Garbers-Adams et al v. Adams et alREPLY MEMORANDUM OF LAW in Support re: 8 MOTION to Remand.. DocumentS.D.N.Y.May 3, 2010SCOTT A. ADAMS, ROBERT W. WALFORD, AND FCSTONE, LLC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ) LISA WALFORD AND SAMANTHA GARBERS- )ADAMS, ) ) ) Case No. 10-CV-0726 ) ) Judge Denny Chin ) ) ) ) ) Plaintifs, v. Defendants. REPLY MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS SAMTHA GARBERS.ADAMS'S AN LISA WALFORD'S MOTION TO REMAD MOUND COTTON WOLLAN & GREENGRASS Michael R. Koblenz, Esq. (MK 0888) Sara F. Lieberman, Esq. (SL 3969) One Battery Park Plaza New York, NY 10004 Telephone: (212) 804-4200 Facsimile: (212) 344-8066 mkoblenzêmoundcotton.com slieberman ê moundcotton.com Attorneys for Plaintifs Samantha Garbers-Adams and Lisa Walford Case 1:10-cv-00726-RPP Document 18 Filed 05/03/2010 Page 1 of 15 Table of Contents Table of Authorities ....... ......... ................ ........ ............. ..... ........ ........ ........ ..................... ii, iii PRELIMINARY STATEMENT .........................................................................................1 STATEMENT OF FACTS ..................................................................................................2 ARGUMENT.......................................................................................................................4 i. THE PARTIES ARE PROPERLY ALIGNED AND REMOVAL FAILS FOR LACK OF SUBJECT MATTER JURISDICTION .................................................4 A. A Collision of Interest Exists Between Plaintifs and Defendants ................. B. Defendants Scott Adams and Robert Walford Do Not Have Standing In Plaintiffs' Declaratory Judgment Action ........................................................7 II. THE REMOVAL PETITION is FUNDAMENTALLY DEFECTIVE..................8 A. FCStone's Notice of Removal is Facially Defective and Fatally Flawed ......8 B. FCStone's Amended Notice of Removal is Untimely as a Matter of Law and Similarly Fundamentally Defective ..........................................10 CONCLUSION ..................................................................................................................10 Case 1:10-cv-00726-RPP Document 18 Filed 05/03/2010 Page 2 of 15 Table of Authorities Cases Arabesque v. Capacity LLC, No. 07 Civ. 2042 (TPG), 2008 U.S. Dist. LEXIS 19779 (S.D.N.Y. Mar. 10, 2008) ................................................................................................................9 Burr v. Toyota Motor Credit Co., 478 F. Supp. 2d 432 (S.D.N.Y. 2006) ........................................... 6 Gensler v. Sanolfi-Aventis, No. CV-08-2255 (DGT)(RER), 2009 U.S. Dist. LEXIS 27333 (E.D.N.Y. Mar. 30, 2009) ................................................................................................................4 Handelsman v. Bedford Vi!. Assocs. L.P., 213 F.3d 48 (2d Cir. 2000) .............................................. 9 Hershman v. Unumprovident Corp., 658 F. Supp. 2d 598 (S.D.N.Y. 2007).......................................6 In re Allen E. Dekdebrun, Jr. v. Hardt, 417 N.Y.S.2d 331 (App. Div. 4th Dep't 1979)..................... 7 In re Barrow, 306 B.R. 28 (Bankr. W.D.N.Y. 2004) .......................................................................... 7 In re Liquidation of Ideal Mut. Ins. Corp. v. Doug Ruedlinger, Inc., 571 N.Y.S.2d 18 (App. Div. 1st Dep't 1991) .............................................................................................................. 7 In re Marciano, 372 B.R 211 (Ban. SD.N.Y. 2007) ...................................................................... 7 Indianapolis v. Chase Natl Bank, 314 U.S. 63 (1941) ................................................................... 5,6 Irving Trust Co. v. Century Exp. & Imp., s.A., 464 F. Supp. 1232 (S.D.N.Y. 1979) .................... 6, 10 Leveraged Leasing Admin. Corp. v. Pacifcorp Capital, Inc., 87 F.3d 44 (2d Cir. 1996)............... 8, 9 Mackason v. Diamond Fin. LLC, 347 F. Supp. 2d 53 (S.D.N.Y. 2004).............................................. 9 Maryland Cas. Co. v. W.R. Grace and Co., 23 F.3d 617 (2d Cir. 1993)............................................. 6 New York City Sch. Constr. Auth. v. Bedell Assocs., Inc., No. 97 Cv. 4159, 1997 U.S. Dist. LEXIS 15597 (E.D.N.Y. Sept. 12, 1997)................................................................................ 4 N.K. T. Land Acquisitions, Inc. v. Chase Manhattan Mortgage Corp., 1 :07-CV -790 (GLSIR), 2007 U.S. Dist. LEXIS 90391 (N.D.N.Y. Dec. 7, 2007) ............................................ 9 Sherman v. A.J. Pegno Constr. Corp., 528 F. Supp. 2d 320 (S.D.N.Y. 2007) .................................... 6 Syms, Inc. v. IBI Sec. Serv., Inc., 586 F. Supp. 53 (S.D.NY 1984)....................................................6 11 Case 1:10-cv-00726-RPP Document 18 Filed 05/03/2010 Page 3 of 15 Statutes N.Y. Dom. ReI. Law § 236 ..................................................................................................................4 N.Y. Tax Law § 686 ............................................................................................................................ 4 26 U.S.C. § 6402(a) .............................................................................................................................4 28 U.S.C. § 1332...................................................................................................................... i, 3, 7, 8 28 U.S.C. § 1441.............................................................................................................................. i, 3 28 U.S.c. § 1446............................................................................................................................ 8, 10 28 U.S.c. § 1447(c) ............................................................................................................................. i C.P.L.R. § 3001................................................................................................................................ 4,7 I.R.C. § 6402(a) ................................................................................................................................... 4 11 Case 1:10-cv-00726-RPP Document 18 Filed 05/03/2010 Page 4 of 15 PRELIMIARY STATEMENT Plaintiffs Samantha Garbers-Adams and Lisa Walford (collectively "Plaintiffs"), through their attorneys, Mound Cotton Wollan & Greengrass, respectfully submit this Reply Memorandum of Law in furer support of their motion pursuant to 28 U.S.c. §§ 1441 and 1447(c) to remand this action to State court together with attorneys' fees, costs, disbursements, and interest, and for such other and furer relief as this Court deems just and proper. This action should be remanded because defendant FCStone, LLC ("FCStone") has failed to establish -- because it carot -- the subject matter jurisdiction of this Cour pursuant to 28 U.S.C. § 1332. Complete diversity of citizenship does not now exist, and certainy did not exist either when the action was commenced or when the action was removed. FCStone' s request for realignment is nothing more than a clever ploy in an impermissible game of forum-shopping, as evidenced by FCStone's removal coupled with its request to transfer this action to Ilinois. Realigment, however, is improper and unwarranted because a clear collision of interests exists between the Plaintiffs and defendants Scott A. Adams ("Scott Adams") and Robert W. Walford ("Robert Walford") (FCStone, Scott Adams, Robert Walford, collectively, "Defendants"). Moreover, realignment is impossible because, in its theoretical application, neither Scott Adams nor Robert Walford would have standing as a plaintiff in this declaratory judgment action. In addition, FCStone's removal petition is facially defective and fatally flawed. FCStone's failure to properly plead this Court's subject matter jurisdiction in its removal petition is not a mere technicality as FCStone incorrectly claims, but rather a fudamental defect. Neither Plaintiffs' Complaint nor FCStone's removal petition sets fort the subject matter jurisdiction of this Court. Thus, FCStone has failed to meet its burden of proof that removal is proper. FCStone's amended notice of removal is untimely as a matter of law, and similarly fails to set fort the jurisdiction of this Cour. Accordingly, remand is waranted. Case 1:10-cv-00726-RPP Document 18 Filed 05/03/2010 Page 5 of 15 As FCStone's removal petition was predicated upon a diversity of citizenship that clealy does not exist, Plaintiffs are entitled to an award of fees, costs, and actual expenses, including attorneys' fees incurred as a result of this removaL. STATEMENT OF FACTS The facts relevant to this motion are more fully set fort in the affidavits of Samantha Garbers-Adams, dated March 30, 2010, and the exhibits attached thereto, and Lisa Walford, dated March 31,2010, and the exhibits attached thereto, and Plaintiffs' Memorandum of Law in support of this motion. FCStone's mischaracterization of key facts in its memorandum of law must be addressed and clarified. Plaintiffs commenced this action on December 28, 2009 in the Supreme Cour of the State of New York, County of New York (Index No. 118152/09) seeking a declaration, inter alia, that Úley are entitled -- as a matter of law -- to a one-half share of each and every joint tax refund received by them and their husbands, defendants Scott Adams and Robert Walford, respectively. Defendants had settled disputes arising out of a deficit in Scott Adams's and Robert Walford's trading accounts with FCStone by entering into certain settlement agreements ("Settlement Agreements"), which provided for, inter alia, an assignment of Scott Adams's and Robert Walford's one-half interest in any joint tax refunds received by them and Plaintiffs. Significantly, Plaintiffs, who were not paries to the Settlement Agreements, brought this action only after lCStone threatened to pursue a claim against theÌl assets, unless Plaintiffs' respective shares of any tax refunds for the applicable tax years were turned over to FCStone. Plaintiffs, however, have never assigned nor transferred their interests in the tax refunds to FCStone, and they were not wiling to accede to the attempted coercion to do so. A critical fact, which FCStone repeatedly ignores, is that Plaintiffs are not and were never paries to Defendants' Settlement Agreements, nor are they even mentioned in the Settlement 2 Case 1:10-cv-00726-RPP Document 18 Filed 05/03/2010 Page 6 of 15 Agreements, and Úley are not third pary beneficiaries thereof. Accordingly, they are not and cannot be bound by the terms therein. Plaintiffs did not negotiate the terms of these Settlement Agreements with any of the Defendants, and therefore, did not bargain for or consent to the terms thcrcin, including the forum selection clause. Thus, Plaintiffs are not bound by the obligations in the Defendants' agreements, and cannot, as FCStone inappropriately claims, "avoid" any obligations in these agreements. i In addition, Plaintiffs were not parties to the trading accounts, and did not engage in any of the Defendants' trading activities. Moreover, Plaintiffs' rights to a one-half share of the joint tax refunds do not arise out of or relate to the Defendants' Settlement Agreements, but rather arise under the laws of the State of New York and the Internal Revenue Code. FCStone incorrectly claims that Plaintiffs and defendants Scott Adams and Robert Walford "all contend that a 50% interest in thc tax refunds . . . may be witheld from FCStone.,,2 This is completely inaccurate and misleading. Plaintiffs are not seeking to "withhold" the tax refwids from FCStone, but rather Plaintiffs are legally entitled to a one-half share of the refunds, and Plaintiffs' interest in these refunds has not been assigned or transferred to FCStone. In furterance of its unwilingness to accept the clear terms of the Settlement Agreements, FCStone has inappropriately theatened to usur Plaintiffs' rights and pursue a claim against Plaintiffs' assets. Remand is waranted because FCStone has failed to establish the subject matter of this Court pursuant to 28 U.S.c. § 1332 as there is no complete diversity of citizenship, and this action was improperly removed under 28 U.S.C. § 1441. 1 Plaintiffs are not parties to the Settlement Agreements, and thus, were not under any obligations to file amended State and Federal tax returns. Nevertheless, Plaintiffs and their husbands did timely prepare and fie tax returns for 2008 and amended tax returns for 2005, 2006, and 2007. The amended tax returns were approximately 100 pages each, and their accountants spent many months preparing these documents. 2 Defendant FCStone's Memorandum of Law Tn Opposition to Plaintijs' Motion to Remand ("FCStone Mem.") at 2. 3 Case 1:10-cv-00726-RPP Document 18 Filed 05/03/2010 Page 7 of 15 ARGUMENT I. THE PARTIES ARE PROPERLY ALIGNED AN REMOVAL FAILS FOR LACK OF SUBJECT MATTER .JUSDICTION A. A Collsion of Interest Exists Between Plaintiffs and Defendants FCStone's request for realignment should be denied because the Complaint clearly sets fort an actual controversy between Plaintiffs and Defendants. See New York City Sch. Constr. Auth. v. Bedell Assocs., Inc., No. 97 Cv. 4159, 1997 U.S. Dist. LEXIS 15597, at *10 (E.D.N.Y. Sept. 12, 1997) (declining to realign the paries where paries were already aligned according to their real interests); Gensler v. Sanolfi-Aventis, No. CV-08-2255 (DGT)(RER), 2009 U.S. Dist. LEXIS 27333, at *8 (E.D.NY. Mar. 30, 2009) (holding that complete diversity was defeated where defendants were "real par(iesJ in interest"). Plaintiffs brought this action pursuant to C.P.L.R. § 3001 for a declaration that they are legally entitled to their respective one-half interest in any and all joint tax refuds received by them and their husbands. See N.Y. C.P.L.R. § 3001. Plaintiffs' right to a one-half share of the refunds arises under the laws of the State of New York (see, e.g., N.Y. Dom. ReI. Law § 236; N.Y. Tax Law § 686) and the Internal Revenue Code (see I.R.C. § 6402(a); 26 U.S.C. § 6402(a)). Such refunds rcsult from New York State's and the Internal Revenue Code's treatment of a tax overpayment. See ¡d. Plaintiffs' rights do not, however, arise from or relate in any way to the Defendants' Settlement Agreements to which Plaintiffs were not paries. FCStone, however, has theatened to assert claims against Plaintiffs' assets though a tortured interpretation of the Settlement Agreements. As the other parties to these same agreements, Scott Adams and Robert Walford could follow the same course as FCStone and lay claim to their respective wives' interests in their joint tax refunds. Given that Scott Adams and Robert Walford engaged in transactions in their trading accounts, which resultcd in an account deficit of approximately $127,000,000, it is plausible that might assert a claim over Plaintiffs' assets to be applied to their debt. Neither Scott Adams or Robert Walford has answered or moved in this 4 Case 1:10-cv-00726-RPP Document 18 Filed 05/03/2010 Page 8 of 15 action, and FCStone's contention that their interests are aligned with the Plaintiffs' interests is therefore baseless and completely without merit? There is nothing in the record in this action that shows or even suggests that the interests of defendants Scott Adams and Robert Walford are "aligned" with those of Plaintiffs, and FCStone's reliance on discovery responses in the Ilinois action is misplaced.4 FCStone has failed to show the curent state of the Plaintiffs' marital relationships (which are, in fact, strained) or their financial matters and dealings. Plaintiffs were not par of any trading activities between and among Defendants. Defendants, not Plaintiffs, engaged in the trading activities that resulted in a $127,000,000 deficit. Moreover, Plaintiffs are not parties to the Defendants' agreements nor third pary beneficiaries thereof, and they were not par of any contract negotiations between and among Defendants. Under the Assigment Agreements, Scott Adams and Robert Walford assigned their one-half interest, and only tlieir one half interest, in the joint tax refunds to FCStone. They did not (and could not) assign theÌl wives' interests in the refunds. Plaintiffs have a property right to a one- half share of the joint tax refunds that is separate and apart from theÌl respective husband's property rights, and Plaintiffs are properly seeking a declaration to protect theÌl rights. Their economic interests are separate and apart from those of the Defendants. Thus, looking beyond the pleadings, the parties are properly aligned. See Indianapolis v. Chase Natl Bank, 314 u.s. 63,69 (l941). Where, as here, there is a clear "collsion of interest" between Plaintiffs and all Defendants, 3 In a desperate attempt to argue for realignment, FCStone alleges, albeit falsely, that the absence of Scott Adams and Robert Walford at the pre-motion conference purortedly demonstrated that they were "content to allow counsel for (Plaintiffs) to represent their interests." FCStone Mem. at 6n.4. This statement is wholly untrue, and such an unsubstantiated flagrant misrepresentation demonstrates nothing. Neither of these defendants has appeared in this action. Moreover, Plaintiffs interests are not aligned with the interests of these defendants. 4 It is unsurprising that Scott Adams and Robert Walford responded to their requests to admit and their interrogatories (in the Ilinois action) that their wives are entitled to one-half of the refunds -- because such a right exists as a matter of law. That is not to say, however, that their interests are "aligned" for purposes of the declaratory judgment action, or that Scott Adams and Robert Walford do not intend to pursue a claim against Plaintiffs' assets. In fact, their responses actually highlight the diversity between their interests and Plaintiffs' interests, and not the alignment of such interests. 5 Case 1:10-cv-00726-RPP Document 18 Filed 05/03/2010 Page 9 of 15 "realignment is inappropriate and impermissible." Syms, Inc. v. IBI Sec. Serv., Inc., 586 F. Snpp. 53, 56 (S.D.N.Y. 1984) (declining to realign the paries where a clear "collsion of interest" existed between plaintiff and both defendants). 5 Furter, it is apparent that FCStonc's rcquest for realignment is motivated by forum- shopping as evidenced by their removal and then their motion to transfer this action to Ilinois. This Court has recently acknowledged that this cannot be permitted. See Hershman v. Unumprovident Corp., 658 F. Supp. 2d 598, 601 (SD.N.Y. 2007 (citations omitted) (explaining that the "more it appears the decision is 'motivated by forum shopping reasons,' the less deference wil be accorded to it.") (internal citations omitted). The collsion of interest approach is consistent with the Supreme Court's chief concern in Indianapolis that "paries not manipulate alignment to manufacture diversity jurisdiction." Maryland Cas. Co. v. W.R. Grace and Co., 23 F.3d 617,623 (2d Cir. 1993). That is exactly what FCStone is tring to do here, and such behavior carot be countenanced by the Cour. Plaintiffs properly filed their action in State cour, and priority should be granted to Plaintifs' choice of forum. "(WJhen a pary challenges the removal of an action from state court, the burden falls on the removing party 'to establish its right to a federal forum by competent proof. '" Sherman v. A.J Pegno Constr. Corp., 528 F. Supp. 2d 320, 325 (S.D.N.Y. 2007) (citations omitted); see also Burr v. Toyota Motor Credit Co., 478 F. Supp. 2d 432, 436 (S.D.N.Y. 2006) (noting that the party asserting jurisdiction bears the burden of proof that jurisdictional and procedural requirements have been met). FCStone has failed to satisfy its burden of establishing diversity of citizenship under 28 5 Even if a defendant could benefit should Plaintiffs prevail, that is insufficient to support realignment. See Irving Trust Co. v. Century Exp. & Imp., SA., 464 F. Supp. 1232, 1241 (S.D.N.Y. 1979) ("That one defendant may benefit should plaintiff prevail against another defendant does not provide a suffcient basis for realignment."); Syms, 586 F. Supp. at 56 ("The fact that one defendant may benefit should plaintiff prevail against another defendant is not in and of itself sufficient to sustain realignment.") Thus, FCStone's claim that Plaintiffs' husbands may benefit should Plaintiffs prevail does support realignment. 6 Case 1:10-cv-00726-RPP Document 18 Filed 05/03/2010 Page 10 of 15 U.S.C. § 1332, and thus has failed to establish this Cour's subject matter jurisdiction, and this action must be remanded. B. Defendants Scott Adams and Robert Walford Do Not Have Standing In Plaintiffs' Declaratory Judgment Action FCStone's argument for realignment fails on another ground. Realignment of defendants Scott Adams and Robert Walford is impossible because they do not have standing to bring a declaratory judgment action under c.P.L.R. § 3001 for Plaintiffs' personal property interests. Pursuant to C.P.L.R. § 3001, a cour may declare "the rights and other legal relations of the paries to a justiciable controversy." N.Y. C.P.L.R. § 3001. To bring a declaratory judgment action, a pary must have standing, i.e., "a legally protectible interest, that is in direct issue or jeopardy, in order to invoke the remedy of declaratory judgment in the area of private litigation." In re Liquidation of Ideal Mut. Ins. Corp. v. Doug Ruedlinger, Inc., 571 NY.S.2d 18, 19 (App. Div. 1st Dep't 1991) (citation omitted). Standing tuns on "(whether) an individual. . . has a matured legally protectible interest in the outcome of the case such as to assure concrete adverseness in the presentation of issues." In re Allen E. Dekdebrun, Jr. v. Hardt, 417 N.Y.S.2d 331,333 (App. Div. 4th Dep't 1979) (alteration in original) (citation omittcd). Here, Plaintiffs are properly seeking to protect their interest in a one-half share of the joint tax refunds received by them and their husbands. As a matter of law, there is a presumption that a one-half interest in any joint tax refuds belongs to each co-filer of the joint tax refund. See In re Marciano, 372 B.R. 211, 215 (Bank. S.D.N.Y. 2007) (denying Trustee's motion seeking turnover of more than 50% of a joint tax refund where "an income tax refund should be split equally between spouses"); In re Barrow, 306 B.R. 28, 31-32 (Ban. W.D.N.Y. 2004) (adopting presumption that refuds should be equally split between spouses, and noting that the presumption of equal ownership "applies a fair method for allocating a joint tax refund"). FCStone has threatened to assert a claim against Plaintiffs' assets through an improper interpretation of Defendants' 7 Case 1:10-cv-00726-RPP Document 18 Filed 05/03/2010 Page 11 of 15 Settlement Agreements, hence the commencement of this lawsuit. There is no question that Plaintiffs have standing. Defendant Scott Adams and Robert Walford, as paries to the Settlement Agreements, are necessary paries to this action. They do not, however, have a "legally protectible interest" in Plaintiffs' property interests, and thus, do not have standing to seek a declaratory judgment as to Plaintifs' rights to the tax refunds. Plaintiffs are seekig a declaration as to their respective one-half interest in the joint lax refunds only, and not with respect to their husbands' interests. Accordingly, Scott Adams and Robert Walford were properly named as defendants, thereby defeating diversity of citizenship, and remand is furter warranted. II. THE REMOVAL PETITION is FUNAMENTALLY DEFECTIVE A. FCStone's Notice of Removal is Facially Defective and Fatally Flawed Contrary to FCStone's claims, FCStone's removal petition is facially defective and fatally flawed, and thus, removal was improper. The defects are not mere "technicalities," but rather are fudamental defccts that defeat subject matter jurisdiction. First, FCStone has failed to show complete diversity of citizenship under 28 U.S.c. § 1332 (a)(l) either when this action was commenced or when removal was sought, and realignment of the paries is unwaranted. Second, FCStone failed to secure consent from all defendants within the statutory period set fort under 28 U.S.c.§ 1446, and this failure furter warants remand. In addition, FCStone's removal petition fails to sets fort its own citizenship for diversity puroses, and thus, fails to properly set fort the subject matter jurisdiction of this Court, and the record does not establish that complete diversity exists. "It is firmly established that diversity of citizenship 'should be distinctly and positively averred in the pleadings, or should appear with equal distinctness in other par of the record.''' Leveraged Leasing Admin. Corp. v. Pacificorp Capital, Inc., 87 F.3d 44,47 (2d CÌl. 1996) (citation omitted). 8 Case 1:10-cv-00726-RPP Document 18 Filed 05/03/2010 Page 12 of 15 In its Notice of Removal, dated January 29,2010, FCStone states that it is "an Iowa limited liabilty company with its principal place of business located at 141 West Jackson Boulevard, Suite 2650, Chicago, IL 60604." See Notice of Removal at 14. Under New York law, however, the citizenship of a limited liability company for puroscs of diversity jurisdiction is that of each and every one of its members. See Handelsman v. Bedford Vi!. Assocs. L.P., 213 F.3d 48,51-52 (2d Cir. 2000); see also Arabesque v. Capacity LLC, No. 07 Civ. 2042 (TPG), 2008 U.S. Dist. LEXIS 19779, at *5 (S.D.N.Y. Mar. 10, 2008) ("Second Circuit precedent clearly holds that for LLCs, citizenship is determined based on the individual members of the LLC.") The state of an LLC's organization and principal place of business is irrelevant in determining its citizenship for diversity purposes. See N.K.T. Land Acquisitions, Inc. v. Chase Manhattan Mortgage Corp., 1:07-CV-790 (GLSIR), 2007 U.S. Dist. LEXIS 90391, at *1 (N.D.N.Y. Dec. 7, 2007) (remanding action and holding Chase's notice of removal was defective because it did not set out Chase's members or their citizenship, and Chase failed to show diversity was noneÚleless present); Mackason v. Diamond Fin. LLC, 347 F. Supp. 2d 53, 55-56 (S.D.N.Y. 2004) (finding averments in defendant's removal notice with respect to its own citizenship were insufficient to establish diversity jurisdiction where removal notice simply recited the principal place of business for defendant limited liability company without setting fort the citizenship of its members). Here, FCStone's Notice of Removal fails to set fort the citizenship of each and everyone of its members, and thus, fails to adequately plead this Cour's jurisdiction. The Cour carot determine whether there is complete diversity of citizenship, nor is it required to make any unwarranted presumptions in order to remediate FCStone's insufficient recitals. This defect in the removal petition furer warants remand.6 6 Moreover, the Complaint alleges only that Plaintiffs and defendant Scott Adams and Robert Walford are a "resident of the State of New York." A parties' residence, however, is insuffcient to establish their citizenship. Leveraged, 87 F.3d at 47 ("It is also clear that a statement of the parties' residence is insuffcient to establish their citizenship."); see also Tad/man, Nachamie, Spizz & Johns, P. C. v. Ashraf, No. 05 Civ. 10098 (CSH), 2006 U.S. Dist. LEXIS 72711, at *6 (S.D.N.Y. Oct. 4, 2006) (noting "when a plaintiff alleges residence but not citizenship," that is insuffcient to establish diversity jurisdiction). Thus, the Complaint does not allege the citizenship of any of the parties. FCStone assumes, 9 Case 1:10-cv-00726-RPP Document 18 Filed 05/03/2010 Page 13 of 15 B. FCStone's Amended Notice of Removal is Untimely as a Matter of Law and Similarly Fundamentally Defective FCStone then purportd to amend its Notice of Removal to include the citizenship of its members by filng an Amended Notice of Removal on February 25, 2010; however, this Amended Notice of Removal was filed beyond the thirty day time period set fort in 28 U.S.c. § 1446, and thus, is untimely as a matter of law. It is well established that removal statutes are to be strictly construed, and the "failure to comply with the time limits set by § 1446(b)" warrants remand. Irving Trust, 464 F. Supp. at 1236, 1239. In any event, the Amended Notice of Removal simlarly fails to set fort this Cour's jurisdiction because diversity of citizenship is stil lacking and all defendants did not consent to removaL. CONCLUSION For all of the foregoing reasons, Plaintifs Samantha Garbers-Adams and Lisa Walford respectflly request that this Court issue an Order remanding this action to state cour, together with attorneys' fees, costs, disbursements, and interest, and such other and furter relief as this Cour deems just and proper. Dated: New York, New York May 3,2010 11004 COTTON WWCEENGRASSy~£ . ./ Michael R. Koblenz, Esq. (MK 0888) Sara F. Lieberman, Esq. (SL 3969) One Battery Park Plaza New York, NY 10004 Telephone: (212) 804-4200 Facsimile: (212) 344-8066 mkoblenz ê moundcotton. com slieberman êmoundcotton.com Attorneysfor Plaintifs Samantha Garbers-Adams and Lisa Walford without support, in its removal petition that the individual parties are also "citizens" of the State of New York. The record, however, does not clearly reflect the parties' citizenship for diversity jurisdiction. 10 Case 1:10-cv-00726-RPP Document 18 Filed 05/03/2010 Page 14 of 15 CERTIFICATE OF SERVICE I, SARA F. LIEBERMAN, hereby certify that on this 3rd day of May, 2010, a true and correct copy of the foregoing documents was served on the Clerk of the Court and the following attorneys of record in accordance with the Federal Rules of Civil Procedure and/or U.S. District Court's Local Rules and/or U.S. District Cour's Rules on Electronic Service: Seth L. Levine, Esq. FOLEY & LARDNER LLP 90 Park Avenue New York, New York 10016 (212) 682-7474 Attorneys for Defendant FCStone, LLC Dean M. Jeske, Esq. FOLEY & LARDNER 321 North Clark Street, Suite 2800 Chicago, Ilinois 60654 (312) 832-4500 Of Counsel Attorneys for Defendant FCStone, LLC Mark Skolnick, Esq. PLATZER, SWERGOLD, KARLIN, LEVINE, GOLDBERG & JASLOW, LLP i 065 Avenue of the Americas New York, New York 10018 (212) 593-3000 Attorneys for Defendants Scott A. Adams and Robert w: Walford .LJ~ SARA F. LIEBERMN Case 1:10-cv-00726-RPP Document 18 Filed 05/03/2010 Page 15 of 15
