Pusey v. Bank Of America, N.A.

Filing 35

MEMORANDUM AND ORDER: There is reason to believe that individual defendants Andre Mack and Smitha Lukose-Khan are New York citizens whose joinder destroyed diversity jurisdiction. Unless the parties submit conclusive documentary evidence regarding their citizenship status, the Court will hold an evidentiary hearing on June 23, 2015 at 12:00 p.m. to resolve this jurisdictional issue. Ordered by Judge Frederic Block on 6/16/2015. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MISKHA PUSEY,
Plaintiff,
-against-

MEMORANDUM AND ORDER
14-CV-04979 (FB) (LB)

BANK OF AMERICA, N.A., ANDRE
MACK, and SMITHA LUKOSE-KHAN,
Defendants.
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Appearances:
For the Plaintiff:
STEPHEN KNIGHTS, ESQ.
SHELLON WASHINGTON, ESQ.
Stephen Knights P.C.
2009 Nostrand Avenue
Brooklyn, NY 11210

For the Defendants:
CAROLINE F. TURCOTTE, ESQ.
SIOBHAN M. SWEENEY, ESQ.
Locke Lord LLP
111 Huntington Avenue
Boston, MA 02199

BLOCK, Senior District Judge:
On June 24, 2014, Mishka Pusey (“Pusey”) – a New York resident – filed this
action in New York Supreme Court, Kings County against Bank of America, N.A.
(“Bank of America”) – which is headquartered in North Carolina – and an unidentified
“Banking Center Manager” (collectively, “Defendants”).

On August 21, 2014,

Defendants removed this case to the Eastern District of New York based on diversity
of citizenship between Pusey and Bank of America. On November 11, 2014, Judge
Glasser allowed Pusey to file an amended complaint (the “Amended Complaint”)
adding two new defendants, Andre Mack (“Mack”) – the previously unidentified

“Banking Center Manager” – and Smitha Lukose-Khan (“Lukose-Khan”), another
Bank of America employee.1

Defendants now move to dismiss the Amended

Complaint pursuant to Rule 12(b)(6).
The Court’s subject-matter jurisdiction is based on diversity of citizenship. See
28 U.S.C. § 1332(a)(2). However, there is reason to believe that Mack and LukoseKhan are New York citizens whose joinder destroyed diversity jurisdiction. See 28
U.S.C. § 1447(e) (“If after removal the plaintiff seeks to join additional defendants
whose joinder would destroy subject matter jurisdiction, the court may deny joinder,
or permit joinder and remand the action to the State court.”).
Mack’s affidavit of service shows that he was served the Amended Complaint
at 398 MacDonough St., Apt. 1, Brooklyn, NY 11233. See Aff. of Service, Dkt. No.
23.

A Google Maps search shows that address to be a residential building.

Accordingly, it appears that Mack resides in Brooklyn, thus giving him New York
citizenship. Further, since Lukose-Khan’s affidavit of service shows that she was
served the Amended Complaint at a Brooklyn Bank of America branch, see Aff. of
Service, Dkt. No. 24, it is also likely that she is a New York citizen.
Because Mack and Lukose-Khan’s citizenship could divest the Court of its
subject-matter jurisdiction, the Court raises this issue sua sponte. See D’Amico Dry

1

This case was originally assigned to Judge Glasser and was only transferred to this
Court after the parties’ 12(b)(6) motion papers were fully briefed and filed.
2

Ltd. v. Primera Mar. (Hellas) Ltd., 756 F.3d 151, 161 (2d Cir. 2014) (“Federal courts
have a duty to inquire into their subject matter jurisdiction sua sponte, even when the
parties do not contest the issue.”). As such, unless the parties submit conclusive
documentary evidence establishing Mack and Lukose-Khan’s citizenship status, the
Court will hold an evidentiary hearing on June 23, 2015 at 12:00 p.m. to resolve this
jurisdictional issue.
If Mack and Lukose-Khan are New York citizens, the Court would typically
undertake a two-part analysis under § 1447(e) before determining whether to allow
Pusey to amend her complaint to join them as non-diverse defendants:
In order to determine whether to permit joinder [of a non-diverse
defendant] and remand a case pursuant to § 1447(e), the Court engages in
a two-part analysis. First, the Court must evaluate whether the joinder of
an additional defendant is permissible under Federal Rule of Civil
Procedure 20(a)(2) . . . . If the Court finds that joinder is permissible, the
Court then turns to the second step, which requires the Court to conduct a
fundamental fairness analysis in order to ascertain whether the balancing
of certain relevant considerations weighs in favor of joinder and its
necessarily attendant remand.
Vanderzalm v. Sechrist Indus. Inc., 875 F. Supp. 2d 179, 183 (E.D.N.Y. 2012)
(quotations and citations omitted). This did not happen here. As such, if Mack or
Lukose-Khan destroyed diversity jurisdiction, the Court will vacate the order that
permitted Pusey to file the Amended Complaint that added them as defendants under
Rule 54(b). See Abraham v. Nat. Foods Corp. v. Mount Vernon Fire Ins. Co., 576 F.

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Supp. 2d. 421 (E.D.N.Y. 2008) (“[W]here an amended complaint joining non-diverse
parties has been permitted by the court, the court may avoid remand called for in [§
1447(e)] by [] vacating the order permitting joinder pursuant to [Rule 54(b)] . . . .”).
Afterwards, Pusey could either (1) decide to not pursue Mack and Lukose-Khan as
defendants, preserving diversity jurisdiction, or (2) move again to join Mack and
Lukose-Khan as defendants and remand this action under § 1447(e).
SO ORDERED.
/S/ Frederic Block________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
June 16, 2015

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