Abode Affordable Housing, LLC v. McCall

Background

Defendant Albert B. McCall removed the case from state court to the U.S. District Court for the Southern District of New York on August 4, 2023. The court scheduled an initial conference for September 13, 2023, directed the parties to confer about discovery, and required them to submit a proposed discovery plan and scheduling order.

On August 11, 2023, McCall’s counsel asked for a pre-motion conference in anticipation of a motion to dismiss. The court granted that request and directed Abode Affordable Housing, LLC to respond. The parties later discussed scheduling, and Abode agreed that discovery and discovery-related deadlines should be postponed while the court considered whether McCall could file the motion and, if filed, decided it.

Requested dismissal

According to McCall’s letter, the anticipated motion would ask the court to dismiss the entire case on the ground that Abode Affordable Housing, LLC is a foreign limited liability company not registered to do business in New York and therefore lacks capacity to sue under section 808(a) of the New York Limited Liability Company Law. Alternatively, the motion would seek dismissal of Abode’s claims for breach of the implied covenant of good faith and fair dealing and fraud, as well as its demand for punitive damages.

The letter stated that no discovery requests had been served. It also asked the court to defer the parties’ initial disclosures and submission of a proposed discovery plan and scheduling order.

Court’s action

On September 1, 2023, Judge Edgardo Ramos granted the request for a stay of all discovery and disclosure deadlines pending resolution of McCall’s anticipated motion to dismiss. The order did not rule on whether the anticipated motion would be allowed, whether the case or any claims would be dismissed, or the merits of the parties’ claims.