The opinion of the court was delivered by: William M. Skretny United States District Judge
Plaintiffs Angeline Swain ("Swain") and M. Gina Foxworth ("Foxworth"), proceeding pro se, commenced this defamation action by filing a Summons with Notice in New York State Supreme Court, County of Erie. Defendants Brookdale Senior Living ("Brookdale") and Jack Leebron ("Leebron") removed the action to this Court based on diversity of citizenship. Currently before this Court is Defendants' Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(b)(6). For the reasons stated below, the Motion is denied.
Plaintiffs were private caregivers for seniors residing at the Brookdale Senior Living facility in Kenmore, New York. (Docket No. 2, ¶ 7.)
On August 13, 2007, Defendant Leebron sent a letter ("Letter #1") to Donald Grabeau, the power of attorney for an individual under Plaintiffs' care, advising him that one or both Plaintiffs were disruptive to the Brookdale facility and that Grabeau must hire someone else to perform the tasks currently performed by Plaintiffs. (Docket Nos. 2, ¶ 7; 2-3, pp. 1-2.) On September 17, 2007, Leebron sent a letter ("Letter # 2") to Grabeau and another individual, Flora Sliwa, who also had a relative at Brookdale. (Docket Nos. 2, ¶8; 2-3, p. 4.) Both were advised that they would need to make plans either to move their relatives out of Brookdale or change private duty care givers, as Plaintiffs were "still stirring the pot."
Plaintiffs claim that the letters defame their characters, and that Defendants' purpose in sending them was to retaliate against and put pressure on one of their relatives, who had filed an earlier lawsuit against Brookdale. (Docket No. 2 ¶¶ 7-8.)
Plaintiffs filed their Summons with Notice with the Erie County Clerk on August 13, 2008. (Docket No. 1-2.) The Summons with Notice was timely served on Defendants on or about September 2, 2008. (Docket No. 1, ¶ 3). Together, those documents identify Plaintiffs as residing in New York and Defendants as citizens of Tennessee, give notice of the nature of the action-"Defamation of Character," and seek "a letter apologizing for impugning our character in your letters [and] monetary compensation of 100,000." (Docket No. 1-2).
After receiving the Summons with Notice, Defendants made a written demand upon Plaintiffs, dated September 22, 2008, for service of a complaint within twenty (20) days, pursuant to NY CPLR 3012(b). (Docket No. 2-2.) On the same day, Defendants removed the action to this Court based on diversity of citizenship. (Docket No. 1.)
On or about October 14, 2008, apparently in response to Defendants' written demand for a complaint, Plaintiffs served a completed pro se complaint form on Defendants' attorney, Daria A. Carr. (Docket Nos. 3, ¶ 6; 3-3). On that same date, Plaintiffs filed an "Answer to Notice of Removal," to which they attached:
1. Defendants' demand for a complaint ...