Rise Development Partners, LLC et al v. Signature Bank et al
| Rise Development Partners, LLC, Rise Capital, LLC, Rise Capital US, LLC, Rise Concrete LLC, Lawrence Rafalovich and Barry Caldwell |
| Signature Bank, Signature Financial LLC, Signature Securities Group Corp., Signature Public Funding Corp. and Federal Deposit Insurance Corporation as Receiver for Signature Bank |
| 1:2023cv04242 |
| May 22, 2023 |
| US District Court for the Southern District of New York |
| John G Koeltl |
| Banks and Banking |
| 12 U.S.C. § 1819 FDIC: Corporate Powers |
| Plaintiff |
Docket Report
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Filing 29
MEMORANDUM OPINION AND ORDER: The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed above, the arguments are either moot or without merit. For the reasons explained above, the FDIC-Rs motion for a stay pending administrative exhaustion is granted. This action is stayed pending the plaintiffs' exhaustion of FIRREA's administrative claims process. The Clerk is directed to close ECF No. 3. SO ORDERED. (Signed by Judge John G. Koeltl on 7/6/2023) Case stayed. (ks)
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Filing 28
DECLARATION of John N. Orsini in Support re: #3 Notice of MOTION to Stay . Document filed by Federal Deposit Insurance Corporation as Receiver for Signature Bank. (Attachments: #1 Exhibit 1 - press release issued by the FDIC on March 12, 2023, #2 Exhibit 2 - Transfer Agreement by and between FDIC, Receiver of Signature Bank New York, NY, and Signature Bridge Bank, National Association, Dated March 12, 2023, #3 Exhibit 3 - press release issued by the FDIC on March 20, 2023).(Orsini, John)
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Filing 27
REPLY MEMORANDUM OF LAW in Support re: #3 Notice of MOTION to Stay . Document filed by Federal Deposit Insurance Corporation as Receiver for Signature Bank..(Orsini, John)
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Filing 26
AFFIRMATION of William Pager in Opposition re: #3 Notice of MOTION to Stay . Document filed by Barry Caldwell, Lawrence Rafalovich, Rise Capital US, LLC, Rise Capital, LLC, Rise Concrete LLC, Rise Development Partners, LLC..(Pager, William)
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Filing 25
ORDER : The plaintiffs may respond to the FDIC's motion pursuant to 12 U.S.C. 1821(d) for either (1) a stay of this action pending completion of FIRREA's administrative claims process, or (2) a 90-day stay under Section 1821 (d) ( 12) (B), see ECF Nos. 3-5, by June 15, 2023. The FDIC may reply by June 20, 2023. SO ORDERED. (Signed by Judge John G. Koeltl on 6/5/2023) ( Replies due by 6/20/2023., Responses due by 6/15/2023) (ks)
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Filing 24
ORDER re: #3 Notice of MOTION to Stay filed by Signature Bank, Federal Deposit Insurance Corporation as Receiver for Signature Bank, #12 Affidavit in Opposition to Motion, Memorandum of Law in Opposition to Motion, Response to Motion,,, filed by Barry Caldwell, Rise Concrete LLC, Rise Capital, LLC, Rise Capital US, LLC, Rise Development Partners, LLC, Lawrence Rafalovich, #5 Affidavit in Support of Motion filed by Signature Bank, Federal Deposit Insurance Corporation as Receiver for Signature Bank, #4 Memorandum of Law in Support of Motion filed by Signature Bank, Federal Deposit Insurance Corporation as Receiver for Signature Bank. The FDIC-Receiver is directed to provide the Court with paper courtesy copies of all papers filed in connection with its stay motion. See ECF Nos. 3, 4, 5, 12. SO ORDERED. (Signed by Judge John G. Koeltl on 5/26/2023) (kv)
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Filing 23
JOINT LETTER addressed to Judge John G. Koeltl from All Parties dated May 25, 2023 re: Status of the Case. Document filed by Federal Deposit Insurance Corporation as Receiver for Signature Bank. (Attachments: #1 Exhibit A - Decision and Order of the Appellate Division, Second Department).(Orsini, John)
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Filing 22
ORDER: This case was recently transferred from the U.S. District Court for the Eastern District of New York and assigned to the undersigned. See ECF No. 20. The parties are directed to file a joint letter apprising this Court of the status of the case by Thursday, May 25, 2023. SO ORDERED. (Signed by Judge John G. Koeltl on 5/23/2023) (ks)
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Filing 21
CASE TRANSFERRED IN from the United States District Court - District of New York Eastern; Case Number: 1:23-cv-02433. Original file certified copy of transfer order and docket entries received.
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Case transferred to District of Southern District of New York. Original file, certified copy of transfer order, and docket sheet sent. ALL FILINGS ARE TO BE MADE IN THE TRANSFER COURT, DO NOT DOCKET TO THIS CASE. ( Ordered by Judge Brian M. Cogan on 5/18/2023 ) (RG) [Transferred from New York Eastern on 5/22/2023.]
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CASE OPENING INITIAL ASSIGNMENT NOTICE - TRANSFER CASE: This case is assigned to: Judge John G. Koeltl. 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..(tro)
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NOTE TO OUT OF STATE ATTORNEYS: Please visit the Court's website at https://nysd.uscourts.gov/ for information regarding admission to the S.D.N.Y. Bar and the CM/ECF Rules & Filing Instructions..(tro)
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Case Designated ECF. (tro)
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Magistrate Judge Ona T. Wang 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. (tro)
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Filing 20
MEMORANDUM DECISION AND ORDER The FDIC's #17 Motion to Change Venue is granted, and the Clerk of Court is directed to transfer this case to the Southern District of New York. So Ordered by Judge Brian M. Cogan on 5/18/2023. (FP) [Transferred from New York Eastern on 5/22/2023.]
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Filing 19
Letter to Judge Cogan re: State Court Appeal by Federal Deposit Insurance Corporation as Receiver for Signature Bank (Orsini, John) [Transferred from New York Eastern on 5/22/2023.]
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Filing 18
AFFIDAVIT/DECLARATION in Support re #17 MOTION to Change Venue Notice of Motion to Transfer to the Southern District of New York Declaration of John N. Orsini filed by Federal Deposit Insurance Corporation as Receiver for Signature Bank. (Attachments: #1 Exhibit A - Order to Show Cause to Transfer the State Court Action to New York County with supporting papers, #2 Exhibit B - Order to Show Cause signed by Justice Martin on January 10, 2022, #3 Exhibit C - Plaintiffs' papers opposing Signature's motion to transfer, #4 Exhibit D - Letter from Friedman Kaplan dated April 25, 2022, #5 Exhibit E - Notice of Appeal of the Transfer Order in the State Court Action, #6 Exhibit F - Plaintiff's request for adjournment in the Appellate Division Second Department, #7 Exhibit G - Second Department Order dated March 13, 2023, #8 Exhibit H - Email from Friedman Kaplan dated April 27, 2023) (Orsini, John) [Transferred from New York Eastern on 5/22/2023.]
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Filing 17
MOTION to Change Venue Notice of Motion to Transfer to the Southern District of New York by Federal Deposit Insurance Corporation as Receiver for Signature Bank. (Orsini, John) [Transferred from New York Eastern on 5/22/2023.]
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ORDER denying #11 . Defendants have cited authority that the case is removable because federal defenses are implicated in this action, and plaintiffs have failed to timely dispute either the legal or factual basis of defendants' opposition to remand. Defendants are right -- unlike most removal practice, when a state banking authority appoints the FDIC as Receiver, the presence of federal defenses permits the Receiver to remove a state court action. See e.g. Capizzi v. FDIC, 937 F.2d 8 (1st Cir. 1991). In fact, as a practical matter, the array of defenses available to the FDIC is so broad that the "state law exception" to the FDIC's ability to remove will usually if not always be swallowed entirely by its own "federal defense" exception. That is the case here, as the FDIC has identified several federal statutory impediments to plaintiffs' claims and plaintiff has not disagreed.In addition, the FDIC suggested in its removal notice and in opposition to the remand motion that it intends to move for transfer of this case to the S.D.N.Y., but it hasn't filed such a motion for some reason. If it intends to move, it must do so by 5/3/2023. The premotion conference is waived. Alternatively, the FDIC can just file a notice of motion for transfer that references its state court transfer motion. It doesn't have to do a whole new set of papers if the state court papers are adequate for this Court to discern the argument in the 1404(a) or 1406 context, which shouldn't take much.Plaintiffs may want to consider whether this transfer issue should be worked out by stipulation rather than putting resources into it. The fact is that plaintiffs' claims are based on an extensive relationship with a failed bank and there are consequences that flow from that. But whether by stipulation or motion, the Court wants this teed up by 5/3/2023, or not at all. Ordered by Judge Brian M. Cogan on 4/26/2023. (PW) [Transferred from New York Eastern on 5/22/2023.]
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Filing 16
AFFIDAVIT/DECLARATION in Opposition re #11 First MOTION to Remand to State Court filed by Federal Deposit Insurance Corporation as Receiver for Signature Bank. (Orsini, John) [Transferred from New York Eastern on 5/22/2023.]
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Filing 15
MEMORANDUM in Opposition re #11 First MOTION to Remand to State Court filed by Federal Deposit Insurance Corporation as Receiver for Signature Bank. (Orsini, John) [Transferred from New York Eastern on 5/22/2023.]
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ORDER re: #13 Letter. Counsel is advised that any letter filed in this action must include in the ECF subject line a brief description of the subject of the letter filed (e.g., "Letter re: Transfer Order", not simply "Letter"), so that the docket remains intelligible. Do not refile. Ordered by Judge Brian M. Cogan on 4/12/2023. (PW) [Transferred from New York Eastern on 5/22/2023.]
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Filing 14
DEMAND for Trial by Jury by Barry Caldwell, Lawrence Rafalovich, Rise Capital US, LLC, Rise Capital, LLC, Rise Concrete LLC, Rise Development Partners, LLC (Pager, William) [Transferred from New York Eastern on 5/22/2023.]
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ORDER re: #11 . Defendants are directed to respond to plaintiffs' motion to remand by 4/17/2023. The Court will not transfer an action over which the federal courts do not have subject matter jurisdiction. Ordered by Judge Brian M. Cogan on 4/11/2023. (PW) [Transferred from New York Eastern on 5/22/2023.]
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Filing 13
Letter by Federal Deposit Insurance Corporation as Receiver for Signature Bank (Orsini, John) [Transferred from New York Eastern on 5/22/2023.]
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Filing 12
AFFIDAVIT/DECLARATION in Opposition re #3 Notice of MOTION to Stay , MEMORANDUM in Opposition , RESPONSE to Motion re #3 Notice of MOTION to Stay filed by Barry Caldwell, Lawrence Rafalovich, Rise Capital US, LLC, Rise Capital, LLC, Rise Concrete LLC, Rise Development Partners, LLC. (Attachments: #1 Exhibit Affirmation in Opposition dated April 19, 2022) (Pager, William) [Transferred from New York Eastern on 5/22/2023.]
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Filing 11
First MOTION to Remand to State Court by Barry Caldwell, Lawrence Rafalovich, Rise Capital US, LLC, Rise Capital, LLC, Rise Concrete LLC, Rise Development Partners, LLC. (Attachments: #1 Exhibit Affirmation in Opposition dated April 19, 2022) (Pager, William) [Transferred from New York Eastern on 5/22/2023.]
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Filing 10
CERTIFICATE OF SERVICE by Federal Deposit Insurance Corporation as Receiver for Signature Bank (Bierut, Elizabeth) [Transferred from New York Eastern on 5/22/2023.]
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Filing 9
CERTIFICATE OF SERVICE by Federal Deposit Insurance Corporation as Receiver for Signature Bank re #5 Affidavit in Support of Motion, #3 Notice of MOTION to Stay , #4 Memorandum in Support (Bierut, Elizabeth) [Transferred from New York Eastern on 5/22/2023.]
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Filing 8
CERTIFICATE OF SERVICE by Federal Deposit Insurance Corporation as Receiver for Signature Bank re #1 Notice of Removal,, (Bierut, Elizabeth) [Transferred from New York Eastern on 5/22/2023.]
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Filing 7
This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (SR) [Transferred from New York Eastern on 5/22/2023.]
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Filing 6
In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (SR) [Transferred from New York Eastern on 5/22/2023.]
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Case Assigned to Judge Brian M. Cogan. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (SR) [Transferred from New York Eastern on 5/22/2023.]
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This case has been opened in the Eastern District of New York. If you plan to continue representing your client(s), you must be admitted to practice before this court. You must do so by applying for Pro Hac Vice or permanent admission. To apply for Pro Hac Vice admission, you must first register for an ECF login and password. Please visit the Court's website at www.nyed.uscourts.gov/attorney-admissions for guidance. Once registered, you must electronically file a Motion to Appear Pro Hac Vice. You must pay the required pro hac vice fee online. (SR) [Transferred from New York Eastern on 5/22/2023.]
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ORDER TO SHOW CAUSE. The parties are ORDERED TO SHOW CAUSE by 4/10/23 why this action should not be transferred to S.D.N.Y. consistent with the Order of the Supreme Court, Kings County, pursuant to 28 U.S.C. 1404(a). Ordered by Judge Brian M. Cogan on 3/31/2023. (PW) [Transferred from New York Eastern on 5/22/2023.]
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Filing 5
AFFIDAVIT/DECLARATION in Support re #3 Notice of MOTION to Stay filed by Federal Deposit Insurance Corporation as Receiver for Signature Bank, Signature Bank. (Orsini, John) [Transferred from New York Eastern on 5/22/2023.]
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Filing 4
MEMORANDUM in Support re #3 Notice of MOTION to Stay filed by Federal Deposit Insurance Corporation as Receiver for Signature Bank, Signature Bank. (Orsini, John) [Transferred from New York Eastern on 5/22/2023.]
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Filing 3
Notice of MOTION to Stay by Federal Deposit Insurance Corporation as Receiver for Signature Bank, Signature Bank. (Orsini, John) [Transferred from New York Eastern on 5/22/2023.]
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Filing 2
NOTICE of Appearance by Elizabeth Kresz Bierut on behalf of Federal Deposit Insurance Corporation as Receiver for Signature Bank (aty to be noticed) (Bierut, Elizabeth) [Transferred from New York Eastern on 5/22/2023.]
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Filing 1
NOTICE OF REMOVAL by Signature Bank from Supreme Court of the State of New York, Kings County, case number 502685/2021. (Attachments: #1 Exhibit A - Appointment and Acceptance Letters, #2 Exhibit B - Summons and Complaint, #3 Exhibit C - Notice of Substitution, #4 Exhibit D - September 2, 2022 order granting motion to transfer, #5 Exhibit E - Notice of Filing of Notice of Removal, #6 Exhibit F - copy of all process, pleadings and orders served upon FDIC-Receiver, #7 Civil Cover Sheet) (Orsini, John) [Transferred from New York Eastern on 5/22/2023.]
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