Opinion
02-CV-0404E(F) and 02-CV-0531E(F)
October 4, 2002
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiffs filed an action May 31, 2002 asserting, inter alia, claims for defendant's alleged infringement of plaintiffs' trade dress with respect to plaintiffs' "Happy Camper" children's lunch sack (Case No. 02-CV-0404E(F)). Plaintiffs filed a nearly identical suit in the New York State Supreme Court, County of Erie, July 8, 2002. Defendant Tupperware removed the state court action to federal court July 25, 2002 (Case No. 02-CV-0531E(F)). Plaintiffs filed an Affidavit August 5, 2002 opposing removal ("Opposing Affidavit No. 1"). On September 5, 2002 defendant moved to consolidate the two actions pursuant to Rule 42(a) of the Federal Rules of Civil Procedure ("FRCvP"). On September 26, 2002 plaintiffs filed Opposing Affidavit No. 2 and a Cross-Notice Of Motion opposing consolidation and seeking an order vacating "the removal order" purportedly granted by this Court July 24, 2002. Defendant's motion to consolidate will be granted and plaintiffs' motion will be denied.
Plaintiffs' motion is fraught with procedural defects. First, this Court issued no "removal order." Rather, pursuant to 28 U.S.C. § 1446 defendant removed plaintiffs' state court action to this Court July 25, 2002 — albeit dated July 24, 2002. Accordingly, it is impossible for this Court to grant plaintiffs' requested relief — to wit, vacating and setting aside a non-existent "removal order." Moreover, this Court declines to treat plaintiffs' Opposing Affidavit No. 1 as a motion to remand. Indeed, this Court informed plaintiffs' counsel during the FRCvP 16(b) conference on August 21, 2002 that they would have to file a motion to remand to bring the issue of improper removal before the Court. Plaintiffs failed to do so. Nonetheless, even if this Court were to treat Opposing Affidavit No. 1 as a motion to remand, such motion would be futile because it merely opposed removal on the ground that the complaint filed in state court "alleged purely state court causes of action." Such, however, only pertains to federal question jurisdiction — as opposed to the basis upon which defendant removed the state court action — to wit, diversity jurisdiction.
Despite defendant's argument to the contrary, plaintiffs' motion is not necessarily untimely. To the extent that plaintiffs contend that this court lacks subject matter jurisdiction, their motion seeking remand need not be made within thirty days of removal. Indeed, 28 U.S.C. § 1447(c) provides in relevant part that "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a) ***." (emphasis added.)
It appears that plaintiffs' counsel may misunderstand the removal process. See e.g., Pls.' Mem. Of Law, at 2 ("the Federal Court should have left the case where it was"). Defendant — not this Court — removed the state court action to federal court and no federal court order or action was involved. See 28 U.S.C. § 1446-1447. Only after a case has been removed does a federal district court become involved in the case. Ibid. The removal process is not recondite.
Furthermore, even if plaintiffs' other submissions were to be treated as a motion to remand, such would nonetheless be futile. The gist of plaintiffs' argument — as divined from both Opposing Affidavit No. 1 and the materials filed September 26, 2002 — is that diversity jurisdiction does not exist because defendant does business in the State of New York. Such argument, however, fails to carry the day.
Diversity jurisdiction does exist here. See 28 U.S.C. § 1332. First, inasmuch as plaintiffs claim more than $100 million in damages, the jurisdictional monetary threshold is satisfied. Second, defendant is not a citizen of New York inasmuch as it is incorporated in Delaware and has its principal place of business in Florida.
Plaintiffs do not refute this. Accordingly, defendant is not a "citizen" of New York State for purposes of diversity jurisdiction or for removal. Section 1332(c)(1) provides in relevant part:
"(c) For the purposes of this section and section 1441 [defining actions that may be removed] of this Title —
(1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business ***." (Emphasis added.)
The use of "place" in the singular in section 1332(c)(1) indicates Congressional intent that a corporation is deemed to have one place of business.
Consequently, plaintiffs' submissions — which, as noted, do not constitute a motion to remand — merely advance the frivolous argument that diversity jurisdiction is lacking because defendant does business in New York State. Accordingly, plaintiffs' motion to vacate and set aside this Court's purported "removal order" will be denied.
In support of their argument, plaintiffs cite no controlling case law. Moreover, plaintiffs attempt to argue that defendant does a good deal of business in New York State — and that New York State therefore constitutes its "nerve center" or the place where it conducts the "bulk of business activities." Such analysis, however, is only applicable in determining a corporation's principal place of business. Defendant asserts that Florida is its principal place of business. Plaintiffs, however, do not adequately challenge this by stating merely that "if TUPPERWARE has a principal place of business in New York or the `bulk of its activities' are in New York, then there is no diversity ***." Pls.' Mem. Of Law, at 2 (emphasis added).
Finally, inasmuch as Cases Nos. 02-CV-0404E(F) and 02-CV-531E(F) are functionally identical, such will be consolidated pursuant to FRCvP 42(a). Accordingly, it is hereby ORDERED that plaintiffs' motion to vacate and set aside this Court's "removal order" is denied, that defendant's motion to consolidate is granted, that Cases Nos. 02-CV-0404E(F) and 02-CV-0531E(F) shall be consolidated into a single action under Case No. 02-CV-0404E(F), that all documentation from Case No. 02-CV-0531E(F) shall be physically transferred to and become part of Case No. 02-CV-0404E(F) and that Case No. 02-CV-0531E(F) shall be closed.