Opinion
Civil Action No. 3:01-CV-0821-L
March 11, 2002
MEMORANDUM OPINION AND ORDER
Before the court are the following motions:
1. Plaintiffs' Motion to Remand, filed May 30, 2001;
2. Defendants' Motion for Leave to File Second Amended Notice of Removal, filed January 11, 2002; and
3. Defendant PAG Family Partners, Ltd's Motion for Leave to File First Amended Notice of Removal, filed February 15, 2002.
The substitution of defendants, combined with the number of amended pleadings in this case, make confusing the nomenclature of the pending motions to amend. For the purposes of this order, the court will refer to the motions by the date on which they were filed.
After having considered the parties' motions, their responses, and their replies thereto, the evidence submitted, and the applicable law, the court denies Plaintiffs' Motion to Remand, denies as moot Defendants' Motion for Leave to File Second Amended Notice of Removal, and grants Defendant PAG Family Partners, Ltd's Motion for Leave to File First Amended Notice of Removal.
I. Factual and Procedural Background
Plaintiffs United Insurance Companies, Inc. ("UICI"), United Marketing Membership Group, Inc. ("UMMG, Inc."), and United Membership Marketing Group, Ltd. Liability Co. ("UMMG, Ltd.") (collectively, the "Plaintiffs") filed suit in Texas state court on March 26, 2001, complaining of several state common law causes of action that sound in fraud. Defendants Phillip A. Gray ("Gray") and PAG Family Partners, LLC ("PAG, LLC") timely removed the action to federal court on April 30, 2001. Defendants base jurisdiction on diversity of citizenship.
This case was originally assigned to Judge Kendall and was transferred to this court's docket on January 24, 2002.
Plaintiffs moved to remand on May 30, 2001, contending that Defendants' Notice of Removal failed to allege the parties' citizenship in conformity with the "then and now" rule. Plaintiffs further contend that Defendants did not prove the alleged fraudulent joinder of the UMMG entities, and thus could not demonstrate complete diversity. Defendants attempted to cure the alleged procedural defects by moving for Leave to File their Amended Notice of Removal on June 7, 2001.
The "then and now" rule mandates that "diversity of citizenship must exist both at the time of filing in state court and at the time of removal to federal court." Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996). A defendant's failure to comply with the "then and now" rule constitutes a "procedural defect" within the meaning of 28 U.S.C. § 1447(c). See In re Allstate Ins. Co., 8 F.3d 219, 221 (5th Cir. 1993).
On July 30, 2001, Judge Kendall heard argument on all outstanding removal and remand issues. During the hearing, it became clear that Plaintiffs misidentified one of the defendants, and had inadvertently sued a nonexistent entity. Counsel represented to the court that PAG, LLC did not exist, and that Plaintiffs had intended to sue PAG Family Partners, Ltd ("PAG, Ltd"). By orders issued from the bench, the court granted Defendants' June 7, 2000 Motion for Leave to File Amended Notice of Removal. The court also allowed Plaintiffs to amend their complaint to reflect the proper defendant, but ordered additional discovery be conducted regarding the citizenship of PAG, Ltd. Finally, the court determined that the UMMG entities were not real parties in interest, and that their citizenship must be ignored for the purposes of determining the court's diversity jurisdiction.
Plaintiffs filed their First Amended Complaint on December 14, 2001, after having conducted additional jurisdiction related discovery. The amended complaint added two new parties, naming as co-defendants Gray, PAG, Ltd., and Marguerite L. Gray ("Marguerite Gray"), in her capacity as a trustee of the PAG Family Trust. On January 11, 2001, Defendants Gray and PAG, Ltd moved for leave to file a second amended notice of removal. The January 11th motion amends the original notice of removal to cure technical defects in the allegation concerning Gray's citizenship, and adds allegations regarding the citizenship of PAG, Ltd and Marguerite Gray. On February 15, 2002, Defendant PAG, Ltd petitioned this court for Leave to its File First Amended Notice of Removal. The February 15th motion filed by PAG, Ltd, and consented to by all Defendants, cures a separate technical complaint concerning the "information and belief" allegation of PAG, Ltd's citizenship made in the January 11th motion.
II. Analysis
A. Defendants' Motions to Amend
1. Citizenship of Gray
The original Notice of Removal, filed on April 30, 2001, alleges the "now" citizenship of Gray, and sets forth the "then and now" citizenship of UICI and PAG, LLC. It also alleges the UMMG entities were fraudulently joined to defeat diversity jurisdiction. The January 11 and February 15 motions would amend the original notice of removal to allege specifically the "then and now" citizenship of Gray, which neither party contests.
The parties disagree, however, on whether the Defendants may amend the notice after the 30-day removal period has lapsed. Section 1653 provides that "[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." 28 U.S.C. § 1653. Section 1653 may not, however, create "create jurisdiction retroactively where it did not previously exist." Whitmire v. Vierns Ltd, 212 F.3d 885, 890 n. 5 (5th Cir. 2000) (citations omitted) (clarifying Zaini v. Shell Oil, Co., 853 F. Supp. 960 (S.D. Tex. 1994). Defendants argue that the amended notices of removal correct defective jurisdictional allegations. Plaintiffs respond that the amended notices improperly and untimely add missing jurisdictional allegations.
Plaintiffs characterize Defendants' allegation of Gray's "then" residence as an "absolute omission" of his "then" citizenship. They argue that a failure to allege "then and now" citizenship is a fatal defect, citing several cases where the courts have denied leave for amendments that would introduce missing allegations.
In support of their motion, Plaintiffs provide a laundry list of district court cases from other jurisdictions. A review of these cases shows that none of them is applicable here. For example, in Denton v. Wal-Mart Stores, Inc., 733 F. Supp. 340, 341 (M.D. Fla. 1990), the court denied leave to amend when the removing defendant never alleged an amount in controversy or its corporate citizenship. In Senter v. Sears, Roebuck Co., 712 F. Supp. 179, 180 (S.D. Fla. 1989), the court denied defendants' motion to reconsider the court's decision to remand the case to state court. In Zaini, the district court found diversity jurisdiction lacking because the suit involved alien plaintiffs and alien defendants. 853 F. Supp. at 963. The other cases are similarly tangential.
The Fifth Circuit, in D.J. McDuffie, Inc. v. Old Reliable Fire Ins. Co., 608 F.2d 145 (5th Cir. 1979), faced a similar fact situation. The insurers' notice of removal failed to allege "then and now" citizenship for the parties, so the plaintiffs moved to remand. The district court allowed amendment of the removal notice, and the plaintiff-appellants later argued that the missing allegation was a fatal, incurable omission. The Fifth Circuit held that because the citizenship allegation was defective, but not missing, it could properly be amended in the district court. Id. at 147; see also Alms, Ltd., L.L.P. v. Guzman, No. 3:98-CV-1798-G, 1998 WL 684245, at *1 (N.D. Tex. Sept. 25, 1998) ("It is well-settled . . . that a court may allow a party to amend its notice of removal in order to remedy a defective allegation of jurisdiction."); Camacho v. Cove Trader, Inc., 612 F. Supp. 1190, 1192 (E.D. Pa. 1985) (deeming amendment to replace allegations of residence with allegations of citizenship as a mere correction of technical defect).
Plaintiffs respond that McDuffie does not address whether a removal notice may be amended after the 30-day period for removal has run, and is therefore inapplicable. This argument, however, overlooks the central holding of the case, which treats the omission of a specific citizenship allegation as a defective, but not missing, allegation of jurisdiction. Moreover, if Plaintiffs correctly contend that McDuffie stands only for the proposition that amendments to the notice of removal may be freely made within the 30 day removal period, the Fifth Circuit would not have bothered to address the issue of what type of amendments are acceptable. In Moody v. Comm. Ins. Co. of Newark, N.J., 753 F. Supp. 198, 201 (N.D. Tex 1990), the district court held that after the 30-day removal period, amendments were only permitted to cure defective allegations of jurisdiction. "This holding, read in conjunction with McDuffie, confirms that § 1653 permits a defendant to amend defective allegations of jurisdiction after the passage of the removal period.
2. Citizenship of PAG, Ltd.
Plaintiffs next fault Defendants for not including in their original notice of removal any allegations concerning the citizenship of PAG, Ltd. In the proposed amended notices of removal, Defendants would add the allegation that PAG, Ltd is comprised of two partners; Phillip Gray as the General Partner, and the PAG Family Trust as the Limited Partner. The amended notices would further add allegations regarding the citizenship of the Trust. Plaintiffs argue that section 1653 prohibits Defendants from amending their notice of removal to include these missing allegations, and urge the court to remand the case to state court based on this technical defect.
Curiously, Plaintiffs ignore that they did not name PAG, Ltd. as a defendant in this action until December 14, 2001, more than seven months after the originally named defendants removed to this court, and more than three months after Judge Kendall allowed Plaintiffs to and end their complaint. Plaintiffs served the newly added defendants in January 2002. Only after Plaintiffs named the correct parties, and in accordance with Judge Kendall's July 30 instructions, did Defendants attempt to amend their notice of removal to reflect the citizenship of the parties involved. The court cannot conclude that Defendants' failure to allege in their original notice of removal the citizenship of a party that had not yet been sued, constitutes a basis for remand. See, e.g., Plains Growers, Inc. v. Ickes-Braun Glass, Inc., 474 F.2d 250, 252 (5th Cir. 1973) ("The citizenship of one who has an interest in the lawsuit but who has not been made a party to the lawsuit by plaintiff cannot be used by plaintiff on a motion to remand to defeat diversity jurisdiction."). In light of these circumstances, the court will allow defendants to amend the notice of removal to include the proper jurisdictional allegations.
Moreover, it is not even clear that Defendants must amend their notice of removal to account for the citizenship of PAG, Ltd and Marguerite Gray. The Fourth Circuit, for example, found that voluntary acts by the Plaintiff that modify the grounds for removal, but do not destroy the district court's subject matter jurisdiction do not require a Defendant to modify its notice of removal. See Yarnevic v. Brink's Inc., 102 F.3d 753, 755 (4th Cir. 1996); 14B CHARLES ALAN WRIGHT, ARTHUR R. MILLER EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3723 (3d ed. 1998). Here, neither PAG, Ltd nor Marguerite Gray was originally named as defendants in Plaintiffs' the state court petition. Plaintiffs' First Amended Complaint, filed in this court on December 14, 2001, alleges that PAG, Ltd is a Colorado limited partnership, and identifies Phillip Gray as the General Partner. See Am. Compl. ¶ 6. The Amended Complaint further alleges that Marguerite Gray is a citizen of the State of Colorado. Id.. ¶ 7. In light of the court's opinion regarding the citizenship of the UMMG entities, the citizenship of PAG, Ltd. and Marguerite Gray have no effect on the court's diversity analysis.
3. Rule 15 Objections
Plaintiffs finally contend that Defendants offer no Rule 15 justification for granting leave to amend. Rule 15, however, provides that leave "shall be freely given when justice so requires," and it "evinces a bias in favor of granting leave to amend." Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981). The Fifth Circuit instructs that courts must broadly construe § 1653 to avoid dismissals of actions on purely "technical" or "formal" grounds. See Whitmire, 212 F.3d at 887. Given that Defendants have shown no bad faith or undue delay in making their motion, the court refuses to deny leave to amend based on the lack of diligence of either party.
Accordingly, the court grants Defendant PAG Family Partners, Ltd's Motion for Leave to File First Amended Notice of Removal, filed February 15, 2002. The February 15th motion to amend clarifies the jurisdictional allegations made by Defendants in their January 11th motion. Because the February 15th motion is otherwise identical to the January 11th motion, the court denies as moot Defendants' Motion for Leave to File Second Amended Notice of Removal, filed January 11, 2002.
B. Plaintiffs' Motion to Remand
The only remaining issue for remand concerns the alleged "fraudulent joinder" of the UMMG entities. Defendants contend that Plaintiffs improperly joined the UMMG entities solely to defeat the court's diversity jurisdiction. Plaintiffs respond that the UMMG entities are proper party-plaintiffs, and urge the court to remand for lack of jurisdiction.
The court notes that Judge Kendall resolved this issue in favor of Defendants. Because Plaintiffs re-urge the court to remand for lack of diversity jurisdiction, the court construes Plaintiffs' motion as one for reconsideration of Judge Kendall's order issued from the bench on July 30, 2001.
Pursuant to 28 U.S.C. § 1441(a), a defendant may remove from state court any civil action over which the federal court would have original jurisdiction. Removal on the basis of diversity of citizenship is proper where the case involves citizens of different states and the amount in controversy, exclusive of interests and costs, exceeds $75,000. See 28 U.S.C. § 1332(a). As the removing party, a defendant bears the burden of establishing the basis for federal jurisdiction. See St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998). All doubts concerning removal are to be resolved against removal and in favor of remanding the case to state court. See Cross v. Bankers Multiple Line Ins. Co., 810 F. Supp. 748, 750 (N.D. Tex. 1992).
As an initial matter, the court notes some confusion over the proper standard to apply when a defendant contends that a plaintff has been improperly joined. The fraudulent joinder doctrine more commonly addresses the improper joinder of a non-diverse defendant. The Fifth Circuit has not yet extended the doctrine to the joinder of a non-diverse plaintiff. In the absence of controlling authority, however, other district courts in this circuit have applied the fraudulent joinder doctrine in such situations. See, e.g., Elk Corp. of Texas v. Valmet Sandy-Hill, Inc., No. 3:99-CV-2298-G, 2000 WL 303637, at *2 (N.D. Tex. March 22, 2000) (Fish, J.); Nelson v. St. Paul Fire Marine Ins. Co., 897 F. Supp. 328, 331 (S.D. Tex. 1995) (stating "the ordinary standard for analyzing claims of fraudulent joinder apply equally well" where the improper joinder of plaintiff is designed to defeat diversity); National care Corp., Inc. v. St. Paul Property Casualty Ins. Co., 22 F. Supp.2d 558, 561-63 (S.D. Miss. 1998) (finding diversity jurisdiction after concluding plaintiff not a proper party to action); Oliva v. Chrysler Corp., 978 F. Supp. 685, 689 (S.D. Tex. 1997) ("The citizenship of a party-plaintiff may also be disregarded for purposes of determining whether diversity jurisdiction exists if the removing party can show that the non-diverse party was fraudulently joined.").
To prove fraudulent joinder, a removing party "must demonstrate either outright fraud in the plaintiffs recitation of jurisdictional facts, or that there is absolutely no possibility that the plaintiff will be able to establish a cause of action against the in-state defendant in state court." Rodriguez v. Sabatino, 120 F.3d 589, 591 (5th Cir. 1997) (internal citation omitted). The court may consider summary judgment type evidence such as affidavits and deposition testimony when resolving fraudulent joinder claims. Id. at 246-47.
Other courts have cast the test in somewhat different terms. See, e.g., Jowa Pub. Serv. Co. v. Medicine Bow Coal Co., 556 F.2d 400 (8th Cir. 1977); Foslip Pharm., Inc. v. Metabolife Intl., Inc., 92 F. Supp.2d 891 (N.D. Iowa 2000); Eilander v. Federated Mut. Ins. Co., No. 4:00-CV-1746-A, slip op. (N.D. Tex. Feb. 5, 2001) (MeBryde, J.). The Eighth Circuit explained, "if the `nondiverse' plaintiff is not a real party in interest, and is purely a formal or nominal party, his or its presence in the case may be ignored in determining diversity jurisdiction." Medicine Bow, 556 F.2d at 404. In Medicine Bow, four members of a joint venture sued on a contract that was made on behalf of the entire venture, but was executed in the name of only one member. The member that executed the contract was diverse from the defendants, but the other three members were not. The defendants contended that the non-diverse plaintiffs were mere "nominal" or "formal" parties because they were not parties to the contract. The court concluded, however, that the non-diverse plaintiffs were nevertheless "beneficially interested" in the contract under Iowa law. Id. at 405. Thus, the court held that the non-diverse plaintiffs satisfied Rule 17(a), and considered all of the parties' citizenship for the purpose of establishing its diversity jurisdiction. Id. at 406.
The Fifth Circuit applied the "real party in interest" test in a case involving a closely related dset of facts. In Farrell Constr. Co. v. Jefferson Parish, La., 896 F.2d 136 (5th Cir. 1990), a general contractor sued Jefferson Parish on behalf of itself and its subcontractor in federal court, basing jurisdiction on diversity of citizenship. The subcontractor, however, was not joined as a party to the suit. Joinder of the subcontractor would have destroyed diversity. The district court deemed the subcontractor an indispensable party and dismissed the entire action for want of jurisdiction. The Fifth Circuit reversed, holding that the subcontractor was not a "real party in interest" within the meaning of Rule 17(a). Id. at 141. The Fifth Circuit noted that "the real party in interest is the person holding the substantive right sought to be enforced, and not necessarily the person who will ultimately benefit from the recovery." Id. at 140. "Conversely," the court explained, "a party not possessing a right under substantive law is not the real party in interest with respect to that right and may not assert it." Id.
Based on the reasoning of Medicine Bow and Farrell, this court believes Rule 17(a) provides the proper standard to determine whether a plaintiffs citizenship should be considered for the purpose of establishing diversity. See also 14 CHARLES ALAN WRIGHT, ARTHUR R. MILLER EDWARD H. COOPER, FEDERAL PRACTICEPROCEDURE, § 3641 (2d ed. 1985) ("[I]n cases in which the plaintiff attempts to defeat jurisdiction by the joinder of a non-diverse plaintiff, the courts will allow the transaction only if that person is deemed a real party in interest under Rule 17(a)"). This rule also comports with Supreme Court precedent. See Navarro Sav. Assoc. v. Lee, 446 U.S. 458, 461 (1980) ("[A] federal court must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy."). For the reasons stated below, the court concludes that the UMMG entities are not real parties in interest, and holds that their citizenship must be ignored when establishing the court's diversity jurisdiction.
The court notes that application of either standard generates the same result under the facts of this case. As explained elsewhere, state law prohibits the UMMG entities from asserting their claims against the Defendants in state court. As a result, the UMMG plaintiffs would be deemed "fraudulently joined" under the second prong of the fraudulent joinder test. See, e.g., Jernigan v. Ashland Oil Inc., 989 F.2d 812, 817 (5th Cir. 1993) (finding defendants fraudulently joined because plaintiffs cannot establish a claim against any of the named defendants in state court).
On June 30, 2000, UICI and an a subsidiary, United CreditServ, Inc. ("UCS") entered into a Stock Purchase Agreement (the "Agreement") with a number of business entities controlled by Robert Gamberg ("Gamberg"). See Reed Aff. Ex. A at 1. Under this Agreement, UICI sold all of the issued and outstanding shares of common stock of UMMG, Inc., and all of the membership interests of UMMG, LLC to Gamberg. Id. In effect, UICI sold all of the assets and liabilities of the UMMG entities to Gamberg and his business entities, with one exception: Pursuant to § 5.3 of the Agreement, under the heading "Retained Claims," the parties agreed that UICI would retain certain legal claims. Id. at 7-8. These claims were defined to encompass all claims and causes of action accruing prior to the closing date that the UMMG entities had against, inter alia, Defendants Phillip A. Gray and all related Gray family trusts and partnerships. Id. at 2.
Specifically, the parties agreed that "[UICI] shall have the right, exclusive to them, to investigate, prosecute, contest, defend or settle . . . any and all of the Retained claims." (emphasis added). Id. at 7-8. The parties further agreed that "the [UMMG entities] shall file, at [UICI's] expense, any actions, suits and proceedings and any and all pleadings in connection therewith, in the name of the [UMMG entities] if appropriate, as may be directed by [UICI]." (emphasis added). Id. Finally, the Agreement provides "that if . . . the [UMMG Entities] [or] Gamberg . . . receives any settlement or judgment proceeds with respect to the Retained Claims . . . such "Retained Claim Proceeds" will be paid within ten days of receipt to [UICI]." (emphasis added). Id. Defendants contend that the UMMG entities retained no substantive rights to the claims at issue, and in effect have assigned all of their rights to UICI. This court agrees.
Both Texas and Colorado law provide that an assignor is no longer a real party in interest. See Eilander, slip op. at 7; see also Southern County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 465 (Tex.App. 2000) (holding that once "a cause of action is assigned or transferred, the assignee becomes the real party in interest with the authority to prosecute the suit to judgment"); River Consulting, Inc. v. Sullivan, 848 S.W.2d 165, 169 (Tex.App. 1992) (holding an assignor is precluded from bringing suit unless the assignor has retained some right or interest in the claim); Hallman v. Safeway Stores, Inc., 368 F.2d 400, 403 (5th Cir. 1966) ("It is established Texas law that unless the assignor has retained some interest [in the assignment], he, the assignor is precluded from bringing suit."); accord Platte Valley Mortgage Corp. v. Bickett, 916 P.2 (1631, 633 (Colo.Ct.App. 1996) ("Only a real party in interest may pursue a cause of action. An assignee of a claim is a real party in interest."); Miller v. Accelerated Bureau of Collections, Inc., 932 P.2d 824 (Colo.Ct.App. 1996) (dismissing complaint because bankruptcy estate, not plaintiffs, was the real party in interest with standing to pursue those claims); Hoeppner Constr. Co. v. United States, 287 F.2d 108, 111 (10th Cir. 1960) ("[I]t is the law of Colorado that where an account, claim, or debt has been effectively assigned in fill, the assignee is the real party in interest with right to maintain an action."). The court finds that the UMMG Plaintiffs expressly assigned their claims against Defendants to UICI, and therefore, are not real parties in interest under either Texas or Colorado law. As a result, the court will ignore their citizenship for the purpose of determining its diversity jurisdiction.
Defendants also contend that Plaintiffs joined the UMMG entities without their authorization. In support of this contention, Defendants provide an affidavit of Gamberg wherein he testifies that neither he nor the business entities under his control has consented to the naming of the UMMG entities as Plaintiffs in this action. See Gamberg Aff. ¶ 3. He also testified that neither he nor the business entities under his control has contracted with Weil, Gotshal Manges, attorneys for Plaintiffs, or consented to that firm's representation of UMMG in this matter. Id. at ¶ 4.
Defendants make the following allegations regarding the citizenship of the parties: Defendant Gray is a citizen of the State of Colorado; Defendant PAG, Ltd is a citizen of the State of Colorado, the Cook Islands, and the Isle of Man; and, Defendant Marguerite Gray is a citizen of the State of Colorado. Plaintiff UICI is a citizen of the State of Texas (principal place of business) and the State of Delaware (place of incorporation). The court ignores the citizenship of the UMMG entities for the reasons explained above. Based on the above, the court finds there exists complete diversity. Therefore, Plaintiffs Motion to Remand is denied.
A limited partnership is a citizen of the state of citizenship of each of its partners. See Carden v. Arkorna Assocs., 494 U.S. 185, 195 (1990). At the time Plaintiffs filed the state court action, and at the time Plaintiffs filed their First Amended Complaint, the Defendants allege that PAG, Ltd was comprised of the following partners: Phillip A. Gray as the General Partner, a citizen of Colorado; and the PAG Family Trust as the Limited Partner.
The citizenship of a trust is determined by the citizenship of its trustees. Navarro, 446 U.S. at 462. At the time Plaintiffs filed the state court action, the PAG Family Trust had three trustees: Dennis Weseloli, a citizen of Colorado; Marguerite Gray, a citizen of Colorado; and, the Cook Islands Trust Limited, a Cook Islands corporation and citizen. At the time Plaintiffs filed their First Amended Complaint, and currently, only the Cook Islands Trust Limited remains as a trustee. Defendants allege the Cook Islands Trust Limited is a citizen of the Cook Islands because its principal place of business and its place of incorporation are in the Cook Islands. Finally, at the time Plaintiffs filed their state court action, Gray was the Protector of the PAG Family Trust. Currently, and at the time Plaintiffs filed their amended complaint, Corporate Management and Business Services Limited, a citizen of the Isle of Man, is the Protector. From the above allegations, the court concludes that PAG, Ltd is a citizen of the State of Colorado, the Cook Islands, and the Isle of Man.
III. Miscellaneous
The court is aware that a suit involving the same parties and operative facts is currently pending in a United States District Court for the District of Colorado. Section 1404(a) provides "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). Upon preliminary review, the court believes that the transfer of this case to the District of Colorado may be appropriate. The parties are ordered to file with the court briefs that address whether this case should be transferred to the District of Colorado pursuant to § 1404(a) by March 22, 2002.
IV. Conclusion
For the reasons stated herein, the court denies Defendants' Motion to Remand, filed May 30, 2001; denies as moot Defendants' Motion for Leave to File Second Amended Notice of Removal, filed January 11, 2002; and grants Defendant PAG Family Partners, Ltd's Motion for Leave to File
First Amended Notice of Removal.
It is hereby ordered that Defendant PAG Family Partners, Ltd's First Amended Notice of Removal be filed with the Clerk of the Court as part of the papers in this cause.
It is further ordered that the parties file with the court briefs that address whether this case should be transferred to the District of Colorado by March 22, 2002.