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BALILAJ v. MARSHALLS

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 Merchandise Movers, Page 2 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.

  I. BACKGROUND

  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 Page 3 Motion to Remand.

  Both Williams Scotsman and Triumph Leasing filed their Answers to Plaintiff's Complaint on October 29, 2003 and January 7, 2004, respectively.

  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.

  II. DISCUSSION

  A federal district court has original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000.00, 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 Page 4 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 Page 5 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, MA 01701.
4. Defendant, Williams Scotsman, Inc., is a corporation with a principal place of business located at 8211 Town Center Drive, Baltimore, MD 21236.
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 a Page 6 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 ...

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