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Lauber v. Hudson

United States District Court, W.D. New York

February 25, 2018

MARTIN LAUBER, Plaintiff,
v.
CECILIA O. HUDSON and DANNY WAYNE HUDSON, Defendants.

          DECISION AND ORDER

          HON. FRANK P. GERACI, JR. CHIEF JUDGE.

         INTRODUCTION

         On June 15, 2016, Defendants Cecilia O. Hudson and Danny Wayne Hudson removed this case from the Supreme Court of the State of New York, County of Erie, under this Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). See 16-CV-489, ECF No. 1. Sixteen months passed with no activity, except a change of address by defense counsel. On October 24, 2017, the Court ordered Defendants to show cause why the case should not be remanded to state court for lack of subject matter jurisdiction for failing to satisfy the amount in controversy by November 14, 2017. 16-CV-489, ECF No. 5. On November 21, 2017, the Court remanded the case to state court after Defendants failed to reply to the Court's Order to Show Cause. 16-CV-489, ECF No. 6.

         On January 3, 2018, nearly nineteen months after the case was originally filed, Defendants filed a declaration requesting the Court to reconsider its decision to remand the case to state court. 16-CV-489, ECF No. 8. Defendants stated that they “inadvertently did not receive notice of the Court's Order to Show Cause . . . because of an address error which has been corrected.”[1] Id. at 1. Defendants provide no further explanation for their inactivity. Defendants also filed Plaintiff's answers to Defendants' first set of interrogatories as a response to the Court's Order to Show Cause to show the amount in controversy is satisfied. 16-CV-489, ECF No. 8-1. Defendants provide no further argument or legal authority to support their position. See 16-CV-489, ECF No. 8.

         On February 16, 2018, before the Court rendered a decision on Defendants' motion for reconsideration, Defendants again removed this case from the Supreme Court of the State of New York, County of Erie. 18-CV-258, ECF No. 1.

         For the reasons that follow, Defendants' Motion for Reconsideration is DENIED, and Case #18-CV-258 must be REMANDED to the Supreme Court of the State of New York, County of Erie, for lack of subject matter jurisdiction.

         DISCUSSION

         I. Motion for Reconsideration

         In their declaration, Defendants ask the Court to reconsider its decision to remand this case to state court. The declaration, however, contains no legal authority to support Defendants' request. Based on the nature of their request, the Court interprets Defendants' declaration as a Motion for Reconsideration under Federal Rule of Civil Procedure 60(b)(1).

         Rule 60(b)(1) “permits a court to vacate a judgment on the grounds of ‘excusable neglect.'” State Street Bank & Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 177 (2d Cir. 2004). Factors a court considers “in evaluating excusable neglect include [1] the danger of prejudice to the non-movant, [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith.” NEM Re Receivables, LLC v. Fortress Re, Inc., 187 F.Supp.3d 390, 400 (S.D.N.Y. 2016) (quoting Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003)) (quotation marks and brackets omitted). The Second Circuit has focused on the third factor. Id. (quoting Silivanch, 333 F.3d at 366).

         A court may also consider whether the movant acted with diligence. State Street, 374 F.3d at 177. Generally, failure to act with diligence will not constitute excusable neglect. Id. A movant fails to act with diligence where he allows “lengthy periods of time to pass without periodic review” of the Court's docket. See In Re DeMarco, 733 F.3d 457, 463 (2d Cir. 2013). Indeed, the counsel of record “bears the primary responsibility for staying current with the status of his or her cases.” Id.

         Here, Defendants have failed to establish excusable neglect. While the first, second, and fourth factors outlined above weigh in Defendants' favor, the third factor-the focus of the Second Circuit-does not. Defendants contend that they “inadvertently” missed the Court's Order to Show Cause and decision “because of an address error.” ECF No. 8 at 1. The Court does not believe the Defendants acted in bad faith, but Defendant's neglect was neither inadvertent nor a satisfactory reason for the delay. Moreover, defense counsel had full control to correctly enter his email address into CM/ECF and ensure it was correct.

         Additionally, defense counsel failed to act with diligence. As mentioned above, Defendants failed to take any action in the case for nineteen months. Considering the length of time, failure to move the case forward, and failure to respond to filings, the Court concludes that defense counsel let “lengthy periods of time to pass without periodic review” of the Court's docket. See In Re DeMarco, 733 F.3d at 463.

         Finally, Defendants provide little explanation for their neglect. The Court was left to verify whether defense counsel's e-mail address was initially incorrect. Beyond the explanation contained in its declaration, Defendants provide no reason for their inattention. Given Defendants reluctance to attend to this case or provide more than a bare explanation for their inaction, the Court concludes ...


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