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DePROSPO v. KALISH

United States District Court, S.D. New York


January 15, 2004.

KEVIN A. DePROSPO, Plaintiff, -against- DANIEL H. KALISH, Defendant

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

This motor vehicle accident case was removed from Supreme Court, Bronx County, purportedly under 28 U.S.C. ยง 1331, the federal question statute.

The complaint quite obviously alleges no question arising under the Constitution or laws of the United States. There is no basis for federal question jurisdiction.

  The notice of removal (misdenominated as a petition for removal) alleges that the complaint purportedly was served on the defendant on December 11, 2003. There is no suggestion that defendant first received process at any later date. The removal notice was filed on January 13, 2004.

  The notice of removal therefore fails to allege timely removal and comes quite close to a conclusive admission of untimeliness.

  Finally, even assuming that defendant intended to remove on the basis of diversity, neither the notice of removal nor the annexed papers alleges the citizenship of any of the parties.

  Accordingly, this Court lacks subject matter jurisdiction. The action is remanded to the New York Supreme Court, Bronx County.

  SO ORDERED.

20040115

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