The opinion of the court was delivered by: Igoe, District Judge.
This personal-injury action, based on common law negligence,
was commenced in the Town Court of Cicero. It was removed to
this court on defendant's petition alleging diversity of
citizenship between itself and plaintiff. The case is presently
before this court on plaintiff's motion to remand the action to
the Town Court on the grounds that: First, the removal was not
filed within twenty days after the service of summons and is,
therefore, untimely; second, that there is no diversity
jurisdiction within the meaning of 28 U.S.C. § 1441, inasmuch
as plaintiff, a citizen of Illinois, contends that defendant
Santa Fe's principal place of business is Chicago, Illinois.
Briefly stated, the facts are: Plaintiff filed his complaint
in the Town Court of Cicero on February 5, 1960. Neither the
complaint nor the summons served on defendant on February 15
indicated plaintiff's citizenship or residence. On March 15,
defendant served notice to take the plaintiff's discovery
deposition. On March 23, plaintiff's discovery deposition was
taken and for the first time, defendant ascertained that
plaintiff was a citizen of Illinois. The deposition was not
filed in the Town Court.*fn1 On April 11, nineteen days after
first ascertaining the citizenship of plaintiff, defendant
filed its removal papers stating that it was a citizen of the
State of Kansas, where it is incorporated and where it has its
principal place of business, and that plaintiff was a citizen
of Illinois. Plaintiff subsequently filed his motion to remand.
We turn first to the question of whether defendant's removal
was timely under 28 U.S.C. § 1446(b). Plaintiff, in his motion
to remand, initially ignored the second paragraph of this
section and contended that the petition for removal was filed
too late since it was filed more than twenty days after the
service of summons. Plaintiff has now abandoned this position
and presently contends that defendant's removal is premature.
28 U.S.C. § 1446(b) provides in the second paragraph:
"If the case stated by the initial pleading is
not removable, a petition for removal may be filed
within twenty days after receipt by the defendant,
through service or otherwise, of a copy of an
amended pleading, motion, order or other paper from
which it may first be ascertained that the case is
one which is or has become removable." (Emphasis
Defendant's removal was timely under § 1446(b) inasmuch as it
was effected within twenty days after defendant first
ascertained that the case was removable. Since the initial
pleading failed to state facts indicating whether the case was
removable, defendant was entitled to remove twenty days after
receipt by it of some pleading or other paper from which it was
first ascertained that the case was removable. The right to
remove dates from the receipt of the amended pleading, motion
or other paper from which it may first be ascertained that the
case is removable. Remington v. Central Pacific R. Co., 1905,
198 U.S. 95, 98, 25 S.Ct. 577, 49 L.Ed. 959; Powers v.
Chesapeake & Ohio R. Co., 1898, 169 U.S. 92, 101, 18 S.Ct. 264,
42 L.Ed. 673; Stack v. Strang, 2 Cir., 1951, 191 F.2d 106, 107;
Higgins v. Yellow Cab Co., D.C.Ill. 1946, 68 F. Supp. 453;
Morschauser v. American News Co., D.C.N.Y. 1958, 158 F. Supp. 517,
519; Cobleigh v. Epping Brick Co., D.C.N.H. 1949,
85 F. Supp. 862, 863; Hamilton v. Hayes Freight Lines, D.C. Ky.
1952, 102 F. Supp. 594, 596.
Plaintiff's discovery deposition taken pursuant to Illinois
Supreme Court Rule 19, even though not required to be filed,
was a sufficient "other paper" within the meaning of Section
1446(b) from which defendant first ascertained that the cause
was removable and defendant had twenty days after so learning
to remove the case. Stack v. Strang, 2 Cir., 1951,
191 F.2d 106, 107; Morschauser v. American News Co., D.C.N.Y. 1958,
158 F. Supp. 517, 519; Cobleigh v. Epping Brick Co., D.C.N.H. 1949,
85 F. Supp. 862, 863; Hamilton v. Hayes Freight Lines, D.C.Ky.
1952, 102 F. Supp. 594, 596.
Nor does the Court agree with plaintiff's contention that the
case may be ascertained to be removable only from some paper
filed of record in the State Court. Plaintiff's discovery
deposition was part of the judicial discovery process of the
State Court. "Other paper" refers to such court processes even
though not required to be filed, so long as these papers are
part and parcel of the State Court proceedings having their
origin and existence by virtue of the State Court processes.
This holding is consistent with the policy and purpose of
Congress to effect removals as early as possible and avoid
unnecessary delay. The filing of such a deposition does not
make the fact of diversity of citizenship ascertainable, but
the revelation under oath and recording of such diversity does.
To hold that the time for removal does not commence to run
until such a paper as the deposition is filed in court would be
to require an unnecessary action.
The removal having been timely, we now consider whether
federal jurisdiction based on diversity of citizenship exists.
Since the Santa Fe is incorporated under the laws of Kansas,
whether diversity of citizenship exists depends upon whether it
has its principal place of business in that State or in
Illinois. 28 U.S.C. § 1332, augmenting § 1441, provides that
for the purposes of diversity jurisdiction, a corporation:
"* * * shall be deemed a citizen of any state by
which it has been incorporated and of the State
where it has its principal place of business."
Plaintiff contends that the location of the Santa Fe's
executive offices at Chicago is determinative of the question,
and supports his position with a list of the railroad's
executive officers located in Chicago, as indicated in
defendant's Annual Report for 1959. Defendant contends that it
has its principal place of business in Topeka, Kansas, as
determined by an analysis of the totality of its corporate
activity. Defendant supported its position with a twenty-two
page affidavit of facts sworn to, among others, by its ...