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FIORENTINO v. HUNTINGSIDE ASSOCS.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


October 14, 1987

Joseph L. Fiorentino and Marie Fiorentino, his wife
v.
Huntingside Associates

The opinion of the court was delivered by: LUDWIG

MEMORANDUM/ORDER

 Ludwig, J.

 AND NOW, this 14th day of October, 1987, this action is remanded to the Court of Common Pleas of Philadelphia County, 28 U.S.C. § 1447(c).

 On May 27, 1987, plaintiffs filed a complaint in the Court of Common Pleas of Philadelphia County alleging that "Defendant Huntingside Associates, Inc. is a Corporate Entity with a principal place of business in Philadelphia, Pennsylvania." *fn1" The complaint identified plaintiffs as individuals "residing" in Philadelphia. The action is for personal injuries alleged to have been sustained by plaintiff husband on October 2, 1984 while an invitee on defendant's premises.

  On June 25, 1987, a petition for removal was filed averring that defendant is a limited partnership and that diversity exists because its members are citizens of states other than Pennsylvania. *fn2"

 In support of the motion to remand, plaintiffs cite my memorandum and order issued in a related action, Fiorentino v. Thyssen Holding Corp., 1987 U.S. Dist. LEXIS 2123, No. 86-5893, slip op. (E.D. Pa. March 18, 1987). *fn3" In part, that decision followed the reasoning set forth in Cram v. New England Telephone & Telegraph Co., 172 F. Supp. 395 (D. N.H. 1958), which held that separate actions filed in state court could be viewed as a single action in determining the propriety of removal of one of them. As defendant observes, this holding in Cram was overruled by Roby v. Maine Central Railroad, 243 F. Supp. 153, 156 (D. N.H. 1965). See also Crier v. Zimmer, 565 F. Supp. 1000 (E.D. La. 1983). Furthermore, although judicial economy suggests that actions involving the same cause of action be decided by one court, a motion to remand should not be granted for nonjurisdictional reasons. See Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S. Ct. 584, 46 L. Ed. 2d 542 (1976); Tucker v. Whitaker Travel, Ltd., 620 F. Supp. 578, 583 (E.D. Pa. 1985) (defendants who properly removed case cannot be deprived of a federal forum "simply because remand to state court may promote judicial efficiency"). So viewed, my prior Fiorentino decision appears to have had an erroneous basis.

 Nevertheless, remand here is required. In this circuit, when removal occurs upon the filing of plaintiff's complaint, the jurisdictional focus is limited to that pleading and no other matters may be considered. Steel Valley Authority v. Union Switch & Signal Division, 809 F.2d 1006, 1010 (3d Cir. 1987); Abels v. State Farm Fire & Casualty Co., 770 F.2d 26, 29 (3d Cir. 1985). The factual allegations of the complaint must be accepted as true. Id. In the present action, the complaint lacks grounds for removal. Plaintiffs are alleged to be residents of Pennsylvania without reference to citizenship, and defendant is described as a "corporate entity" with a principal place of business in Philadelphia without mention of the state of incorporation. *fn4" Diversity of citizenship is not shown by these averments. Defendant chose to remove the action by filing a petition that improperly attempts by its own averments to establish diversity jurisdiction. *fn5"

  Two other removal defects lead to the necessity of remand. First, even if the removal petition could be considered, it is not self-sustaining. It fails to state, affirmatively, the defendant's multiple citizenship. The citizenships of defendant's alleged partners are facts that the limited partnership is presumed to know. Cf. 1A Moore, Moore's Federal Practice para. 0.168[3-4] at 568. To aver that the partners are "citizens . . . of states other than Pennsylvania" is not sufficient. See Simmons v. Rosenberg, 572 F. Supp. 823, 825 (E.D. N.Y. 1983) (averment in plaintiff's complaint that she was "a citizen of a state other than New York" does not establish diversity jurisdiction); Braucher v. Buhler Brothers Engineering Works, 505 F. Supp. 1124, 1124 (E.D. Pa. 1980) (diversity of citizenship allegation must clearly aver citizenship). *fn6"

 Second, a defendant utilizing diversity for removal must show that diversity existed not only upon removal but also at the time of commencement of the action in state court. E.g., Kerstetter v. Ohio Casualty Insurance Co., 496 F. Supp. 1305, 1307 (E.D. Pa. 1980). Here, defendant's removal petition states that the limited partnership was a citizen of a state other than Pennsylvania on both relevant dates, but avers that "all of the partners . . . are citizens and residents of states other than the Commonwealth of Pennsylvania." There is no averment as to the citizenship of the partners at the time the complaint was filed.

 Since "it appears that the case was removed improvidently and without jurisdiction," 28 U.S.C. § 1447(c), remand is mandated.


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