Opinion
Civil Action No. 04-1941.
June 28, 2004
MEMORANDUM ORDER
Presently before the Court is Defendant's Motion for Remand (Dkt. No. 3). For the reasons that follow, Defendant's motion is DENIED.
Plaintiffs filed the instant action in the Court of Common Pleas for Philadelphia County ("CCP") on March 19, 2004. (Pl. Br. Ex. B). On May 4, 2004, Defendant filed a Notice of Removal (the "Notice") to this Court. (Dkt. No. 1). Plaintiffs filed a Motion to Remand alleging that Defendant's Notice fails to adequately plead diversity of citizenship, therefore this Court lacks jurisdiction over the case. (Dkt. No. 3).
Plaintiffs allege that Defendant's Notice inadequately pleads diversity because it alleges that: (1) Defendant maintains a principal place of business in the State of Illinois, and (2) Defendant is informed and believes that at the time plaintiffs' Complaint was filed, and at the time this notice is being filed, the plaintiffs were and are citizens of the Commonwealth of Pennsylvania. (Pl. Br. at 2-3). Specifically, Plaintiffs argue that Third Circuit law requires the Notice to plead: (1) "Defendant maintains its principal place of business in the State of Illinois," and (2) Plaintiff is a citizen of the Commonwealth of Pennsylvania. (Id.)
Defendant concedes that the Notice contained an inadequate allegation with respect to Defendant's principal place of business. (Def. Br. at 1-2). Indeed, Defendant admits that under Third Circuit law, a notice of removal is inadequate if is alleges a principal place of business, rather than its principal place of business. Defendant, however, argues that such a deficiency can be cured by the subsequent of supporting materials which properly aver a corporate party's citizenship, which it has indeed done in this case. (Def. Br. Ex. A). With respect to Plaintiff's second argument, Defendant asserts that it used the word are instead of is because there are two Plaintiffs in this action, therefore the former term is grammatically correct. (Def. Br. at 3). Defendant further argues that use of the phrase informed and believes is not "speculative" or "uncertain" because "most, if not all, allegations are based upon the information available to and beliefs of the party making the allegation." (Id.)
Plaintiff is correct that the Third Circuit requires a notice of removal to plead the location of corporation's principal place of business in a particular state, rather than that it has a principal place of business in a particular state. See Hunt v. Acromed, 961 F.2d 1079 (3d Cir. 1992); Meltzer v. Continental Ins. Co., 163 F. Supp.2d 523, 526 (E.D. Pa. 2001). The inadequacy of Defendant's Notice of Removal with respect to Defendant's principal place of business was cured by the affidavit of Tom Kaczmarek, which alleges that the principal place of business of Shred Pax is located in Illinois. See JR Ice Cream Corp. v. California Smoothie Licensing Corp., 31 F.3d 1259, 1265 n. 3 (3d Cir. 1994) (holding technical deficiency cured by submission of letters and other materials indicating location of principal place of business).
The Court also agrees the Defendant has properly plead Plaintiffs' citizenship. Specifically, we find that it is grammatically correct to use the word are, rather than is, when referring to multiple plaintiffs. Therefore, Plaintiffs' challenge to the use of such word is meritless as it has not convinced this Court that Tanzymore v. Bethlehem Steel Corp., 457 F.2d 1320 (3d Cir. 1972) mandates using the word is. As to Defendant's use of the phrase informed and believes, we do not agree that it renders the allegations regarding Plaintiffs' citizenship "speculative" or "uncertain." It is well understood that allegations contained in a complaint and similar pleading documents are based on the filer(s)' information and belief. Additionally, Complaint in the instant action contains the following allegation: "Plaintiffs Samuel Gonzalez and Elizabeth Torres are individuals who at all material times have lived together as husband and wife and reside at 447 West Diamond Street, Philadelphia, PA 19122." (Pl. Br. Ex. B ¶ 1). This further supports Defendant's allegation that Plaintiffs are citizens of Pennsylvania.
Defendant's removal of this action was proper. Defendant has cured the deficiency in its Notice as to Defendant's principal place of business, which it has demonstrated is in the State of Illinois, and it has properly alleged Plaintiffs' citizenship — the State of Pennsylvania. The parties are indeed of diverse citizenship; therefore, Plaintiffs' Motion to Remand is denied.
AND NOW, this 28th day of June, 2004, upon consideration of Plaintiffs' Motion for Remand (Dkt. No. 3), and the responses thereto, Plaintiffs' motion is DENIED. Defendant is directed to file a responsive pleading within twenty day of the date of this Order.