Dynamic Enjoy Corporation et al v. Piccolo by Gambrinus, LLC et al

Filing 81

ORDER: Accordingly, it is hereby: ORDERED that, by September 13, 2024, the parties submit a joint letter explaining their position(s) regarding my authority to (1) order jurisdictional discovery and (2) remand the case to state court. SO ORDERED. (Signed by Judge Vernon S. Broderick on 8/30/2024) (tg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DYNAMIC ENJOY CORPORATION and :
NADIA CHRISTOPOULOS,
:
:
Plaintiffs,
:
:
- against :
:
PICCOLO BY GAMBRINUS, LLC,
:
ALEXANDER CESARIA VANDERBILT, :
and CANDO CAPITAL, LLC,
:
:
Defendants,
:
:
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22-CV-9909 (VSB)
ORDER

VERNON S. BRODERICK, United States District Judge:
On August 14, 2024, I entered an order advising the parties that federal subject-matter
jurisdiction over this matter is lacking for want of complete diversity, see 28 U.S.C. § 1332(a),
and requesting that the parties submit their positions as to whether I should dismiss the case or
drop the non-diverse party pursuant to Federal Rule of Civil Procedure 19(b). (Doc. 79.) Before
me is the parties’ joint letter in response. (Doc. 80.)
As an initial matter, Plaintiffs’ statement they “emphasize that, during the parties’ meetand-confer conference, Defendants’ counsel represented that he has no objections to this matter
remaining venued in the Southern District of New York” is irrelevant. (Doc. 80 at 1.) The
concept of venue is distinct from the concept of subject-matter jurisdiction, see 28 U.S.C.
§ 1390(a), and as I previously explained, “parties may not waive, consent, or stipulate to subjectmatter jurisdiction when it is lacking,” (Doc. 79 at 2 (citing Marcella v. Cap. Dist. Physicians’
Health Plan, Inc., 293 F.3d 42, 46–47 (2d Cir. 2002)). See also Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 3522 (3d ed.). In other words, the absence of

complete diversity of the parties prevents me from adjudicating this case.
Plaintiffs request that I order jurisdictional discovery “so that this issue can be explored
and solidified prior to any final decision regarding dismissal.” (Doc. 80 at 2.) While courts
sometimes order jurisdictional discovery to determine whether diversity jurisdiction exists, they
do so “[w]hen a plaintiff has made a ‘threshold showing for some basis to assert jurisdiction,
such as facts that would support a colorable claim of jurisdiction.’” Tutor Perini Bldg. Corp. v.
New York City Reg’l Ctr., LLC, No. 20-CV-731, 2020 WL 7711629, at *3 (S.D.N.Y. Dec. 29,
2020) (quoting Mills 2011 LLC v. Synovus Bank, 921 F. Supp. 2d 219, 228 (S.D.N.Y. 2013)).
Here, Plaintiffs’ Complaint pleads that Plaintiff Christopolous is a member of Defendant Piccolo
by Gambrinus, LLC, and thus there is not complete diversity between the adversaries. (See Doc.
1 ¶¶ 22–23.) Without a threshold showing of diversity jurisdiction, there does not appear to be a
basis to order jurisdictional discovery.
The parties also “strenuously urge the Court to remand this matter to state court in lieu of
dismissing it.” (Doc. 80 at 2.) This case was originally filed in federal court, however, and I am
unaware of any authority permitting me to remand such a case. See Uddin v. Rock Arch & Eng
Corp., No. 21-CV-10900, 2023 WL 348470, at *1 (S.D.N.Y. Jan. 19, 2023) (quoting Levin v.
Commerce Energy, Inc., 560 U.S. 413, 428 (2010)) (cleaned up) (explaining that “federal
tribunals lack authority to remand to the state court system an action initiated in federal court”).
I will, however, provide the parties the opportunity to respond to these issues.

Accordingly, it is hereby:
ORDERED that, by September 13, 2024, the parties submit a joint letter explaining their
position(s) regarding my authority to (1) order jurisdictional discovery and (2) remand the case
to state court.
SO ORDERED.
Dated:

August 30, 2024
New York, New York

____________________
Vernon S. Broderick
United States District Judge