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Kennedy House, Inc v. Monique Hofkin

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


May 31, 2011

KENNEDY HOUSE, INC.,
PLAINTIFF,
v.
MONIQUE HOFKIN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Jones, II, J.

M EM O R A N D U M

On January 24, 2011, Plaintiff Kennedy House filed this action in the Court of Common Pleas of Philadelphia County against Defendants Monique Hofkin, Jonathan Seya and Sofia Massara.*fn1 Defendants Seya and Massara were served with the Complaint on February 3, 2011. (Dkt. No. 2, Ex. A.) Defendant Hofkin was served with the Complaint on March 9, 2011. (Dkt. No. 2, Ex. C.)

Neither Defendant Seya nor Defendant Massara entered an appearance nor responded to the Complaint, and the Court of Common Pleas entered judgment against them by default on March 23, 2011. (Dkt. No. 2, Ex. B.) Defendant Hofkin filed a Notice of Removal pro se on April 11, 2011, on grounds of diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). (Dkt. No. 1, Ex. D.) Plaintiff filed its Motion to Remand on April 19, 2011. (Dkt. No. 2.)

Pursuant to 28 U.S.C. § 1446(b), a notice of removal in a civil action or proceeding "should 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 . . ." Where notice of removal is not filed within those 30 days, the removal is procedurally defective and the matter may be remanded upon party motion.*fn2 Here Defendant Hofkin was served on March 9, 2011; her deadline to file any notice of removal expired on April 8, 2011. Filed on April 11, 2011, Hofkin's removal was untimely and thus procedurally defective such as to require remand to state court.

Even if Hofkin had timely filed her notice of removal, or if the Court were to treat her removal notice as timely in light of her pro se status,*fn3 the Court would be obliged to remand this matter because complete diversity does not exist between the parties and thus this Court lacks jurisdiction. See 28 U.S.C. § 1441(a) (a defendant may remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction"); 28 U.S.C. § 1332(a) (federal courts have original jurisdiction over cases between citizens of different states where the amount in controversy exceeds $75,000). Complete diversity requires that "no plaintiff can be a citizen of the same state as any of the defendants." Grand Union Supermarkets of the Virgin Islands, Inc. v. H.E. Lockhart Mgmt., Inc., 316 F.3d 408, 410 (3d Cir. 2003). A corporation is deemed to be a citizen of the state in which is was incorporated as well as the state where it has its principal place of business. See 28 U.S.C. § 1332(c); Grand Union, 316 F.3d at 410 (corporation's principal place of business "is not 'where . . . final decisions are made on corporate policy,' but rather where the corporation 'conducts its affairs.'"). While Kennedy House is incorporated in Delaware, it runs its business in Pennysylvania.*fn4 Accordingly, despite Hofkin's contention to the contrary, Kennedy House is a citizen of Pennsylvania.*fn5 Since Hofkin is also a citizen of Pennsylvania, complete diversity of citizenship is missing and this Court lacks jurisdiction over the matter.*fn6

In these circumstances, the Court will grant Plaintiff's Motion to Remand, but it will deny Plaintiff's request for attorneys' fees and costs.*fn7 An appropriate Order follows.


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