McGuigan v. Roberts
| Decision Date | 14 February 1959 |
| Citation | 170 F. Supp. 372 |
| Parties | E. Gayle McGUIGAN and Richard Kilcullen, co-partners, doing business under the firm name and style of McGuigan & Kilcullen, Plaintiffs, v. Mary Ellen Plant ROBERTS and Amy Plant Statter, Defendants. |
| Court | U.S. District Court — Southern District of New York |
William M. Kilcullen, New York City, for plaintiffs.
Sinsheimer and Sinsheimer, New York City, for defendant Mary Ellen Plant Roberts, Leonard A. Sussman, New York City, of counsel.
Satterlee, Browne, Cherbonnier & Dickerson, New York City, for defendant Amy Plant Statter, John H. Reilly, Jr., New York City, of counsel.
This is a motion to remand the action to the state court on the ground that it was improperly removed to this Court.
The action, which is one for professional services in the sum of $500,000, was started in the Supreme Court of New York County on January 16, 1959. On January 30, 1959, the attorneys for the respective defendants mailed to the attorney for the plaintiffs notices of appearance and on the same day filed in this court separate petitions for the removal of the action to this court.
The moving party urges that these petitions failed to set forth the jurisdictional facts which would have entitled the defendants to remove the action to this court, in that the petitions allege simply that the defendant Statter was a "resident" of the State of Nevada, but did not allege that she was a "citizen" of a state other than New York; and on the ground that the petitions alleged that the amount in controversy was over $3,000, rather than over $10,000 which is the present jurisdictional requirement.
It is well established that the right to remove an action from a state court to a federal court depends upon diversity of citizenship and not diversity of residence, and that accordingly the removal papers, alleging merely diversity of residence, are not sufficient to support a removal of the action. Apparently recognizing this fact, and after the present motion was made, the defendants on February 6, 1959, filed an amended petition, both in the state court and in this court. The amended petition corrected the defects in the former petitions in that it alleged that each of the defendants was a citizen of a state other than the State of New York, and in that it alleged that the amount in controversy was over $10,000. This amended petition stated also:
"That this petition is a consolidation and an amendment of two separate petitions for removal heretofore filed in this action, and is being filed within twenty days from receipt of the summons and complaint."
The fundamental issue to be determined on this motion is whether...
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...to the Court's attention Allstate Insurance Co. v. Lumbermens Mutual Casualty Co., 204 F. Supp. 83 (D.Conn.1962) and McGuigan v. Roberts, 170 F.Supp. 372 (S.D.N.Y. 1959). So far as appears from the opinion, the Allstate Insurance Co. case did not involve a petition to remove, and McGuigan v......
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