G.M. et al v. Bob's Discount Furniture and Mattress Store
| New York Eastern District Court | |
| Judge: | Nusrat Jahan Choudhury |
| Referred: | Anne Y Shields |
| Case #: | 2:24-cv-08451 |
| Nature of Suit | 360 Torts - Personal Injury - Other Personal Injury |
| Cause | 28:1332 Diversity-Personal Injury |
| Case Filed: | Dec 10, 2024 |
| Case in other court: | Supreme Court, Suffolk County, 607816/2024 |
| Last checked: Tuesday Dec 10, 2024 1:15 PM EST |
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Defendant
Bob's Discount Furniture, LLC
Goldberg Segalla LLP 200 Garden City Plaza Suite 520
Garden City, NY 11530 |
Represented By
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Plaintiff
G.M., an infant by her father and natural guardian
Redmond Law Firm, PLLC 80 Broad Street Suite 1202
New YOrk, NY 10004 |
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Plaintiff
Juan Pablo Marquez Hernandez
Redmond Law Firm, PLLC 80 Broad Street Suite 1202
New YOrk, NY 10004 |
| Docket last updated: 12 hours ago |
| Thursday, December 12, 2024 | ||
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order
Order to Show Cause
Thu 12/12 9:50 AM
ORDER TO SHOW CAUSE: The Court has reviewed the Notice of Removal (Not. Removal, ECF No.1 ) and has determined that Defendant Bob's Discount Furniture and Mattress Store has failed to establish whether this Court possesses diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). This Court has an independent obligation to determine whether subject matter jurisdiction exists over this case. See Joseph v. Leavitt , 465 F.3d 87, 89 (2d Cir. 2006). [F]ailure of subject matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte. Lyndonville Sav. Bank & Tr. Co. v. Lussier , 211 F.3d 697, 700 (2d Cir. 2000). If a district court lacks subject matter jurisdiction, it must dismiss the action. See Do No Harm v. Pfizer Inc. , 96 F.4th 106, 120-21 (2d Cir. 2024); Fed. R. Civ. P. 12(h)(3). Diversity jurisdiction under 28 U.S.C. § 1332(a) requires complete diversity among the plaintiffs and defendants and that the amount in controversy exceeds $75,000. See Tagger v. Strauss Grp. Ltd. , 951 F.3d 124, 126 (2d Cir. 2020). Defendant, as the party asserting jurisdiction in this action, bears the burden of establishing that the Court has diversity jurisdiction. See Proman o/b/o M/Y "EASTBOUND AND DOWN" v. Gatsby Yacht Grp., LLC , 599 F. Supp. 3d 127, 12930 (E.D.N.Y. 2022) (citing United Food & Com. Workers Union, Loc. 919, AFL-CIO v. CenterMark Props. Meriden Square, Inc. , 30 F.3d 298, 301 (2d Cir. 1994). "For diversity purposes, a corporation is considered a citizen of the state in which it is incorporated and the state of its principal place of business." Bayerische Landesbank v. Aladdin Cap. Mgmt. LLC , 692 F.3d 42, 48 (2d Cir. 2012). As to the LLC Defendants, "the citizenship of a limited liability company is determined by the citizenship of each of its members." Carter v. HealthPort Techs., LLC , 822 F.3d 47, 60 (2d Cir. 2016). "An individual's citizenship, within the meaning of the diversity statute, is determined by his domicile," or in other words, "the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning." Van Buskirk v. United Grp. of Cos., Inc. , 935 F.3d 49, 53 (2d Cir. 2019). It is well-established that allegations of "residence alone [are] insufficient to establish domicile for jurisdictional purposes." Id. at 54 ; accord Canouse v. Protext Mobility, Inc. , No. 22-cv-1335, 2023 WL 3490915, at *1 (2d Cir. May 17, 2023) ("[I]t is well-established that allegations of residency alone cannot establish citizenship.") (citing Canedy v. Liberty Mut. Ins. Co. , 126 F.3d 100, 103 (2d Cir. 1997)). In order to determine an individuals domicile, courts consider factors including: "current residence; voting registration; drivers license and automobile registration; location of brokerage and bank accounts; membership in fraternal organizations, churches, and other associations; places of employment or business;... payment of taxes;... whether a person owns or rents his place of residence; the nature of the residence (i.e., how permanent the living arrangement appears);... and the location of a persons physician, lawyer, accountant, dentist, stockbroker, etc." Lever v. Lyons , No. 16-cv-5130, 2021 WL 302648, at *7 (E.D.N.Y. Jan. 28, 2021) (citations omitted); see also Lawrence Moskowitz CLU Ltd. v. ALP, Inc. , 830 F. Appx 50, 51 (2d Cir. 2020) ([T]he determination of domicile considers factors such as voting, taxes, property, bank accounts, places of business or employment.) (citation omitted). The second requirement of diversity jurisdiction--an amount in controversy of at least $75,000--is equally important. The party "invoking federal jurisdiction must demonstrate a 'reasonable probability' that the amount-in-controversy requirement is satisfied." See Pyskaty v. Wide World of Cars, LLC , 856 F.3d 216, 223 (2d Cir. 2017) (citation omitted); Wood v. Maguire Automotive, LLC , 508 F. App'x. 65, 65 (2d Cir. 2013) (affirming dismissal of complaint for lack of subject matter jurisdiction where plaintiff's "allegation in her complaint of $75,000 in controversy is conclusory and not entitled to a presumption of truth"). Defendant has sufficiently demonstrated that there is at least $75,000 in controversy by citing to Plaintiffs' bill of particulars and responses to Defendant's discovery demands. The discovery responses indicate Plaintiffs seek $2,000,000 in damages "inclusive of medical and hospital expenses, past, present, and future pain and Suffering." (Not. Removal Ex. C at 18, ECF No. [1-3].) The bill of particulars indicates $32,500 in past medical expenses and that medical expenses continue to accrue. ( Id. at 6-7.) Defendant has not, however, sufficiently demonstrated diversity of citizenship. The Notice of Removal alleges that it is an LLC with a sole member, BDF Acquisition Corp., which "is incorporated in the State of Delaware with its principal place of business of 434 Tolland Turnpike, Manchester, Connecticut 06040." (Not. Removal at para. 7.) BDF Acquisition Corp. is thus a citizen of Delaware and Connecticut as is Defendant. See Bayerische Landesbank , 692 F.3d at 48; Carter , 822 F.3d at 60. The Notice of Removal fails to allege the citizenship of Plaintiffs, instead only alleging that "Plaintiffs are... residents of the State of New York." (Not. Removal para. 7 (emphasis added).) Allegations of "residence alone [are] insufficient to establish domicile for jurisdictional purposes." Van Buskirk v. United Grp. of Cos., Inc. , 935 F.3d 49, 54 (2d Cir. 2019). Accordingly, by December 27, 2024 , Defendant must show cause in writing why this Court should not dismiss this action without prejudice for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(h)(3). See Do No Harm v. Pfizer Inc. , 96 F.4th 106, 120-21 (2d Cir. 2024). Facts showing diversity jurisdiction must be established by sworn affidavit. Ordered by Judge Nusrat Jahan Choudhury on 12/12/2024. (RDP) |
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misc
Clerks Notice of Rule 73
Tue 12/10 1:41 PM
Clerk's Notice Re: Consent. A United States Magistrate Judge has been assigned to this case and is available to conduct all proceedings. In accordance with Rule 73 of the Federal Rules of Civil Procedure, Local Rule 73.1, the parties are notified that if all parties consent, the assigned Magistrate Judge is available to conduct all proceedings in this action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to this 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. Any party may withhold its consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent.The form may also be accessed at the following link:[LINK:https://img.nyed.uscourts.gov/files/forms/MJConsentForm.pdf] (CG) |
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misc
Quality Control Check - Attorney Case Opening
Tue 12/10 1:37 PM
This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. (CG) |
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misc
Proposed Summons/Civil Cover Sheet
Tue 12/10 12:39 PM
Civil Cover Sheet.. Re1 Notice of Removal, by Bob's Discount Furniture, LLC (Fields, Gavin) |
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notice
Notice of Removal
Tue 12/10 12:37 PM
NOTICE OF REMOVAL by Bob's Discount Furniture, LLC from Supreme Court, Suffolk County, case number 607816/2024. ( Filing fee $ 405 receipt number ANYEDC-18567447) Was the Disclosure Statement on Civil Cover Sheet completed -Yes. (Fields, Gavin) Modified on 12/10/2024 (CG) |
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Att: 1
Exhibit A-Summons and Complaint,
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Att: 2
Exhibit B-Veriifed Answer,
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Att: 3
Exhibit C-Bill of Particulars and Responses to Defendant's Combined Demands,
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Att: 4
Certificate of Service
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utility
Case Assigned/Reassigned
Tue 12/10 1:40 PM
Case Assigned to Judge Nusrat Jahan Choudhury and Magistrate Judge Anne Y. Shields. Please download and review the Individual Practices of the assigned Judges, located on our[LINK:website] . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (CG) |
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