MEMORANDUM and ORDER

JOHN T. CURTIN, United States District Judge.

Plaintiff commenced this action January 13, 2000 in New York State Supreme Court, Erie County, raising five state law causes of action — viz., (1) breach of contract, (2) breach of the implied warranty of merchantability, (3) breach of the warranty of fitness for a particular purpose, (4) fraud and misrepresentation and (5) contractual attorney fees. Plaintiff is a New York corporation with its principal place of business in New York; defendants Automated Compliance Systems, Inc. ("ACS"), AS Acquisition Corporation d/b/a Labvantage Solutions ("AS Acquisition"), Labvantage Solutions ("LVS") and Labvantage Solutions, Inc. (LVS Inc.") (collectively the "Labvantage defendants") are Delaware corporations with their principal places of business in New Jersey and defendant Chatterjee Management Co., Inc. d/b/a the Chatterjee Group ("Chatterjee") is a Delaware corporation with its principal place of business in New York. Defendants removed this action to this Court October 16, 2000 alleging that this Court has diversity jurisdiction because the amount in controversy exceeds $75,000, plaintiff and the Labvantage defendants are citizens of different states and Chatterjee had been fraudulently joined to defeat federal subject matter jurisdiction. Plaintiff moved to remand this case November 13, 2000 on two interrelated grounds — viz., (1) that the removal was untimely pursuant to 28 U.S.C. § 1446(b) and (2) that this Court lacks subject matter jurisdiction because defendants cannot establish that Chatterjee was fraudulently joined and therefore there is incomplete diversity between the party plaintiff and the parties defendant. Plaintiff also seeks to recover the costs and attorney fees it incurred in connection with its motion to remand. In response to plaintiff's motion to remand, defendants filed a motion for summary judgment seeking to dismiss Chatterjee on the basis that plaintiff has no cognizable cause of action against it and fraudulently joined it as a defendant to prevent removal. Such motions were argued and submitted December 8, 2000 and have thereafter been before this Court for disposition.

In March of 1997 plaintiff entered into an Agreement with ACS to purchase a Laboratory Information Management System ("LIMS"). ACS agreed to provide full planning, installation, configuration and project management service for the LIMS and gave plaintiff a "project performance guarantee" with respect to such. However, after it had been installed the LIMS not only failed to perform as guaranteed but it was not even "capable of performing in accordance with the parties' Agreement and the performance guaranty provided by Defendants." Compl. ¶¶ 21-23, 25-26. Sometime after plaintiff had entered into the Agreement with ACS, ACS ceased to exist as a separate entity. Plaintiff believes that ACS has been acquired by and/or has merged into one or more of the other named defendants — including Chatterjee. In its Complaint, plaintiff alleged the following regarding its theory of liability against Chatterjee.

"Upon information and belief, ACS was acquired and/or merged into AS Acquisition, LVS, LVS, Inc. and/or Chatterjee without regard for EE's rights or EE's claims set forth herein.

"Upon information and belief, Chatterjee is the owner of ACS, AS Acquisition, LVS and LVS, Inc. and holds itself out as the owner of such entities.

"Upon information and belief, ACS, AS Acquisition, LVS, LVS, Inc. and Chatterjee are and remain jointly and severally liable with respect to EE's claims asserted herein.

* * * * *

"Upon information and belief, Defendants AS Acquisition, LVS, LVS, Inc. and Chatterjee became successors in interest to Defendant ACS and Defendants AS Acquisition, LVS, LVS, Inc. and Chatterjee together were responsible for continuing the planning, installation, configuration, project management and operation of the LIMS pursuant to the Agreement. Compl. ¶¶ 11-13, 24.

After reviewing the Complaint, defendants' attorney Matthew A. Porter, Esq. wrote to plaintiff February 11, 2000 requesting that it voluntarily dismiss Chatterjee from this case on the basis that Chatterjee bore no liability to plaintiff because it does not have an ownership interest in the Labvantage defendants and had no connection with the factual allegations in the Complaint. Defendants' attorney Robert B. Conklin, Esq. wrote to New York Supreme Court Justice Patrick H. NeMoyer — to whom this case had been assigned — May 23, 2000 stating the same facts. On July 27, 2000 defendants served interrogatories on plaintiff requesting it to, inter alia, state the basis for its "contention in paragraph 24 of the Complaint that Chatterjee became successor in interest to Defendant ACS and was `responsible for continuing the planning, installation, configuration, project management and operation of the LIMS pursuant to the Agreement.'" Plaintiff filed its Responses to Defendants' First Set of Interrogatories and First Request for Production of Documents September 18, 2000, wherein it responded to the above interrogatory as follows.

"RESPONSE: EE objects to `basis' as defined by Definition No. 10 in the Interrogatories. Notwithstanding the foregoing objection and without waiver thereof, a basis for this contention is as follows:

"1. Letter from John J. Fitzgerald and Donald R. Seitz of ACS dated July 7, 1997 stating that ACS and Labvantage have agreed to combine operations, that Labvantage has acquired ACS from a legal and financial standpoint, and that the two companies are merging their LIMS operations from an organizational and operational standpoint. This letter is served herewith as Bates No. 103;

"2. Labvantage website page dated March 27, 1998 stating that `LabVantage Solutions (LVS) [Labvantage] was created early in 1997 with the merger of three of the top 10 LIMS vendors — Axiom Systems, Laboratory MicroSystems and Automated Compliance Systems.' The website page further states that Axiom Systems,[is] an operating subsidiary of The Chatterjee Group. . . .' This website page is served herewith as Bates No. 104. See, also Labvantage website pages dated September 18, 2000 stating the relationship between Chatterjee Group and Labvantage Solutions, served herewith as Bates Nos. 139-140;

"3. Labvantage Seedpak 97 Advanced Training Manual, dated `Revised 10/8/97,' bearing twice, at a minimum, the statement `Labvantage Solutions, A Chatterjee Group Company' which is served herewith as Bates Nos. 105-109;

"4. Letter to Michael Welch of EE from Linda Fitzgerald of Labvantage, dated November 18, 1997, bearing letterhead entitled, `LabVantage Solutions, A Chatterjee Group Company' which is served herewith as Bates No. 110;

"5. EE Interoffice Memorandum to Gerry Strobel, Kevin Neumaier, Gary Hahn, Mike Welch and Marcia Galloway, from Nancy Siekmann, dated March 27, 1998, regarding having obtained Dun and Bradstreet information on Labvantage and Chatterjee Fund Management L.P. (a.k.a. Chatterjee Group) that 100% of Labvantage stock is owned by Purnandu Chatterjee, the primary principal in Chatterjee Fund Management, L.P. This memorandum is served herewith as Bates No. 111; and

"6. Dun Bradstreet Report dated June 06, 2000 and served herewith as Bates Nos. 112-119. "EE reserves the right to supplement its' [sic] response to any part of this Interrogatory upon further discovery." Pl.'s Resps. to First Set of Interrogs. of Def. AS Acquisition Corp. d/b/a Labvantage Solutions ¶ 6.

Plaintiff had served its own discovery requests on defendants August 30, 2000. One of its interrogatories requested defendants to

"Identify the corporate relationship, if any, between Labvantage and The Chatterjee Group and between Labvantage and Chatterjee Management Co., Inc, Specifically, please state the following:

a. Whether Labvantage has a parent/subsidiary relationship with either or both the Chatterjee Group or [sic] Chatterjee Management Co., Inc.

b. If subsection `a' above is answered in the affirmative, please state the nature of the relationship, name of the related corporation, company or business, state of incorporation and principal place of business, names and addresses of any and all shareholders, directors and/or officers in common to both Labvantage and the related corporation, company or business." Rottaris Aff. Ex. I (Pl.'s First Set of Interrogs. to Defs. ¶ 3.)

Defendants never responded to this interrogatory — or to any of plaintiff's other discovery requests — Rottaris Aff. ¶¶ 10-13 — but instead removed this case to this Court October 16, 2000 contending that plaintiff had fraudulently joined Chatterjee as a defendant.

In their Notice of Removal defendants stated that they had not become aware that this case was removable until September 18, 2000 when they received Plaintiff's Responses to Defendants' First Set of Interrogatories and First Request for Production of Documents. Corrected Notice of Removal ¶ 3. Defendants state that

"[a] review of those responses and documents reveal [sic] that, contrary to the averments in the Complaint and contrary to the representations to Justice NeMoyer and to me, EE was aware nearly two years before it filed its Complaint that Chatterjee was not a successor in interest to ACS and that EE never had any dealings with Chatterjee. In other words, EE's averments concerning Chatterjee were false, and Chatterjee had been fraudulently joined as a defendant in this action." Porter Aff. ~7 (emphasis in original).

Plaintiff's first basis for seeking to remand this case is that defendants' removal was untimely pursuant to 28 U.S.C. § 1446(b) because the notice of removal was filed more than thirty days after defendants had received the Complaint and the facts upon which defendants removed this case were evident from the face of the Complaint as reflected by defendants' counsel's letters to plaintiff and Justice NeMoyer. Defendants counter that they did not become aware that Chatterjee had been fraudulently joined thereby making this case removable until after they had received and reviewed plaintiff's interrogatory responses and that, because they removed this case within thirty days of receiving such, their notice of removal was timely.

A notice of removal must be filed within thirty days of defendants' receipt of the complaint or, if the case is not subject to removal based upon the face of the complaint, within thirty days of defendants' receipt of an "amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable ***." 28 U.S.C. § 1446(b).

"Whether a case is removable according to the initial pleading depends on whether the initial pleading enables the defendant to intelligently ascertain removability from the face of such pleading, so that in its petition for removal defendant can make a short and plain statement of the facts which entitle it to remove as required in 28 U.S.C. § 1446(a)." Richstone v. Chubb Colonial Life Insurance, 988 F. Supp. 401, 402-403 (S.D.N.Y. 1997).

The provision in 28 U.S.C. § 1446(b) regarding a case becoming removable refers to a case that is not removable based on the face of the complaint but later becomes removable through a later event of a jurisdictional nature. Bertrand v. Vingan, 899 F. Supp. 1198, 1199 (S.D.N.Y. 1995). Defendants seeking to remove a case from state court must strictly comply with the statutory requirements for removal. Ibid. Where there are doubts as to whether the statutory requirements have been met, they should be resolved against the removing defendants and the case should be remanded. Ibid. However,

"a plaintiff may not defeat a federal court's diversity jurisdiction and a defendant's right of removal by merely joining as defendants parties with no real connection with the controversy. In order to show that naming a non-diverse defendant is a `fraudulent joinder' effected to defeat diversity, the defendant must demonstrate, by clear and convincing evidence, either that there has been outright fraud committed in the plaintiff's pleadings, or that there is no possibility, based on the pleadings, that a plaintiff can state a cause of action against the non-diverse defendant in state court. The defendant seeking removal bears a heavy burden of proving fraudulent joinder, and all factual and legal issues must be resolved in favor of plaintiff." Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460-461 (2d Cir. 1998).

"Because this jurisdictional inquiry is preliminary to any decision on the merits, the federal court resolves any uncertainties in applicable state law in plaintiffs' favor and subjects the complaint to less scrutiny than on a motion to dismiss for failure to state a claim." Intershoe, Inc. v. Filanto S.P.A., 97 F. Supp.2d 471, 474 (S.D.N.Y. 2000).

"This court need not decide whether, as a matter of New York law, the Complaint does indeed state a claim ***. For the purposes of establishing this Court's lack of jurisdiction to make precisely those determinations, it suffices that the Complaint colorably asserts such a claim and that New York's liberal pleading rules leave open the possibility that the state court would deem the Complaint to state a claim ***." Id., at 476.

Plaintiff argues that because it has raised a colorable claim against Chatterjee in its Complaint — i.e., that Chatterjee is either the successor in interest to ACS and as such is liable for any defects in the LIMS that plaintiff purchased or that the Labvantage defendants are the successors in interest to ACS and, as the owner of the Labvantage defendants, Chatterjee is jointly and severally liable for any defects in the LIMS, Compl. ¶¶ 11-13, 24 — defendants cannot establish that Chatterjee was fraudulently joined to defeat jurisdiction. Defendants state that, based upon the face of the Complaint, they were unable to conclude that plaintiff had fraudulently joined Chatterjee to prevent this case from being removed. This Court agrees. Premised upon the standard set forth in Pampillonia for determining whether a non-diverse defendant has been fraudulently joined, it cannot be stated that based upon the allegations in the Complaint there is no possibility that plaintiff can state a cause of action against Chatterjee in state court. Pampillonia, at 461. Having determined that a review of the face of the Complaint does not establish that plaintiff fraudulently joined Chatterjee to prevent removal, this Court must determine whether plaintiff's interrogatory responses established that this case was subject to removal because Chatterjee had been fraudulently joined as a defendant and, if so, whether defendants' removal was timely.

Defendants argue that plaintiff's discovery responses establish that Chatterjee had been fraudulently joined as a defendant to prevent this case from being removed because AS Acquisition, not Chatterjee, is the successor in interest to ACS and plaintiff was aware of such at the time it filed the Complaint. However, defendants have not come close to satisfying their burden of proving by clear and convincing evidence that, after resolving any uncertainties in applicable state law in plaintiff's favor, there is no possibility based on the pleadings that plaintiff can state a cause of action against Chatterjee in state court. See Pampillonia, at 461; Intershoe, at 474. The information contained in plaintiff's discovery responses does not change the jurisdictional nature of the Complaint. Bertrand, at 1199. Furthermore and even if this Court were to accept defendants' assertions — i.e., that AS Acquisition and Chatterjee are separate corporations and that AS Acquisition is the only successor in interest to ACS — as true, based upon the facts alleged in the Complaint, plaintiff is still entitled to attempt to "pierce the corporate veil" between Chatterjee and the Labvantage defendants. Wm. Passalacqua Builders v. Resnick Developers South, Inc., 933 F.2d 131, 137-139 (2d Cir. 1991); Yoder v. Novo Mediagroup, Inc., No. 00 CIV. 5444(JSM), 2001 WL 62861, at *4-5 (S.D.N.Y. Jan. 24, 2001).

In addition, even if defendants had established by clear and convincing evidence that plaintiff had fraudulently joined Chatterjee, this case would still have to be remanded because their notice of removal was untimely. Defendants filed their notice of removal on the basis that Chatterjee was not the successor in interest to ACS and that plaintiff never had any dealings with Chatterjee. This Court fails to understand why defendants would even need any discovery from plaintiff to determine whether Chatterjee is or is not the successor in interest to ACS; plaintiff never alleged that it had any dealings with Chatterjee, only with the now defunct ACS. Defendant AS Acquisition alleges that it is the successor in interest to ACS and defendant Chatterjee alleges that it is not; therefore defendants should certainly have known whether Chatterjee is the successor in interest to ACS without the necessity of first obtaining discovery from plaintiff. Whether plaintiff was in possession of sufficient evidence to definitively establish such at the time it filed the Complaint is irrelevant; based upon a review of limited information it then possessed — as reflected in its discovery responses ___, plaintiff had enough evidence to form a good faith belief that Chatterjee was the successor in interest to ACS or the owner of the Labvantage defendants and accordingly was — and still is — entitled to explore this theory through discovery. See Quinn v. Post, 262 F. Supp. 598, 603 (S.D.N.Y. 1967). Defendants have failed to establish by clear and convincing evidence that there is no possibility that a state court could consider the Complaint to state a cause of action against Chatterjee. Accordingly, this Court lacks jurisdiction to hear this case and plaintiff's motion to remand will be granted. Inasmuch as this Court is granting plaintiff's motion to remand, it is without jurisdiction to consider defendants' motion for summary judgment.

Plaintiff has also moved to recover its costs and attorney fees incurred in seeking to remand this case pursuant to 28 U.S.C. § 1447(c) which states that an "order remanding the case may require the payment of just costs and actual expenses, including attorney fees, incurred as a result of the removal." Assessment of costs and fees against the removing defendants is within the discretion of the court and does not require a finding of bad faith or frivolity on the part of the removing defendants. Morgan Guar. Trust Co. v. Republic of Palau, 971 F.2d 917, (2d Cir. 1992); Thompson v. Williams, No. 98-CV-6177 (ILG), 1998 WL 938778, at *2 (E.D.N.Y. Nov. 20, 1998). This Court will grant plaintiff's request to recover the costs and reasonable attorney fees it incurred in moving to remand this case. Defendants have failed to establish a reasonable basis for removal and by removing this case they prevented it from going to trial February 21, 2001 as had been scheduled in the state court. Plaintiff is directed to submit, within ten days of the entry of this order, an affidavit itemizing the disbursements and attorney fees it incurred in moving to remand this case and defendants may file any objections to such amounts within ten days thereafter and the matter will thereupon be, without oral argument, deemed to have been submitted.

Accordingly, it is hereby ORDERED that plaintiff's motions to remand and to recover from defendants its costs and reasonable attorney fees incurred in connection with such motion are granted, that plaintiff shall submit an affidavit itemizing the amount of such fees and costs within ten days of the filing of this order, that defendants may file any objections to such amount ten days thereafter, that this Court shall retain jurisdiction over the parties solely for purposes of setting the amount of costs and attorney fees, that this Court is without jurisdiction to determine defendants' motion for summary judgment and that this case shall be remanded to New York State Supreme Court, Erie County.