Opinion
01-CV-0382E(Sr)
June 3, 2002
MEMORANDUM and ORDER
On November 28, 2000 plaintiffs Pasquale J. and Mary K. Carollo commenced an action in New York State Supreme Court, Erie County ("Supreme Court"), against Benderson Development Company, Inc., Benderson Property Development, Inc. and East Coast Tool and Manufacturing, Inc., asserting causes of action for negligence, N.Y. Labor Law violations and loss of consortium (the "Benderson case") resulting from injuries sustained by Pasquale during an explosion which occurred while he was installing an electrical circuit breaker panel on such defendants' property April 27, 1998. During discovery in the Benderson case, plaintiffs learned that a Siemens company had manufactured and sold the circuit breaker involved in the explosion and, on April 19, 2001, commenced a separate action in Supreme Court against eight Siemens companies raising products liability and loss of consortium claims. One of these companies, Siemens Energy Automation, Inc., stipulated that it had manufactured and sold the circuit breaker involved in the explosion. Siemens Energy Automation, Inc. is a Delaware corporation with its principal place of business in Georgia and plaintiffs are citizens of New York. Plaintiffs voluntarily discontinued their action against the seven other Siemens companies some of which were not diverse — May 21, 2001 and, on May 29, 2001, Siemens Energy Automation, Inc. removed this case to this Court on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1446(a). This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). Siemens Energy Automation, Inc. filed its Answer May 31, 2001. The undersigned conducted a conference pursuant to Rule 16(b) of the Federal Rules of Civil Procedure July 12, 2001 but did not enter a scheduling order at such time due to plaintiffs' representation that they intended to file a motion to remand within three weeks. Plaintiffs belatedly moved to remand this case November 7, 2001 on the basis that they would like to consolidate it with the Benderson case which is presently pending in Supreme Court. Defendant opposes the motion to remand. Plaintiff's motion to remand was argued December 7, 2001 and has thereafter been before this Court for disposition.
This Court is unable to ascertain any legal basis upon which to grant plaintiffs' motion to remand and plaintiffs have not attempted to identify any legal basis therefor. Plaintiffs do not dispute that this Court has subject matter jurisdiction over this case which involves diverse parties and a demand for judgment in excess of $75,000. Further, plaintiffs do not allege that the notice of removal was improper or defective and, such a claim would be barred in any event by 28 U.S.C. § 1447(c), which requires motions for remand based on improper or defective removal to be made within 30 days of the notice of removal.
Defendant argues that plaintiffs' motion to remand should be considered as a motion for joinder of non-diverse defendants, and should therefore be assessed according to 28 U.S.C. § 1447(e). However, plaintiffs have not requested that the non-diverse defendants in the Benderson case be joined in this case thereby destroying diversity jurisdiction and necessitating remand. Inasmuch as plaintiffs have failed to identify any legal basis for remand, their motion will be denied.
Accordingly, it is hereby ORDERED that plaintiffs' motion to remand is denied.