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Lepore v. Blue Ridge Real Estate Co.

July 31, 2008


The opinion of the court was delivered by: Gershon, United States District Judge


Plaintiff Arianna S. Lepore commenced this action on March 31, 2008 by filing a complaint in New York State Supreme Court, County of Kings. On May 20, 2008, defendants Appletree Management Group, Inc., Appletree Marketing and Realty (XYZ Corp.), d/b/a Appletree Marketing & Realty (together, "Appletree") filed a notice of removal to this court under 28 U.S.C. §§ 1441, 1446 asserting that, notwithstanding that defendant Cottone and plaintiff are not of diverse citizenship, the court may exercise its diversity jurisdiction because Cottone has been fraudulently joined. Plaintiff now moves to remand. Her motion is granted.


The following allegations are taken from plaintiff's complaint and considered true for purposes of this motion.

Plaintiff is a New York resident. Defendants Blue Ridge Real Estate Company ("Blue Ridge") and Appletree are Pennsylvania companies. Defendant Eric Cottone is a New York resident. On or about February 17, 2008, Blue Ridge owned rental property located near a ski resort in Blakeslee, Pennsylvania (the "Premises"). Appletree operated and managed the Premises. Prior to February 17, 2008, Cottone entered an agreement with Blue Ridge and Appletree to rent a dwelling at the Premises. On February 17, 2008, pursuant to this agreement, Cottone possessed the dwelling. On this day, plaintiff was lawfully on the Premises. As the result of all defendants' negligence in operating, maintaining, and managing the Premises, a dangerous defect located at and around the entryway of the Premises caused plaintiff to fall and sustain serious personal injuries.


I. Removal

Removal of a state court proceeding to federal court is provided for under 28 U.S.C. § 1441(a), which states in pertinent part: any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

District courts have original jurisdiction over civil actions where the amount in controversy exceeds $75,000 and is between citizens of different states. 28 U.S.C. § 1332(a)(1). Diversity jurisdiction is proper only when there is "complete diversity," which does not exist if any plaintiff is a citizen of the same state of any defendant. St. Paul Fire and Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73, 80 (2d Cir. 2005).

The removal statute is construed according to federal law. Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F.2d 1043, 1047 (2d Cir. 1991). Because federal courts are courts of limited jurisdiction, removal statutes are narrowly construed and doubts are resolved against removal. Id. at 1045-46.

When removal is challenged, the removing party bears the burden of establishing that the requirements for diversity jurisdiction are met. Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 295-96 (2d Cir. 2000).

Plaintiff claims that this action was removed improperly because Cottone, like plaintiff, is a citizen of New York, thus destroying the complete diversity of citizenship essential to the exercise of removal jurisdiction. 28 U.S.C. § 1441(a). Defendants rejoin that Cottone has been fraudulently joined and must be dismissed from the action.

II. Fraudulent Joinder

"[A] plaintiff may not defeat a federal court's diversity jurisdiction and a defendant's right of removal by merely joining as defendants parties with no real connection with the controversy." Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460-61 (2d Cir. 1988). Where the claim of fraudulent joinder is not based on outright fraud but, as it is here, on the argument that "there is no possibility, based on the pleadings, that a plaintiff can state a cause of action against the non-diverse defendant in state court," id. at 461, the legitimacy of joinder is determined on the basis of the pleadings alone. In re Rezulin Prods. Liab. Litig., 133 F. Supp. 2d 272, 284-85 (S.D.N.Y. ...

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