The opinion of the court was delivered by: VICTOR MARRERO, District Judge
The defendants filed a notice of removal in this action based upon
the alleged diversity of the parties. Because the defendants have yet to
be served with an initial pleading, the Court concludes that removal is
premature and sua sponte orders the case to be remanded back to
Plaintiffs U.S.E. Productions, Ltd. ("U.S.E.") and Ultimate Shows &
Entertainment, Inc. ("Ultimate Shows," and collectively, "Plaintiffs")
filed a summons with notice in New York state court against defendants
Marvel Enterprises, Inc. and Marvel Characters, Inc. (collectively
"Marvel"), seeking a preliminary injunction (or, in the alternative $2
million in damages) for tortious interference with contract and breach of
contract. The notice states that "Plaintiff" (without identifying which
one) resides in New York, and it lists Marvel's address as also in New
York. The notice as is
permitted under New York law does not explain any further
the nature of the action.
Marvel filed a notice of removal in this Court on the ground that the
Court would have original jurisdiction based upon the diversity of the
parties. See 28 U.S.C. § 1332. Marvel apparently has some
idea of the nature of this lawsuit because its petition for removal
identifies the contract which it believes is the subject matter of the
summons with notice. Marvel's petition contends that Ultimate Shows, a
New York corporation, was fraudulently joined as a plaintiff to defeat
diversity. Marvel asserts that U.S.E., a British company with its
principle place of business in London, is the only real party in interest
to this action.
Under New York law, " [a]n action is commenced by filing a summons and
complaint or summons with notice." N.Y. C.P.L.R. § 304. The "notice"
portion of a summons with notice is much less formal than a complaint; a
plaintiff need only state "the nature of the action and the relief
sought, and . . . the sum of money for which judgment may be taken in
case of default." Id. § 305(b). However, the plaintiff
must eventually file a formal complaint for the lawsuit to go forward.
See id. § 3012(b). The federal removal statute states
that a notice of removal "shall be filed within thirty days
after the receipt
by the defendant . . . of a copy of the initial pleading setting
forth the claim for relief upon which such action or proceeding is
based." 28 U.S.C. § 1446 (emphasis added). The issue before the Court
is whether the summons with notice counts as an "initial pleading" within
28 U.S.C. § 1446, such that Marvel may remove, or whether Marvel must
wait until it is served with the complaint.
The Second Circuit has held that a summons with notice under New York
law "may constitute an initial pleading for purposes of the
federal removal statute." Whitaker v. American Telecasting.
Inc., 261 F.3d 196, 204 (2d Cir. 2004) (emphasis added). A summons
with notice is considered an "initial pleading" for these purposes where
the defendant is able to "intelligently ascertain" removability from the
face of the summons. Id. at 205 (internal quotation marks and
citation omitted). A defendant that is unable to ascertain removability
from the face of the summons with notice would be unable to make a short
and plain statement of the grounds for removal as required by
28 U.S.C. § 1446 (a), and in such cases, the complaint serves as the initial
pleading. Id. Importantly, courts look only to the face of the
summons with notice to determine whether it will serve as the initial
pleading, or whether the complaint will be considered the initial
pleading. Id. ("[T]he relevant test is not what the defendants
purportedly knew, but what [the document] said.") (quoting
Foster v. Mutual Fire, Marine & Inland Ins. Co.,
986 F.2d 48, 54 (3d Cir. 1993)) (alteration in original).
From the face of this summons with notice, the basis for removability
is far from ascertainable because it identifies Plaintiffs and Marvel as
both residing in New York and it states two state law causes of action.
Accordingly, it does not qualify as an "initial pleading" for purposes of
28 U.S.C. § 1446. Marvel's petition is therefore premature. Once it
is served with a complaint in state court, Marvel will, of course, have
thirty days within which to file a new petition for removal, assuming, as
Marvel contends here, that this lawsuit is ultimately removable.
For the reasons stated, it is hereby
ORDERED that this action is remanded to New York Supreme
Court, New York County.
The Clerk of Court is directed to ...