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Intelligen Power Systems, LLC v. dVentus Technologies LLC

United States District Court, S.D. New York

December 16, 2014

INTELLIGEN POWER SYSTEMS, LLC, Plaintiff,
v.
dVENTUS TECHNOLOGIES LLC, Defendant

For Intelligen Power Systems, LLC, Plaintiff: Danielle Caroline Lesser, Morrison Cohen Singer & Weinstein, LLP, New York, NY; Joaquin Javier Ezcurra, Morgan, Lewis and Bockius LLP (NY), New York, NY.

For dVentus Technologies LLC, Defendant: Henry Paul Behnen, LEAD ATTORNEY, Schiff Hardin LLP, New York, NY; Frederick R. Juckniess, Schiff Hardin LLP (MI), Ann Arbor, MI.

Page 379

OPINION & ORDER

PAUL A. ENGELMAYER, United States District Judge

Defendant dVentus Technologies LLC (" dVentus" ) removed this case from New York State Supreme Court to this Court based on diversity jurisdiction. Pending now is a motion to remand by plaintiff Intelligen Power Systems, LLC (" Intelligen" ). For the reasons that follow, the remand motion is denied.

I. Factual and Procedural Background[1]

In May 2013, Intelligen and dVentus entered into a written agreement under which dVentus would design and produce a synchronous generator and inverter (" the Equipment" ) for Intelligen. Dkt. 1, Ex. A. Intelligen made a down payment of $78,551. Id.; Dkt. 14, Ex. 3.

Claiming that dVentus failed to produce and deliver the Equipment as promised, Intelligen filed suit in New York State Supreme Court in Manhattan, alleging fraudulent inducement, breach of contract, and replevin. Dkt. 1, Ex. A. Among other relief, Intelligen seeks return of its $78,551 down payment. Id.

dVentus states that it will assert counterclaims. Dkt. 1. It alleges that the production delays were due to changes that

Page 380

Intelligen made to its desired specifications; it will seek more than $350,000 from Intelligen in unpaid bills. Id.; Dkt. 21.

On or about April 28, 2014, Intelligen filed a summons in New York State Supreme Court, but had difficulty serving dVentus's sole member, Daniel Gizaw, then in Ethiopia at dVentus's factory. Dkt. 16 (" Pl. Br." ), 1-4; Dkt. 19 (" Def. Br." ), 6. Intelligen states that, by July 17, 2014, it had served Gizaw and his attorney. Pl. Br. 4. dVentus, for its part, states that it was not served until August 22, 2014. Def. Br. 1. Intelligen's summons with notice did not identify its member(s) or their citizenship. See Dkt. 1, Ex. A.

On September 12, 2014, dVentus removed this case to federal court, see Dkt. 1, after the investigation it conducted suggested that the parties, both of which are LLCs, were diverse: dVentus's sole member (Gizaw) is a Michigan citizen, while Intelligen's sole member (David Lesser) is a New York citizen, see Dkt. 20.

On October 14, 2014, Intelligen moved for remand and filed a supporting memorandum of law and accompanying declarations. See Dkt. 13, 14, 15, 16. Intelligen acknowledged that the case meets the requirements of diversity jurisdiction, in that the parties are in fact diverse and the amount in controversy exceeds $75,000. However, Intelligen argued, dVentus's removal was untimely because it came 57 days after it had been served, outside of the 30-day deadline set by 28 U.S.C. ยง 1446(b)(1). Pl. Br. 1. On November 6, 2014, dVentus filed a memorandum of law in opposition to the remand motion and ...


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