Although this Circuit has not squarely addressed the issue of whether a deposition may constitute an "other paper" for purposes of Section 1446(b), the majority of courts that have considered this issue have answered the question in the affirmative, holding that a plaintiff's answers to deposition questions can constitute an "other paper" for purposes of the removal statute. See Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072 (10th Cir. 1999); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996); Effinger v. Philip Morris, Inc., 984 F. Supp. 1043 (W.D. Ky. 1997); Haber v. Chrysler Corp., 958 F. Supp. 321, 326 (E.D. Mich. 1997); Riggs v. Cont'l Baking Co., 678 F. Supp. 236 (N.D. Cal. 1988); Zawacki v. Penpac, Inc., 745 F. Supp. 1044, 1047 (M.D. Pa. 1990); Fisher v. United Airlines, Inc., 218 F. Supp. 223 (S.D.N.Y. 1963); Fuqua v. Gulf, Colorado & Santa Fe Ry. Co., 206 F. Supp. 814 (E.D. Okla. 1962); Gilardi v. Atchison, Topeka & Santa Fe Ry. Co., 189 F. Supp. 82 (N.D. Ill. 1960).This court agrees with, and now joins, the majority of courts and finds that a plaintiff's responses to deposition questioning may constitute an "other paper"

Such allegations of residence are insufficient to show diversity of citizenship. Realty Holding Co. v. Donaldson, 268 U.S. 398, 45 S.Ct. 521, 69 L.Ed. 1014 (1925); Fisher v. United Airlines, 218 F. Supp. 223 (S.D.N.Y. 1963); Cowell v. Ducas, 2 F. Supp. 1 (S.D.N.Y. 1932). Title 28 U.S.C. § 1332(a)(1) provides that this court "shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interests and costs, and is between — (1) citizens of different States * * *."

Although this Circuit has not squarely addressed the issue of whether a deposition may constitute an "other paper" for purposes of Section 1446(b), the majority of courts that have considered this issue have answered the question in the affirmative, holding that a plaintiff's answers to deposition questions can constitute an "other paper" for purposes of the removal statute. See Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072 (10th Cir. 1999); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996); Effinger v. Philip Morris, Inc., 984 F.Supp. 1043 (W.D.Ky. 1997); Haber v. Chrysler Corp., 958 F.Supp. 321, 326 (E.D.Mich. 1997); Riggs v. Cont'l Baking Co., 678 F.Supp. 236 (N.D.Cal. 1988); Zawacki v. Penpac, Inc., 745 F.Supp. 1044, 1047 (M.D.Pa. 1990); Fisher v. United Airlines, Inc., 218 F.Supp. 223 (S.D.N.Y. 1963); Fuqua v. Gulf, Colorado Santa Fe Ry. Co., 206 F.Supp. 814 (E.D.Okla. 1962); Gilardi v. Atchison, Topeka Santa Fe Ry. Co., 189 F.Supp. 82 (N.D.Ill. 1960).But see, Mill Bern Assocs., Inc. v. Dallas Semiconductor Corp., 69 F.Supp.2d 240 (D.Mass. 1999) (rejecting majority view and holding that a deposition is not an "other paper" under § 1446(b)); Harrell v. Reynolds Metals Co., 599 F.Supp. 966 (N.D.Ala. 1985) (to like effect).

Other courts facing this issue have concluded that a district court does enjoy such power, provided that the physical transfer of the record to the transferee forum has not yet occurred. See, e.g., Fisher v. United Airlines, Inc., 218 F. Supp. 223, 224 (S.D.N.Y. 1963) (court had power to vacate, when only two days had elapsed after entry of transfer order and papers had not been transmitted to transferee court). The underlying rationale of these cases is that the actual transfer of the record, not just the entry of the order, deprives the transferor court of jurisdiction to review its decision.

We note that the Southern District of New York has adopted a rule (General Rule 7) that provides for delay of physical transfer. See generally Farrell v. Wyatt, 408 F.2d 662 (2d Cir. 1969); Fisher v. United Airlines, Inc., 218 F.Supp. 223 (S.D.N.Y. 1963). The New York rule provides for a stay of 5 days between entry of the transfer order and actual transfer.

A proper order transferring an action to another court divests the transferor court of jurisdiction once the actual transfer takes place. See In re Warrick, 70 F.3d 736, 739 (2d Cir. 1995); In re Nw. Airlines Corp., No. 07 Civ. 2677 (RWS), 2008 WL 4755377, at *3- *4 (S.D.N.Y. Oct. 28, 2008); see also Fisher v. United Airlines, Inc., 218 F. Supp. 223, 224 (S.D.N.Y. 1963) (remand to state court). Thus, "[g]enerally, a decision transferring a case can only be reconsidered . . . if the petitioner acts 'prior to receipt of the action's papers by the clerk of the transferee court to file . . . a motion in the transferor court to stay the order."

In Cott Corp., this Court first analogized the motion to change venue with a motion to remand and the remand motion was recently held by the Second Circuit to be dispositive, despite the fact that neither motion was listed in 28 U.S.C. § 636(b) as being dispositive, Cott Corp., supra, 2011 U.S. Dist. LEXIS 156223, at *12-13 (citing Williams v. Beemiller, Inc., 527 F.3d 259 (2d Cir. 2008)). There, this Court stated that "a motion to transfer venue divests the transferring Court of jurisdiction over the matter, Huff v. CSX Transp., Inc., 461 F. Supp. 2d 853 (S.D. Ill. 2006); Tharp v. Transworld Drilling Co., 367 F. Supp. 521 (W.D. Okla. 1973); see also Fisher v. United Airlines, Inc., 218 F. Supp. 223 (S.D.N.Y. 1963)," Cott Corp., supra, 2011 U.S. Dist. LEXIS 156223, at *12-13. There, it was concluded that "if granted, so far as this Court is concerned the action would no longer exist and that decision is essentially dispositive as to this Court," thus a Report and Recommendation was issued, id.

A transfer order alone is generally insufficient to divest the transferor court of jurisdiction; not until the case file has been physically transferred to the transferee district does the transferor court lose jurisdiction.See Fisher v. United Airlines, Inc., 218 F. Supp. 223, 224 (S.D.N.Y. 1963) ("This Court does not lose jurisdiction until the actual transfer of the papers takes place."); accord Wilson-Cook Med., Inc. v. Wilson, 942 F.2d 247, 250 (4th Cir. 1991) ("The general rule . . . is that jurisdiction is not conveyed from the transferor court to the transferee court until the record is physically transferred to the transferee court."); 15 C. Wright et al., Federal Practice and Procedure § 3846 (3d ed. 2008) ("When a motion for transfer . . . has been granted, and the papers lodged with the clerk of the transferee court, it is well settled that the transferor court . . . loses all jurisdiction over the case and may not proceed further with regard to it."). Some courts have articulated the rule more precisely.

Various courts have held that information gained from discovery may constitute such an "other paper" and provide a defendant with notice that a case is removable. See, e.g., Peters v. Lincoln Elec. Co., 285 F.3d 456, 465-66 (6th Cir. 2002); Huffman v. Saul Holdings Ltd., 194 F.3d 1072, 1077-78 (10th Cir. 1999); Link Telecomms., Inc.v. Sapperstein, 119 F. Supp. 2d 536, 543 (D. Md. 2000); Fisher v. United Airlines, Inc., 218 F. Supp. 223, 225 (S.D.N.Y. 1963); Gilardi v. Atchison, Topeka, Santa Fe Ry. Co., 189 F. Supp. 82, 84 (N.D. Ill. 1960).

Other district courts and two circuit courts of appeal have refused to impose such a duty when assessing the timeliness of removal. In Fisher v. United Airlines, 218 F. Supp. 223 (S.D.N.Y. 1963), defendant, a Delaware corporation, removed a two-year old case within 20 days of discovering that plaintiff was a citizen of New Jersey. The court rejected plaintiff's argument that defendants were under a duty to investigate the facts more promptly and noted that "[t]here is no requirement in [§ 1446(b)] that a defendant exercise any such diligence." Id. at 225.