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Frank v. Walgreens Co.

August 4, 2010

JOSEPH J. FRANK, PLAINTIFF,
v.
WALGREENS CO., CRAIG SCHMIDT, CLARITA ORTEGA, JOSEPH MOY AND LOUIS MORANDI, DEFENDANTS.



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM AND ORDER

Presently pending before the Court is the motion by plaintiff Joseph J. Frank ("Plaintiff") to remand this matter to state court. In opposition, defendants Walgreens Co. ("Walgreens"), Craig Schmidt ("Schmidt"), Clarita Ortega ("Ortega"), Joseph Moy ("Moy"), and Louis Morandi ("Morandi") (collectively "Defendants") seek dismissal of the Complaint as against the individual defendants based upon Plaintiff's failure to properly serve them. For the reasons that follow, Plaintiff's motion to remand is denied and the action is dismissed without prejudice as to the individual defendants.

BACKGROUND

Commencement of Suit

Plaintiff originally filed this action in the Supreme Court of the State of New York, Suffolk County via Summons with Notice filed on January 28, 2009. On March 6, 2009, Walgreens filed a Notice of Removal and this case was removed to this Court. The Notice of Removal was based on federal question jurisdiction because the Summons with Notice alleged violations of two federal statutes, viz. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and the Occupational Safety and Health Act, 29 U.S.C. § 651, et seq. By Stipulation and Order dated March 25, 2009, Plaintiff and Walgreens agreed that Plaintiff would file and serve a Complaint on Walgreens on or before March 30, 2009, and that Walgreens would respond to the Complaint on or before April 30, 2009.

Thereafter, Plaintiff filed a Complaint on March 29, 2009. The Complaint asserts state law claims only. In fact, paragraph 2 of the Complaint states: "All of plaintiffs['] claims are state claims. There are no federal claims." (Compl. ¶ 2.)

The Parties' Requests to File Motions and the Courts Concomitant Orders

On April 29, 2009, Walgreens filed a letter requesting a pre-motion conference seeking permission to file a motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In response, on May 7, 2009, Plaintiff filed a four-sentence letter requesting that this case be remanded to state court based upon lack of subject matter jurisdiction given the absence of any federal claims or diversity between the parties. The next day, Walgreens filed a letter opposing this request, noting that the Court lacked personal jurisdiction over the individual defendants because they had not been properly served with process. Because the Complaint alleges that Plaintiff is a New York resident (Compl. ¶ 5), and Walgreens is a foreign corporation (id. ¶ 6), Walgreens maintained that the Court did have diversity jurisdiction and should therefore deny Plaintiff's motion to remand.

By Order dated July 24, 2009, the Court waived its pre-motion conference requirement and set a briefing schedule with regard to Plaintiff's motion to remand so that the Court could resolve the threshold issue of jurisdiction prior to reaching the merits. Plaintiff was directed to serve moving papers on or before August 21, 2009; Walgreens was directed to serve opposition papers on or before September 18, 2009; and Plaintiff was directed to serve reply papers, if any, and file all papers with the Court, on or before October 2, 2009. The Order explicitly stated that "[t]he parties' memoranda shall include citations to appropriate authority." (July 24, 2009 Order.) The Court noted that it would address Walgreens' proposed motion to dismiss the Complaint after resolution of Plaintiff's motion to remand, should the matter not be remanded.

On October 14, 2009, Walgreens filed a letter explaining that pursuant to the Court's schedule, it received a letter motion from Plaintiff on August 15, 2009, and served Plaintiff with opposition papers on September 18, 2009. (Walgreens Letter dated Oct. 14, 2009.) Plaintiff, however, did not serve any reply papers nor file any motion papers with the Court.

Due to Plaintiff's failure in this regard, Walgreens requested that the Court deny Plaintiff's motion to remand.

By Order dated October 15, 2009, the Court directed Plaintiff to file his motion on or before October 22, 2009. Plaintiff failed to comply with the Court's Order. Thereafter, by Order dated October 23, 2009, Plaintiff was directed to file his motion to remand or a status report on or before November 6, 2009. Plaintiff was warned that failure to comply with the Court's Order could result in dismissal of Plaintiff's claims for failure to prosecute.

On October 25, 2009, Plaintiff filed his motion, together with Walgreens' opposition papers. Plaintiff's counsel explained that he "attempted what appears now to have been an unsuccessful e-filing of the related motion papers on September 29th." (Pl.'s Letter dated Oct. 25, 2009.) Plaintiff's counsel also claimed that he did not receive the Court's October 15, 2009 Order, despite ...


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