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SAVINO v. GOWING

July 1, 2003

WILLIAM F. SAVINO, AS CO-RECEIVER OF RICHARD MUTO, ET AL., PLAINTIFF, VS. DELMER C. GOWING, III, ESQ. AND DELMER C. GOWING, III, P.A., DEFENDANTS.


The opinion of the court was delivered by: John T. Elfvin, Senior District Judge

MEMORANDUM and ORDER*fn1

This action was removed from the New York State Supreme Court, County of Erie, on March 3, 2003. Savino was appointed as a Co-Receiver in a state court action — Ciura v. Muto.*fn2 As such, Savino filed suit on behalf of Richard Muto and related entities against defendants (collectively "Gowing") by filing a Summons with Notice*fn3 on November 27, 2002, which was served on defendants on January 9, 2003 and December 18, 2002 respectively.*fn4 Savino filed a Complaint on February 7, 2003, which was mailed to Delmer C. Gowing, III, Esq. that same day. After removing the action to federal court on March 3, Gowing filed several motions on March 19, including (1) a motion to dismiss for lack of personal jurisdiction and (2), as alternate relief, a motion for change of venue to the Southern District of Florida.

On March 21 Savino filed a motion to remand on the ground that the action had been untimely removed. Oral argument was heard June 20. For the reasons set forth below, plaintiff's motion for remand will be granted, defendants' motion to dismiss will be denied as moot and defendants' motion to transfer will be denied as moot.

As noted, three motions are currently pending. The parties dispute the order in which these motions should be addressed. This Court finds that questions of subject-matter jurisdiction should ordinarily be addressed first, but that it has some discretion in the matter. See Cantor Fitzgerald, L.P. v. Peaslee, 88 F.3d 152, 155-156 (2d Cir. 1996).*fn5 Indeed, the Second Circuit Court of Appeals has noted that, "[c]ustomarily, a federal court first resolves any doubts about its jurisdiction over the subject matter of a case before reaching the merits or otherwise disposing of the case." Id. at 155. Cantor Fitzgerald also holds that, in "exercising its discretion as to which question to consider first, a court should be convinced that the challenge to the court's subject-matter jurisdiction is not easily resolved and that the alternative ground is considerably less difficult to decide." Ibid. Furthermore, when "the alternative ground is one of state law, such as personal jurisdiction, `federalism concerns' may `tip the scales in favor' of first deciding the question of subject-matter jurisdiction, especially if the state law issue is not easily resolved." Ibid. (citations omitted). Consequently, this Court has the discretion to decide what motion to address first but that, all else equal, it should first address plaintiff's motion to remand.

Applying Cantor Fitzgerald here, this Court finds that the subject matter question — i.e., whether defendants timely removed this action — is easier to address than the personal jurisdiction issue, which presents a more fact-intensive analysis. This Court thus will first address plaintiff's motion to remand. Turning to the merits of such motion to remand pursuant to 28 U.S.C. § 1446(b), plaintiff contends that removal was untimely made because it was effected more than thirty days after "receipt by the defendant" of the Summons with Notice.

Savino served the Summons with Notice on the individual Gowing on January 9, 2003 and on his firm on December 18, 2002. Defendants, however, contend that the Summons with Notice*fn6 did not contain all the information necessary to determine whether this action was removable.

In resolving these arguments, this Court must address the Second Circuit Court of Appeals' decision in Whitaker v. Am. Telecasting, Inc., 261 F.3d 196 (2001). Whitaker holds that "a summons with notice may serve as an initial pleading under section 1446(b) *** [where it] enables the defendant to intelligently ascertain removability from the face of such pleading, so that in its petition for removal[, the] defendant can make a short and plain statement of the grounds for removal as required [by] 28 U.S.C. § 1446(a)." Id. at 205-206 (internal quotations omitted).

Consequently, the Summons with Notice constituted an initial pleading that started the clock for removal purposes if it contained sufficient information for Gowing to have been able to file a notice of removal.

Defendants removed this action on the basis of diversity jurisdiction. The face of the Summons with Notice contained all the necessary facts to support defendants' removal petition because it demonstrated complete diversity between Savino (New York) and defendants (Florida). Ibid. Indeed, the Summons with Notice lists Savino's New York address,*fn7 the nature of the action, the relief sought and the sum due in case of default. See N.Y.C.P.L.R. § 305(b).*fn8 Consequently, plaintiff's Summons with Notice is an "initial pleading" within the meaning of section 1446(b).

Accordingly, defendants' removal was untimely and defective because it was not effected within thirty days "after receipt by the defendant[s]." 28 U.S.C. § 1446(b).*fn9 Moreover, Savino has complied with 28 U.S.C. § 1447(c).

Nonetheless, defendants contend that the Notice with Summons did not list the addresses of either (1) the entities for whom Savino is a Co-Receiver or (2) his Co-Receiver(s).*fn10 Such, however, is of no consequence. First, only the citizenship of a receiver is relevant; the citizenship of the persons or entities in receivership are not relevant for purposes of diversity jurisdiction.*fn11 Second, Savino is the sole plaintiff and his citizenship is thus determinative for purposes of diversity jurisdiction. See 13B Charles Alan Wright et al., Federal Practice & Procedure § 3606, at 418 (2d ed. 1984) (citing Osborn v. United States Bank, 22 U.S. (9 Wheat.) 738, 856 (1824) for the proposition that diversity "jurisdiction is neither given nor ousted by the relative situation of the parties concerned in interest, but by the relative situation of the parties named on the record") (emphasis added).*fn12 Likewise here. Savino's Co-Receiver is not a party to this action, nor is he required to be.*fn13

Inasmuch as this Court finds removal to be defective, this Court will remand this action to the New York Supreme Court, County of Erie, and will not address defendants' motions to dismiss or for change of venue. Nonetheless, defendants raised colorable arguments and this Court will thus deny Savino's request for attorney's fees.

Accordingly, it is hereby ORDERED that plaintiff's motion for remand is granted, that plaintiff's request for attorneys' fees is denied, that defendants' motion to dismiss is denied as moot, that defendants' motion for change of venue is denied as moot, that this action is remanded to the New York Supreme Court, ...


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