United States District Court, S.D. New York
the plaintiff: Stamell & Schager, LLP Andrew R. Goldberg
the defendant: Bailey & Glasser LLP Michael Murphy
MEMORANDUM OPINION AND ORDER
COTE, DISTRICT JUDGE.
Feather, LLC (“Of a Feather”) filed this action
in New York state court, alleging that Allegro Credit
Services, LLC (“Allegro”) engaged in deceptive
trade practices, tortious interference, and breach of
contract. Allegro removed the action to federal court, and Of
a Feather has moved to remand the action to state court. For
the following reasons, the motion is denied.
7, 2019, Of a Feather served on Allegro a “summons with
notice, ” a form of case-initiating document permitted
by New York's civil practice rules. See N.Y.
C.P.L.R. 305(b). The summons with notice did not include any
information concerning the plaintiff LLC's state
citizenship or that of its members. On September 9, 2019, the
plaintiff filed a complaint in the state-court action, which
likewise did not indicate Of a Feather's citizenship.
October 9, the defendant filed its notice of removal. On
October 24, the plaintiff filed its motion to remand the
action to state court. On November 7, in accordance with the
Court's Individual Rules of Practice in Civil Cases, the
defendant filed a letter explaining the basis for its belief
that diversity of citizenship exists between the parties.
Defendant filed its brief in opposition to the
plaintiff's motion on November 8, and plaintiff's
motion became fully submitted on November 15.
plaintiff raises two arguments in support of its motion to
remand: (1) that the Court lacks subject-matter jurisdiction
and (2) that the defendant's notice of removal was
untimely. Neither argument is persuasive.
federal court has removal jurisdiction over an action if (1)
the court would have had diversity jurisdiction over the
action if originally filed in federal court and (2) no
defendant is a citizen of the state in which the action was
filed. 28 U.S.C. § 1441(b). “[T]he citizenship of
a limited liability company is determined by the citizenship
of each of its members.” Carter v. HealthPort
Techs., LLC, 822 F.3d 47, 60 (2d Cir. 2016). “[A]
partnership takes the citizenship of all of its
partners.” Platinum-Montaur Life Scis., LLC v.
Navidea Biopharmaceuticals, Inc., 943 F.3d 613, 615 (2d
Cir. 2019). The citizenship of a traditional trust -- that
is, a trust establishing only a fiduciary relationship,
rather than an entity that can sue on its own behalf -- is
equivalent to the citizenship of its trustee. Raymond
Loubier Irrevocable Tr. v. Loubier, 858 F.3d 719, 729-31
(2d Cir. 2017). A corporation takes the citizenship of its
state of incorporation and the state where it has its
principal place of business. 28 U.S.C. § 1332(c)(1).
defendant asserts that the plaintiff LLC has one member,
Jared Stamell, who is a citizen of either New York or
Massachusetts. Plaintiff has not contested those
assertions.Allegro has asserted that its sole member
is Allegro, LLC. The members of Allegro, LLC are George
Caruolo, a citizen of Rhode Island; and GLD Partners LP. The
partners of GLD Partners LP are Daniel Gordon, a citizen of
California; the Gordon Children Trust, for which Daniel
Gordon is the trustee; and GLD Management, Inc., a Delaware
corporation with its principal place of business in
California. Accordingly, Allegro is a citizen of Rhode
Island, California, and Delaware. Because Allegro is not a
citizen of New York or of any state in which Of a Feather is
a citizen, this Court has jurisdiction.
Timeliness of Removal
28 U.S.C. § 1446(a), a defendant seeking to remove an
action to federal court must file a notice of removal
“containing a short and plain statement of the grounds
for removal.” Such notice of removal “shall be
filed within 30 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.” 28 U.S.C. §
1446(b)(1). This thirty-day clock only begins to run
“when the initial pleading enables the defendant to
intelligently ascertain removability from the face of such
pleading, so that . . . the defendant can make a short and
plain statement of the grounds for removal as required by 28
U.S.C. § 1446(a).” Whitaker v. Am.
Telecasting, Inc., 261 F.3d 196, 205- 06 (2d Cir. 2001)
(citation omitted). Intelligent ascertainment does not
require the defendant to conduct an investigation;
removability must be apparent from the face of the initial
pleading. See Moltner v. Starbucks Coffee Co., 624
F.3d 34, 38 (2d Cir. 2010) (“[T]he removal clock does
not start to run until the plaintiff serves the defendant
with a paper that explicitly specifies the amount of monetary