Preview
FILED: NEW YORK COUNTY CLERK 02/27/2024 11:33 AM INDEX NO. 654499/2022
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 02/27/2024
EXHIBIT F
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C se4;23-cv-01144-JHR Document19 Filed05/05/23 Pagelof5
USDC SDÑ
UNITED STA1 S DISTRICT COURT ELECTRONIC LLY FILED
SOUTHERNISISTRICT OF NEW YORK 90C#
o þAt£ FEED 5/5/2023
ABORETOlfSILVERLEAF INCOME FUND
LP and ACF QREDIT PROGAM, LLC,
Plaintiffs,
23 Civ. 1144 (JHR)
-v.-
Ca 4; MEMORANDUM OPINION
é JEFF KAT E KY and ERNEST BARRECA AND ORDER 4
as Trustee of the SKG Family Trust, and THE
SKKG FAMlÜY TRUST, A CERTIFIED Col Y
N ES RUBY
Defendants. J. KRAJICK, LERK
WSI Cle
Deputy
JENNIFER H$§ARDEN, District Judge: . . .
Plaintiffs'
Befo t Court is motion to remand this case to the Supreme Court of the
Plaintiffs'
State of Ne k, New York County. ECF No. 13. For the reasons stated bel ,
n t n is O ED.
BACKGROUND .
On S ber 2, 2022, Plaintiffs filed suit in the United States District C urt for the
Southern Dis pf New York seeking enforcement of two guarantee agreements signed bylhe
individual Q ( giants. See Arboretum Silverleaf Income Fund LP v. Katofsky, 2 Civ. /527e
)MA 1 9 otiffs were ordered to show cause why the case should not be cli missed f r
9
subj tter jurisdiction, they voluntarily dismissed it without prejudic and filed•H
inslint action h ew York state court. See Arboretum Silverleaf Income Fund LP v. Katofsky,
Index No. 6 /2022.
hé Notie emoval contains two typographical errors. It spells Plaintiff'sÊan
"Arboretum."
b etum, ntrast to the state court Complaint, where it appears as It alsp
Trust" Trust."
f dÖrktÌó b efendant "SKG Family as "SKKG Family Se rately, Pl intiff
LLC" ."
Cr ram, is listed on the docket as "ACF Credit Progam, LL The CgWt
"Arboretum," "SKG," "Program"
pêHs these ter and throughout.
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On Fÿb$iary 9, 2023, Defendant Jeff Katofsky, a California citizen and ah attorney
proceeding pro'se, removed the state court action pursuant to 28 U.S.C. §§ 1441 nd 1446,
invoking the dourt's diversity jurisdiction, 28 U.S.C. § 1332. On February 24, 2b23, this Court
ordered Katofsky to show cause why the case should not be remanded on the groúnd, among
addeficient."
othprs, that PthhpEotice of Removal's allegations of subject matter jurisdiction
EÇF No. 7 6 Specifically, the Notice of Removal "fail[ed] to establish the citizenship o e
a
Defendant."
Plaintiffs an!çgp Id. In response, Katofsky proffered facts that supposedly
ties."
"evidence a.cçmpelling indication that there is complete diversity amongst the p ECF
No. 8 at 3. Katç,fsky also acknowledged that Plaintiffs "may file a Motion to Remand and set
forth competertt evidence establishing that at least one of their partners and/or members is a
j ·t."
Galifornia reg Id. (emphasis added). On March 14, 2023, as Katofsky ha anticipated
Plaintiffs mÁve,d to remand, pursuant to 28 U.S.C. § 1447(c), based on evidence at Plaint
pp?etum,Siljgyleaf Income Fund LP ("Arboretum") is a citizen of California.
DISCUSSION
me
In this p,ape, subject matter jurisdiction is premised on diversity of citizenghip. 28 U.S.C.
complete"
§ 1332. Divqi¡sity "is not under Section 1332 "if any plaintiff is a citizpn of the same
eÆt}çlant."
state as any St. Paul Fire & Marine Ins. Co. v. Universal Builders Sypply, 409 &3d
73, 8,Ç (2d Gry2t005).
Here gth individual Defendants are citizens of California. See ECF No 1 at 2.
Plaintiffs are nincorporated entities that take their citizenship from all of their members. See .
Handelsman v ppdford Vill. Associates Ltd. P 'ship, 213 F.3d 48, 52 (2d Cir. 2040) (limited
partnerships); Qayerische Landesbank v. Aladdin Capital Mgmt. LLC, 692 F.3d , 49 (2d Cir.
2012) (limitgl fligbility companies). To establish Arboretum's citizenship, Plaint fs have
proffered twysyxorn affidavits from Michael Miroshnikov, President of ASIF GI LLC, gen al
2
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a r of Afbb dlum. ECF Nos. 13-5 ("First Miroshnikov Aff.") and 16 ("Secd d Mirosh i v
Aff."). Mirehnikov attests that, "[b]ased upon [his] review of the Arboretum bdsiness recd d
inaintained in the ordinary course of its business, . . . Arboretum has at least fift^f50) limited
California."
partners who aq residents and citizens of the State of Second Miroshnikov Aff. ¶ 6
because"
(emphasis add#d). Thus, "diversity [is] lacking under § 1332 Arboretuis and both
[California]."
individual Defdfidants "are all citizens of Handelsman, 213 F.3d a 52.
plaintiffs' court,"
A² tl<çgatty seeking "to remove suit to federal KatofslÆbears "th
pugdep of estghlishing that the requirements for diversity jurisdiction [are] met¾ehlenba r
y Akzo Nobel f glt, Inc., 216 F.3d 291, 296 (2d Cir. 2000). In opposing Plaintiffs motion,
Katofsky argu9,s4that (1) Plaintiffs failed to file a memorandum of law in support pf their motion,
in violation o(4qcal Civil Rule 7.1(a)(2); (2) "Plaintiffs['] Notice of Motion to 1 pmand notified
th !j7eDa[d]" opposition,"
Katofsky only "fourteen (14) days to file his as oppogd to the four
yfgeks pennigeÆsnder this Court's rules in civil pro se cases; (3) the First Miros nikov it
Af²
1746;"
pgworn, plation of 28 U.S.C. § and (4) the statements in Miroshi kov's
aftidavits on v h Plaintiffs rely are inadmissible. ECF No. 15 ("Opp. Br."). Š hese arguments
lack merit.
1. hough Plaintiffs failed to file an opening memorandum of law p support of
excuse"
their motior land, that "does not Katofsky from discharging his o gations. D H
tdiener, 462 F.3d 95, 109 n.2 (2d Cir. 2006) (holding that the ailure to4.7!frdt
Cp
obviate" respond'
a pie dum [of law] . . . did not the opposing party's "need g
peticion to in part and vacate in part an arbitration award in order to avoi31 a default
ep sp
"
judgment). 1 othing in . . . the Civil Rules of the Southern District requires a epurt to punish a
non- pliance" Plaintiffs'
party for with local rules. Id. (cleaned up). Here, af idavit and
declaration heir arguments clear. Indeed, the Declaration of Clifford A. I tz, ECF Ng.h
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13 1, inclu ses and other authorities relied upon in support of the motion. Local Civi
1(d)( tailing requirements for a memorandum of law). Plaintiffs alsÉsubmit d
randui w on reply (and Katofsky did not seek leave to file a surreply Accordin 1
discretion" "overlook" Plaintiffs'
he dourt e Hs its "broad to "failure to cofÉply with [thi ]
local rule[]. . Blair & Co., 462 F.3d at 109 n.2 (quoting Holtz v. Rockefelle & Co., 258
F.3d 62, 73 (2 ir. 2001)).
. .2. email to all parties on March 14, 2023, Katofsky-an attorneý --was advigEd
schedule"
if he p [red] a different [briefing] than that provided under I cal Civif 1
ECF.»2 g]"
P w o propose one by letter filed on Rather than "propos[i a "diff ht
chádule,"
Ka($$ky followed the Local Rule and filed his opposition two weeks fter Plaintiffs
filed their met See Local Civil Rule 6.1(b) ("any opposing affidavits and an Ævering
memoranda gl pe served within fourteen days after service of the moving pap s"). Katofsky
.
did not argu he was prejudiced by the briefing schedule on this motion, norddid he requpÃt
3 th Miroshnikov affidavits are sworn, as evidenced by the notar jurat on t
$9Â
1)."
e p tive l es. Consequently, they were not "submitted in violation of 28 .S.C. §
Opp. Br. at 6 at section "sets forth the circumstances under which unsworn dpclarations will
declarations."
be considere eptable substitutes for sworn Papetti v. RawlinghFin. Servs;,
ILC, No. 15 933 (PAE), 2016 WL 4030863, at *5 n.8 (S.D.N.Y. July 25, 2916) (emphpsis
iginal), ub nom. Papetti v. Does 1-25, 691 Fed. App'x 24 (2d Cir. 201 ). In cont t
notary."
s affida pre "sworn to before a Id.
2
An auto-reply ipdicated that, due to Katofsky being in trial, the Court's email would not be
seen until Mãrclfl7, 2023. Under the Local Rules, the deadline for Katofsky's oþposition did
not fall until March 28, 2023. Katofsky therefore had ample opportunity to request a different
timetable.
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4. Finally, "[i]t is not clear that the . . . Federal Rules of Civil Procedure require
admissible,"
evidence considered in support of or in opposition to a motion to remand be and
Katofsky has not cited any authority to the contrary. Jankins v. Wells Fargo Bank, N.A., 17 Civ.
887 (BRO) (AJW), 2017 WL 1181562, at *3 (C.D. Cal. Mar. 29, 2017); but cf Medina v. Boeing
Co., 20 Civr 3,04 (JVS), 2020 WL 1812522, at *1 n.2 (C.D. Cal. Apr. 9, 2020) ("The Court only
considered admissible evidence in resolving the motion to remand."). Regardless, even on
summary judgmpnt, where an "affidavit or declaration . . . must be made on pers nal knowledge
evidence,"
[and] set out faety that would be admissible in Fed. R. Civ. P. 56(c)(4) "it is
pipmatic thgcAcorporate representative may . . . submit affidavits based on knowledge gainefl, .
records,"
a o{corporate books and Pace v. Air & Liquid Sys. Corp., 71 F. Suppdd
revies
4, 272 (S.D N.Y. 2016) (quotation omitted). That is precisely what Miroshnikov has done
here. See FirstJyliroshnikov Aff. ¶¶ 1, 3; Second Miroshnikov Aff. ¶¶ 4-6. s
Accorqpgly, this action is hereby REMANDED to the Supreme Court ofûthe State of
New York, N york County due to a lack of subject matter jurisdiction. Any pending motions
grprpoot. The plerk of Court is directed to close the case.
SO Ol)ERED.
nq
ped:;May"$6Q023
New York, New York
JENNIFER H. R ARDEN
United States District Judge
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Jeff Katofsky, Pro Se Defendant
4558 Sherman Oaks Avenue
Sherman Oaks, CA 91403
(818) 990-1475
jeff@óremowlz.com
Representing: Defendant Jeff Katofsky Pro Se
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ABORETUM SILVERLEAF INCOME FUND LP ) Civil Action No:
And ACF CREDIT PROGRAM, LLC,
)
Plaintiffs, )
)
· A CERT1FIED COPY
vs. )
RUBY J. KRAJICK, CLERK
)
JEFF KATOFSKY and ERNEST BARRECA AS ) BY
TRUSTEE OF THE SKG FAMILY TRUST, AND ) Deputy
THE SKKG FAMILY TRUST, )
Defendants. )
NOTICE OF REMOVAL
PLEASE TAKE NOTICE THAT Defendant Jeff Katofsky, Pro Se (hereinafter
"Katofsky") hereby removes the above-captioned action to this Court from the Supreme Court of
the State of New York, County of New York. As set forth below, Katofsky has complied with
the statutory requirements for removal under 28 U.S.C. §§ 1441 and 1446, and this Court has
diversity jurisdiction over this action pursuant to 28 U.S.C. §1332(a).
BACKGROUND
1. On or about November 28, 2022, Plaintiffs Aboretum Silverleaf Income Fund
LP and ACF Credit Program, LLC (collectively "Arboretum"), filed a
complaint against Jeff Katofsky and Ernest Barreca as Trustee of the SKG
Family Trust and the SKG Family Trust (hereinafter "Katofsky") in the
Supreme Court of the State of New York, County of New York, Index
1
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#654499/2022 (hereinafter "State Court Action"). Plaintiffs bring claims for,
inter alia, breach of guaranty.
2. Defendant Katofsky was drop-served improperly, with a copy of the
Complaint on January 11, 2023. This removal petition is timely filed using
such date. See, 28 U.S.C.§1446(b) (requiring removal within 30 days of
receipt of initial pleading).
3. Defendant Katofsky will file a copy of this Notice of Removal with the Clerk
of the Supreme Court for the State of New York, County of New York, and
will serve a copy on Plaintiffs, as required by 28 U.S.C. §1446(d).
REMOVAL BASED ON TRADITIONAL DIVERSITY JURISDICTION
4. Defendant Katofsky's basis for removal is diversity jurisdiction. Defendants
are citizens of a different state, and the amount in controversy exceeds
$75,000.00. 28 U.S.C. §l332(a).
5. Plaintiffs are a Delaware/Georgia limited liability company and a
Delaware/New Hampshire Partnership (See Complaint ¶¶1 and 2).
6. Defendant Katofsky is, and at all relevant times was, an individual
in Los Angeles County, California. Katofsky is not, and was not
living
at any relevant time, a citizen of the State of New York. (See
Complaint ¶3).
7. Defendant Barreca is, and at all relevant times was, an individual
living in Los Angeles County, California. Barreca is not, and was not
at any relevant time, a citizen of the State of New York. (See
Complaint $4).
8. This is a civil action over which the Court has original jurisdiction
under the provisions of 28 U.S.C. §1332 and may be removed to this
Court by the Defendant pursuant to the provision of 28 U.S.C. §1441(a)
because it is a civil action between citizens of different states and the
matter in controversy herein exceeds the sum or value of $75,000.00,
exclusive of interest and costs.
9. Barreca submits to and does not object to this removal.
RESERVATION OF RIGHTS
10. Defendant Katofsky denies the allegations contained in the Complaint
and files this Notice of Removal without waiving any defenses,
objections, exceptions, or obligations that may exist in its favor in
either State or Federal court, including issues of service of process and
jurisdiction.
2
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11. Further, in making the allegations in this Notice of Removal,
Defendant does not concede in any way the allegations in the
Complaint are accurate, that Plaintiff has asserted claims upon which
relief can be granted, or that recovery of any of the amounts sought is
authorized or appropriate.
12. Katofsky also reserves the right to amend or supplement this Notice of
Removal, If any questions arise as to the
Preview
FILED: NEW YORK COUNTY CLERK 02/27/2024 11:33 AM INDEX NO. 654499/2022 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 02/27/2024 EXHIBIT F FILED: NEW YORK COUNTY CLERK 02/27/2024 06/02/2023 11:33 03:53 AM PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 33 14 RECEIVED NYSCEF: 02/27/2024 06/02/2023 C se4;23-cv-01144-JHR Document19 Filed05/05/23 Pagelof5 USDC SDÑ UNITED STA1 S DISTRICT COURT ELECTRONIC LLY FILED SOUTHERNISISTRICT OF NEW YORK 90C# o þAt£ FEED 5/5/2023 ABORETOlfSILVERLEAF INCOME FUND LP and ACF QREDIT PROGAM, LLC, Plaintiffs, 23 Civ. 1144 (JHR) -v.- Ca 4; MEMORANDUM OPINION é JEFF KAT E KY and ERNEST BARRECA AND ORDER 4 as Trustee of the SKG Family Trust, and THE SKKG FAMlÜY TRUST, A CERTIFIED Col Y N ES RUBY Defendants. J. KRAJICK, LERK WSI Cle Deputy JENNIFER H$§ARDEN, District Judge: . . . Plaintiffs' Befo t Court is motion to remand this case to the Supreme Court of the Plaintiffs' State of Ne k, New York County. ECF No. 13. For the reasons stated bel , n t n is O ED. BACKGROUND . On S ber 2, 2022, Plaintiffs filed suit in the United States District C urt for the Southern Dis pf New York seeking enforcement of two guarantee agreements signed bylhe individual Q ( giants. See Arboretum Silverleaf Income Fund LP v. Katofsky, 2 Civ. /527e )MA 1 9 otiffs were ordered to show cause why the case should not be cli missed f r 9 subj tter jurisdiction, they voluntarily dismissed it without prejudic and filed•H inslint action h ew York state court. See Arboretum Silverleaf Income Fund LP v. Katofsky, Index No. 6 /2022. hé Notie emoval contains two typographical errors. It spells Plaintiff'sÊan "Arboretum." b etum, ntrast to the state court Complaint, where it appears as It alsp Trust" Trust." f dÖrktÌó b efendant "SKG Family as "SKKG Family Se rately, Pl intiff LLC" ." Cr ram, is listed on the docket as "ACF Credit Progam, LL The CgWt "Arboretum," "SKG," "Program" pêHs these ter and throughout. 1 of 107 FILED: NEW YORK COUNTY CLERK 02/27/2024 06/02/2023 11:33 03:53 AM PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 33 14 RECEIVED NYSCEF: 02/27/2024 06/02/2023 Ch_G¶;23-cv-01144-JHR Document 19 Filed 05/05/23 Pagei2 of 5 On Fÿb$iary 9, 2023, Defendant Jeff Katofsky, a California citizen and ah attorney proceeding pro'se, removed the state court action pursuant to 28 U.S.C. §§ 1441 nd 1446, invoking the dourt's diversity jurisdiction, 28 U.S.C. § 1332. On February 24, 2b23, this Court ordered Katofsky to show cause why the case should not be remanded on the groúnd, among addeficient." othprs, that PthhpEotice of Removal's allegations of subject matter jurisdiction EÇF No. 7 6 Specifically, the Notice of Removal "fail[ed] to establish the citizenship o e a Defendant." Plaintiffs an!çgp Id. In response, Katofsky proffered facts that supposedly ties." "evidence a.cçmpelling indication that there is complete diversity amongst the p ECF No. 8 at 3. Katç,fsky also acknowledged that Plaintiffs "may file a Motion to Remand and set forth competertt evidence establishing that at least one of their partners and/or members is a j ·t." Galifornia reg Id. (emphasis added). On March 14, 2023, as Katofsky ha anticipated Plaintiffs mÁve,d to remand, pursuant to 28 U.S.C. § 1447(c), based on evidence at Plaint pp?etum,Siljgyleaf Income Fund LP ("Arboretum") is a citizen of California. DISCUSSION me In this p,ape, subject matter jurisdiction is premised on diversity of citizenghip. 28 U.S.C. complete" § 1332. Divqi¡sity "is not under Section 1332 "if any plaintiff is a citizpn of the same eÆt}çlant." state as any St. Paul Fire & Marine Ins. Co. v. Universal Builders Sypply, 409 &3d 73, 8,Ç (2d Gry2t005). Here gth individual Defendants are citizens of California. See ECF No 1 at 2. Plaintiffs are nincorporated entities that take their citizenship from all of their members. See . Handelsman v ppdford Vill. Associates Ltd. P 'ship, 213 F.3d 48, 52 (2d Cir. 2040) (limited partnerships); Qayerische Landesbank v. Aladdin Capital Mgmt. LLC, 692 F.3d , 49 (2d Cir. 2012) (limitgl fligbility companies). To establish Arboretum's citizenship, Plaint fs have proffered twysyxorn affidavits from Michael Miroshnikov, President of ASIF GI LLC, gen al 2 2 of 107 FILED: NEW YORK COUNTY CLERK 02/27/2024 06/02/2023 11:33 03:53 AM PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 33 14 RECEIVED NYSCEF: 02/27/2024 06/02/2023 Cas 23-cv-01144-JHR Document 19 Filed 05/05/23 Page G of 5 a r of Afbb dlum. ECF Nos. 13-5 ("First Miroshnikov Aff.") and 16 ("Secd d Mirosh i v Aff."). Mirehnikov attests that, "[b]ased upon [his] review of the Arboretum bdsiness recd d inaintained in the ordinary course of its business, . . . Arboretum has at least fift^f50) limited California." partners who aq residents and citizens of the State of Second Miroshnikov Aff. ¶ 6 because" (emphasis add#d). Thus, "diversity [is] lacking under § 1332 Arboretuis and both [California]." individual Defdfidants "are all citizens of Handelsman, 213 F.3d a 52. plaintiffs' court," A² tl<çgatty seeking "to remove suit to federal KatofslÆbears "th pugdep of estghlishing that the requirements for diversity jurisdiction [are] met¾ehlenba r y Akzo Nobel f glt, Inc., 216 F.3d 291, 296 (2d Cir. 2000). In opposing Plaintiffs motion, Katofsky argu9,s4that (1) Plaintiffs failed to file a memorandum of law in support pf their motion, in violation o(4qcal Civil Rule 7.1(a)(2); (2) "Plaintiffs['] Notice of Motion to 1 pmand notified th !j7eDa[d]" opposition," Katofsky only "fourteen (14) days to file his as oppogd to the four yfgeks pennigeÆsnder this Court's rules in civil pro se cases; (3) the First Miros nikov it Af² 1746;" pgworn, plation of 28 U.S.C. § and (4) the statements in Miroshi kov's aftidavits on v h Plaintiffs rely are inadmissible. ECF No. 15 ("Opp. Br."). Š hese arguments lack merit. 1. hough Plaintiffs failed to file an opening memorandum of law p support of excuse" their motior land, that "does not Katofsky from discharging his o gations. D H tdiener, 462 F.3d 95, 109 n.2 (2d Cir. 2006) (holding that the ailure to4.7!frdt Cp obviate" respond' a pie dum [of law] . . . did not the opposing party's "need g peticion to in part and vacate in part an arbitration award in order to avoi31 a default ep sp " judgment). 1 othing in . . . the Civil Rules of the Southern District requires a epurt to punish a non- pliance" Plaintiffs' party for with local rules. Id. (cleaned up). Here, af idavit and declaration heir arguments clear. Indeed, the Declaration of Clifford A. I tz, ECF Ng.h 3 of 107 FILED: NEW YORK COUNTY CLERK 02/27/2024 06/02/2023 11:33 03:53 AM PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 33 14 RECEIVED NYSCEF: 02/27/2024 06/02/2023 Cas 23-cv-01144-JHR Document 19 Filed 05/05/23 Page b of 5 13 1, inclu ses and other authorities relied upon in support of the motion. Local Civi 1(d)( tailing requirements for a memorandum of law). Plaintiffs alsÉsubmit d randui w on reply (and Katofsky did not seek leave to file a surreply Accordin 1 discretion" "overlook" Plaintiffs' he dourt e Hs its "broad to "failure to cofÉply with [thi ] local rule[]. . Blair & Co., 462 F.3d at 109 n.2 (quoting Holtz v. Rockefelle & Co., 258 F.3d 62, 73 (2 ir. 2001)). . .2. email to all parties on March 14, 2023, Katofsky-an attorneý --was advigEd schedule" if he p [red] a different [briefing] than that provided under I cal Civif 1 ECF.»2 g]" P w o propose one by letter filed on Rather than "propos[i a "diff ht chádule," Ka($$ky followed the Local Rule and filed his opposition two weeks fter Plaintiffs filed their met See Local Civil Rule 6.1(b) ("any opposing affidavits and an Ævering memoranda gl pe served within fourteen days after service of the moving pap s"). Katofsky . did not argu he was prejudiced by the briefing schedule on this motion, norddid he requpÃt 3 th Miroshnikov affidavits are sworn, as evidenced by the notar jurat on t $9 1)." e p tive l es. Consequently, they were not "submitted in violation of 28 .S.C. § Opp. Br. at 6 at section "sets forth the circumstances under which unsworn dpclarations will declarations." be considere eptable substitutes for sworn Papetti v. RawlinghFin. Servs;, ILC, No. 15 933 (PAE), 2016 WL 4030863, at *5 n.8 (S.D.N.Y. July 25, 2916) (emphpsis iginal), ub nom. Papetti v. Does 1-25, 691 Fed. App'x 24 (2d Cir. 201 ). In cont t notary." s affida pre "sworn to before a Id. 2 An auto-reply ipdicated that, due to Katofsky being in trial, the Court's email would not be seen until Mãrclfl7, 2023. Under the Local Rules, the deadline for Katofsky's oþposition did not fall until March 28, 2023. Katofsky therefore had ample opportunity to request a different timetable. 4 of 107 FILED: NEW YORK COUNTY CLERK 02/27/2024 06/02/2023 11:33 03:53 AM PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 33 14 RECEIVED NYSCEF: 02/27/2024 06/02/2023 Case 1:23-cv-01144-JHR Document 19 Filed 05/05/23 Page 5 of 5 4. Finally, "[i]t is not clear that the . . . Federal Rules of Civil Procedure require admissible," evidence considered in support of or in opposition to a motion to remand be and Katofsky has not cited any authority to the contrary. Jankins v. Wells Fargo Bank, N.A., 17 Civ. 887 (BRO) (AJW), 2017 WL 1181562, at *3 (C.D. Cal. Mar. 29, 2017); but cf Medina v. Boeing Co., 20 Civr 3,04 (JVS), 2020 WL 1812522, at *1 n.2 (C.D. Cal. Apr. 9, 2020) ("The Court only considered admissible evidence in resolving the motion to remand."). Regardless, even on summary judgmpnt, where an "affidavit or declaration . . . must be made on pers nal knowledge evidence," [and] set out faety that would be admissible in Fed. R. Civ. P. 56(c)(4) "it is pipmatic thgcAcorporate representative may . . . submit affidavits based on knowledge gainefl, . records," a o{corporate books and Pace v. Air & Liquid Sys. Corp., 71 F. Suppdd revies 4, 272 (S.D N.Y. 2016) (quotation omitted). That is precisely what Miroshnikov has done here. See FirstJyliroshnikov Aff. ¶¶ 1, 3; Second Miroshnikov Aff. ¶¶ 4-6. s Accorqpgly, this action is hereby REMANDED to the Supreme Court ofûthe State of New York, N york County due to a lack of subject matter jurisdiction. Any pending motions grprpoot. The plerk of Court is directed to close the case. SO Ol)ERED. nq ped:;May"$6Q023 New York, New York JENNIFER H. R ARDEN United States District Judge 5 of 107 FILED: NEW YORK COUNTY CLERK 02/27/2024 06/02/2023 11:33 03:53 AM PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 33 14 RECEIVED NYSCEF: 02/27/2024 06/02/2023 Jeff Katofsky, Pro Se Defendant 4558 Sherman Oaks Avenue Sherman Oaks, CA 91403 (818) 990-1475 jeff@óremowlz.com Representing: Defendant Jeff Katofsky Pro Se UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ABORETUM SILVERLEAF INCOME FUND LP ) Civil Action No: And ACF CREDIT PROGRAM, LLC, ) Plaintiffs, ) ) · A CERT1FIED COPY vs. ) RUBY J. KRAJICK, CLERK ) JEFF KATOFSKY and ERNEST BARRECA AS ) BY TRUSTEE OF THE SKG FAMILY TRUST, AND ) Deputy THE SKKG FAMILY TRUST, ) Defendants. ) NOTICE OF REMOVAL PLEASE TAKE NOTICE THAT Defendant Jeff Katofsky, Pro Se (hereinafter "Katofsky") hereby removes the above-captioned action to this Court from the Supreme Court of the State of New York, County of New York. As set forth below, Katofsky has complied with the statutory requirements for removal under 28 U.S.C. §§ 1441 and 1446, and this Court has diversity jurisdiction over this action pursuant to 28 U.S.C. §1332(a). BACKGROUND 1. On or about November 28, 2022, Plaintiffs Aboretum Silverleaf Income Fund LP and ACF Credit Program, LLC (collectively "Arboretum"), filed a complaint against Jeff Katofsky and Ernest Barreca as Trustee of the SKG Family Trust and the SKG Family Trust (hereinafter "Katofsky") in the Supreme Court of the State of New York, County of New York, Index 1 6 of 107 FILED: NEW YORK COUNTY CLERK 02/27/2024 06/02/2023 11:33 03:53 AM PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 33 14 RECEIVED NYSCEF: 02/27/2024 06/02/2023 #654499/2022 (hereinafter "State Court Action"). Plaintiffs bring claims for, inter alia, breach of guaranty. 2. Defendant Katofsky was drop-served improperly, with a copy of the Complaint on January 11, 2023. This removal petition is timely filed using such date. See, 28 U.S.C.§1446(b) (requiring removal within 30 days of receipt of initial pleading). 3. Defendant Katofsky will file a copy of this Notice of Removal with the Clerk of the Supreme Court for the State of New York, County of New York, and will serve a copy on Plaintiffs, as required by 28 U.S.C. §1446(d). REMOVAL BASED ON TRADITIONAL DIVERSITY JURISDICTION 4. Defendant Katofsky's basis for removal is diversity jurisdiction. Defendants are citizens of a different state, and the amount in controversy exceeds $75,000.00. 28 U.S.C. §l332(a). 5. Plaintiffs are a Delaware/Georgia limited liability company and a Delaware/New Hampshire Partnership (See Complaint ¶¶1 and 2). 6. Defendant Katofsky is, and at all relevant times was, an individual in Los Angeles County, California. Katofsky is not, and was not living at any relevant time, a citizen of the State of New York. (See Complaint ¶3). 7. Defendant Barreca is, and at all relevant times was, an individual living in Los Angeles County, California. Barreca is not, and was not at any relevant time, a citizen of the State of New York. (See Complaint $4). 8. This is a civil action over which the Court has original jurisdiction under the provisions of 28 U.S.C. §1332 and may be removed to this Court by the Defendant pursuant to the provision of 28 U.S.C. §1441(a) because it is a civil action between citizens of different states and the matter in controversy herein exceeds the sum or value of $75,000.00, exclusive of interest and costs. 9. Barreca submits to and does not object to this removal. RESERVATION OF RIGHTS 10. Defendant Katofsky denies the allegations contained in the Complaint and files this Notice of Removal without waiving any defenses, objections, exceptions, or obligations that may exist in its favor in either State or Federal court, including issues of service of process and jurisdiction. 2 7 of 107 FILED: NEW YORK COUNTY CLERK 02/27/2024 06/02/2023 11:33 03:53 AM PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 33 14 RECEIVED NYSCEF: 02/27/2024 06/02/2023 11. Further, in making the allegations in this Notice of Removal, Defendant does not concede in any way the allegations in the Complaint are accurate, that Plaintiff has asserted claims upon which relief can be granted, or that recovery of any of the amounts sought is authorized or appropriate. 12. Katofsky also reserves the right to amend or supplement this Notice of Removal, If any questions arise as to the