Cupertino v. J.C. Penny Company Inc.

Full title: CARMELA CUPERTINO and ARMAND CUPERTINO, Plaintiffs -against- J.C. PENNY…

Court: United States District Court, S.D. New York

Date published: Sep 6, 2002

01 Civ. 11790 (TPG) (S.D.N.Y. Sep. 6, 2002)

Opinion

01 Civ. 11790 (TPG)

September 6, 2002

OPINION

THOMAS P. GRIESA, United States District Judge.

Plaintiffs move for remand of this personal injury action to Bronx County Supreme Court pursuant to 28 U.S.C. § 1447(c). Plaintiffs contend that the court lacks jurisdiction because there is not the requisite diversity of citizenship. The motion is denied.

Facts

This is a personal injury action. Plaintiff Carmela Cupertino claims that she was injured when shopping at defendant's store in the Bronx. Her husband, Armand Cupertino, claims loss of consortium.

Defendant is incorporated in Delaware and has its headquarters in Texas. Defendant has stores in all 50 states of the United States. The greatest number of its stores (88) are in California. It is licensed to do business in New York and has 49 stores in this state.

Discussion

The issue raised by plaintiffs on this motion is whether defendant should be deemed to be a citizen of New York. of course, if this is the case, there is no diversity of citizenship jurisdiction. 28 U.S.C. § 1332(c)(1) provides that

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. . . .

Plaintiffs argue that defendant's principal place of business is in New York. There has been a discussion in the briefs of two tests for determining where a corporation's principal place of business is: the "nerve center" test and the "place of operations" test. See Krauth v. Executive Telecard, Ltd., 887 F. Supp. 641, 646-47 (S.D.N.Y. 1995).

The nerve center test focuses on the location where the corporation is managed from. The place of operations test focuses on where the operations are centered.

New York is not the principal place of business for defendant under either test. It is not the headquarters of defendant nor is it the location where the magnitude of defendant's operations is greater than in other locations. It would appear that defendant's principal place of business is in Texas where its headquarters is located.

There is, therefore, diversity of citizenship jurisdiction in this case. Removal to the federal court was proper. The motion to remand is denied.

SO ORDERED.