Grabowsky v. Btc Holdings 405, Llc et al

BRIEF in Opposition

D.N.J.June 5, 2017

Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 1 of 18 PageID: 145 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 2 of 18 PageID: 146 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 3 of 18 PageID: 147 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 4 of 18 PageID: 148 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 5 of 18 PageID: 149 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 6 of 18 PageID: 150 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 7 of 18 PageID: 151 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 8 of 18 PageID: 152 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 9 of 18 PageID: 153 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 10 of 18 PageID: 154 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 11 of 18 PageID: 155 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 12 of 18 PageID: 156 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 13 of 18 PageID: 157 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 14 of 18 PageID: 158 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 15 of 18 PageID: 159 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 16 of 18 PageID: 160 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 17 of 18 PageID: 161 Case 2:17-cv-02136-WHW-CLW Document 10 Filed 06/05/17 Page 18 of 18 PageID: 162 00047930 - 3 CLARK GULDIN 20 Church Street—Suite 15 Montclair, New Jersey 07042 973.206.5789 973.206.5790 (Fax) Attorneys for Plaintiff Richard Grabowsky t/a Grabowsky Development UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY RICHARD GRABOWSKY T/A GRABOWSKY DEVELOPMENT, Plaintiff, v. BTC HOLDINGS 405, LLC, and BTC VENTURE 18, LLC, Defendants. Document Electronically Filed Civil Action No.: 2:17-cv-02136 (WHW) (CLW) Return Date: June 19, 2017 DECLARATION OF JONATHAN T. GULDIN IN OPPOSITION OF DEFENDANTS’ MOTION TO DISMISS I, Jonathan T. Guldin, hereby declare under penalties of perjury, pursuant to 28 U.S.C. § 1746, as follows: 1. I am a member of Clark Guldin, Attorneys at Law, attorneys for Plaintiff, Richard Grabowsky t/a Grabowsky Development (“Grabowsky”). I submit this declaration based upon my personal knowledge and in opposition to Defendants’ motion to dismiss Grabowsky’s Complaint in this action. 2. During November 2016 and January 2017, I engaged in settlement negotiations with BTC through its counsel, John V. Galluccio, Esq., of McCarter and English, LLP. 3. In December 2016, during negotiations with Mr. Galluccio, I made a settlement offer on Grabowsky’s behalf and advised him that Grabowsky intended to file an action in state court if parties could not reach a settlement. Case 2:17-cv-02136-WHW-CLW Document 10-1 Filed 06/05/17 Page 1 of 3 PageID: 163 00047930 - 3 -2- 4. In early January 2017, Mr. Galluccio represented that BTC had just finished its year-end financials and could now dedicate time to crafting a counterproposal for Grabowsky’s consideration. 5. While I was awaiting what I was told by Mr. Galluccio would be a counterproposal of settlement, on January 23, 2017, Plaintiff instead filed its original complaint in the District of New Jersey seeking relief under the Declaratory Judgment Act, docketed as 2:17-cv-00370. (See D.E.#1, under docket no. 2:17-cv-00370.) 6. On March 21, 2017, Grabowsky filed his Complaint in Essex County, Superior Court of New Jersey seeking to evict BTC for its material breaches of the Lease, including among other things, its failure to operate its theater in a manner required by the Lease, or alternatively, declaratory and injunctive relief declaring the rights and obligations of the parties under the lease. On March 30, 2017, BTC filed a notice to remove Grabowsky’s state court action to federal court, now docketed under this docket number, 2:17-cv-02136. (See D.E.#1, under docket no. 2:17-cv-02136.) That action, hereinafter the “State Action,” is now subject to Grabowsky’s pending motion to remand filed on April 28, 2017 and now returnable on June 19, 2017. (See D.E.#4, under docket no. 2:17-cv-02136.) 7. On March 24, 2017, Grabowsky filed a motion to dismiss BTC’s Complaint under docket no. 2:17-cv-00370 for lack of subject matter jurisdiction due to BTC’s failure to adequately plead the residency of each of its members, or alternatively, because the District Court has discretion to decline jurisdiction over BTC’s sole claim under the Declaratory Judgment Act. (See D.E.#9, under docket no. 2:17-cv-00370.) 8. On April 17, 2017, BTC filed an Amended Complaint, purporting to correct deficiencies in its original complaint. (See D.E.#11, under docket no. 2:17-cv-00370.) BTC’s Amended Complaint also added a Breach of Contract claim which alleged that Grabowsky’s pending action to evict BTC from the Premises has interfered with BTC’s right of quiet enjoyment of the Premises resulting in money damages that include “the lost value of the Lease during the renewal term,” “potential profits that Tenant would have made” during the renewal Case 2:17-cv-02136-WHW-CLW Document 10-1 Filed 06/05/17 Page 2 of 3 PageID: 164 00047930 - 3 -3- term, and attorneys’ fees and costs, incurred and to be incurred. Grabowsky has again moved to dismiss BTC’s Amended Complaint on the grounds that the court should decline jurisdiction over the matter pursuant to the Declaratory Judgment Act. (See D.E.#16, under docket no. 2:17- cv-00370.) 9. On May 1, 2017, BTC filed a motion to consolidate this action with the State Action. (See D.E.#14, under docket no. 2:17-cv-00370.) BTC also moved on May 2, 2017 to dismiss Grabowsky’s complaint, or alternatively stay this matter pending resolution of its motion to consolidate. (See D.E.#5, under docket no. 2:17-cv-02136.) In opposition to BTC’s motion to consolidate, Grabowsky asserted that he did not oppose the consolidation as a procedural or conceptual matter, but maintained his argument that the District Court should decline jurisdiction over these actions under the Declaratory Judgment Act. (See D.E.#17, under docket no. 2:17-cv- 00370.) Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. s/ Jonathan T. Guldin Dated: June 5, 2017 Jonathan T. Guldin, Esq. Case 2:17-cv-02136-WHW-CLW Document 10-1 Filed 06/05/17 Page 3 of 3 PageID: 165 00047928 - 1 - 1 - CLARK GULDIN 20 Church Street—Suite 15 Montclair, New Jersey 07042 973.206.5789 973.206.5790 (Fax) Attorneys for Plaintiff Richard Grabowsky t/a Grabowsky Development UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY RICHARD GRABOWSKY T/A GRABOWSKY DEVELOPMENT, Plaintiff, v. BTC HOLDINGS 405, LLC, and BTC VENTURE 18, LLC, Defendants. Document Electronically Filed Civil Action No.: 2:17-cv-02136 (WHW) (CLW) Return Date: June 19, 2017 CERTIFICATION OF SERVICE I, JONATHAN GULDIN, being duly sworn, hereby certify as follows: 1. I am an attorney for Plaintiff, Richard Grabowsky t/a Grabowsky Development (“Grabowsky”), in the above captioned action, and I am familiar with the file, records, and pleadings in this matter. 2. I certify that, on June 5, 2017, Grabowsky’s Memorandum of Law in Opposition to Defendants’ Motion to Dismiss the Complaint and Declaration of Jonathan, T. Guldin, Esq. dated June 5, 2017, were served electronically on the Court and all parties entitled to service of notice in this case by filing same with this Court’s CM/ECF system. I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. [Intentionally Left Blank] Case 2:17-cv-02136-WHW-CLW Document 10-2 Filed 06/05/17 Page 1 of 2 PageID: 166 00047928 - 1 - 2 - Dated: June 5, 2017 By: /s/ Jonathan T. Guldin_ Jonathan T. Guldin CLARK GULDIN 20 Church Street—Suite 15 Montclair, New Jersey 07042 973.206.5789 973.206.5790 (Fax) Attorneys for Plaintiff Richard Grabowsky t/a Grabowsky Development Case 2:17-cv-02136-WHW-CLW Document 10-2 Filed 06/05/17 Page 2 of 2 PageID: 167