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Artur Kekus v. United Parcel Services


November 8, 2011


The opinion of the court was delivered by: Gold, Steven M., U.S.M.J.:


Plaintiff brings this action alleging that he injured himself when he fell from a ladder in a building owned by defendant United Parcel Services and UPS East Region. Plaintiff originally filed his action in state court, alleging negligence and violations of various New York laws.*fn1

Defendant Standard Demolition Services, Inc. then removed the case, invoking this court's diversity jurisdiction. When it removed the action, Standard asserted the following facts concerning diversity: 1) plaintiff is a resident of New York; 2) United Parcel Services, Inc. is a citizen of Delaware and Georgia; 3) UPS East Region is a regional office of United Parcel Services and is a citizen of Delaware and Georgia; 4) Standard Demolition Services, Inc. is a citizen of Connecticut; and 5) CT Corporation Systems is "merely Standard's register agent" and "therefore not a proper defendant" and thus its citizenship is "irrelevant." Notice of Removal ¶¶ 7-11, Docket Entry 1. Accordingly, Standard contends that "diversity is complete." Id. ¶ 12.

For an action to be properly removable, there must be complete diversity at the time the action was commenced and at the time it was removed. Arseneault v. Congoleum, 2002 WL 472256, at *3 (S.D.N.Y. Mar. 26, 2002). Moreover, "the party invoking diversity jurisdiction must demonstrate that complete diversity among the parties existed at the time removal was sought to federal court." Sherman v. A.J. Pegno Constr. Corp., 528 F. Supp. 2d 320, 325 (S.D.N.Y. 2007).

Based on defendant Standard's Notice of Removal, and in particular, its failure to identify the citizenship of a defendant, even one that may not remain a party to this case, the court cannot determine whether this action has properly been removed and whether this court has subject matter jurisdiction. Defendant Standard is hereby ordered to file a supplemental Notice indicating the citizenship of CT Corporation Systems no later than November 18, 2011. If CT Corporation Systems is a citizen of New York, Standard shall also explain the basis for diversity jurisdiction, particularly in light of 28 U.S.C. § 1441(b), which permits removal "only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." See also MOORE'S FEDERAL PRACTICE 3d § 107.14[2][c][iv] (noting that the removing party bears the burden of establishing that a non-diverse party is fraudulently or improperly joined by showing that there is no possibility that the plaintiff can establish a cause of action against the non-diverse party).

Moreover, removal requires the consent of all properly served co-defendants "whom the removing defendant(s) actually kn[ows] or should have known had been served." Williams v. Int'l Gun-A-Rama, 416 Fed. Appx. 97, 99 (2d Cir. Mar. 25, 2011). The Notice here provides no information as to whether Standard is aware that its co-defendants have been served, or that it has "exercised reasonable diligence" in determining the status of service of the co-defendants, Williams, 416 Fed. Appx. at 99 n.1, and whether they consent to removal. See Docket Entry 1. Accordingly, Standard's supplemental Notice shall also address the issue of service and consent of the co-defendants.


STEVEN M. GOLD United States Magistrate Judge

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