Callen v. Callen

United States District Court for the Southern District of New York · Family Law

Family LawRemovalRemandTransfer of VenueDiversity Jurisdiction28 U.S.C. § 1446(b)28 U.S.C. § 1404(a)28 U.S.C. § 1332

Facts

Plaintiffs sued defendant over alleged misappropriation and mismanagement of assets held in the Callen Trust. Although plaintiffs conceded complete diversity existed, the initial complaint did not state the domicile of any party, so removability was not apparent on the face of the pleading. Plaintiffs later filed Reply Affidavits on July 27, 2011 that disclosed facts sufficient to determine complete diversity, and defendant filed his notice of removal on August 26, 2011. The trust is governed by Florida law, has administrative offices in Savannah, Georgia, and its records and relevant third-party professionals are located there.

Issue

Whether defendant's notice of removal was timely under 28 U.S.C. § 1446(b) when the complaint itself did not reveal diversity, and if so, whether the case should be transferred to the Southern District of Georgia under 28 U.S.C. § 1404(a).

Rule

If the grounds for removal are not apparent on the face of the complaint, the 30-day period in 28 U.S.C. § 1446(b) begins only when the defendant receives an amended pleading, motion, order, or other paper from which removability may first be ascertained; an oral assertion does not start the clock. If remand is denied, transfer under 28 U.S.C. § 1404(a) may be granted when the interest of justice, the convenience of parties and witnesses, and efficient docket management favor the transferee district.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a fiduciary dispute filed in Cook County, Illinois, Nina Patel sued her cousin, Owen Mercer, over management of a family education fund. The complaint alleged only the parties' current residences and sought damages above $75,000, but it did not state either party's domicile. Three weeks later, Nina filed a sworn response to a state-court motion stating that she was domiciled in Illinois and Owen was domiciled in Colorado, and Owen removed 20 days after receiving that filing.

Was Owen's removal timely?

Explanation. Yes. When removability is not apparent on the face of the complaint, the 30-day removal clock under § 1446(b) begins only upon receipt of an amended pleading, motion, order, or other paper from which removability may first be ascertained. A later sworn filing that discloses domicile can trigger the clock; removal within 30 days of that paper is timely. (Derived from Callen v. Callen (n.d.).)