Summary
finding defendant's removal untimely when summons with notice "was sufficient to allow the defendant to allege New York citizenship and thus to remove"
Summary of this case from MBIA Ins. Corp. v. Royal Bank of CanadaOpinion
03 Civ. 3709 (LAK)
November 26, 2003
ORDER
This action was removed from the Supreme Court of the State of New York, Bronx County, on or about May 23, 2003. The notice of removal alleges the date on which the defendant received the complaint but it is silent as to when it received the summons. Plaintiff, moreover, contends that the action was commenced by the service and filing of a summons with notice, see N.Y. CPLR 304, 305(b), which it now acknowledges it received on March 5, 2003.
The question whether the time within which to remove an action commenced in the state court by the service of a summons with notice, but no complaint, begins with the service of that summons depends upon whether the summons with notice provides "information from which a defendant can ascertain removability." Whitaker v. American Telecasting, Inc., 261 F.3d 196, 204 (2d Cir. 2001).
In this case, the summons indicated that the plaintiff resided in the Bronx, that this is an action for various torts, and that plaintiff seeks $1 million in damages. The matter in controversy plainly is adequate to invoke diversity jurisdiction. The only issue is whether plaintiff's allegation of New York residence was sufficient in light of the fact that residence, as opposed to citizenship, is not a predicate for diversity jurisdiction. Sun Printing Publishing Ass'n v. Edwards, E.g., 194 U.S. 377 (1904); Leveraged Leasing Administration Corp. v. PacifiCorp Capital, Inc., 87 F.3d 44 (2d Cir. 1996); Depradine v. Nissan Infiniti LT, No. 00 Civ. 6686 (LAK), 2000 WL 1280971, *1 (S.D.N.Y. Sept. 11, 2000).
The notice of removal that eventually was filed after service of the complaint noted plaintiffs allegation of Bronx residence and then went on to allege, on information and belief, that he is a citizen of New York. Notice of removal ¶ 11. The summons' allegation of New York residence therefore plainly was sufficient to allow the defendant to allege New York citizenship and thus to remove.
As the summons with notice was sufficient to allow the defendant to determine removability, the time within which to remove began on March 5, 2003. The notice of removal therefore was untimely. The action is remanded to the New York Supreme Court, Bronx County.
SO ORDERED.