Western District Case Notes


In Weslowski, et al. v. Home Depot USA, Inc., No. 18-CV-6576-FPG (April 5, 2019), the Court ordered defendant to show cause why the lawsuit should not be remanded for lack of subject matter jurisdiction, because the complaint did not specify the amount of money damages sought. Prior to removal, defendants served a supplemental demand on plaintiff, pursuant to NY CPLR § 3017(c), to determine the amount of requested damages. After contacting plaintiff approximately 10 times to get a response, each without success, defendant proceeded to remove the lawsuit. The Court, however, declined to speculate that it had jurisdiction, despite evidence of the severity of plaintiff ’s injuries. Noting it was defendant’s burden as the removing party to establish the amount in controversy, the Court held that defendant should have moved under NYC CPLR § 3017(c) for an order requiring plaintiff to provide the requested information before proceeding with removal. Defendant’s remedy was not to presume by plaintiff ’s silence that the amount in controversy was sufficient to confer federal subject matter jurisdiction, “nor is it the province of this Court, in the face of its concerns regarding its own jurisdiction, to order plaintiffs to respond when the state court has the power — indeed, the statutory obligation — to consider so doing.” And, even though plaintiff may have acted in bad faith in refusing to respond to the supplemental demand, defendant must still show that the Court has jurisdiction over the action, which it had failed to do.


In Renowden v. Carlson Hotels Management Corp., et al., No. 18-CV-1179- EAW-HBS (April 17, 2019), plaintiff sued to recover for personal injuries after slipping during a stay in a North Carolina hotel. The exclusive basis for venue in the complaint was plaintiff ’s domicile, leading the Court to inquire whether venue was proper. Although some defendants had registered to do business with the Department of State in New York, none were incorporated or had a principal place of business here. All relevant evidence and liability witnesses likely were located either in North Carolina, where the accident occurred, or at corporate headquarters not located in New York. Without citing any authority, plaintiff argued that venue was proper because his significant personal injuries made travel difficult and all of his treating physicians resided locally. The Court disagreed, and determined a plaintiff cannot select a venue based on where he receives his medical treatment. Transfer of the lawsuit, therefore, was appropriate under 28 U.S.C. § 1406(a).

Motions to Quash and Proceed Anonymously

In Strike 3 Holdings, LLC v. John Doe Subscriber Assigned IP Address, No. 18-CV-1490-EAW (April 8, 2019), plaintiff alleged defendant unlawfully downloaded and distributed plaintiff ’s motion pictures in violation of United States Copyright Act of 1976. Plaintiff obtained an ex parte order permitting it to serve a third party subpoena on defendant’s internet service provider in order to determine the name and address of defendant and properly serve her/him. Defendant filed a motion to quash the subpoena and requested to proceed anonymously in the litigation if the motion was denied. The Court first held that defendant had standing to bring the motion to quash because defendant was seeking to protect her/ his personal information from being disclosed by the ISP. The Court then denied the motion to quash because the subpoenaed information was sufficiently specific to assist with service of process and did not need to advance the litigation beyond that stage of the litigation. With no objection from plaintiff, the Court agreed to allow defendant to proceed in the litigation pseudonymously, in addition to other protections previously set forth in the earlier order, including that any information disclosed be used solely for purposes of the litigation and otherwise be kept confidential.

Preliminary Injunction

In Council of Churches Housing Dev. Fund Corp. v. Arlington Housing Corp., No. 18-CV-6920-CJS (May 3, 2019), a dispute over the direction and control of a limited partnership that was formed to own and operate an apartment complex for low-income tenants, defendants sought a mandatory preliminary injunction removing plaintiff as the managing partner. Noting first that preliminary injunctions are extraordinary remedies that require the movant to establish irreparable harm; likelihood of success on the merits or sufficiently serious questions going to the merits and a balance of the hardships tipping decidedly in favor of the moving party; and that an injunction is in the public interest, the Court then observed that an injunction altering the status quo is even more extraordinary, and requires the movant to establish that “extreme or very serious damage will result” if it is denied. Against this backdrop, the Court determined that defendants had not met their burden under the lower (prohibitory injunction) standard, much less the higher standard governing mandatory injunctions. In reaching this conclusion, the Court found that defendants had not established irreparable harm because they were seeking to enjoin a business practice they were aware of for decades, but never objected to until after plaintiff commenced the action. The Court also found that the balance of hardships did not weigh in defendants’ favor because, if the injunction was denied, the partnership would continue to be run as it had for 40 years without objection, while a change in the management of the apartment complex would likely cause disruption to the detriment of the tenants.

Stay of Proceedings

In Heinert, et al. v. Bank of America, N.A., et al., No. 19-CV-6081-DGL (April 23, 2019), plaintiffs alleged defendants perpetrated a nearly decade- long Ponzi scheme that defrauded plaintiffs. The lawsuit was the second such one commenced by plaintiffs, who two months earlier had voluntarily discontinued a nearly identical action against the same defendants in the Middle District of Florida. Defendants moved to dismiss plaintiffs’ claims under Rule 12(b)(6), and sought a limited stay of discovery pending the Court’s decision. The Court granted the stay, observing first that the power to stay proceedings is incidental to its inherent power to control the disposition of causes on its docket “with economy of time and effort for itself, for counsel, and for litigants.” The Court found that the request for the stay here had satisfied the requirements of Rule 26(c) that there be good cause shown, defendants had raised sufficient issues as to the viability of plaintiffs’ causes of action, and the balance of the relevant factors, including the broad and burdensome nature of the discovery requests and lack of possible prejudice to plaintiffs, all weighed in favor of the stay.

Motion In Limine

In Mathews v. ADM Milling Co., No. 15-CV-969-EAW-JJM (June 11, 2019), plaintiff sought damages — including loss of future income as a surgeon — based on defendants’ alleged failure to correct a dangerous condition that caused his finger to be partially amputated when he was cleaning defendants’ manufacturing plant. Less than a week before trial, defendants filed a motion in limine to preclude plaintiff from offering evidence that his injury prevented him from becoming a surgeon, arguing that such evidence would be speculative. In granting defendants’ motion, the Court first noted that, while the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the Court’s inherent authority to manage the course of trials. The Court then found that plaintiff ’s proposed evidence was either hearsay or otherwise inadmissible because plaintiff could not establish with reasonable certainty that he would have become a surgeon absent the injury. Indeed, whether plaintiff would have become a surgeon depended on other changeable events aside from the injury and, as such, plaintiff was precluded from introducing evidence of lost future income.

Anti-filing Injunction

In In re Mills, No. 17-MC-18-MAT (June 4, 2019), the Court ordered respondent — a prisoner with a “deluded vendetta against the trial judge who convicted and sentenced him” — to show cause why he should not be permanently enjoined from filing any document or pleading pro se in the Western District of New York without first obtaining permission from the Court. Respondent filed an affidavit in response, but the Court determined that it “failed to provide sufficient justification for continued filing of vexatious and frivolous documents and pleadings,” including his prior allegations that certain Judges in the Western District committed “mail fraud, wire fraud and perjury.” As a result, the Court found that an anti-filing injunction was warranted. In reaching this conclusion, the Court observed that Second Circuit precedent allows it to restrict respondent’s future access to the judicial system because he has “a sixteen-year history as an unrepresented serial filer of vexatious, harassing and duplicative lawsuits in this District,” including 12 civil actions, and five petitions for writs of habeas corpus that were found to be “utterly baseless.” Thus, because respondent “caused needless expense” to opposing parties and “unnecessary burdens upon the Court and its personnel,” a permanent filing injunction was warranted since respondent “simply [would] not be deterred by anything other than a bar against future filing.”

Kevin M. Hogan is the Managing Partner at Phillips Lytle LLP. He concentrates his practice in litigation, intellectual property and environmental law. He can be reached at khogan@phillipslytle.com or (716) 847-8331.

Sean C. McPhee is a partner with Phillips Lytle LLP where he focuses his practice on civil litigation, primarily in the area of commercial litigation. He can be reached at smcphee@phillipslytle.com or (716) 504-5749.