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Zeballos v. Tan

July 7, 2006


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Defendant Anamah Tan moves to dismiss pro se plaintiff Maria Arias Zeballos's complaint, and in the alternative to strike portions thereof. Plaintiff, in turn, moves to remand to state court and to dismiss the counterclaims asserted in defendant's answer. All of the motions will be denied, plaintiff's defective service will be quashed, and the Court will grant plaintiff until October 2, 2006, to effect proper service.


Plaintiff originally filed her complaint, primarily alleging breach of an oral employment contract, in the Supreme Court of the County of New York on January 11, 2006. On February 17, 2006, defendant removed the case to this Court, asserting diversity of citizenship. Ten days later, defendant moved to dismiss and to strike, claiming, inter alia, lack of proper service. Plaintiff moved to remand on February 28, 2006. After both plaintiff's and defendant's motions were fully briefed, defendant submitted a Partial Answer with Counterclaims on June 20, 2006. Plaintiff then moved to dismiss the counterclaims.

In connection with the various motions at issue, the parties have submitted hundreds of pages to the Court setting forth their competing views regarding the events surrounding this litigation. The material submitted is needlessly repetitive, rife with ad hominem attacks, and, in several instances, entirely irrelevant to the legal issues currently before the Court. For these reasons, and because the motions must be disposed of on strictly procedural grounds, the Court will not describe the parties' allegations in detail. It suffices to note that plaintiff, a former employee of the defendant, primarily claims that defendant violated an oral employment contract between them, and that each party claims that the other defamed her during and after the disintegration of their professional relationship.


I. Motion to Remand

In light of the limited jurisdiction of federal courts and in deference to principles of federalism, "removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand." Beatie and Osborn LLP v. Patriot Scientific Corp., --- F. Supp. 2d ----, 05 Civ. 6425 (PKL), 2006 WL 1233937, at *6 (S.D.N.Y. May 9, 2006) (citations and internal quotation marks omitted). The removing party, moreover, bears the burden of demonstrating that removal is proper. Id. Here, despite these strict removal standards, defendant has clearly demonstrated that, in view of the diversity of citizenship between the parties, removal is warranted under 28 U.S.C. §§ 1332, 1441, and 1446. Plaintiff's motion to remand presents two challenges to removal, but neither is persuasive.

A. Diversity of Citizenship

Plaintiff claims that diversity of citizenship is lacking. The record clearly establishes, however, that plaintiff is a United States citizen domiciled in the State of New York, that defendant is a citizen of Singapore who is not a permanent resident of the United States domiciled in New York, and that the amount in controversy exceeds $75,000. (See Amended Verified Complaint ("Compl.") ¶¶ 1, 2, 57; Affidavit of Anamah Tan in Opposition to D. Mot. to Remand ¶¶ 1-3; Affirmation in Response to D. Opposition to Remand ¶¶ 19, 21; see also Partial Answer with Counterclaims ¶ 13; P. Mot. to Dismiss Counterclaims ¶ 15.) Nothing more is required to establish federal diversity jurisdiction. See 28 U.S.C. § 1332(a) ("The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, . . . and is between . . . citizens of a State and citizens or subjects of a foreign state . . . . For the purposes of this section, . . . an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled."); id. §§ 1441(b), 1446.*fn1 There is no merit to plaintiff's claim that defendant's substantial connections to New York somehow render her a New York citizen so as to defeat diversity jurisdiction; in making this argument, pro se plaintiff appears to have confused issues of diversity and subject matter jurisdiction with issues of personal jurisdiction.

B. Timeliness of Notice of Removal

Plaintiff also argues that the notice of removal was untimely under 28 U.S.C. § 1446(b), which requires that a notice of removal "be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." Because defendant received the initial pleading by January 14, 2006, at the latest, plaintiff contends that the February 17, 2006 notice of removal was untimely.

Despite the seemingly clear language of 28 U.S.C. § 1446(b), the Supreme Court has held that the provision's thirty day period is not triggered until a plaintiff effects formal service on the defendant. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999) ("An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process. Accordingly, we hold that a named defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, `through service or otherwise,' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service." (emphasis added)). Here, none of plaintiff's attempts at service were sufficient to trigger the thirty-day removal period.

Under New York law, a plaintiff may effect formal service in various ways. Section 308 of New York Civil Practice ...

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