Boyer v. The Stop & Shop Supermarket Company LLC

Background

Defendants filed a notice seeking to remove the action from state court to the U.S. District Court for the Southern District of New York. The notice referred to “Defendants” in the plural and appeared to refer to The Stop & Shop Supermarket Company LLC and Stop & Shop. It also stated that a third, non-diverse defendant had been dismissed from the case. The court noted that the notice did not clearly identify which Stop & Shop defendant’s citizenship it addressed or explain whether the two Stop & Shop entities were the same entity.

Removal and jurisdiction

The court explained that, if the allegedly diverse defendant was a limited liability company, its citizenship depended on the citizenship of its members. Although the notice alleged the current citizenship of the defendant’s sole member—a corporation with citizenship in Delaware and Massachusetts—it did not allege that citizenship both when the state-court action was filed and when removal was sought. The court said it could not speculate about the parties’ citizenship.

The notice also asserted that the case had not been removable initially and became removable after the non-diverse defendant was dismissed on a summary-judgment motion. The court observed that an exception to the general rule that an involuntary dismissal of non-diverse parties does not make a case removable might apply, but the opinion did not find that the exception was established.

Ruling

The court held that the removal notice and state-court record did not establish that the parties were completely diverse. The matter was remanded to state court. Under 28 U.S.C. § 1447(c), the clerk was directed to mail a certified copy of the opinion and order to the Supreme Court of the State of New York, Bronx County, and to close the federal case. The order addressed removal and federal jurisdiction rather than the underlying claims.