McBean v. NTN Trucking LLC et al

Filing 9

MEMORANDUM & ORDER. For the reasons set forth herein, the 7 Report and Recommendation recommending that the Court remand this action to the New York State Supreme Court, Kings County, and consider imposing sanctions on defense counsel for ignoring two court orders is rejected. Ordered by Judge Sandra L. Townes on 2/17/2015. (Barrett, C)

IN CLERKS OFFICE
D.N.Y.

U.S. DISTRICT CC
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ZOILA C. MCBEAN,

* FEB20 2U15 *
BROOKLYN OFFICE
MEMORANDUM & ORDER

Plaintiff,
13-CV-3275 (SLT)(RLM)

-againstNTN TRUCKING, LLC, and
AVRAM VASILYEVICH ZHIRYADA,
Defendants.
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TOWNES, United States District Judge:

Presently before the Court is Magistrate Judge Roanne L. Mann's Report and
Recommendation ("R&R") recommending that the Court remand this action to the New York
State Supreme Court, Kings County, and consider imposing sanctions on defense counsel for
ignoring two court orders. (See ECF No. 7.) For the reasons set forth below, the R&R is
rejected.'
STANDARD OF RE VIEW
A district court "shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made." 28 U.S.C. §
636(b)(1)(C). After completing this review, "the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge." Id.
DISCUSSION
Plaintiff Zoila McBean originally filed this action, which arises from a motor vehicle
accident, in New York State Supreme Court, Kings County, on May 8, 2013. (See ECF No. 1.)
Defendants filed a notice of removal on June 7, 2013. (Id.) The notice of removal does not
The Court finds no fault with the Magistrate Judge's analysis. Instead, the Court bases this
decision on information presented to the Court only after the Magistrate Judge issued the instant
R&R.
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specify the citizenship of the defendant limited liability company's members and does not
identify a basis for asserting that the damages sought exceed the $75,000 jurisdictional threshold.
The Magistrate Judge thus issued an order on June 10, 2013, directing defendants, by June 14,
2013, to show cause why the case should not be remanded to state court. (ECF No. 3.) After
defendants failed to respond to this order, the Magistrate Judge on June 18, 2013, ordered
defendants to show cause by close of business the following day why the case should not be
remanded to state court and warned that a second failure to respond could result in sanctions.
(ECF No. 6.) Defendants again filed no response. On June 27, 2013, the Magistrate Judge
issued an R&R recommending that this case be remanded to state court and that the District
Court consider imposing sanctions on defense counsel for ignoring two court orders. (ECF No.
7.)
On July 15, 2013, defendants timely filed objections to the R&R. (ECF No. 8.) In the
objections, defense counsel apologizes to the Magistrate Judge and the Court and states that he
did not intentionally ignore the Court's orders but, during a "very busy" time, failed to review
them in a timely manner. (ECF No. 8 at 2.) The objections, sworn to by defense counsel,
provide the information requested in the Magistrate Judge's orders to show cause.

See 14B

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §3723 (3d ed. 1998)
("The district court's inquiry cannot be limited to the complaint, as it often can be when removal
is based on federal question jurisdiction, because certain matters critical for determining
diversity jurisdiction, such as the citizenship of the parties or the amount in controversy, may not
appear in the state court complaint."); see also Molina v. Wal-Mart Stores Texas, L. P., 535 F.
Supp. 2d 805, 807-08 (W.D. Tex. 2008) (considering affidavit detailing citizenship of defendant
partnership's members and pre-suit demand letter in denying remand). Regarding the amount-

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in-controversy requirement, plaintiff's attorney's office has indicated that plaintiff underwent
surgery to both knees and likely will require a spinal fusion surgery as a result of injuries
allegedly sustained in the accident. (ECF No. 8 at 2.) Moreover, plaintiff has demanded the one
million dollar policy limit to settle the case. (Id. at 2-3.) With respect to citizenship, the sworn
objections state that both members of the defendant LLC are Oregon citizens. (Id. at 3.)
Plaintiff is a New York resident. (ECF No. 1.)
In light of the representations made in defendants' objections, the Court finds that
defendants have demonstrated a sufficient basis for diversity jurisdiction. See 28 U.S.C. § 1332.
Given the short amount of time provided for defendants to respond, and defense counsel's
apology and assurance against future recurrences, the Court will not sanction defense counsel.
CONCLUSION
For the reasons set forth above, the R&R (ECF No. 7) is rejected.
[i1i]i4OI*i4
/s/ Sandra L. Townes
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SA RA TLTOWNES
United States District Judge

Dated:

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Brooklyn, New 'york

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