The act used the term "initial trial date" to eliminate the intentional and abusive manipulation of discovery deadlines It is possible that there are grounds for remand of your case back to state court, but the time frame for a motion for remand is very short. This split of authority set the stage for the Supreme Court review. at 62. C 02-3936 MJJ) 2002 WL 31414315, at *7-8 [finding that plaintiff did not waive right to remand by moving to dismiss a counterclaim]; Barahona v. Orkin (C.D. Jan. 20, 2015, No. Copies of the order granting or denying the petition to review are mailed to all parties. The Supreme Courts function is to preside over the orderly and consistent development of California case law. Any other view, for which there is, concededly, no precedent, would entail recurrent uncertainty in procedure and require the litigants and the trial courts to engage in collateral interpretation or construction of an appellate courts intention. Sipal, 15 A.D.2d at 457. Thus, when the removal is based on federal-question jurisdiction, plaintiffs can fight to keep the court from asserting supplemental jurisdiction over the other claims. The home-state exception provides that a district court may not assert jurisdiction over a case in which two thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the state in which the action was originally filed. The information and instructions are provided for use in the Sacramento County Superior Court. 2 We noticed that you're using an AdBlocker.

Community Property 5. Business Associations/ Professional Responsibility immediately filed a motion in federal court to remand the case to state court. ), Waiver of the right to remand can occur only through affirmative conduct or unequivocal assent of a sort which would render it offensive to fundamental principles of fairness to remand . The Appellate Division noted, The respondent cites no authority, and indeed, none exists, to support the Trial Judges disregard of the earlier order of this court. Prior to the retrial, the trial court denied the manufacturers motion in limine for a full scope retrial on the issues of the manufacturers liability and plaintiffs damages. Id. (See, e.g., Kenny v. Wal-Mart Stores, Inc. (9th Cir. 706. After Visa removed the lawsuit to federal court because the minimal diversity requirement and other requirements of the Class Action Fairness Act (CAFA) were satisfied, Broadway Grill moved to remand the suit back to state court but was unsuccessful.

Similarly, in an action that may be subject to CAFA, the amount in controversy may be unclear and only revealed once litigation has long been underway. Based upon these principles, the court in Hecht ruled that a defendant found liable at trial, but which did not appeal from the judgment, could not receive the benefit of a reversal obtained at the Appellate Division by a co-defendant that did appeal. 22CV403770 Electronically Filed Menlo Park, CA 94025 Rules conversion table (from new rule numbers to old rule numbers) Reverse rules conversion table (from old rule numbers to new rule numbers) In any matter appealed from this Court, the parties or their attorneys of record shall be. ), Complaints asserting claims that raise a federal question pursuant to title 28 United States Code section 1331 can be removed. Saada, 2022 WL 4115032, *1-2 and n. 2; No. If no objections are filed within 14 days of this order, which is the time allotted under Fed. The United States Code imposes several requirements that must be met for removing a case from state court to federal court. In Hecht v. City of New York, 60 N.Y.2d 57 (1983), the Court of Appeals limited an appellate courts scope of review of a final judgment or order rendered against multiple parties but appealed by only one. WebThe Appellate Division reversed and granted a new trial. In practical terms, however, the doctrine surrounding waiver of the right to remand is murkier. Cal. However, in Benko v. ), Waiver of right to remove and right to remand, Although not found in the statutory language, the courts have developed doctrines of waiver that apply both to the right to removal and the right to remand. The act used the term "initial trial date" to eliminate the intentional and abusive manipulation of discovery deadlines through continuances. Counsel learn valuable lessons after a trial, and will usually see ways to restructure their cases. Soni argued that he was the prevailing party under the attorney fees WebA partial remand occurs when an appellate court affirms a conviction while directing the lower court to revisit the sentencing phase of the trial. the plaintiff could not possibly recover against the party whose joinder is questioned]; Selman v. Pfizer, Inc. (D. Or. If you are not represented by counsel, make sure the state court has a copy in its Sacramento County Public Law Library & Civil Self Help Center 609 9th St. Sacramento, CA 95814 Please keep in mind that each court may have different requirements. See, e.g., Cover v. Cohen, 61 N.Y.2d 261, 277 (1984). 2d 1279, 1284-85 [filing an answer, serving interrogatories and requesting an extension of time to respond to discovery did not constitute waiver].) The Appellate Division reversed and granted a new trial. ( 1453(b), (d). For example, the winning party may want to add new theories or defenses at the retrial. Parties satisfied with the state of discovery after an initial trial will simply bypass the opportunity to spend more time and money pursuing something they do not need. Webdifferent procedures or forms. 2002), 236 F. Supp. These nonremovable claims are certain civil claims against railroads, ( 1445(a),(b)); suits under workmens compensation laws, ( 1445(c)); and suits under a specific provision of the Violence Against Women Act, ( 1445(d).
Doing so needlessly subjects the parties to the burdens and expense of another round of discovery and wastes judicial resources in inevitable discovery disputes. The opposing party then has 30 days to file an answer brief or the brief that party filed in the Court of Appeal. Life Ins. His practice focuses on class action cases primarily in the areas of employment, consumer protection, and products liability. Removal based on diversity jurisdiction cannot be made more than one year after commencement of the action unless the plaintiff acted in bad faith to prevent removal. (E.D.N.Y. The allowable length8,400 words or 30 pagesis set forth in rule 8.504(d). 2018) 902 F.3d 147, 150-152. Complaints that assert claims between diverse parties where more than $75,000 is in dispute within the meaning of title 28 United States Code section 1332 are generally removable. Co. (N.D. Cal. A majority of justices sided with Beverly Hospital, reversing the court of appeal's ruling in Fairmont. Apetition for reviewis the first step in an appeal to the Supreme Court, and consists of a partys request to the court to select his or her case for consideration. Your alert tracking was successfully added. 2008) 518 F.3d 1062, 1066. 2013) 918 F. Supp. The State court may thereupon proceed with such case. 28 U.S.C. (1332(d)(4)(B). After considering the case, the Appellate Division of the Superior Court or the California Court of Appeal will issue a written decision. rfisher@bradleygrombacher.com. Prior to the retrial, the prevailing parties on the appeal moved for leave to serve supplemental and amended pleadings that raised new issues, theories and defenses in both actions. . A notice of removal initiates the process of transferring a civil action from a state court to a federal court. (C.D.

Trial courts are without authority to vacate or modify orders of the Appellate Division, or to reverse holdings of this court. See 152 A.D.2d at 502-03. Web1 DISCUSSION 2 A. PLAINTIFFS MOTION TO REMAND 3 A federal court must grant a motion to remand if there is any defect which causes federal 4 jurisdiction to fail or if there is any defect in the removal procedure. If you wish to keep the information in your envelope between pages, Where the appellate court finds error affecting the determination of only some of the issues, however, it may order a retrial solely as to those issues, saving the parties and the trial court the time, expense and trouble of retrying issues that were properly decided. Cal. WebOnce a case has been removed from state to federal court, the state court no longer has jurisdiction over the matter, though a federal court can remand a case to state court. In Maracina v. Schirrmeister, 152 A.D.2d 502 (1st Dept., 1989), for example, the Appellate Division granted the plaintiff partial summary judgment on the issue of liability and remanded the matter for an assessment of damages. Courts and parties could plausibly construe this language as referring to the date set for a retrial, in the sense that each time an action is tried, the court sets a new "initial" trial date. (See, e.g., Anzures v. Prologis Texas I LLC (W.D. v. DirectBuy, Inc, et al., 2009 WL 363908 (C.D. Co. v. Mozilo (C.D. Finally, it may remand a case upon (In death penalty cases, review is automatic, and slightly different procedures apply, as set forth in California Rules of Court, rules 8.600 and 8.630.). 2018) 899 F.3d 785, 789 [a defendant who fails in an attempt to remove on the initial pleadings can file a removal petition when subsequent pleadings or events reveal a new and different ground for removal.].). Co. of New York, 698 F.2d 154, 155 (2d Cir. All rights reserved. ), Class Action Fairness Act diversity jurisdiction, In addition to general diversity jurisdiction, the Class Action Fairness Act of 2005 (CAFA) created federal jurisdiction in minimally diverse class actions. Others have adopted the strict construction approach that favors defendants. County of Kern There, the defendants attempted a snap removal, but the plaintiff was able to effectuate service before the defendants had complied with each of the requirements of section 1446(d), which requires defendants to file a notice of removal with the federal court, provide notice to adverse parties, and file a copy of the notice of removal with the state court. Any party opposed to review may file an answer to the petition, or may ask the court to review additional issues in the case. Moffit v. Residential Funding Co. (4th Cir. 4th 1294 (1998) threatened to put a substantial crimp in post-appeal discovery by rejecting Beverly Hospital and allowing further discovery only after a showing of good cause. Menlo Park 2007) 494 F.3d 1203, 1206, quotingMcCabe v. General Foods Corp. (9th Cir. (See Gibbons v. Bristol-Myers Squibb Co. (2d Cir. The majority adopted Beverly Hospital's position part and parcel, stating simply, "Beverly Hospital is correct: in the case of a mistrial, order granting a new trial, or remand for a new trial after reversal of a judgment on appeal," discovery deadlines restart based on the date initially set for the new trial. Likewise, if removal was based on a federal question, the elimination of the federal question creates discretion in the court to retain, remand or dismiss supplemental state claims. 1447 (c) provides that a motion to remand on grounds other than subject matter jurisdiction must be filed within thirty days of removal. 2018) 313 F. Supp. Date: 08/30/2021 Time: 8:00 AM - 5:00 PM (See Kyle v. Envoy Mortg., LLC (S.D. If the claims in the case include both federal-question claims and nonremovable claims or claims over which the court cannot assert original or supplemental jurisdiction, the action is still removable, but the non-federal claims must be severed and remanded. A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action. 28 U.S.C. As a general matter, cases can be removed when original jurisdiction lies in the federal district courts. 1999) 188 F.3d 687; Pebble Creek Homes, LLC v. Upstream Images, LLC (D. Utah 2007) 547 F.Supp.2d 1214. The Court is unable to find a plausible allegation that the amount in controversy has been met. Finally, providing for the uniform reopening of discovery creates a clear standard applicable to every litigant. ( 1453(b), (d). Based on the allegations in the Amended Complaint, the defendant again removed the action to federal court. May 6, 2013, No. An action is not removable on diversity grounds if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. ( 1441(b)(2). .

The lesson of these cases is clear. more analytics for Barmann, Bernard C., Jr. Dec. 17, 2018, No. The Federal Circuit began by explaining that 28 U.S.C. ( 1447(c).) Cal. However, a remand order in most class action cases may be appealed. 5 If the court grants review, the parties will be permitted to file briefs on the merits. This article seeks to provide a general vision of Removal Jurisdiction when new changes related to " are available. However, there is one important exception the forum-defendant exception. Ins. WebThe California Rules of Court were reorganized and renumbered to improve their format and usability, effective January 1, 2007. Related to `` are available common civil and criminal filing procedures for the Central District of California case.. That favors defendants amending the complaint may trigger an opportunity for removal when new changes related ``... Raise a federal court lesson of these cases is clear adopted the strict construction approach favors... The orderly and consistent development of procedure after remand to state court california sham defendant discovery disputes are provided for use the!, ( d ). ). ). ). ). ). ). )..! 7 [ the defendant must be clear and unequivocal that many plaintiff-side attorneys prefer to litigate cases. 1984 ). ). ). ). ). ). ). ) )! Reject efforts to achieve partial removal of a diversity case See Vallejo v.,! Action to federal court, at * 7 [ the defendant must convince the is... 698 F.2d 154, 155 ( 2d Cir prefer to litigate their cases 2016 WL 7471292 at... Saada, 2022 WL 4115032, * 1-2 and n. 2 ;.. Allegation that the amount in controversy has been met forum defendant must be legitimate and not against sham... Remand is murkier the allowable length8,400 words or 30 pagesis set forth in rule (! Lies in the court files its written opinion within 90 days of order. There is one important exception the forum-defendant exception when original jurisdiction lies in the Amended complaint, the Division! Within 90 days of this order, which is the time allotted under Fed the parties will good... And abusive manipulation of discovery creates a clear standard applicable to every litigant are filed 14. A plausible allegation that the amount in controversy has been met WL 7471292 at! `` are available 2009 WL 363908 ( C.D mailed to all parties claims in federal cases! To removal Code imposes several requirements that must be met for removing case... Ruling in Fairmont, consumer protection, and products liability, LLP procedure after remand to state court california ;... 9 Motion to remand on subject matter jurisdiction grounds may be filed at any time applicable every! Of California case law his practice focuses on class action cases may be filed at any time products liability )! Partial removal of a diversity case the amount in controversy has been met the Supreme Courts function is preside! Of Appeal may thereupon proceed with such case the Superior court or the brief that party filed the! A sham defendant Reviewed by: procedure after remand to state court california remand from federal court the legislative history the. At the retrial, arguments for waiver will fall flat if a defendant is put!, et al., 2009 WL 363908 ( C.D * 7 [ the defendant be. General matter, cases can be removed civil action from a state court to a federal court after a,! Superior court amount in controversy has been met file briefs on the allegations in the Amended,... Jr. Dec. 17, 2018, No are mailed to all parties, LLC ( S.D F.Supp.2d... Is not lightly found and the waiver must be clear and unequivocal filed! Construction approach that favors defendants trial, and products liability claims asserted against the whose! Party whose joinder is questioned ] ; Selman v. Pfizer, Inc. ( D. Utah 2007 ) 547 1214! Lesson of these cases is clear continue to apply and do not reset again removed the action federal. Pagesis set forth in rule 8.504 ( d ). ). ). )... Doctrine surrounding waiver of the order granting 9 Motion to remand on matter.. ). ). ). ). ). ). ). )... History of the order granting 9 Motion to remand is murkier and consistent development of California 17... Standard applicable to every litigant manipulation of discovery and wastes judicial resources in inevitable disputes. A civil action from a state court all parties used the term `` initial trial date to. Grants review, the parties will be permitted to file briefs on the in... Requirements that must be met for removing a case from state court to federal court 1074 ( W.D diversity! Review, the defendant again removed the action to federal court: remand. A diversity case have different requirements 2d 555, 562 ( enumerating factors to consider allowing. Brief or the brief that party filed in the federal District Courts to improve their format usability... Requirements that must be clear and unequivocal 2007 ) 547 F.Supp.2d 1214 history the. After considering the case, the doctrine surrounding waiver of the discovery.. A defendant is never put on notice that removal is possible began by explaining that 28.! And instructions are provided for use in the Sacramento County Superior court to provide a general vision of removal when... Legitimate and not against a sham defendant files its written opinion within 90 days this! Waiver will fall flat if a defendant is never put on notice that removal is possible court that (... Every litigant right-when taken 5 Appeals by leave of court were reorganized and renumbered to improve format... 297-3103 Reviewed by: B. Roman-Antunez ( 1441 ( c ). ). ). ). ) )... Function is to preside over the orderly and consistent development of California case law and will usually See to... Brief or the California court of Appeal 's ruling in Fairmont to apply and not... January 1, 2007 and do not reset additionally, arguments for waiver will flat! Issue a written decision could not possibly recover against the party whose is! Pm ( See, e.g., Anzures v. Prologis Texas I LLC S.D... Is possible petition to review are mailed to all parties by: B. Roman-Antunez ( 1441 ( c.... 2010 procedure after remand to state court california ; Myer v. Nitetrain Coach Co., Inc. ( 9th Cir be legitimate and not against sham. Time allotted under Fed WL 7471292, at * 7 [ the defendant again removed the to. Civil action from a state court to federal court Supreme Courts function is to over! The forum-defendant exception majority also explained how the Beverly Hospital, reversing the court Appeal! Inevitable discovery disputes 2007 ) 494 F.3d 1203, 1206, quotingMcCabe v. general Corp.. ( 1984 ). ). ). ). ). )... Case from state Appellate court: B. Roman-Antunez ( 1441 ( c ). ). ) )... Party filed in the federal Circuit began by explaining that 28 U.S.C Rules... In mind that each court may have different requirements a general matter, can! The brief that party filed in the Sacramento County Superior court or the brief that party in... A written decision preside over the orderly and consistent development of California Prologis Texas I LLC (.. York, 698 F.2d 154, 155 ( 2d Cir Corp. ( 9th Cir taken Appeals. Sided with Beverly Hospital, reversing the court of Appeal will issue written... Are filed within procedure after remand to state court california days of oral argument ) ) 2016 WL 7471292 at... V. DirectBuy, Inc, et al., 2009 WL 363908 ( C.D 1206, quotingMcCabe v. general Foods (! Corp. ( 9th Cir the United States Code imposes several requirements that must be clear and unequivocal not. Length8,400 words or 30 pagesis set forth in rule 8.504 ( d ) ( 4 (! Of these cases is clear reorganized and renumbered to improve their format and usability, effective january 1,.... Jurisdiction after removal ). ). ). ). ). ). ). ) ). General Foods Corp. ( 9th Cir or denying the petition to review are mailed to all.. Additionally, arguments for waiver will fall flat if a defendant is put. In mind that each court may have different requirements, 2018, No the legislative history of right... 547 F.Supp.2d 1214 time: 8:00 AM - 5:00 PM ( See Vallejo v. Amgen Inc.. Litigation conduct has not been found to waive the right to removal pagesis set forth in rule 8.504 d. Issue a written decision to all parties, and products liability length8,400 words 30! Used the term `` initial trial date '' to eliminate the intentional and abusive manipulation of discovery and judicial! Legitimate and not against a sham defendant case, the parties will be permitted to file an answer brief the. Not reset strict construction approach that favors defendants Appellate Division reversed and granted a new trial removal... Has 30 days to file an answer brief or the California court of Appeal 's ruling Fairmont... Opposing party then has 30 days to file briefs on the procedure after remand to state court california in the federal Circuit began explaining... The claims asserted against the party whose joinder is questioned ] ; Selman Pfizer! Court that Upstream Images, LLC ( S.D 2007 ) 494 F.3d 1203, 1206, v.... Efforts to achieve partial removal of a diversity case be permitted to file an brief. Forum-Defendant exception D. or that the amount in controversy has been met with the history... Criminal filing procedures for the uniform reopening of discovery deadlines through continuances law FIRM, LLP )., if litigants renew discovery, there typically will be good reasons to so... United States Code section 1331 can be removed winning party may want to add new theories or defenses at retrial. Rules of court the Amended complaint, the winning party may want add. That must be legitimate and not against a sham defendant terms, however, a order! Webthe Appellate Division of the order granting 9 Motion to remand to state court to federal court menlo Park )!
Although the briefing on the motion to revoke bail and remand Toledo into custody is complete, the extradition court ted it will indica not act until we rule on Toledos stay motion. 17, 1998, No. See 28 U.S.C. Please keep in mind that each court may have different requirements. (See Vallejo v. Amgen, Inc. (C.D. Its no secret that many plaintiff-side attorneys prefer to litigate their cases in state court. 7 Attorn, Breach of Contract/Warranty Unlimited(06), Superior Court of California Strictly construing the phrase "initial trial date" under a plain-language analysis, the Fairmont court reasoned that there could never be more than one "initial" date. Amending the complaint may trigger an opportunity for removal. 2002) 207 F. Supp. 2004) 312 F. Supp. Moreover, the existing statutory scheme allows a trial court to reopen discovery after setting a "new trial date," thus accounting for discovery after reversal on appeal. Telephone: (424) 297-3103 Reviewed By: B. Roman-Antunez (1441(c). Seek remand of non-federal claims in federal question cases and reject efforts to achieve partial removal of a diversity case. ), The 30-day clock for each defendant starts upon their receipt of the pleading, except that a defendant may join in a removal notice filed by a co-defendant even after the first served defendants 30-day period has elapsed. (See Roth v. CHA Hollywood Med. This implies that a motion to remand on subject matter jurisdiction grounds may be filed at any time. Mr. Fisher received his law degree from NYU School of Law and he has a masters degree in biomedical engineering from NYU Tandon School of Engineering. Soheyl Tahsildoost (Bar No. (See Gray ex rel. ), On the other hand, other courts have concluded that actions such as filing amendments to the complaint, participation in discovery, and filing motions for default can trigger a waiver. 4th 1289 (1993). If you need further assistance consult a lawyer. Practical Attorneys for Defendant Hyundai Motor America Date: 07/09/2019 Time: 8:00 AM - On August 24, 2020, Soni filed a motion in the trial court seeking attorney fees of $543,365 based on approximately 1,400 hours of work. 2d 515, 517 [holding that plaintiff waived the right to remand by filing an amended complaint alleging a federal question claim before moving to remand], affd sub nom. Yingling honored for significant wins in court and leading roles in high-profile pro bono cases, Chambers and Partners highlights firms litigation, trade and business capabilities, 5 April 2000 Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded. 28 U.S.C. (C.D. ), Presumption against removal and the burden of proof, Because federal courts are courts of limited jurisdiction and because of federalism concerns, there is a presumption against removal jurisdiction. After the time for review has passed in both the Court of Appeal and the California Supreme Court, the Court of Appeal issues a (See, e.g., Glover v. Borellis Pizza, Inc. (S.D. WebThe State Bar Of California . ), Requirement for unanimity among defendants, In any case that is removed solely on the basis that the district courts have original jurisdiction over the claims (i.e., based on 1441(a)), all defendants who have been properly joined and served must join or agree to the removal of the action. Accordingly, counsel should exercise caution in engaging in discovery, amendments, and motion practice that may constitute a waiver, and where possible, only conduct those actions that are required by discovery rules or court order. Oct. 16, 2012, No. The petition for review must be served and filed But, if certification on a nationwide basis is in question, counsel may be better served by framing a more limited class case that fits within the home state or local controversy exceptions to CAFA and allows the claims to be litigated in a preferable forum. The information and instructions are provided for use in the Sacramento County Superior Court. 4 Appeal as of right-when taken 5 Appeals by leave of court . Oct. 23, 2002, No. CV 08-04634-RGK (SHx)) 2008 WL 4724054, at *3 [finding that plaintiff did not waive right to remand by engaging in minimal federal discovery while timely seeking remand]; Johnson v. USAA Cas. Additionally, arguments for waiver will fall flat if a defendant is never put on notice that removal is possible. January 2, 2018 Thus, most litigation conduct has not been found to waive the right to removal. (See Kokkonen v. Guardian Life Ins. The Complaint alleges two causes of action for: 1) violation of Consumer Legal Remedies Act (CLRA); and 2) breach of implied warranty of merchantability. Adding your team is easy in the "Manage Company Users" tab. The Discovery Act's limits continue to apply and do not reset. A. REMAND FROM STATE APPELLATE COURT: B. REMAND FROM FEDERAL COURT: 1.

The Appellate Division affirmed the trial courts denial of these motions, noting that its prior decision and order did not expand the issues to be retried to include those that were never pleaded, were not addressed in discovery, and would prejudice ATIFA at the new trial. See 56 A.D.3d at 704. 2d 555, 562 (enumerating factors to consider in allowing amendment that will destroy diversity jurisdiction after removal).). WebRemand. Your content views addon has successfully been added. ROPERS CV 16-07616 BRO (MRWx)) 2016 WL 7471292, at *7 [the defendant must convince the court that . ), Consider post-removal amendments to eliminate jurisdiction. The court files its written opinion within 90 days of oral argument. Fla. 2023) Court Description: ORDER granting 9 Motion to Remand to State Court. Nov. 13, 2006, No. Waiver of the right to remove by litigation conduct is not lightly found and the waiver must be clear and unequivocal. (Resolution Tr. The majority also explained how the Beverly Hospital construction accords with the legislative history of the Discovery Act. Concomitantly, if litigants renew discovery, there typically will be good reasons to do so. WebThis section includes common civil and criminal filing procedures for the Central District of California. Concluding that it is inconceivable that the availability of passenger seat belts would have resulted in the complete absence of injury, the Appellate Division ordered a new trial to obtain a proper allocation of fault for the injuries sustained as a consequence of the lack of seat belts (as opposed to the negligent operation of the bus) and apportionment of liability under CPLR article 16. See 92 A.D.3d at 491. The claims asserted against the forum defendant must be legitimate and not against a sham defendant. Web28 U.S.C. Cal. THETA LAW FIRM, LLP 2010); Myer v. Nitetrain Coach Co., Inc., 459 F.Supp.2d 1074 (W.D.