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June 1, 2005.


The opinion of the court was delivered by: HAROLD BAER, JR., District Judge


On April 7, 2005, Plaintiffs, John McGowan, Doreen Orzo McGowan, and Mario Juarez, moved to remand the above-entitled action to New York State Supreme Court, Bronx County, pursuant to 28 U.S.C. § 1447(c). The matter was sub judice following oral argument on May 24, 2005. For the reasons set forth below, Plaintiffs' motion is GRANTED.


  On July 7, 2003, Plaintiffs filed the instant Complaint against Defendants Malcolm and Joyce Hoffmeister (the "Hoffmeisters"), residents of Greenwich, Connecticut, Elizabeth Thompson ("Thompson"), a resident of Manhattan, New York, and Dom's Construction ("Dom"), a construction company incorporated in New York. (Compl. at ¶¶ 2 — 38, Ind. No. 20725/03, dated Jul. 7, 2003.) The Complaint consists of 12 causes of action for negligence and violation of New York and Connecticut labor laws, and one cause of action by Doreen Orzo McGowan for loss of services.

  On July 17, 2004, the Hoffmeisters filed an Answer which, inter alia, denied certain material allegations alleged in the Complaint. (Hoffmeister Ans.) Dom neither answered, objected, nor moved to dismiss the Complaint. Thompson appeared pro se and filed an answer on July 11, 2003. (Thompson Ans.)

  After review of discovery, the Hoffmeisters moved to dismiss the Complaint, and any cross-claims, and argued that as residents of Connecticut, they were not subject to personal jurisdiction in the New York Supreme Court. (Dec. & Order, McGowan v. Hoffmeister, No. 20725/2003, at 3.) After the motion to dismiss was filed, the Hoffmeisters also moved to amend their Answer to include lack of personal jurisdiction as an affirmative defense. McGowan v. Hoffmeister, 792 N.Y.S.2d 381, 382 (1 Dep't. 2005).

  On December 24, 2003, Justice Bowman denied Hoffmeisters' motion to dismiss, but granted the motion to amend with leave to renew their motion to dismiss at the conclusion of discovery. Id. Plaintiff appealed to the Appellate Division, First Department, on February 5, 2004. (Not. of Appeal, Ind. No. 20725/03, dated Feb. 5, 2004).*fn1 Meanwhile, Hoffmeisters' joined Dom, and an additional party, David Comerico, as third-party defendants.

  While Plaintiffs' appeal was pending, the parties proceeded with discovery. On March 3, 2003, Justice Bowman ordered Plaintiffs to file a note of issue on or before September 3, 2004, certifying that discovery was complete and the case was ready for trial. (Aff. Manuel Romero, Att'y for Pls., at ¶ 13).*fn2

  Plaintiffs' claim against pro se Thompson was dismissed on February 17, 2005 and, subsequently, on March 16, 2005, twenty months after the case was originally filed, the Hoffmeisters sought to remove the action to the Southern District of New York pursuant to 28 U.S.C. § 1446. (Dckt. 1.) The removal was based upon diversity of citizenship, e.g., New York Plaintiffs and Connecticut Defendant. On April 11, 2005, Plaintiffs filed the instant motion to remand the case back to state court.


  Plaintiffs' motion to remand asserts that Defendants' removal of this action was untimely under 28 U.S.C. § 1446(b), which provides in pertinent part that:
. . . . If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
28 U.S.C. § 1446(b) (emphasis added). In addition, the Second Circuit has instructed that a court is required to "construe the removal statute narrowly, resolving any doubts against removability." Somlyo v. J. Lu-Rob Enters., 932 F.2d 1043, 1045-1046 (2d Cir. 1991); see also Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 176 (S.D.N.Y. 2003) ("The defendant's right to remove and the plaintiff's right to choose the forum are not equal, and uncertainties are resolved in favor of remand.") (citation omitted). As such, the burden is on the party which removed the action to federal court to demonstrate a (a) jurisdictional basis, (b) compliance with the statutory requirements, and "there is nothing in the removal statute that suggests that a district court has discretion to overlook or excuse prescribed procedures." Smith v. Kinkead, No. Civ. 10283, 2004 WL 728542, at *1 (S.D.N.Y. Apr. 5, 2004) (citation omitted).

  Here, while it is uncontested that the removal to federal court was beyond the one-year limitation imposed by Section 1446(b) and, thus, procedurally defective, the Hoffmeisters argue that Plaintiffs' behavior is of such a nature as to permit the Court to grant an equitable extension. In particular, the Hoffmeisters claim that Plaintiffs dismissed Thompson only after removal of the action to federal court was procedurally barred. These arguments are (1) belied by the record and (2) contradicted by the clear intent and purpose of the removal statute.

  First, the Hoffmeisters' argument ignores the presence of the non-diverse corporate defendant, Dom, in this action. The Hoffmeisters correctly note that Plaintiffs' time to enter a default judgment against Dom has expired.*fn3 However, Dom, for the moment at least, remains a party to this action even though diversity is determined at the time of filing, not years later, so whether its in or out now really does not matter. See e.g., Brooks v. Clark, 119 U.S. 502, 511-13, 7 S. Ct. 301 (1886) (defaulting party and judgment remain part of removed action); see also Kellam v. Keith, 144 U.S. 568, 12 S. Ct. 922 (1892) (in removal actions, diversity of citizenship must exist at the time complaint is filed). Dom's presence defeats complete diversity as required under 28 U.S.C. § 1332, because Plaintiffs are also New York residents. See generally K.M.B. Warehouse Distributors, Inc. v. Walker Mfg. Co., 61 F.3d 123 (2d Cir. 1995) ("there must be complete diversity of citizenship between all plaintiffs and all defendants named in all claims in order for jurisdiction over any claim to be based upon diversity of citizenship.") (citing to Carden v. Arkoma Assocs., 494 U.S. 185, 187 (1990); Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267, 2 L.Ed. 435 (1806)).

  Second, in accordance with Section 1446(b) and the Supreme Court's holding in Caterpillar Inc. v. Lewis, "no case . . . may be removed based on diversity more than 1 year after commencement of the action." 519 U.S. 61, 62 (1996). The one-year limitation imposed by Section 1446(b) was designed to limit "the opportunity for removal after substantial progress has been made in state court." Id. at 75 n. 12 (citing to H.R. Rep. No. 100-889, p. 72, 1988 U.S. Code Cong. & Admin. News pp. 5982, 6032).*fn4 Congress recognized that this provision would produce "a modest curtailment in access to diversity jurisdiction," In re Rezulin Prod. Liab. Litig., No. 00 Civ. 2843, 2003 WL 21355201, at *2 (S.D.N.Y. Jun. 04, 2003), but that such a ...

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