Tuttle et al v. Home Depot U.S.A., Inc.
| New York Northern District Court | |
| Judge: | Lawrence E Kahn |
| Referred: | Miroslav Lovric |
| Case #: | 3:23-cv-01173 |
| Nature of Suit | 190 Contract - Other Contract |
| Cause | 28:1446 Breach of Contract- Insurance |
| Case Filed: | Sep 13, 2023 |
| Terminated: | Nov 22, 2023 |
| Last checked: Monday Mar 11, 2024 4:23 AM EDT |
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Defendant
Home Depot U.S.A., Inc.
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Represented By
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Plaintiff
Anthony Tuttle
488 Bone Plain Road
Freeville, NY 13068 |
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Plaintiff
Kimberly Tuttle
488 Bone Plain Road
Freeville, NY 13068 |
| Docket last updated: 33 minutes ago |
| Friday, December 01, 2023 | ||
| 21 | 21
misc
Return Receipt
Tue 12/05 4:09 PM
RETURN RECEIPT regarding certified copy of the20 Letter Text Order to Remand served on Court Clerk's Office Supreme Court of the State of New York for Tompkins County (egr) |
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| Wednesday, November 22, 2023 | ||
| 20 | 20
misc
Letter
Wed 11/22 11:49 AM
Letter from Daniel Krug, CRD to NYS Supreme Court - County of Tompkins. (dpk) |
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| 19 | 19
order
Order Dismissing Case
Wed 11/22 11:30 AM
TEXT ORDER: On October 27, 2023, Plaintiffs filed their second motion for remand, arguing that Defendant's removal was improper under 28 U.S.C. 1446(c)(1). Dkt. No.16 ("Motion"). The Court has construed this filing as a motion for reconsideration of its earlier denial, Dkt. No. 13, of Plaintiffs' first motion for remand, Dkt. No.11 , which was timely filed pursuant to 28 U.S.C. 1447(c). See Dkt. No. 17. On November 20, 2023, Defendant filed a response indicating that they do not oppose Plaintiffs' Motion. Dkt. No.18 ("Response"). In their Response, however, Defendant has asked that this Court direct the parties to engage in a settlement conference prior to remand, pointing out that defective removal does not necessarily deprive this Court of subject matter jurisdiction. See id. at 2. Defendant is correct that "improper removal (i.e. lack of removal jurisdiction)" and "lack of original subject matter jurisdiction" are distinct, and that this Court does have original subject matter jurisdiction pursuant to 28 U.S.C. § 1332. Begani v. 960 Associates LLC, No. 18-CV-12000, 2021 WL 5362173, at *5 (S.D.N.Y. May 10, 2021) (quoting Prop. Clerk v. Smith, No. 00-CV-2133, 2000 WL 1725017, at *1 (S.D.N.Y. Nov. 17, 2000)), report and recommendation adopted sub nom. Bengani v. 960 Associates LLC, No. 18-CV-12000, 2021 WL 4892865 (S.D.N.Y. Oct. 20, 2021). However, this distinction is irrelevant to Defendant's request. If a court determines that it lacks removal jurisdiction, then it must remand the case upon motion. See Certain Underwriters at Lloyd's London v. Art Crating, Inc., No. 12-CV-5078, 2014 WL 123488, at *18 (E.D.N.Y. Jan. 10, 2014) ("[A] holding that the court lacks removal jurisdiction 'would end our inquiry' and preclude consideration of other pending motions." (quoting Broder v. Cablevision Sys. Corp., 418 F.3d 187, 194 (2d Cir. 2005))). Whether the absence of removal jurisdiction is based on a procedural defect or the absence of subject matter jurisdiction is only relevant to the question of whether a plaintiff can waive their right to seek remand. See 28 U.S.C. § 1447(c) ("A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."); see also In re Methyl Tertiary Butyl Ether Products Liab. Litig., 522 F. Supp. 2d 557, 563-569 (S.D.N.Y. 2007) ("[L]ack of removal jurisdiction is a procedural defect, and thus subject to waiver under the thirty-day limitation imposed by section 1447(c)."). Such a waiver is not at issue here. Plaintiffs' Motion is therefore GRANTED, and Defendant's request for a settlement conference is DENIED as moot. This action is hereby remanded to the Supreme Court of the State of New York, County of Tompkins. The Clerk of Court is directed to send a certified copy of this Order to the Clerk of the Supreme Court of the State of New York, County of Tompkins, and to close the case in this Court. SO ORDERED by Senior Judge Lawrence E. Kahn on 11/22/2023. (Certified copies served upon appropriate parties/agencies) (dpk) |
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| Monday, November 20, 2023 | ||
| 18 | 18
respm
Response to Motion
Mon 11/20 12:10 PM
RESPONSE to Motion re16 MOTION to Remand filed by Anthony Tuttle. filed by Home Depot U.S.A., Inc.. (Minchella, Anthony) |
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| Tuesday, October 31, 2023 | ||
| 17 | 17
order
Order Order Setting Hearing on Motion
Tue 10/31 4:17 PM
TEXT ORDER: The Court has received Plaintiffs' second motion for remand. Dkt. No.16 ("Second Motion"). The Court construes this Second Motion as a motion for reconsideration of the Court's Text Order dated October 24, 2023. Dkt. No. 13 ("October Order"). After further review, the Court directs Defendant to file a response to this Second Motion and explain why remand is not required pursuant to 28 U.S.C. 1446(c)(1). Defendant must file its response by November 21, 2023. The Court accordingly suspends the briefing schedule set in the October Order pending resolution of the question of remand. SO ORDERED by Senior Judge Lawrence E. Kahn on 10/31/2023. (Copy served via regular mail) (dpk) |
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| Friday, October 27, 2023 | ||
| 16 | 16
motion
Remand
Mon 10/30 2:34 PM
MOTION to Remand filed by Anthony Tuttle. Response to Motion due by 11/20/2023. Reply to Response to Motion due by 11/27/2023{Filed via MFT, Motion references Exhibits A thru F, Clerk notes that only 2 exhibits were received with the motion, but may be referencing docket entries14 and15 .} (egr) |
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Att: 1
State Court Affidavit of Service and Notice of Motion,
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Att: 2
State Court Notice of Motion
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| 15 | 15
misc
State Court Records filed
Fri 10/27 4:43 PM
State Court Records filed by Anthony Tuttle, Kimberly Tuttle.(egr) |
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Att: 1
State Court Record: Filed Summons and Complaint,
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Att: 2
State Court Record: Affidavit of Service and Notice of Motion of Summary Judgment,
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Att: 3
State Court Record: Affidavit of Service
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| 14 | 14
misc
State Court Records filed
Fri 10/27 4:31 PM
State Court Records filed by Anthony Tuttle, Kimberly Tuttle.(egr) |
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Att: 1
State Court Exhibit 1,
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Att: 2
State Court Exhibit 2,
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Att: 3
State Court Exhibit 3,
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Att: 4
State Court Exhibit 4
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| Tuesday, October 24, 2023 | ||
| 13 | 13
order
Order on Motion to Remand
Tue 10/24 10:18 AM
TEXT ORDER: The Court has received Plaintiffs' motion for remand. Dkt. No.11 ("Motion"). Plaintiffs argue that removal was improper under 28 U.S.C. 1446(c)(1), which provides that cases should not be removed more than one year after commencement. See id. at 1-3. However, Defendant asserts - and Plaintiffs do not dispute - that this case only became removable on August 17, 2023, when Plaintiffs served an amended complaint seeking damages that satisfied the amount-in-controversy requirement. See Dkt. No. 1 at 1-2; see also Dkt. No. 1-1 at 2. Defendant's removal on September 13, 2023, was therefore timely pursuant to 28 U.S.C. 1446(b)(3). Plaintiffs' Motion is therefore DENIED. However, the Court also notes that Defendant's answer, Dkt. No.8 , does not comply with this Court's Local Rules or the Federal Rules of Civil Procedure. Most importantly, Federal Rule of Civil Procedure 7(b) provides that all requests for a court order must be made by motion. Defendant has asked this Court to dismiss Plaintiffs' amended complaint, see id. at 6, but has neither filed a motion to dismiss nor provided the accompanying memorandum of law required by Local Rule 7.1(b). Defendant is directed to cure this defect by filing either an amended answer or a pre-answer motion, such as a motion to dismiss, by no later than November 23, 2023. Defendant is advised that this filing must comply with all pleading requirements, including the use of numbered paragraphs pursuant to Federal Rule of Civil Procedure 10(b). Finally, Defendant has advised the Court that there is a motion for summary judgment pending in the state court action, and they argue that this motion "requires action by a Judge of this Court." Dkt. No.6 . However, Local Rule 81.4 provides that "[t]he Court will not consider a motion that a party filed in state court unless that party refiles the motion in this Court in accordance with the Local Rules of Practice for the Northern District of New York." Plaintiffs have not re-filed their motion for summary judgment in this Court, and this Court will therefore not consider it. SO ORDERED by Senior Judge Lawrence E. Kahn on 10/24/2023. (Copy served via regular mail) (dpk) |
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| Friday, October 20, 2023 | ||
| 12 | 12
order
Order 1 - Terminate Deadlines and Hearings
Fri 10/20 12:42 PM
TEXT ORDER: In light of the filing of Motion to Remand11 and the motion currently still pending before the District Judge, the Rule 16 Initial Conference scheduled for 10/26/2023 before Magistrate Judge Miroslav Lovric is STAYED without date. SO ORDERED by U.S. Magistrate Judge Miroslav Lovric on 10/20/2023. (copy of Text Order served on pro se Plaintiffs via regular mail) (jdc) |
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| Monday, September 25, 2023 | ||
| 11 | 11
motion
Remand
Mon 09/25 4:51 PM
MOTION to Remand with attached exhibits filed by Anthony Tuttle. Response to Motion due by 10/16/2023. Reply to Response to Motion due by 10/23/2023 (egr) |
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| Thursday, September 21, 2023 | ||
| 10 | 10
misc
Civil Case Management Plan
Fri 09/22 9:11 AM
CIVIL CASE MANAGEMENT PLAN by Anthony Tuttle, Kimberly Tuttle. (hmr) |
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| 9 | 9
notice
Notice - Other
Fri 09/22 9:09 AM
RESPONSE TO NOTICE OF REMOVAL by Anthony Tuttle, Kimberly Tuttle re1 Notice of Removal. (hmr) |
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| Wednesday, September 20, 2023 | ||
| 8 | 8
answer
Answer to Complaint
Wed 09/20 10:10 AM
ANSWER to Complaint and Affirmative Defenses by Home Depot U.S.A., Inc..(Doran, John) |
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| 7 | 7
misc
FRCP 7.1 Corporate Disclosure Statement
Wed 09/20 10:01 AM
FRCP 7.1 CORPORATE DISCLOSURE STATEMENT by Home Depot U.S.A., Inc.. (Doran, John) |
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| 6 | 6
notice
Notice - Other
Wed 09/20 9:52 AM
NOTICE by Home Depot U.S.A., Inc. Notice of Pending Motions (Doran, John) |
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| Tuesday, September 19, 2023 | ||
| 5 | 5
service
Certificate of Service
Tue 09/19 10:05 AM
CERTIFICATE OF SERVICE by Home Depot U.S.A., Inc. re3 G.O. 25 Filing Order,1 Notice of Removal, (Doran, John) |
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| Thursday, September 14, 2023 | ||
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utility
Set/Reset Answer Deadline
Thu 09/14 11:17 AM
***Answer due date updated for Home Depot U.S.A., Inc. answer due 9/20/2023. (egr) |
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notice
Notice - Other
Thu 09/14 12:12 PM
TEXT NOTICE: The Initial Conference scheduled for 10/26/2023 at 1:00PM before Magistrate Judge Miroslav, in person, at 15 Henry Street, 1st Floor Courtroom, Binghamton, New York. (Served on Pro Se Plaintiff's via regular mail) (jdc ) |
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| Wednesday, September 13, 2023 | ||
| 4 | 4
misc
Pro Se Handbook and Notice Issued
Thu 09/14 11:15 AM
PRO SE HANDBOOK, LOCAL RULES, GENERAL ORDER 25 and PRO SE NOTICE issued and mailed at time complaint was filed. (egr) |
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| 3 | 3
misc
G.O. 25 Filing Order
Thu 09/14 11:12 AM
G.O. 25 FILING ORDER ISSUED: Initial Conference set for 10/26/2023 at 1:00 PM in Binghamton before Magistrate Judge Miroslav Lovric. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 10/19/2023. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (egr) |
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| 2 | 2
misc
State Court Complaint
Thu 09/14 9:44 AM
STATE COURT COMPLAINT relating to1 Notice of Removal, filed by Plaintiff(s) in State of New York Supreme Court: County of Tompkins. (egr) |
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| 1 | 1
notice
Notice of Removal
Thu 09/14 9:37 AM
NOTICE OF REMOVAL from State of New York Supreme Court County of Tompkins, case number 2022-0138 (Filing fee $402 receipt number ANYNDC-6443693) filed by Home Depot U.S.A., Inc.(egr) |
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Att: 1
Amended State Court Summons and Complaint,
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Att: 2
Civil Cover Sheet
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