United States District Court, E.D. Pennsylvania
March 4, 2004.
PELLUMB BALILAJ, Plaintiff, v., MARSHALLS, INC. a/k/a and d/b/a MARSHALLS, et al., Defendants
The opinion of the court was delivered by: JAMES KELLY, Senior District Judge
MEMORANDUM AND ORDER
Presently before the Court is a Motion to Remand filed by Plaintiff
Pellumb Balilaj ("Plaintiff") and the response thereto filed by
Defendants Marshalls, Inc., a/k/a and d/b/a Marshalls, The TJX Companies,
Inc., The Marmaxx Group and Marmaxx Group, Inc., USA (collectively, the
"Marshalls Defendants"). None of the other captioned defendants have
responded to Plaintiff's Motion to Remand.
Previously, Defendant Williams Scotsman, Inc. ("Williams Scotsman")
filed a Notice of Removal on the basis of diversity jurisdiction pursuant
to 28 U.S.C. § 1441, wherein none of the other captioned defendants
joined. Defendant Triumph Leasing Company ("Triumph") was served with
process,*fn1 and, at the time Plaintiff filed this Motion to Remand,
Defendants Chainlink Logistics Company ("Chainlink Logistics") and
Inc., and Merchandise Movers, Inc. d/b/a Chainlink Logistics
(collectively, the "Merchandise Movers Defendants") had not yet been
served with process.*fn2 Plaintiff now seeks remand of his personal
injury action to the Court of Common Pleas of Philadelphia, alleging that
there is neither factual basis of record to support the statement in
Williams Scotsman's Notice of Removal that there is diversity of
citizenship nor unanimity among all the served Defendants to removal of
the action to this Court. For the following reasons, Plaintiff's Motion
for Remand is GRANTED.
On August 25, 2003, Plaintiff initiated this personal injury action in
the Court of Common Pleas for Philadelphia County by Writ of Summons. On
October 3, 2003, the Complaint was filed, and Plaintiff effectuated
service of process on all defendants except Chainlink Logistics and the
Merchandise Movers Defendants. On October 24, 2003, Defendant Williams
Scotsman filed a Notice of Removal. On November 24, 2003, Plaintiff filed
a Motion to Remand to state court. On December 15, 2003, the Marshalls
Defendants filed their response to Plaintiff's Motion to Remand. They are
the only defendants to file a response to Plaintiff's
Motion to Remand.
Both Williams Scotsman and Triumph Leasing filed their Answers to
Plaintiff's Complaint on October 29, 2003 and January 7, 2004,
The underlying action arises from alleged personal injuries Plaintiff
sustained in the course of his employment while operating a forklift to
load merchandise onto a trailer. Plaintiff alleges that as he was backing
the forklift out of the trailer, the trailer suddenly separated from the
loading dock, and caused the forklift and Plaintiff to fall to the
ground. The incident is alleged to have occurred at a northeast
Philadelphia facility owned, possessed, operated or otherwise controlled
by the Marshalls Defendants.
A federal district court has original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of $75,000.00,
exclusive of interest and costs, and is between citizens of different
states. 28 U.S.C. § 1332(a)(1). Where a corporation is a
party to a 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. at §
1332(c)(1) (emphasis added).
Pursuant to the removal statute, "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. . . ."
28 U.S.C. § 1441(a). Accordingly, a defendant must file a notice of
removal within thirty days "after 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."
28 U.S.C. § 1446(b).
Defendant Williams Scotsman filed its Notice of Removal pursuant to
28 U.S.C. § 1441 alleging complete diversity of citizenship of the
parties and an amount in controversy in excess of $75,000.00. Plaintiff
disputes neither the timeliness of Defendant Williams Scotsman's Notice
of Removal filed on October 24, 2003, well within Section 1446(b)'s
prescribed thirty day period from service of Plaintiff's
Complaint on October 3, 2003, nor the amount in controversy. Plaintiff,
however, contends that Defendant Williams Scotsman's Notice of Removal is
defective as there is no factual basis of record to support its statement
that there is diversity of citizenship among the parties. In support of
this contention, Plaintiff argues that: (1) the Notice of Removal neither
states nor documents the state in which any Defendant is incorporated;
(2) the Notice of Removal fails to document any basis for Defendant's
principal place of business
averments; (3) Plaintiff's Complaint does not allege the state
citizenship of any Defendant; and (4) Plaintiff's Complaint does not
allege where any defendant maintains its principal place of business.
A defendant seeking removal bears the burden of proving federal
jurisdiction. See Meritcare Inc. v. St. Paul Mercury Ins. Co.,
166 F.3d 214, 222 (3d Cir. 1999). If the citizenship of the parties is
not disclosed in the complaint, the case is not removable unless the
defendant can affirmatively plead and later prove the existence of
diversity. 16 James Win. Moore et al., Moore's Federal Practice
¶ 107.14 (3d ed. 2002).
Here, Plaintiff's Complaint sets forth addresses for Plaintiff and each
of the defendants, without any averments of each of the parties' state of
citizenship. Defendant Williams Scotsman's Notice of Removal contains
mere recitations of those addresses as follows:
3. Defendants, Marshalls, Inc. a/k/a and d/b/a
Marshalls, The TJX Companies, Inc., The Marmaxx
Group, and/or Marmaxx Group, Inc., USA is a
corporation with a principal place of business
located at 770-778 Cochituate Road, Framingham,
4. Defendant, Williams Scotsman, Inc., is a
corporation with a principal place of business
located at 8211 Town Center Drive, Baltimore,
5. Defendant, Triumph Leasing Corporation, is a
corporation with a principal place of business
located at 194 Ayer Road, Littleton, MA 01460.
6. Defendant, Chainlink Logistics Company, is
business located at 179 Union Boulevard,
Totowa, N.J. 07612.
7. Defendants, Merchandise Movers, Inc. and/or
Merchandise Movers, Inc. d/b/a Chainlink
Logistics, is a corporation with a principal
place of business located at P.O. Box 868 West
Caldwell, N.J. 07007.
(Def. Williams Scotsman's Not. of Removal ¶¶ 3-7 (emphasis added).)
In its Notice of Removal, Defendant Williams Scotsman merely pled "a"
principal place of business for each of the defendants, rather than "its"
principal place of business as required by 28 U.S.C. § 1332 (c)(1).
The United States Court of Appeals for the Third Circuit has addressed
this very issue, instructing that replacement of "its" with "a" renders a
notice of removal technically "defective." Hunt v. Acromed,
961 F.2d 1079, 1082 n.7 (3d Cir. 1992). Revisiting that issue, the Third
Circuit later determined that the replacement of "its" with "a" fails to
"properly plead diversity jurisdiction." J&R Ice Cream Corp. v.
California Smoothie Licensing Corp., 31 F.3d 1259, 1265 n.3 (3d Cir.
1994). Since Defendant Williams Scotsman used precisely the language
deemed deficient to plead diversity jurisdiction by the Third Circuit,
its Notice of Removal is legally deficient. See Meltzer v.
Continental Insur. Co., 163 F. Supp.2d 523, 526 (E.D. Pa. 2001).
Notably, only the Marshalls Defendants responded to Plaintiff's Motion
to Remand, and the extent of their response to
the diversity issue was: "As the documents referenced speak for
themselves, any attempt to summarize, interpret or characterize same is
denied and strict proof thereof is demanded at trial." (Marshalls Defs.'
Reply to Pl.'s Mot. to Remand ¶ 8.) While the Marshalls Defendants
did not otherwise submit a memorandum of law in support of diversity
jurisdiction to justify removal of the action to this Court, they respond
that "the Answering Defendants do consent to Defendant Williams
Scotsman's removal of this matter to federal court." (Id. at
¶ 9.) In their response, however, the Marshalls Defendants allege
neither their state of citizenship nor their principal place of business,
both of which are facts they are presumed to know, in support of this
Court's diversity jurisdiction. See Fiorentino v. Huntingside
Associates, 679 F. Supp. 3, 5 (E.D. Pa. 1987).
We are mindful that the Third Circuit has mandated a policy of strict
construction of the removal statutes. Meritcare Inc., 166 F.3d
at 217; Bover v. Snap On Tools Corp., 913 F.2d 108, 111
(3d Cir. 1990). In this case, Plaintiff's Complaint and Defendant
Williams Scotsman's Notice of Removal contain statements only regarding
each of the defendants as being a corporation and as maintaining "a"
principal place of business located in diverse states, and fail to make
any express statement as to any defendants' citizenship for the record.
These statements are mere recitals of address and do not constitute
sufficient allegations of citizenship. See Meltzer,
163 F. Supp.2d
It also bears noting that none of the defendants in this matter have
sought to cure the flawed jurisdictional allegations raised in
Plaintiff's Motion to Remand by filing an amended notice of removal.
See id. Furthermore, none of the defendants, with the exception
of one,*fn3 sought to file any supporting material with the Court
indicating their respective state of incorporation or principal place of
business to justify removal.
Since Defendant Williams Scotsman's Notice of Removal fails to plead
diversity jurisdiction sufficiently, and the Defendants have failed to
avail themselves of any opportunity to request an amendment to the Notice
of Removal, Plaintiff's Motion to Remand is GRANTED.*fn4
AND NOW, this day of March, 2004, in consideration of the Motion to
Remand filed by Plaintiff Pellumb Balilaj ("Plaintiff") (Doc. No. 3) and
the response thereto filed by Defendants Marshalls, Inc., a/k/a and d/b/a
Marshalls, The TJX Companies, Inc., The Marmaxx Group and Marmaxx Group,
Inc., USA (Doc. No. 4), IT IS ORDERED that Plaintiff's Motion
to Remand is GRANTED.
IT IS FURTHER ORDERED that this matter is REMANDED
to the Court of Common Pleas of Philadelphia County. This Court