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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

LONG ET AL V. WESTCHESTER FIRE INSURANCE COMPANY et al

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
1:13-cv-00781 Search Pacer
ACE Group party(s): 
Opposing Party: 
Anthony Long
Court Type: 
Federal
US District Court: 
Eastern District of New York
Date Filed: 
Feb 12 2013

"11. Defendant L-C Construction Consulting Corp. ("L-C") is not a proper party to this action. At the time the Plaintiffs commenced the state court action, L-C was (and is) a corporation organized under the laws of the State of New York with its principal place of business in New York. L-C is a nominal party who is not required to be named in this action because the full relief that is sought in the Summons can be granted without L-C as a party.

12. Plaintiffs have improperly joined L-C as a party in an attempt to defeat diversity jurisdiction and to impede Westchester from removing this action to federal court, where a prior related action in the E.D.NY. captioned "THE C.I.A. CONSTRUCTION GROUP CORP. v. WESTCHESTER FIRE INSURANCE COMPANY", case number 11-0468 (the "C.I.A. action") was tried before Judge Cogan and involved substantially similar claims by C.I.A. Construction Group, Inc. ("C.I.A."), an entity owned and/or controlled by Steven Long, the father of Plaintiff Long. After trial, the claims against Westchester Fire were dismissed and L-C was awarded damages against C.I.A. for breach of contract.

13. Plaintiffs state in the Summons that this is an action for "breach of contract by virtue of Defendants' failure to pay sums lawfully due Plaintiffs under a certain payment bond ("Payment Bond") entered into by defendant Westchester Fire Insurance Company, as surety and defendant L-C Construction Consulting Corporation, as principal. Pursuant to the Payment Bond, Defendant Westchester Fire Insurance Company is obligated to pay monies due and owing to Plaintiffs in connection with work, labor and services provided at, and incorporated into, the public improvement project entitled Reconstruction of Field 4 and various locations at the Parade Ground Park, Brooklyn New York, Contract number B068-107M [the "Project"]."

14. Plaintiffs seek:
a. "[cjompensatory damages in favor of Plaintiff Anthony Long in the amount of $17,156.40 for unpaid wages and fees, together with applicable interest thereon."
b. "Compensatory damages in favor of Plaintiff Long Industries Construction Corp in the amount of $130,750.00 for unpaid fees owed for the rental of caterpillars, bobcats and certain other equipment used at the above-referenced public improvement project, together with applicable interest thereon."
c. "The costs and disbursements in connection with the prosecution of this action."
d. "Plaintiffs' reasonable attorneys' fees, costs and expenses."
e. "Such other and further relief as to the Court deems just and proper under Ihe circumstances."
15. The amount in controversy, according to the Summons, is $ 147,906.40. See Summons. This satisfies the requirement of 28 U.S.C. § 1332 that the amount in controversy exceed $75,000.00.
16. Westchester Fire issued and executed, as surety, the Payment Bond (annexed hereto as Exhibit C) naming L-C as principal in connection with the Project.
17. Upon information and belief, Plaintiffs were, at best, subcontractors to C.I.A. on the Project and had no direct contractual relationship with L-C.
18. Upon information and belief, Plaintiffs claims were directly related and part of the claims that were asserted by C.I.A. in the C.I.A. action which action was commenced only against Westchester Fire. L-C was subsequently added as a third-party defendant to the C.I.A. action, with whom L-C had a direct contract.

19. Notably, upon information and belief, the owner of C.I.A. is Steven Long, the father of Anthony Long in this action and that this action was not commenced until after judgment was entered dismissing C.I.A.'s claims against Westchester Fire and entering judgment in favor of third-party defendant L-C against C.I.A.

20. Upon information and belief, there is no direct contract between defendant L-C and the Plaintiffs for this Project, who were at best subcontractors of C.I. A.

21. Upon information and belief, among other defenses, LICC is not a company th at is authorized to conduct business in the State of New York.

22. The Summons asserts only a claim sounding in breach of contract based on Westchester Fire's alleged failure to pay an alleged claim under the Payment Bond. No claims are asserted against L-C in the Summons.

23. Because no claims are asserted against L-C in the Summons and the only claim asserted is against the Payment Bond, and because there is no contract between L-C and the Plaintiffs, Plaintiffs cannot assert a claim against L-C in state court. See Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d. Cir. 2004) cert, denied 544 U.S. 949, 125 S.Ct. 1704, 161 L. Ed. 2d 525 (2005) ("The doctrine of fraudulent joinder is meant to prevent plaintiffs from joining non-diverse parties in an effort to defeat federal jurisdiction. Under the doctrine, courts overlook the presence of a non-diverse defendant if from the pleadings there is no possibility that the claims against that defendant could be asserted in state court.")
24. The "generally accepted practice is to 'evaluate a defendant's right to remove :i case to federal court at the time the removal notice' was filed, ignoring any later-filed amendments to the complaint." DNJLogistic Group, Inc. v. DHL Express (USA), Inc., 727 F.Supp.2d 160,165 (E.D.N.Y. 2010) quoting Vera v. Sacks & Co., 335 F.3d 109, 116 n.2 (2d. Cir. 2003)(per curiam); see also, Federal Ins. Co. v. Tyco Int'l Ltd., All F.Supp.2d 357, 368 (S.D.N.Y. 2006)("propriety of removal is to be determined by the pleadings at the time of removal."); see also, In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 399 F.Supp.2d 356, 363 ("A court must thus consider the complaint at the time of removal to determine if removal was appropriate in the first place.").

25. New York State law permits the commencement of an action by summons wilh notice. See CPLR § 304. If the summons with notice sets forth the information necessary for the defendant to intelligently ascertain removal from the face of the pleading, the summons with notice qualifies as an "initial pleading" under 28 U.S.C. § 1446. See Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 206 (2d. Cir. 2001)(finding that the defendants could not have ascertained diversity jurisdiction from the face of summons with notice at issue and thus it didnot qualify as an initial pleading). Further, the Whitaker Court stated that in "cases where removal is based upon diversity, the facts required to support the removal petition include the amount in controversy and the address of each party." Id. at 208.

26. Because Plaintiffs commenced this action in state court by summons with notice, for purposes of analyzing the claims the Court can only consider those claims asserted in the Summons, because the evaluation of the Defendants' right to removal is made at the time the removal notice was filed and not when any claims that may be raised in a proposed complainl which claims were not referenced in the Summons. See MBIA Insurance Corp. v. Royal Bank of Canada, 706 F.Supp.2d 380, 397 (S.D.N.Y. 2009) ("the Court will consider the Proposed

Complaint and the other submitted documents only to evaluate the specific contract claims alleged in the Summons with Notice".)

ALL DEFENDANTS CONSENT TO REMOVAL OF THIS ACTION

27. To the extent that the consent of all properly served defendants is required, all such properly served defendants in this action join in and consent to this removal. See Zerafa v. Montefiore Hospital Housing Co., Inc., 403 F.Supp.2d 320, 328 (S.D.N.Y. 2005)("An exception to the general requirement [of unaminity of joinder of defendants to removal of action] occurs: where the nonjoining defendant is nominal." Annexed hereto as Exhibit D, please find a letter from counsel for L-C consenting to removal."

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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