Berman vs. Qaulity Motors et, al

Filing 5

MEMORANDUM DECISION AND ORDER: For the foregoing reasons, the Court finds diversity jurisdiction was lacking at the time of removal. The Clerk is directed to (i) remand the case to Supreme Court, Westchester County, and terminate the case, and (ii) mail a copy of this Memorandum Decision and Order to the following parties and/or counsel at the following addresses: Stephanie L. Goldstein, Esq., Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., 530 Saw Mill River Road, Elmsford, New York 10523. Joe A. Vazquez, Esq., Cellino & Barnes 420 Lexington Avenue, Suite 2140, New York, NY 10170, Aly M. Fathy 3808 West 9th Street, Trainer, PA 19061. (Signed by Judge Vincent L. Briccetti on 2/23/2016) Copies Mailed By Chambers. (rj)

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ELECTRONICALLY FILED
DOC #:_
DATE FILED;

v.

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MEMORANDUM DECISION
AND ORDER

QUALITY MOTORS and AIX M.
FATI IY.
Defendants.

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16 CV 128 (YB)

II

UNITED STATES DISTRICT COURT
SOUTHERN T)ISTRICT OF NEW YORK
GARY MICHAEL BERMAN.
Plaintiff.

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Defendant Quality Motors removed this action from Supreme Court, Westchester
County. (Doe. #1). As discussed below, because this Court lacks subject matter jurisdiction, the
Court remands the case to Supreme Court, Westchester County.
BACKGROUND

PlaintifT Gary Michael Berman. a resident of New York. brought this action in Supreme
Court. Westchester County, against Alv M. Fathy. a Pennsylvania resident, for claims arising out
of a car accident that allegedly occurred in Westchester County on January 15, 2014. Plaintiff
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also sued Quality Motors, a Pennsylvania-based limited liability company that allegedly owned
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Ms. Fathy’s car.
On January 7. 2016. Quality Motors removed the case to this Court on the basis of
diversity of citiienship pursuant to 28 U.S.C.

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1446 and

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1332. (Doe. #1). In its Statement of

Grounds of Removal. Quality Motors alleges it Is a limited liabilit corporation incorporated in

As the Court noted in its Januaiy Ii. 2016, order. Quality Motors’s Statement of Grounds
Remo\al alleges it is a limited liability corporation, not a limited liability cQrnp4fly However,
of
the Court treats Quality Motors as a limited liability company. not a corporation, because (i) in
its verified anser, exhibited to the notice of removal, defendant identifies its name as ‘Quality
Motors of Germantown, LLC.” (Doe. #1, Ex. B). and (ii) a search on the Pennsylvania
Department of State ebsite indicates Quality Motors of Germanton is a limited liability
company.
To date. the onl\ parts to appear in this Court is Qualit\ Motors.

the State of Pennsylvania and maintains its principal place of business in Pennsylvania.” (Doc.
#1. ¶ 5). The notice of removal does not allege the citizenship of the natural persons who are
members of the LLC. or the place of incorporation and principal place of business of any
corporate entities who arc members of the LLC.
On January 11, 2016, because the allegations contained in the removal notice were
insufficient to establish the citizenship of the parties to invoke diversity jurisdiction under
Section 1332. the Court ordered Quality Motors to amend its removal notice to allege the
citizenship of each of Quality Motors’s members. (Doc. #4). The Court gave Quality Motors
until January 25, 2016, to amend its removal notice or show cause in writing why the case should
not be remanded for lack of subject matter jurisdiction. (Id.).
Quality Motors has failed to comply with the Court’s order. Accordingly, the Court
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rernands the case to Supreme Court, Westchester County, for lack of subject matter jurisdiction.
DISCUSSION
I.

Removal Standard
A case may be removed from state to federal court only if the action is one over which

the federal court would have had original jurisdiction. 28 U.S.C.

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1441(a). The rules regarding

removal are strictly construed. Syngenta Crop Prot.. Inc. v. Henson, 537 U.S. 28, 32 (2002).
“[Flederal courts are courts of limited jurisdiction and lack the power to disregard such limits as
have been imposed by the Constitution or Congress.”
Cortese—Costa. PC. vJ)upp, 565 F.3d 56. 62 (2d Cir, 2009), Once the question is raised, the

On February 19, 2016, counsel for plaintiff and Quality Motors submitted a stipulation
discontinuing the action against as to Quality Motors only. Because the Court lacks subject
matter over the case, it need not address the stipulation.

burden of establishing subject matter jurisdiction rests on the party asserting jurisdiction.
cicbisterlncy.GaIeno. 472 F.3d 53, 57 (2d Cir. 2006).
Diversity jurisdiction exists only where ihere is complete diversity of citizenship and the
amount in controversy exceeds S75O0O. 28 U.S.C.

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1332(a). Diversity jurisdiction under

Section 1332 requires “complete diversity” between all plaintiffs and all defendants in an action.
Exxon Mobil Corp. v. Allapattah Servs.. Inc.. 545 U.S. 546 (2005). There is diversity between
the parties when the action is one between citizens of a different States.” 28 U.S.C.

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1332(a)(l).
For purposes of diversity jurisdiction, a limited liability company has the citizenship of

each of its individual or entity members. Bayerische Landesbank v. Aladdin Capital. 692 F.3d
42. 49 (2d Cir. 2012).
A district court must remand an action to state court [ijf at any time before final
judgment it appears that the district court lacks subject matterjurisdiction.” 28 U.S.C.

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1447(c);

see also Lajaunie v. Samuels & Son Seafood Co., 614 F. App’x 33 (2d Cir. 2015) (summary
order). “Out of respect for the limited jurisdiction of the federal courts and the rights of states,
[courts] must resolve any doubts against removability.” In re Methyl Tertiary Butvl Ether
(MTBE”) Products Liab. Litig.. 488 F.3d 112, 124 (2d Cir. 2007) (quotation marks and
alterations omitted).
TI.

Quality Motors Failed to Show This Court Has Jurisdiction
I)efendant Quality Motors’s Statement of Grounds of Removal does not allege the

citizenship of the natural persons who are members of the LLC, or the place of incorporation and
principal place of business of any corporate entities who are members of the LEC. Therefore,
the Statement of Grounds of Removal does not establish complete diversity of citizenship of the

parties. Even after being specifically ordered to do so, defendant Quality Motors failed to carry
its burden of showing that removal is proper based on complete diversity of citizenship. Instead
of complying with the Court’s order, Quality Motors submitted a stipulation discontinuing the
action only against itself without addressing whether the Court has subject matter jurisdiction.
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Accordingly, because it appears the Court lacks subject matter jurisdiction, the case shall be
remanded. See 28 U.S.C.

§ 1447(c).
CONCLUSION

For the foregoing reasons, the Court finds diversity jurisdiction was lacking at the time of
removal. The Clerk is directed to (i) remand the case to Supreme Court, Westchester County,
and terminate the case, and (ii) mail a copy of this Memorandum Decision and Order to the
following parties and/or counsel at the following addresses:
Stephanie L. Goldstein, Esq.
Marks, O’Neill, O’Brien, Doherty & Kelly, P.C.
530 Saw Mill River Road
Elmsford, New York 10523
Joe A. Vazquez, Esq.
Cellino & Barnes
420 Lexington Avenue
Suite 2140
New York, NY 10170

Although the Court declines to address the stipulation of partial discontinuance, the Court
notes it contains peculiar features. First, the stipulation was signed by plaintiffs attorney despite
that plaintiffs counsel never filed a notice of appearance in this Court. Second, the stipulation
did not contain this Court’s case number, 16 CV 128, and instead used the state court’s Index
Number. Third, the caption of the stipulation adds a third defendant not listed in the complaint
or notice of removal, an entity called “Quality Motor Team, Inc.”
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Aly M. Fathy
3808 West 9th Street
Trainer, PA 19061
Dated: February 23, 2016
White Plains, NY
SO ORDERED:

Vincent U Briccetti
United States District Judge