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MELTZER v. CONTINENTAL INSURANCE CO.

September 10, 2001

RICHARD MELTZER
v.
CONTINENTAL INSURANCE CO.



The opinion of the court was delivered by: Anita B. Brody, J.

MEMORANDUM AND ORDER

Before me is plaintiff's motion to remand this action to the Court of Common Pleas of Philadelphia County. For the reasons stated below, I will grant the motion.

BACKGROUND

Plaintiff Richard Meltzer is a resident of Pennsylvania. He was covered under an automobile insurance policy issued by defendant Continental Insurance Company. On or about February 28, 1997, Meltzer filed a claim under the policy for injuries he allegedly sustained in connection with the use of a motor vehicle on February 21, 1997. On February 14, 2001, Meltzer filed a complaint in the Court of Common Pleas of Philadelphia County. The complaint alleged that Continental refused to honor the policy and failed to provide him with wage loss and medical benefits payments arising out of this incident. It also alleged that Meltzer is an individual "residing at 120 Drakes Drum Drive, Bryn Mawr, Pennsylvania." (Cmplt. ¶ 1).

Continental received the Complaint on February 27, 2001 and timely filed a Notice of Removal on March 29, 2001. See 28 U.S.C. § 1446(a). In its Petition for Removal, Continental asserted that "there exists diversity of citizenship between the parties," and that "[p]laintiff seeks recovery under a contract of insurance which provides, on its face, policy limits in excess of $75,000 for medical benefits and work loss." (Notice of Removal ¶ 5). In alleging diversity, Continental stated that "Plaintiff resides in Bryn Mawr, Pa." (Notice of Removal ¶ 1). Continental also averred that:

Defendant, Continental, is incorporated under the laws of New Hampshire and has a principal place of business in Chicago, Illinois.

(Notice of Removal ¶ 4) (emphasis added).

Following removal, Meltzer timely moved for a remand to the Court of Common Pleas, Philadelphia County. In the Motion for Remand, Meltzer claims that the Notice of Removal contains legally insufficient allegations of diverse citizenship. (Petition to Remand ¶ 7). Continental responds:

It is admitted that Defendant is incorporated under the laws of New Hampshire and has its principal place of business in Chicago, Illinois. Defendant denies plaintiff's implication that it has a principal place of business in more than one state.

(Response to Plaintiff's Motion to Remand ¶ 6) (emphasis added). Continental attached several exhibits to its legal memorandum in support of this response, but neither asked for permission to amend its Notice of Removal, nor submitted any letters or supporting material regarding its principal place of business.

DISCUSSION

A federal district court has "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs, and is between citizens of different States." 28 U.S.C. § 1332(a)(1). Where a corporation is one of the parties to the civil action, it "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." Id. § 1332(c)(1) (emphasis added). Under 28 U.S.C. § 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 defendants, to the district court of the United States for the district and division embracing the place where such action is pending. . . ."

Continental's Notice of Removal stated that it was "incorporated under the laws of New Hampshire and has a principal place of business in Chicago, Illinois." Meltzer pointed out this flaw in Continental's pleading in both his Petition to Remand and his Reply to Defendant's Response to Petition to Remand. The extent of Continental's response was its statement that "[i]t is admitted that Defendant is incorporated under the laws of New Hampshire and has its principal place of business in Chicago, Illinois. Defendant denies Plaintiff's implication that it has a principal place of business in more than one state." (Response to Plaintiff's Motion to Remand ¶ 6). In addition, both the Complaint and the Notice of Removal contain allegations of Meltzer's residence, but fail to explicitly mention his citizenship. Plaintiff and Defendant disagree over the effect that these deviations from the statutory language of 28 U.S.C. § 1332 have upon the disposition of this case.

In order to remove a case to federal court, a defendant must comply with the statutory requirements of 28 U.S.C. § 1441 and 1446. First, the district courts of the United States must have original jurisdiction, which requires either a federal question or diversity of citizenship of the parties. See 28 U.S.C. § 1331, 1332, 1441(a). Second, the defendant must file a notice of removal with the district court, containing "a short and plain statement of the grounds for removal," as well as "a copy of all process, pleadings, and orders served upon such defendant or defendants in such action." Id. § 1446(a). Following the direction of the Supreme Court in Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 ...


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