order procedure); ECF No. 167, at 3-12 (non-DBT defendants arguing that the fraudulent in ducement claim must be dismissed to the extent that it is asserted against them); ECF No. 147, at 7-8 (arguing that the claim against the City fails because the Defendants failed to timely commence an Article 78 proceeding). In other words, the par ties were already granted an opportunity to cure most, if not all, of the deficiencies found herein. The Court will not grant them another opportunity sua sponte. Unless and until the Court orders otherwise, the parties shall file their answers to any remaining claims within three weeks of the date of this Opinion and Order. By Order to be docketed separately, the Court will schedule an initial pretrial conference. The Clerk of Court is directed to terminate Docket Nos. 229, 258, 261, and 266. SO ORDERED. (Signed by Judge Jesse M. Furman on 8/21/20) (yv)
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Filing
241
ORDER denying 234 Motion to Substitute Party. The third-party complaint was dismissed by the Courts Order of May 11, 2018, see ECF No. 188, and it was not reinstated by the Courts Order of August 27, 2019, see ECF No. 211. Were there any doubt, it would be resolved by the fact that Mammoet-Starneth LLC is no longer a Defendant in this action. Thus, it could not assert the third-party claims with respect to which Mammoet USA North, Inc. (MUSA) seeks to substitute itself. See Fed. R. Civ. P. 14(a)(1). Accordingly, MUSAs motion to substitute is DENIED. That said, the Court concludes that, in light of the state of the case and the arguable confusion caused by its procedural history, MUSA should be given leave to amend to file a new third-party complaint. It shall do so no later than February 3, 2020. The Clerk of Court is directed to terminate ECF No. 234. SO ORDERED. (Signed by Judge Jesse M. Furman on 1/14/2020) (va)
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Filing
232
ORDER, It is hereby ORDERED that Plaintiff shall file any amended complaint by December 20, 2019. Plaintiff will not be given any further opportunity to amend the complaint to address issues raised by the motion to dismiss. If no amended complaint i s filed, Plaintiff shall file any opposition to the motion to dismiss by December 20, 2019. Defendant's reply, if any, shall be filed by January 15, 2020. At the time any reply is served, the moving party shall supply the Court with one, doub le-sided courtesy hard copy of all motion papers by mailing or delivering them to the Thurgood Marshall United States Courthouse, 40 Centre Street, New York, New York. Finally, it is further ORDERED that the initial pretrial conference previously scheduled for January 10, 2020 is adjourned sine die. SO ORDERED. (Amended Pleadings due by 12/20/2019., Responses due by 12/20/2019, Replies due by 1/15/2020.) (Signed by Judge Jesse M. Furman on 11/27/19) (yv)
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Filing
228
REVISED SCHEDULING ORDER granting 224 Motion to Adjourn Conference; denying 227 Motion for Leave to File Document. IT IS HEREBY ORDERED that the pretrial conference in this matter, previously scheduled for December 18, 2020 is RESCHEDULED for January 10, 2020, at 3:00 p.m. in Courtroom 1105 of the Thurgood Marshall Courthouse, 40 Centre Street, New York, New York. The parties must file on ECF no later than Thursday, January 2, 2020, a joint letter, the contents of which is describe d in the Court's order scheduling the initial pretrial conference (ECF No. 46), as well as a proposed Civil Case Management Plan and Scheduling Order attached as an exhibit to the joint letter. The Rule 26(f) conference must take place no lat er than three weeks before the date of pretrial conference. Plaintiffs' request for leave to file a sur-reply is DENIED. The Clerk of Court is directed to terminate ECF Nos. 224 and 227. SO ORDERED. (Signed by Judge Jesse M. Furman on 11/18/2019) ( Pretrial Conference set for 1/10/2020 at 03:00 PM in Courtroom 1105, 40 Centre Street, New York, NY 10007 before Judge Jesse M. Furman.) (ks)
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