Opinion
CIVIL ACTION NO. 03-CV-1605
December 4, 2003
MEMORANDUM AND ORDER
Plaintiffs Texas Capital Corp., et al. ("Plaintiffs") commenced this action against Defendants Fleet Capital Corp., et al. ("Defendants") on October 28, 2002, by filing a Praecipe to Issue a Writ of Summons in the Court of Common Pleas of Philadelphia County. On March 14, 2003, Defendants filed a Notice of Removal pursuant to 28 U.S.C. § 1441 based on diversity jurisdiction. Now before the Court is Plaintiffs' Motion to Remand Pursuant to 28 U.S.C. § 1447. For the reasons stated herein, Plaintiffs' Motion will be denied.
I. Background
Plaintiffs concede that the parties are diverse and that the amount in controversy exceeds $75,000. See Plaintiffs' Motion to Remand at ¶ 9. The dispute is limited to the timeliness of Defendants' Notice of Removal. Plaintiffs and Defendants disagree about the date on which Defendants first could have ascertained the existence of diversity jurisdiction. The initial filing by Plaintiffs on October 28, 2002 contained the parties' names and addresses and a request that the Court of Common Pleas issue a Writ of Summons against Defendants. The Writ of Summons was served on Defendant Fleet Capital Corp. on November 8, 2002, and on Defendant Summit Bank, N.A. on November 14, 2002. The Writ also listed the parties' names and addresses. On December 20, 2002, Plaintiffs' counsel sent a letter to Defendants' counsel describing the nature of Plaintiffs' claims and listing an amount in controversy greater than $75,000.
According to the Praecipe, the Plaintiffs all have addresses in Texas, and the Defendants all have addresses in Pennsylvania.
Plaintiffs' Motion for Remand states that the Writs were served on Fleet on November 19 and on Summit on November 27. Motion for Remand at ¶ 3. These dates appear to refer to the Prothonotary's date stamps on the Returns of Service. See Motion for Remand Exhibits B and D.
The caption in this case lists a third defendant, Fremont Financial Corporation, which Plaintiffs allege was purchased by Summit in approximately September of 1999. Verified Complaint at ¶ 36. Fremont never was individually served with the Writ of Summons because it was not listed as a separate Defendant. The Writ lists the defendants as Fleet Capital Corporation, individually and as successor in interest to Summit Bank; and Summit Bank, individually and as successor in interest to Fremont Financial Corporation.
On February 3, 2003, the parties met in the Philadelphia Court of Common Pleas for a case management conference. At this meeting, the parties exchanged completed Case Management Conference Memoranda. Plaintiffs stated in their Memorandum that the amount of direct damages claimed was approximately $4,000,000 and that the amount of consequential damages claimed was approximately $3,000,000.
On February 12, 2003, Plaintiffs filed a Verified Complaint alleging for the first time that Plaintiff Texas Capital Corporation is a Texas corporation with its principal place of business in Austin, Texas, and that Plaintiffs G. William Morgan and Robin Morgan are both residents of Texas. Plaintiffs also pleaded damages of more than $75,000. Defendants allege that they were served with the Verified Complaint by first class mail on February 14, 2003. Defendants filed a Notice of Removal on March 14, 2003, twenty-eight days after they received the Verified Complaint. The Notice of Removal cited diversity of citizenship as the grounds for federal jurisdiction. On April 3, 2003, Plaintiffs filed a Motion to Remand.
Plaintiffs argue that Defendants' Notice of Removal was untimely because Defendants could have ascertained that diversity jurisdiction existed prior to the receipt of the Verified Complaint. According to Plaintiffs, the addresses listed in the Writ of Summons were adequate to inform the Defendants that the parties were diverse, while the December 20 correspondence and the February 3 Memorandum each provided notice that the amount in controversy exceeded $75,000. Accordingly, Plaintiffs argue, diversity jurisdiction was ascertainable either on December 20 or February 3, more than thirty days before the Notice of Removal was filed on March 14. Defendants respond that their Notice of Removal was timely because they could not have ascertained that the case was removable prior to their receipt of the Verified Complaint.
The parties disagree whether either the December 20 correspondence or Plaintiffs' Case Management Conference Memorandum qualified as "other paper" under the second paragraph of § 1446(b). This section sets forth the time limits within which a notice of removal must be filed:
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.28 U.S.C. § 1446(b) (emphasis supplied).
Because Defendants could not have ascertained the parties' diverse citizenship prior to service of the Verified Complaint, the Court need not consider either the date on which the amount in controversy was pleaded or the meaning of "other paper" under the statute.
II. Legal Standard
Under § 1441(a), "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." Section 1446(b) requires that a notice of removal be filed within thirty days after federal jurisdiction first can be ascertained. 28 U.S.C. § 1446(b). The Third Circuit requires more specifically that defendants "file their Notices of Removal within thirty days after receiving a writ of summons, praecipe, or complaint which in themselves provide adequate notice of federal jurisdiction." Foster v. Mutual Fire. Marine Inland Insurance Co., 986 F.2d 48, 54 (3d Cir. 1993) (emphasis added) (footnotes omitted). The test is what the documents actually reveal about the existence of diversity jurisdiction. Id. The defendant bears the burden of showing that removal is appropriate. See Abels v. State Farm Fire Casualty Co., 770 F.2d 26, 29 (3d Cir. 1985); Schnable v. Drexel University. 1995 WL 412415, at *3 (E.D. Pa.). Removal statutes must be strictly construed against removal, and any doubts must be resolved in favor of remand. Abels. 770 F.2d at 29.
III. Analysis
When determining whether diversity exists, citizenship is the relevant inquiry. See Sprague v. American Bar Ass'n. 166 F. Supp.2d 206, 209 (E.D. Pa. 2001). Citizenship of individuals for diversity purposes is determined by domicile. "A person may reside in one place, but be domiciled elsewhere," because domicile requires a finding of both residency and an intent to remain indefinitely. Id; Krasnov v. Dinan. 465 F.2d 1298, 1300 (3d Cir. 1972). A corporate entity is a citizen both of the state where it is incorporated and of the state where its principal place of business is located. Sprague. 166 F. Supp.2d at 209 (quoting 28 U.S.C. § 1332). Accordingly, a list of addresses is not in itself sufficient notice under § 1446(b) to trigger the thirty-day removal period, because a party's address does not provide conclusive evidence of its citizenship. See Id; Textile Chemical Co. v. Aetna Casualty and Surety Co., 1997 WL 537408, at *1 (E.D. Pa.); ICIPA S.R.L. v. Leariet. Inc., 1997 WL 400024, at *2 (E.D. Pa.); Robinson v. Nutter. 1995 WL 61158, at *2 (E.D. Pa.).
But see Powers v. FMC Corp., 155 F. Supp.2d 307, 309 (E.D. Pa. 2001); Mangano v. Halina. 1997 WL 697952, at *3 (E.D. Pa.). In these cases, however, the date on which the parties' diversity was ascertainable was not disputed.
An address may indicate merely the location where an individual or corporation receives its mail, rather than the place where a person lives or where a corporation is incorporated or has its principal place of business. While listing an address is not sufficient in itself to put the defendant on notice of the parties' citizenship, the Third Circuit has held that listing residence creates a rebuttable presumption of domicile. See Krasnov. 465 F.2d at 1300; see also Wright Miller § 3612. Accordingly, while the thirty-day period in § 1446(b) does not begin to run upon service of a document alleging only that the plaintiff and defendant have addresses in different states, it does begin to run when a pleading alleges that the plaintiff and defendant areresidents of different states, unless, of course, the presumption of domicile is rebutted. Broderick v.Dellasandro, 859 F. Supp. 176, 177 n. 1 (E.D. Pa. 1994).
The Court notes that the Praecipe to Issue a Writ of Summons lists a Philadelphia address for Defendant Fleet Capital Corporation, even though Defendants assert that Fleet is a citizen of Rhode Island and Connecticut. Defendants' Resp. ¶ 12.
In the instant case, the Verified Complaint served on February 14, 2003 pleaded the citizenship of Texas Capital Corporation for the first time by stating that it was a Texas corporation with its principal place of business in Texas. The Verified Complaint also created a rebuttable presumption that the Morgans are Texas citizens because it stated for the first time that Texas is their state of residence. Krasnov, 465 F.2d at 1300. Neither party has attempted to rebut this presumption; in fact, Plaintiffs acknowledge in their Motion for Remand that diversity of citizenship exists. Accordingly, service of the Verified Complaint on February 14, 2003 commenced the running of the thirty-day period, and the Notice of Removal was timely filed. Broderick, 859 F. Supp. at 177 n. 1.
IV. Conclusion
For the foregoing reasons, this Court will deny Plaintiffs' Motion to Remand. An appropriate Order follows.