The LCF Group, Inc. v. JB Ecom LLC et al
| New York Eastern District Court | |
| Judge: | Nusrat Jahan Choudhury |
| Referred: | Anne Y Shields |
| Case #: | 2:25-cv-00090 |
| Nature of Suit | 150 Contract - Recovery of Overpayment & Enforcement of Judgment |
| Cause | 28:1332 Diversity-Notice of Removal |
| Case Filed: | Jan 06, 2025 |
| Case in other court: | Supreme Court State of New York, Nassau County, 621584/2024 |
| Last checked: Tuesday Jan 07, 2025 8:04 AM EST |
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Defendant
JB Ecom LLC
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Represented By
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Defendant
Robert Smith
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Represented By
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Plaintiff
The LCF Group, Inc.,
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Represented By
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| Docket last updated: 01/17/2025 11:59 PM EST |
| Tuesday, January 14, 2025 | ||
| 7 | 7
notice
Notice of Appearance
Tue 01/14 6:28 PM
NOTICE of Appearance by Matthew Prutting on behalf of JB Ecom LLC (notification declined or already on case) (Prutting, Matthew) |
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order
Order on Motion for Pre Motion Conference
Tue 01/14 1:15 PM
ORDER: The Court has reviewed Defendant's letter motion concerning its anticipated motion to dismiss the Complaint (ECF No.6 ). Under Rule 15(a)(1)(B), Fed. R. Civ. P., a plaintiff has 21 days after the service of a motion under Rule 12(b) to amend the complaint once as a matter of course. Accordingly, the Court finds that a pre-motion conference is not necessary at this time and waives the pre-motion conference requirement. The parties shall comply with the following briefing schedule: Defendant shall serve any motion to dismiss the Complaint by February 3, 2025 . Plaintiff shall file any amended complaint no later than February 24, 2025 . It is unlikely that Plaintiff will have a further opportunity to amend. Defendant shall file any letter requesting a pre-motion conference concerning an anticipated motion to dismiss the amended complaint by March 3, 2025 . If Plaintiff does not file an amended complaint, Plaintiff shall serve on Defendant any opposition to the motion to dismiss by February 24, 2025 . Defendant shall serve any reply to the motion to dismiss by March 3, 2025 . The parties are directed to consult and comply with the Court's Individual Rules, including the Court's recommended bundling practice. See Individual Rule 5.2. Consequently, all briefing shall be filed with the Court no later than March 3, 2025 . By March 5, 2025 , Defendant must deliver to Chambers two (2) courtesy copies of the fully-briefed motion, including all parties' briefing and exhibits. The submissions must comply the Court's Individual Rules regarding for the provision of courtesy copies, Individual Rule 1.3. Defendant shall also comply with the following formatting requirements: 1) All binder spines must identify the case name, docket number, and binder's contents. 2) Briefs and factual submissions (if permitted by the Federal Rules of Civil Procedure and/or other legal authority) shall be separated by tabs. 3) Pages shall be printed double-sided. Ordered by Judge Nusrat J. Choudhury on 1/14/2025. (DJL) |
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| Monday, January 13, 2025 | ||
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motion
Pre Motion Conference
Mon 01/13 6:18 PM
Letter MOTION for pre motion conference - JB Ecom requests for pre-motion conference re its anticipated motion to dismiss the First Amended Complaint by JB Ecom LLC. (Prutting, Matthew) |
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| Thursday, January 09, 2025 | ||
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order
Order to Show Cause
Thu 01/09 5:19 PM
ORDER TO SHOW CAUSE: The Court has reviewed Plaintiff The LCF Group, Inc.'s Complaint (ECF No. 1-1) and Defendant JB Ecom LLC's Notice of Removal (ECF No. 1) and has determined that Defendant has failed to establish whether this Court possesses diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). 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, 129-30 (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)). 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). In any case removed to Federal Court, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). Diversity jurisdiction under 28 U.S.C. § 1332(a) requires complete diversity among the plaintiffs and defendants and that the amount in controversy exceed $75,000. See Tagger v. Strauss Grp. Ltd. , 951 F.3d 124, 126 (2d Cir. 2020). "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 RainMakers Partners LLC v. NewSpring Cap., LLC , No. 23-cv-899, 2024 WL 1846321, at *2 n.1 (2d Cir. Apr. 29, 2024) ("[A] complaint that alleges that the plaintiff and defendant are merely residents of different states has failed adequately to allege the existence of diversity jurisdiction.") In order to determine an individuals domicile, courts consider factors including: current residence; voting registration; driver's 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). "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). A corporation's "principal place of business" is "the place where a corporation's officers direct, control, and coordinate the corporation's activities," which "should normally be the place where the corporation maintains its headquarters--provided that the headquarters is the actual center of direction, control, and coordination, i.e., the nerve center." OneWest Bank, N.A. v. Melina , 827 F.3d 214, 218 (2d Cir. 2016) (citing Hertz Corp. v. Friend , 559 U.S. 77, 92-93 (2010)) (quotation marks omitted). As to 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). A party's allegations made "upon information and belief" are insufficient to establish citizenship for purposes of establishing diversity. See Snyder Corp. v. Fitness Ridge Worldwide, LLC , 2018 U.S. Dist. LEXIS 47514, at *5 (W.D.N.Y. 2018) (establishment of diversity requires affirmative statements of the identity and citizenship of all parties and the members thereof: conclusory statements upon information and belief are insufficient); see also Enteado v. Hi-Power Cycles, LLC , 2016 U.S. Dist. LEXIS 28880 at *2 (D.N.J. 2016) (allegations of more than one principal place of business for a corporation, and/or allegations of diverse citizenship made upon information and belief, are insufficient to establish diversity jurisdiction). The second requirement of diversity jurisdiction--an amount in controversy exceeding $75,000--is equally important. "[A] plaintiff invoking federal jurisdiction must demonstrate a 'reasonable probability' that the amount-in-controversy requirement is satisfied." Pyskaty v. Wide World of Cars, LLC , 856 F.3d 216, 223 (2d Cir. 2017) (citation omitted). The U.S. Court of Appeals for the Second Circuit "recognize[s] a rebuttable presumption that the face of the complaint is a good faith representation of the actual amount in controversy." Id. The amount in controversy alleged must be plausible, i.e., supported by facts in the complaint. 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"). Under GW Holdings Grp., LLC v. U.S. Highland, Inc. , 794 F. App'x 49, 51 n.1 (2d Cir. 2019): Alleged punitive damages are subject to "closer scrutiny" when determining the amount in controversy. Here, Defendant has shown that the amount in controversy exceeds $75,000, because Plaintiff seeks $131,281.78 in compensatory damages and $42,066.39 in liquidated damages for attorney's fees. (ECF No. 1-1 para. 25.) Defendant has, however, failed to allege facts establishing that complete diversity exists. Defendant has shown that Plaintiff is a citizen of New York because both the Complaint and the Notice of Removal allege that Plaintiff is a New York corporation with its principal place of business in New York. (ECF No. 1-1 para. 1; ECF No. 1 para. 22.) Defendant has not pled facts sufficient to establish its own citizenship, however. Defendant alleges that it "is a limited liability company with a principal place of business... [in] Cheyenne, Wyoming." (ECF No. 1 para. 23.) However, the "citizenship of a limited liability company is determined by the citizenship of each of its members," not by its principal place of business. Carter , 822 F.3d at 60. Further, Defendant's recitation of Plaintiff's allegation "upon information and belief" that the other Defendant, Robert Smith, "is an individual residing and domiciled... [in] Loves Park, Illinois" is insufficient to establish Defendant Smith's citizenship. See Snyder Corp. , 2018 U.S. Dist. LEXIS 47514, at *5. By January 23, 2025 , Defendant must to show cause in writing, with all material facts established by sworn affidavit, why this Court should not remand this action under 28 U.S.C. § 1447(c) for lack of subject matter jurisdiction. If Defendant does not respond by January 23, 2025, or the Defendant's response does not show that the Court has subject matter jurisdiction over this action, the Complaint will be remanded for lack of subject matter jurisdiction. Ordered by Judge Nusrat J. Choudhury on 1/9/2025. (DJL) |
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| Wednesday, January 08, 2025 | ||
| 5 | 5
notice
Notice of Appearance
Wed 01/08 12:54 PM
NOTICE of Appearance by Justin Adam Levy on behalf of The LCF Group, Inc., (aty to be noticed) (Levy, Justin) |
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| Tuesday, January 07, 2025 | ||
| 4 | 4
misc
Clerks Notice of Rule 73
Tue 01/07 9:30 AM
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] (LJ) |
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misc
Quality Control Check - Attorney Case Opening
Tue 01/07 7:59 AM
This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (CV) (LJ) |
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Att: 1
(1/7/2025) Additional Corrections
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utility
Case Assigned/Reassigned
Tue 01/07 9:29 AM
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. (LJ) |
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| Monday, January 06, 2025 | ||
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Civil Cover Sheet.. Re1 Notice of Removal, by JB Ecom LLC (Prutting, Matthew) Modified on 1/7/2025 (LJ).
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NOTICE OF REMOVAL by JB Ecom LLC from Supreme Court of the State of New York, County of Nassau, case number 621584/2024. Was the Disclosure Statement on Civil Cover Sheet completed -Yes ( Filing fee $ 405 receipt number ANYEDC-18637969) (Prutting, Matthew) Modified on 1/7/2025 (LJ).
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Att: 1
Exhibit Complaint,
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Att: 2
Exhibit First Amended Complaint,
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Att: 3
Exhibit Notice of Filing for Removal
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