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Whispering Oaks Residential Care Facility, LLC v. At&T Wireless Pcs, Inc.

United States District Court, E.D. Missouri, Eastern Division

July 7, 2014

WHISPERING OAKS RESIDENTIAL CARE FACILITY, LLC, et al., Plaintiffs,
v.
AT&T WIRELESS PCS, INC., et al., Defendants.

MEMORANDUM AND ORDER

CAROL E. JACKSON, District Judge.

This matter is before the Court on plaintiffs' motion to remand the action to the state court from which it was removed. Defendants have filed responses in opposition and the issues are fully briefed.

I. Background

On August 16, 2013, plaintiffs[1] filed suit in the Twenty-First Judicial Circuit Court of Missouri (St. Louis County), seeking recovery of more than $3 million for lost business after pipes in their residential care facility froze because a heating coil was unplugged. Plaintiffs claim that defendants AT&T Wireless PCS, Inc. and Cricket Communications, Inc., had exclusive access to the water tower where the heating coil was located, pursuant to leases giving them rights to place cellular communications equipment on the tower.[2] Plaintiffs assert claims of breach of contract, trespass, fraud, negligence, and res ipsa loquitur.

On March 6, 2014, the state court dismissed the case without prejudice for failure to prosecute. On March 20, 2014, the state court granted plaintiffs' motion to set aside the dismissal. On May 29, 2014, defendant Cricket removed the action to this court, asserting diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332. Defendant Cricket alleges that "on information and belief" plaintiffs are citizens of Missouri; defendant Cricket is incorporated in Delaware and has its principal place of business in California. In the event that defendant AT&T Wireless PCS, Inc., is the proper defendant, it is incorporated and has its principal place of business in Delaware. With respect to defendant New Cingular, its sole member is AT&T Mobility II LLC whose members are incorporated in Delaware and Georgia, with their principal places of business in Georgia and Texas. Plaintiffs move for remand, arguing that removal was untimely, that compete diversity of citizenship is lacking, and that Cricket failed to obtain New Cingular's consent to removal.

II. Discussion

"A defendant may remove a state law claim to federal court only if the action originally could have been filed there." In re Prempro Products Liability Litigation , 591 F.3d 613, 619 (8th Cir. 2010) (citing Phipps v. FDIC , 417 F.3d 1006, 1010 (8th Cir. 2005)). The removing defendant bears the burden of establishing federal jurisdiction by a preponderance of the evidence. Altimore v. Mount Mercy College , 420 F.3d 763, 768 (8th Cir. 2005). "All doubts about federal jurisdiction should be resolved in favor of remand to state court." In re Prempro Products Liability Litigation , 591 F.3d at 620 (citing Wilkinson v. Shackelford , 478 F.3d 957, 963 (8th Cir. 2007)). A case must be remanded if, at anytime, it appears that the district court lacks subject-matter jurisdiction. 28 U.S.C. § 1447(c); Fed.R.Civ.P. 12(h)(3).

Removal in this case was premised on diversity jurisdiction, pursuant to 28 U.S.C. § 1332, which requires an amount in controversy greater than $75, 000 and complete diversity of citizenship among the litigants. 28 U.S.C. § 1332(a). "Complete diversity of citizenship exists where no defendant holds citizenship in the same state where any plaintiff holds citizenship." OnePoint Solutions, LLC v. Borchert , 486 F.3d 342, 346 (8th Cir. 2007).

A. Timeliness of Removal

Pursuant to 28 U.S.C. § 1446,

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

§ 1446(b). "A named defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, through service or otherwise, ' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service." Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. , 526 U.S. 344, 347-48 (1999) (emphasis added). Plaintiffs served New Cingular (under the name "AT&T Wireless PCS Inc.") on April 14, 2014, and Cricket Communications on April 29, 2014. [Doc. #1-4 at 17-18] Cricket Communications filed its notice of removal on May 29, 2014, within thirty days of receiving the summons on April 29, 2014, and the removal therefore was timely under § 1446(b).

Plaintiffs assert that AT&T, Inc., is the ultimate corporate parent of both New Cingular Wireless PCS and Cricket Communications and argue that, when they served New Cingular Wireless PCS Inc. (as AT&T Wireless PCS Inc.) on April 14, 2014, they effectively served Cricket, thereby triggering the 30-day removal period. Plaintiffs cite no law to support the proposition that service on one ...


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