The opinion of the court was delivered by: Hurd, United States Magistrate Judge.
MEMORANDUM — DECISION AND ORDER
Plaintiff, Sentry Marketing, Inc. ("Sentry" or "plaintiff"),
moved to remand this action to state court, which defendant
Unisource Worldwide, Inc. ("Unisource") opposes. Plaintiffs
motion was submitted for decision without oral argument.
Sentry commenced this action on October 5, 1998 in the Supreme
Court of the State of New York, County of Oneida, asserting
several causes of action against the defendants involving the
breach of a purported oral joint venture agreement for the
manufacture, sale, distribution, merchandising, and development
of a release film used in the production of multi layer boards in
the printed circuit industry.*fn1 (Compl. at 2.) In addition to
various forms of equitable relief, plaintiff seeks punitive
damages, and attorneys fees and costs.
Unisource filed a notice of removal on November 12, 1998,
alleging federal court jurisdiction under 28 U.S.C. § 1332. On
December 10, 1998, plaintiff moved to remand, pursuant to
28 U.S.C. § 1447(c), on three grounds. First, plaintiff claims that
there is no complete diversity because defendant Paper
Corporation of the United States ("Paper Corporation") is a
citizen of the State of New York. Second, plaintiff claims that
the notice of removal is defective because it was not signed or
consented to by all of the defendants. Finally, plaintiff
contends that the notice of removal was not timely filed.
Plaintiff requests costs and attorneys fees incurred in bringing
The removal statute authorizes remand on the basis of any
defect in removal procedure or because the court lacks subject
matter jurisdiction. See 28 U.S.C. § 1447(c); Town of Moreau v.
State Dep't of Envtl. Conservation, No. 96-CV-983, 1997 WL
243258, at *1 (N.D.N.Y. May 5, 1997) (citing LaFarge Coppee v.
Venezolana De Cementos, S.A.C.A., 31 F.3d 70, 72 (2d Cir.
1994)). The burden is on the removing party to prove that it has
met the requirements for removal. Avon Products, Inc. v. A/J
Partnership, Nos. 89 Civ. 3743(PNL), 89 Civ. 8032(PNL), 1990 WL
422416 at *1 (S.D.N.Y. March 1, 1990); Maybruck v. Haim,
290 F. Supp. 721, 724 (S.D.N.Y. 1968).
A. Removability in Diversity Cases
An action not involving a federal question is removable "only
if none of the parties in interest properly joined and served as
defendants is a citizen of the state in which such action is
brought." 28 U.S.C. § 1441(b). In other words, removal based upon
diversity jurisdiction requires all the defendants to be citizens
of different states than the plaintiff. Owen Equip. and Erection
Co. v. Kroger, 437 U.S. 365, 373-74, 98 S.Ct. 2396, 57 L.Ed.2d
274 (1978); Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 68
(2d Cir. 1990). Diversity is generally ascertained at the time
the lawsuit is commenced and at the time of removal. Pullman Co.
v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 83 L.Ed. 334
(1939); United Food & Commercial Workers Union, Local 919, AFL —
CIO v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298
(2d Cir. 1994).
The complaint alleges that: Plaintiff is a corporation
organized under the laws of the State of New York, Unisource is a
corporation organized under the laws of Delaware and doing
business in the State of New York, and defendant Insulectro is a
corporation organized and existing under the laws of California
and doing business in the State of New York. (Compl. at ¶¶ 1-3.)
The complaint also alleges that Paper Corporation was organized
under the laws of the State of New York and merged into Unisource
on August 29, 1995. (Comp. at ¶ 2.)
Unisource claims that, since Paper Corporation merged into
Unisource, it has the
same citizenship as Unisource. Sentry concedes that Paper
Corporation merged into Unisource. However, it unexplainably
proceeds to analogize Paper Corporation to a dissolved
corporation and a subsidiary corporation. However, plaintiff
cannot have it both ways. A corporation cannot be merged,
dissolved, and a subsidiary all at the same time. A merger
consists of uniting two or more corporations by the transfer of
all property to an existing corporation which survives the
absorption. See Akwell Corp. v. Eiger, 141 F. Supp. 19, 21
(S.D.N.Y. 1956). Paper Corporation undisputedly merged into
Unisource, as evidenced by the Certificate of Ownership and
Merger filed on August 29, 1995 with the Secretary of State of
the State of Delaware. The issue then becomes the effect of
merger on the merged corporation. In Meadows v. Bicrodyne
Corp., 785 F.2d 670, 672 (9th Cir. 1986), the court looked to
the statute of the state of the merged corporation, which was
California. The court determined that under California's statute,
the separate existence of the merged corporation ceases and its
citizenship becomes that of the surviving corporation. Id.
Similarly, in New York, a merged corporation ceases to exist as a
separate corporate entity and the continuing corporation succeeds
to the rights of the absorbed corporation. See N.Y.Bus.
Corp.Law §§ 906(b)(2), (3), 907(i) (McKinney 1986); Akwell,
141 F. Supp. 19 (holding that where a Delaware corporation absorbed a
New York corporation by merger, claim of the merged New York
corporation against the defendant passed to the Delaware
corporation and therefore, the Delaware corporation was a proper
party to the action.) Therefore, the citizenship of the surviving
corporation should be determinative for diversity purposes. In
this case, the surviving corporation, Unisource, is a citizen of
Delaware and therefore, diversity has been established.
Generally, all defendants must join in the notice of removal.
Chicago, Rock Island & Pac. Ry. Co. v. Martin, 178 U.S. 245, 20
S.Ct. 854, 44 L.Ed. 1055 (1900); Bradford v. Harding,
284 F.2d 307 (2d Cir. 1960); Town of Moreau, 1997 WL 243258. However,
"[w]hile courts generally do not require all defendants to sign
the removal petition itself, most courts have required some form
of unambiguous written evidence of consent to the court in timely
fashion." Town of Moreau, 1997 WL 243258, at *4 (quoting
Michaels v. New Jersey, 955 F. Supp. 315, 321 (D.N.J. 1996));
see also Miller v. First Sec. Invs., Inc., 30 F. Supp.2d 347,
351 (E.D.N.Y. 1998). In other words, "[e]ach [defendant] must
independently and unambiguously file notice of its consent and
its intent to join in the removal within the thirty day period."
Henderson v. Holmes, 920 F. Supp. 1184, 1187 (D.Kan. 1996); see
also Town of Moreau, 1997 WL 243258, at *4. The thirty day
period for removal commences when the initial pleading is
received by the first defendant. Town of Moreau, 1997 WL
243258, at *6; Botelho v. Presbyterian Hospital in New York,
961 F. Supp. 75 (S.D.N.Y. 1997). ...