Judge Seibel

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On Monday, Judge Seibel ordered a plaintiff to re-submit an amended 56.1 statement response to comply with the Local Rules. Judge Seibel explained that the response, at 356 pages, was too long and argumentative, did not properly controvert certain of defendants’ statements, and did not include pincites when citing record evidence.

Summarizing the issues with plaintiff’s 56.1 response, Judge Seibel wrote:Continue Reading Judge Seibel: 56.1 Response is Not the Occasion for “Context” or “Semantic Quibbles”

In an opinion issued yesterday, Judge Seibel rejected a plaintiff’s argument that a defendant in a multi-defendant case must consent to removal within 30 days of service on its statutory agent, regardless of when the defendant actually received the complaint. The case was filed in New York state court against two defendants, one of whom timely removed the action. The second defendant consented to removal of the action four days after receiving the complaint from its agent for service of process, but more than 30 days after plaintiff had served the complaint on the defendant’s statutory agent (the Secretary of State). The plaintiff moved to remand, arguing that defendant’s consent to removal was late because it occurred more than thirty days after plaintiff had served the Secretary of State.

The plaintiff argued that the Second Circuit’s holding that the removal clock does not start running upon service of a statutory agent was inapplicable to cases involving the rule of unanimity, codified at 28 U.S.C. § 1446(b)(2)(A), which requires that “all defendants who have been properly joined and served must join in or consent to the removal of the action.”  According to the plaintiff, “application of cases holding that service on the Secretary of State does not start the thirty-day removal clock improperly ‘conflates’ the rule of unanimity with provisions setting out the thirty-day removal period.”
Continue Reading Judge Seibel: Service on Secretary of State Does Not Trigger Clock for Consent to Removal in Multi-Defendant Case

In an opinion yesterday, Judge Seibel largely rejected a motion to dismiss a lawsuit brought by University of Tampa students claiming that the University breached its obligations to them by failing to hold in-person classes.

A newly-enacted Florida statute provides educational institutions with immunity for these types of claims, but Judge Seibel found that applying the statute retroactively would violate due process:
Continue Reading Judge Seibel: Students Can Pursue Contract Claims for University’s Failure to Hold In-Person Classes During the Pandemic

In an opinion Tuesday, Judge Seibel lambasted, but ultimately did not sanction, attorneys in an insurance dispute who made evasive and false assertions in a Rule 56.1 statement submitted in opposition to summary judgment.  She found the statements lacked a “factual basis,” and were a “sham,” and added that the attorneys’ conduct “was entirely unbecoming of members of our profession.”  She nonetheless concluded “in light of the high standard for bad faith, and the caution with which courts should approach the question of bad faith,” not to award sanctions, for two reasons:
Continue Reading Judge Seibel Nearly Sanctions Attorneys for “Sham” Responses to Rule 56.1 Opposition Statement

This week, Judge Seibel dismissed a putative class action against the makers of Muscle Milk and other protein powder products.  The plaintiff alleged that the products were mislabeled under the Food, Drug, and Cosmetic Act, as they contained unnecessary empty space (or “slack fill”) that represented up to 30% of the container’s volume.

Judge Seibel found that these allegations alone – without further factual support – were not sufficient to survive a motion to dismiss:
Continue Reading Judge Seibel Dismisses Class Action Alleging Too Much Empty Space in Muscle Milk Containers

Last week, Judge Seibel dismissed a First Amendment challenge to a Dutchess County law requiring retail supermarkets to clearly post prices on each item using a sticker, tag, or other label.  The plaintiff claimed that changing the price tags on items each time the store held a sale was an improper burden on the store’s First Amendment free speech rights.  Judge Seibel disagreed – and questioned whether price tags on grocery items constituted speech at all.
Continue Reading Judge Seibel Rejects First Amendment Challenge to Local Law Requiring Price Labels on Supermarket Goods