Associates, Ltd. alleges to be a Texas limited partnership with
its partners citizens of Texas and Louisiana. Verified Petition
for Removal ¶ 5. For purposes of diversity jurisdiction,
therefore, the defendants are citizens of Delaware, New York,
Texas, and Louisiana.
This action by Kanter is based upon breach of contract, fraud,
and misrepresentation brought by Kanter, as tenants of Three
First National Plaza, against the defendants. The dispute
involves computation of the "initial basic cost" clause and other
representations made by the defendants which were allegedly not
contained in Kanter's lease. Two additional suits have been
brought in the state court against defendants by other tenants of
Three First National Plaza. The first action was filed on March
23, 1984 by Hayes/Joyce and Company. The second was filed by
Bell, Boyd & Lloyd on April 27, 1984, after it was granted leave
to intervene in the Hayes/Joyce lawsuit. On May 7, 1984, Kanter
filed a petition for leave to intervene in the Hayes/Joyce
action. Circuit Court Judge David J. Shields granted Kanter leave
to intervene for purposes of discovery and other pre-trial
proceedings on May 23, 1984.
The defendants filed their answer to Kanter's complaint on July
5, 1984. The defendants then proceeded with discovery and other
pre-trial proceedings involving all three suits. The defendants
have also been involved for several months in proceedings
conducted in the state court regarding Bell, Boyd & Lloyd's
motion for a preliminary injunction.
On October 9, 1984, the defendants filed a petition for removal
of this case pursuant to 28 U.S.C. § 1441 et seq. The petition
relies on diversity of citizenship of the parties as grounds for
removal and contains allegations of Kanter's citizenship
allegedly first learned by defendants on October 1, 1984 at a
deposition of one of Kanter's partners, Marshall E. Eisenberg.
On November 8, 1984, Kanter filed a motion for remand stating
that defendants' petition for removal is untimely under 28 U.S.C. § 1446(b)
which provides, in part, that a removal petition must
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. . . ." Id. Defendants, however, argue that
it is the second paragraph of § 1446(b) that determines when the
thirty days for removal begins to run in this case. That section
If the case stated by the initial pleading is not
removable, a petition for removal may be filed within
thirty days after receipt by the defendant, through
service or otherwise, of a copy of an amended
complaint, pleading, motion, order or other paper
from which it may first be ascertained that the case
is one which is or has become removable.
28 U.S.C. § 1446(b)(2).