United States District Court, S.D. New YorkMay 2, 2002
02 Civ 3213 (LAK) (S.D.N.Y. May. 2, 2002)

02 Civ 3213 (LAK).

May 2, 2002.


LEWIS A. KAPLAN, District Judge.

This action was commenced in New York Supreme Court, New York County, on or about November 30, 2001. A copy of the summons with notice (see N.Y. CPLR 305(b)) was delivered to defendant AOL Time Warner, Inc. ("AOLTW") on or about March 27, 2002. On April 25, 2002, AOLTW filed a notice of removal in this Court.

There are two problems with the purported removal of the action, each of which independently warrants the conclusion that the Court lacks subject matter jurisdiction and that the action was not properly removed.

First, the purported basis for removal is the alleged presence of a federal question. So far as the record discloses, the plaintiffs have not served a complaint. The only source of information as to the nature of their claims is the summary statement endorsed on the face of the summons. While that summary statement would be consistent with the assertion of one or more federal claims, it does not require the conclusion that plaintiffs ground their action on a claim or claims arising under the laws of the United States. As the burden of establishing federal jurisdiction is on the party invoking it, here AOLTW, the uncertainty must be resolved against it.

Second, the summons purports to name three defendants. All defendants who have been served must join in any notice of removal under 28 U.S.C. § 1441. Defendants WIPO and Mason did not join in this notice. Nor does the notice allege that these defendants have not been served.

Accordingly, this action is remanded to the New York Supreme Court, New York County, for lack of subject matter jurisdiction. Should it later appear that plaintiffs are asserting one or more claims arising under the laws of the United States, the defendant or defendants who have been served may seek to remove the action.