Dudla v. P.M. Veglio LLC et al

Filing 19

MEMORANDUM-DECISION and ORDERED, that Defendants Motion (Dkt. No. 9) to dismiss is DENIED as moot; and it is further ORDERED, that Plaintiffs Motion (Dkt. No. 12) is, to the extent it seeks a retroactive two-day extension of the Federal Rule of Civil Procedure 15(a)(1) deadline so as to render the Amended Complaint (Dkt. No. 11) an amendment as of course, GRANTED; and it is further ORDERED, that Plaintiffs Motion (Dkt. No. 12) is, to the extent it seeks leave to file an amended complaint, DENIED as moot; and it is further ORDERED, that, within twenty-one (21) days of the filing date of this Memorandum-Decision and Order, Plaintiff must file a signed copy of the Amended Complaint. Plaintiff is to make no other changes to the Amended Complain t. The Clerk of the Court is instructed to replace Docket Number 11 with the signed copy; and it is further ORDERED, that, within twenty-one (21) days of the filing date of this Memorandum-Decision and Order, Defendant Veglio must submit: (1) an aff idavit and supporting documentation regarding his domicile at the time the Complaint was filed; and (2) a memorandum as to whether he is an indispensable party under Federal Rule of Civil Procedure 19(b). Plaintiff may respond within fourteen (14) days thereafter. Signed by Senior Judge Lawrence E. Kahn on February 28, 2014. A copy of this order was served upon the pro se plaintiff by regular US mail. (sas) Modified on 2/28/2014 to add mailing notation (sas).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SHAWN DUDLA - D/B/A NU VISIONS
ENTERPRISES,
Plaintiff,
-against-

1:13-cv-0333 (LEK/RFT)

P.M. VEGLIO, LLC - D/B/A PAUL
MITCHELL THE SCHOOL OVEIDO;
et al.,
Defendants.

MEMORANDUM-DECISION and ORDER
I.

INTRODUCTION
In this breach of contract action, Defendants have moved to dismiss the Complaint for, inter

alia, lack of subject matter jurisdiction. Dkt. Nos. 9 (“Motion to Dismiss”); 1 (“Complaint”). Pro
se Plaintiff Shawn Dudla d/b/a/ Nu Visions Enterprises1 (“Plaintiff”) has filed an Amended
Complaint and cross-moved for permission to do so. Dkt. Nos. 11 (“Amended Complaint”); 12
(“Motion to Amend”). For the following reasons, the Motion to Dismiss is denied as moot, the
Motion to Amend is granted in part, and, in order to ensure that subject matter jurisdiction exists,
Defendant Guilio Veglio (“Veglio”) is ordered to provide an affidavit regarding his domicile as of
the commencement of this action.
II.

BACKGROUND
The parties are presumed to be familiar with the background of this case. For a complete

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Plaintiff is a sole proprietorship. Dkt. No. 11 (“Amended Complaint”) ¶ 1. Thus, it may
be represented by its sole proprietor, Shawn Dudla (“Dudla”). See Oberstein v. SunPower Corp.,
No. 07-CV-1155, 2008 WL 630073 (E.D.N.Y. Mar. 5. 2008)

statement of Plaintiff’s allegations and claims, reference is made to the Amended Complaint.
Plaintiff commenced this action by filing the Complaint on March 25, 2013. On June 20, 2013,
Defendants filed the Motion to Dismiss, in which they sought dismissal based on, inter alia,
Plaintiff’s failure to adequately allege diversity jurisdiction. Mot.; Dkt. No. 9-1 (“Memorandum”).
On July 17, 2013, Plaintiff filed the Motion to Amend, a copy of the Proposed Amended Complaint,
and a supporting Affidavit. Mot. to Amend; Dkt. No. 12-1 at 1-232 (“Affidavit”); 42-81 (“Proposed
Amended Complaint”). That same day, he separately filed the unsigned Amended Complaint.
Defendants then filed a Letter noting that, although they did not consent to the Motion to Amend,
they had not filed an opposition because Plaintiff had not complied with the Local Rules. Dkt. No.
15 (“Letter”).
III.

MOTION TO AMEND
Pursuant to Federal Rule of Civil Procedure Rule 15(a)(1), a party may amend her pleading

as a matter of course within 21 days of service of a Rule 12(b) motion to dismiss.3 Amendment is
effective upon receipt of the amended pleading by the clerk. See Obot v. I.R.S., No. 12-CV-01053,
2013 WL 6490256, at *4 (W.D.N.Y. Sept. 26, 2013) (noting that Rule 15 provides for a twenty-one
day period for the “fil[ing]” of an amended pleading); S.S. Dweck & Sons, Inc. v. Hasbani, No. 12
Civ. 6548, 2013 WL 3963603, at *3 (S.D.N.Y. Aug. 1, 2013) (same); Trzeciak v. State Farm Fire &
Cas. Co., No. 10-CV-358, 2011 WL 831126, at *2 n.1 (N.D. Ind. Mar. 1, 2011) (deeming amended
complaint filed on day it was docketed); FED R. CIV. P. 5(d)(2) (noting that a “paper is filed by
delivering it . . . to the clerk”). Service of a motion by mail is effective on the date of mailing. FED.
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If a party does not amend as a matter of course, it may do so “only with the opposing
party’s written consent or the court’s leave.” FED R. CIV. P. 15(a)(2).
2

R. CIV. P. 5(b)(2)(C). The deadlines for a party upon whom service is made by mail are extended by
three days. Id. 6(d). A deadline that falls on a weekend day is extended until the following
Monday. Id. 6(a)(1)(C).
Defendants mailed the Motion to Dismiss to Plaintiff on June 20, 2013. See Mot. Plaintiff
had twenty-four days thereafter to amend the Complaint as a matter of course. See Davis v. U.S.
Bank Nat. Ass’n, No. 10-13394, 2011 WL 281040, at *3 (E.D. Mich. 2011). Because the deadline
fell on July 14, 2013, a Sunday, Plaintiff had until the following day to amend his complaint.
Although Plaintiff mailed the Amended Complaint on July 15, 2013, see Aff. ¶ 7, it was not
received for filing until two days later, see Am. Compl. at 1, after the expiration of the matter-ofcourse period.
However, Federal Rule of Civil Procedure 6(b) provides that even already passed deadlines
may be extended by motion where a movant demonstrates “excusable neglect.” This applies to
extension of the Rule 15(a)(1) period for amending as a matter of course. See Hayes v. District of
Columbia, 275 F.R.D. 343 (D.D.C. 2011); FED R. CIV. P. 6(b)(2) (barring extensions of deadlines
under certain non-Rule 15 rules). In accordance with the duty to construe pro se filings liberally,
see Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court construes
Plaintiff’s Affidavit—in which he argues that the Amended Complaint constitutes an amendment as
of course because he mailed it within twenty-one days of receiving the Motion to Dismiss—as a
motion to extend the deadline for amending as of course. See Aff. ¶¶ 3-8; Hayes, 275 F.R.D. at 346
(construing motion for reconsideration as a motion to retroactively extend the amendment-as-ofcourse deadline).
To determine whether a late filing is the result of excusable neglect, a district court should

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consider: (1) the danger of prejudice to the other party; (2) the length of the delay and its potential
impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good
faith. Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 228 (2d Cir. 2004). “[E]xcusable neglect is
an elastic concept, that is at bottom an equitable one, taking account of all relevant circumstances
surrounding the party’s omission.” Id.
Plaintiff’s late filing was the result of excusable neglect. Defendants have raised no
substantive issues regarding the Amended Complaint, see Letter, and thus have not demonstrated
any prejudice from its filing. The Amended Complaint was filed a mere two days after the deadline;
this delay has had a negligible impact, if any, on the proceedings. The delay was the result of pro se
Plaintiff’s incomplete understanding of a number of complex, interrelated civil procedure rules and
their judicial interpretations—including one principle, that a pleading is amended under Rule
15(a)(1) when it is filed, that is not made explicit by the Federal Rules of Civil Procedure and has
not received extensive judicial discussion. Cf. Canfield v. Van Atta Buick/GMC Truck, Inc., 127
F.3d 248, 250 (2d Cir. 1997) (“[N]eglect may be excusable where the language of a rule is
ambiguous or susceptible to multiple interpretations.”). And, as there is no indication that
Plaintiff’s delay was the result of anything other than this misunderstanding, Plaintiff acted in good
faith. Thus, the Court grants Plaintiff a retroactive two-day extension of the Rule 15(a)(1) deadline
for filing an amendment as of course. The Amended Complaint therefore constitutes an amendment
as of course and becomes the operative pleading in this matter. The Motion to Dismiss, which
sought dismissal of the Complaint, is denied as moot. See Kolari v. New York-Presbyterian Hosp.,
455 F.3d 118, 120 n.2 (2d Cir. 2006).
However, the Amended Complaint is unsigned. See Am. Compl. at 40. Federal Rule of

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Civil Procedure 11(a) provides that “[e]very pleading, written motion, and other paper must be
signed . . . by a party personally if the party is unrepresented.”4 Additionally, a court “must strike an
unsigned paper unless the omission is promptly corrected after being called to the . . . party’s
attention.” Id. Plaintiff is therefore given 21 days to file a signed copy of the Amended Complaint.
Upon filing, the signed Amended Complaint will replace the Amended Complaint as Docket
Number 11.
IV.

SUBJECT MATTER JURISDICTION
A. Legal Standard
“[F]ederal courts are courts of limited jurisdiction.” Purdue Pharma L.P. v. Kentucky

704 F.3d 208, 213 (2d Cir. 2013); see also U.S. CONST. art. III, § 2. Even when a Rule 12(b)(1)
motion has not been brought, “a challenge to subject matter jurisdiction cannot be waived and may
be raised sua sponte by the district court.” Alliance of Am. Insurers v. Cuomo, 854 F.2d 591, 605
(2d Cir. 1988). Indeed, pursuant to Federal Rule of Civil Procedure 12(h)(3), “[i]f the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”
Where the existence of diversity jurisdiction is uncertain, a court may seek additional briefing. See
DirecTV Latin America, LLC v. Park 610, LLC, 691 F. Supp. 2d 405, 415 (S.D.N.Y. 2010).
The only asserted basis for subject matter jurisdiction in this case is diversity jurisdiction,
which is codified at 28 U.S.C. § 1332. See Am. Compl. ¶ 7. Diversity jurisdiction requires
“complete” diversity: no adverse parties may be citizens of the same state.5 See Herrick Co. v. SCS

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However, “[u]nless a rule or statute specifically states otherwise, a pleading need not be
verified.” FED R. CIV. P. 11.
5

28 U.S.C. § 1332 also requires that there be more than $75,000 in controversy. Plaintiff
alleges that Defendants owe him $103,198.32 for services he performed. Am. Compl. ¶ 7.
5

Commc’ns, Inc., 251 F.3d 315, 322 (2d Cir. 2000) (citing Owen Equip. & Erection Co. v. Kroger,
437 U.S. 365, 373-74 (1978)); see also St. Paul Fire and Marine Ins. Co. v. Universal Builders
Supply, 409 F.3d 73, 80 (2d Cir. 2005) (“Diversity is not complete if any plaintiff is a citizen of the
same state as any defendant.” (citing Owen Equipment, 437 U.S. at 373-74)). Diversity jurisdiction
depends on the citizenship of the parties at the time an action is commenced. Linardos v. Fortuna,
157 F.3d 945, 947 (2d Cir. 1998)
“It is well established that, where a party is a sole proprietorship, it takes on the citizenship
of its proprietor.” District Council 1707 v. Strayhorn, No. 11 Civ. 7911, 2013 WL 1223362, at *4
(S.D.N.Y. Mar. 25, 2013). At any given time, an individual is a citizen of only one state: her
domicile. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); Nat’l Artists Mgmt. Co. v.
Weaving, 769 F. Supp. 1224, 1227 (S.D.N.Y. 1991). Domicile is “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.” Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998) (quotation marks
omitted). Among the factors considered in determining domicile are:
[C]urrent 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 person’s
physician, lawyer, accountant, dentist, stockbroker, etc.
Halbritter v. Stonehedge Acquisition Rome II, LLC., No. 07 Civ. 3848, 2008 WL 926583, at *3

Defendants have not argued otherwise. See generally Mot.; Letter. Plaintiff has therefore
sufficiently alleged that the amount-in-controversy requirement is met. See Scherer v. Equitable
Life Assurance Soc’y of U.S., 347 F.3d 394, 397 (2d Cir. 2003) (“[W]e recognize a rebuttable
presumption that the face of the complaint is a good faith representation of the actual amount in
controversy.”).
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(S.D.N.Y. Apr. 2, 2008) (citations and quotation marks omitted).
The party invoking diversity jurisdiction bears the burden of persuasion in establishing, by a
preponderance of the evidence, an individual’s initial domicile. Apace Commc’ns, Ltd. v. Burke,
No. 07-CV-6151, 2009 WL 1748711, at *3 (W.D.N.Y. 2009). Once this initial showing has been
made, there is a presumption that domicile has continued. See Katz v. Goodyear Tire & Rubber
Co., 737 F.2d 238, 244 (2d Cir. 1984). A change of domicile can be shown only by clear and
convincing evidence of the “intent to give up the old and take up the new [domicile], coupled with
an actual acquisition of a residence in the new locality.” Id. at 243-44; see also Apace, 2009 WL
1748711, at *3 (“Both physical presence and intent to remain are required for a change in domicile
to occur; either without the other is insufficient.” (citing Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir.
2000)).
B. Discussion
Plaintiff, a sole proprietorship, is a citizen of New York. Although the Complaint and
Amended Complaint contain allegations regarding only Plaintiff’s mailing address and principal
business address rather than its proprietor’s domicile, see Am. Compl. ¶ 1; Compl. ¶ 2, the
Complaint attaches Dudla’s affidavit in the Florida action alleging that he has resided in New York
for 53 years. Dkt. No. 1-3 at 2.6 This extended period of New York residence, combined with
evidence that Dudla’s business is based in New York, see Am. Compl. ¶ 1; Compl. ¶ 2, indicates
that Dudla had a New York domicile as of March 2013. Plaintiff is therefore a citizen of New York
for diversity jurisdiction purposes. Thus, if any of the Defendants were also citizens of New York at
the time the Complaint was filed, complete diversity is lacking.

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The Court finds that additional briefing is needed as to Defendant Veglio’s citizenship. The
Complaint contains only one relevant allegation: “[Veglio] resides at his apartment for his use
located at 426 State Street, apt. 4, Schenectady, New York 12305.” Compl. ¶ 4. Defendants sought
to dismiss the Complaint because this allegation indicated that Veglio was a citizen of New York.
See Mem. at 3-4. But they provided no affirmative evidence of Veglio’s citizenship. See id. at 4.
Plaintiff then filed the Amended Complaint, in which he alleges that Veglio has “dual state
citizenship.” Am. Compl. ¶ 4. According to Plaintiff, Veglio resided in Florida until the August
2012 commencement of a “highly contested [Florida] matrimonial proceeding” and has resided in a
New York “corporate owned apartment” since then. Id. Plaintiff’s Affidavit contains similar
allegations. Aff. ¶¶ 15-16.
The Amended Complaint indicates that Veglio was domiciled in Florida prior to August
2012. It alleges that Veglio resided in Florida during this period, and Plaintiff has provided filings
from a number of entities for whom Veglio was an agent, as well as a Florida telephone directory
listing, indicating likewise. See Dkt. No. 11-13 at 1, 6, 8, 10.7 While domicile and residence are
distinct, the latter bears on the former. See Lee v. Charles, No. 12 Civ. 7374, 2013 WL 5878183, at
*3 (S.D.N.Y. Nov. 1, 2013) (finding plaintiff domiciled in state where she was “living
predominantly”); Herzberg v. MegaSpirea Productions SAS, No. 07 CIV. 10503, 2009 WL 702234,
at *2 (S.D.N.Y. Mar.10, 2009) (noting that telephone listings bear upon the issue of domicile). In
light of the absence of any evidence suggesting that Veglio was domiciled elsewhere prior to August
2012, Plaintiff has met his burden of establishing Veglio’s initial Florida domicile. Cf. Pacho v.
Enterprise Rent-A-Car, 510 F. Supp. 2d 331, 335 (S.D.N.Y. Sept. 18, 2007) (finding initial domicile

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sufficiently established based on uncontradicted allegations of party’s birth place).
However, the Amended Complaint indicates that Veglio may have changed his domicile to
New York at some point between his August 2012 residence change and the filing of the Complaint
in March 2013. Certainly, there is not clear and convincing evidence that Veglio had the requisite
intent to alter his domicile: Plaintiff alleges that Veglio lived in a corporate-owned residence, and
presents evidence that a Florida telephone directory continued to list Veglio as a resident of Florida
well after his residence change. See Halbritter, 2008 WL 926583, at *3 (finding that plaintiff did
not have the intent to change her domicile because she maintained a home in her original domicile);
Tanon v. Muniz, 312 F. Supp. 2d 143, 149 (D.P.R. 2004) (finding that plaintiff who never sold her
residence in Puerto Rico lacked intent to change her domicile to Florida); cf. Apace, 2009 WL
1748711, at * 1 (finding change of domicile where party sold former residence). But given the
paucity of evidence, Plaintiff’s “dual state citizenship” allegation, and uncertainty as to whether
Veglio used his New York residence as a temporary retreat from presumably finite Florida
matrimonial proceedings or made a more permanent transition, see Am. Compl. ¶ 4, the Court
cannot definitively conclude that Veglio did not change his domicile from Florida to New York
prior to the filing of the Complaint.
Out of an abundance of caution, the Court therefore orders Veglio to provide an affidavit and
supporting documentation regarding his domicile as of March 25, 2013. Veglio should also submit
a memorandum as to whether, if he was then domiciled in New York, he is an indispensable party
under Federal Rule of Civil Procedure 19(b) such that he cannot be dismissed to preserve
jurisdiction. See CP Solutions PTE, Ltd. v. Gen. Elec. Co., 553 F.3d 156, 159 (2d Cir. 2009)
(“Federal Rule of Civil Procedure 21 allows a court to drop a nondiverse party at any time to

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preserve diversity jurisdiction, provided the nondiverse party is not ‘indispensable’ under Rule
19(b).”). Plaintiff may submit a response to Veglio’s affidavit and memorandum.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion (Dkt. No. 9) to dismiss is DENIED as moot; and it is

further
ORDERED, that Plaintiff’s Motion (Dkt. No. 12) is, to the extent it seeks a retroactive twoday extension of the Federal Rule of Civil Procedure 15(a)(1) deadline so as to render the Amended
Complaint (Dkt. No. 11) an amendment as of course, GRANTED; and it is further
ORDERED, that Plaintiff’s Motion (Dkt. No. 12) is, to the extent it seeks leave to file an
amended complaint, DENIED as moot; and it is further
ORDERED, that, within twenty-one (21) days of the filing date of this MemorandumDecision and Order, Plaintiff must file a signed copy of the Amended Complaint. Plaintiff is to
make no other changes to the Amended Complaint. The Clerk of the Court is instructed to replace
Docket Number 11 with the signed copy; and it is further
ORDERED, that, within twenty-one (21) days of the filing date of this MemorandumDecision and Order, Defendant Veglio must submit: (1) an affidavit and supporting documentation
regarding his domicile at the time the Complaint was filed; and (2) a memorandum as to whether he
is an indispensable party under Federal Rule of Civil Procedure 19(b). Plaintiff may respond within
fourteen (14) days thereafter; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.

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IT IS SO ORDERED.

DATED:

February 28, 2014
Albany, NY

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