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United States District Court, Southern District of New York

January 16, 2003


The opinion of the court was delivered by: Michael B. Mukasey, United States District Judge


Plaintiff seeks damages for personal injuries suffered when she fell in a supermarket operated by defendant Pathmark Stores, Inc. in the Bronx, allegedly as the result of a negligently stocked shelf of dog food. The case was begun in Supreme Court, Bronx County, and removed to this court based on diversity of citizenship, defendant claiming to be a Delaware corporation with its principal place of business in New Jersey. Plaintiff has moved to remand the case to state court on the ground that there is no diversity of citizenship, and argues that defendant has failed to submit competent proof that its principal place of business is located in New Jersey. For the reasons set forth below, the motion is denied.

For purposes of diversity jurisdiction, "a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business . . ." 28 U.S.C. § 1332(c)(1)(2000). There is no dispute that Pathmark is a Delaware corporation. In this Circuit, the test for determining the "principal place of business" of a corporation such as Pathmark, with substantial operations in more than one state rather than centralized, is where the "nerve center" of its business is located. See, e.g., Kubin v. Miller, 801 F. Supp. 1101, 1112 (S.D.N.Y. 1992); Scot Typewriter Co. v. Underwood Corp., 170 F. Supp. 862, 865 (S.D.N.Y. 1959). A court applying this test "locates the nerve center from which the corporation radiates out to its constituent parts and from which the corporation's officers direct, control, and coordinate all activitieS." 15 James Wm. Moore et al., Moore's Federal Practice, § 102.54[4] (3d ed. 1999).

In aid of locating the "nerve center" of Pathmark, that defendant has submitted the affidavit of Kenneth Zwoboda, who identifies himself as the General Liability Manager of the corporation and who states that Pathmark maintains its corporate headquarters and principal place of business at 200 Milik Street, Carteret, New Jersey. "From these executive offices, Pathmark operates such critical corporate departments as personnel, purchasing, accounting and warehousing." (Zwoboda Aff. ¶ 3) In addition, Zwoboda avers as follows:

[A]lthough each individual Pathmark store is headed by a General Store manager, all such managers are accountable and receive direction from the Carteret, New Jersey corporate office. Each individual general store manager must operate his or her supermarket store in conformity with policies and procedures formulated from the Carteret, New Jersey office.
(Id. ¶ 6)

Plaintiff argues that Zwoboda is not a competent affiant, principally by pointing to a small discrepancy between the number of stores Zwoboda avers that Pathmark maintains in New Jersey and the number of stores that plaintiff's counsel states Pathmark sets forth on its web site. That is not a meaningful basis for challenging Zwoboda's competence to attest to how Pathmark organizes its operations. Indeed, Judge Patterson of this court, applying the "nerve center" test, has found that Pathmark's principal place of business is located in New Jersey. See Thomas v. Pathmark Stores, Inc. No. 96 Civ. 2682, 1996 WL 363067 (S.D.N.Y. Jul. 1, 1996). Plaintiff maintains that Pathmark has gone through a bankruptcy reorganization since Judge Patterson's opinion, and speculates that its operations have changed in some unspecified way. The Zwoboda affidavit is enough in itself to show that the "nerve center" of Pathmark's corporate operations is in New Jersey, and it confirms and is confirmed by Judge Patterson's opinion.

Pathmark has shown by competent evidence, to which there has been no meaningful challenge, that its principal place of business for diversity purposes is in New Jersey. Accordingly, the motion to remand is denied.

Counsel will attend a conference on January 24, 2003, at 9:15 a.m. in Courtroom 21B, 500 Pearl Street, New York, N.Y. 10007, to schedule the completion of discovery in this action.


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