Rivera v. Avilala et al
| Diego Jose Rivera |
| Bhanu Prakash Avilala and EAN Holdings LLC |
| 1:2021cv08455 |
| October 13, 2021 |
| US District Court for the Southern District of New York |
| Andrew L Carter |
| Motor Vehicle |
| 28 U.S.C. ยง 1441 mv |
| None |
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Filing 9
ORDER REMANDING CASE: For the reasons that follow, the case is remanded to state court. EAN's filing indicating consent comes after the 30 day removal period elapsed. Within 30 days of being served with the complaint on October 4, Avilala must file the removal petition, and all properly joined and served parties must consent to the removal. Contrary to Avilala's argument, nothing in the removal statute states that EAN has 30 days after the removal petition is filed to indicate consent to removal. Moreover, Exhibit A to Avilala's response shows that on October 12, Avilala sought EAN's consent to removal. Nothing prevented EAN from filing a document in court-within the appropriate time frameindicating that it consented to removal. In his response, Avilala also relies on dicta from a 2019 case, Harraz v. Egyptair Airlines Company, et al., 2019 WL 6700946 (S.D.N.Y. 2019). Avilala quotes the following passage: "Because the Court has no doubts about the Defendants' consent, remanding this case on a technicality would disserve the judiciary's interest in efficiency, ignore the defendant's clearly expressed intent, and unnecessarily compromise their ability to litigate this case in a manner that is fa[i]r to all parties." Id. at *7. Avilala's lifting of this quote, out of its proper context, does not save this case from remand. In Harraz, the Court found that the rule of unanimity did not apply since the case was removed on federal question jurisdiction, not solely on diversity of citizenship. Id. at 3-4. Alternatively, the Court found that technical requirements of the rule of unanimity could be excused since the defendants were represented by the same attorney. Since this case is removed solely on the basis of diversity of citizenship jurisdiction, the rule of unanimity applies. Avilala and EAN are represented by different attorneys, and EAN's written consent to removal was filed in this court after the removal period expired. Avilala's remaining arguments are with out merit. This case is remanded to state court. (Signed by Judge Andrew L. Carter, Jr on 11/24/2021) (ate)
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| CASE REMANDED OUT from the U.S.D.C. Southern District of New York to the State Court - Supreme Court of the State of New York, County of Bronx. (ate) |
| Filing 8 REQUEST FOR PRODUCTION OF DOCUMENTS.Document filed by Diego Jose Rivera. (Attachments: #1 Supplement RIVERA - Response to Interrogatories_Redacted, #2 Supplement RIVERA - Response to Demand for Mandatory Insurer Reporting Law_Redacted, #3 Supplement RIVERA - Response to Demand for Collateral Source_Redacted, #4 Supplement RIVERA - Response to Demand for Vehicle Data Info, #5 Supplement RIVERA - Response to Demand for Social Media, #6 Supplement RIVERA - Response to Demand for First Supp Request).(Lockamy, Joshua) |
| Filing 7 RESPONSE TO ORDER TO SHOW CAUSE re: #5 Order to Show Cause,. Document filed by Bhanu Prakash Avilala. (Attachments: #1 Exhibit Email Consent, #2 Exhibit Executed Consent to Remove, #3 Affidavit Affidavit of Service).(Boden, Stephanie) |
| Filing 6 NOTICE of Consent to Removal. Document filed by Bhanu Prakash Avilala..(Boden, Stephanie) |
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Filing 5
ORDER TO SHOW CAUSE: The parties are ORDERED TO SHOW CAUSE why this case should not be remanded to state court. The parties shall file any responses to this order by November 16, 2021. (Signed by Judge Andrew L. Carter, Jr on 11/8/2021) (ate)
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| Filing 4 CIVIL COVER SHEET filed..(Boden, Stephanie) |
| Filing 3 ANSWER to Complaint., CROSSCLAIM against EAN Holdings LLC. Document filed by Bhanu Prakash Avilala..(Boden, Stephanie) |
| Case Designated ECF. (vf) |
| ***NOTICE TO ATTORNEY REGARDING REMOVAL OF PARTY. Notice to attorney Stephanie Lauren Boden. The following party/parties has been removed from this case: Bhanu Prakash Avilala, EAN Holdings LLC. The party was added to the case in error. (vf) |
| ***NOTICE TO ATTORNEY REGARDING DEFICIENT CIVIL COVER SHEET. Notice to attorney Stephanie Lauren Boden to RE-FILE Document No. #2 Civil Cover Sheet. The filing is deficient for the following reason(s): Civil Cover Sheet not signed. Re-file the document using the event type Civil Cover Sheet found under the event list Other Documents and attach the correct PDF. (vf) |
| CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Andrew L. Carter, Jr. Please download and review the Individual Practices of the assigned District Judge, located at #https://nysd.uscourts.gov/judges/district-judges. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at #https://nysd.uscourts.gov/rules/ecf-related-instructions..(vf) |
| Magistrate Judge Stewart D. Aaron is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (vf) |
| Filing 2 CIVIL COVER SHEET filed..(Boden, Stephanie) |
| Filing 1 NOTICE OF REMOVAL from Supreme Court, County of Bronx. Case Number: 807899-2021. (Filing Fee $ 402.00, Receipt Number ANYSDC-25190502).Document filed by Bhanu Prakash Avilala. (Attachments: #1 Exhibit Exhibit A, #2 Exhibit Exhibit B, #3 Exhibit Exhibit C, #4 Exhibit Exhibit D, #5 Affidavit Affidavit of Service).(Boden, Stephanie) |
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