NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 :

THOMAS CONNOR, et al., : CIVIL ACTION NO. 10-6689 (MLC)

 :

Plaintiffs, : O P I N I O N

 :

v. :

 :

KUMHO TIRE U.S.A., INC., et al., :

 :

Defendants. :

 :

THE COURT, inter alia, ordered the defendants to show cause

why the action should not be remanded to New Jersey state court

(1) for failure to demonstrate jurisdiction under 28 U.S.C. §

(“Section”) 1332, and (2) based on the forum-defendant rule under

Section 1441(b). (Dkt. entry no. 4, Order To Show Cause.) The

Court assumes that the parties are familiar with the contents of

the Order To Show Cause, and will not restate all of the case law

and directives contained therein. The defendant Korea Express

U.S.A., Inc. (“KEX”) removed this action brought (1) by the

plaintiffs — (a) Thomas Connor, who is an Illinois citizen, and

(b) William Powers Loutrel, who is a Texas citizen — in New

Jersey state court, (2) against the defendants, Kumho Tire

U.S.A., Inc. (“KTU”), KEX, and Hong Jae Lee, and (3) to recover

damages for wrongful termination from employment pursuant to

state law. (See dkt. entry no. 1, Rmv. Not.; id., Ex. A, Compl.) 

KEX asserted jurisdiction under Section 1332, and thus had the

burden of demonstrating jurisdiction. See 28 U.S.C. §§ 1446(a),

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1447(c). All defendants have now consented to removal. (See,

e.g., dkt. entry no. 14, Defs. Letter (indicating that counsel

represents all three defendants).)

FORUM-DEFENDANT RULE

It appears that KEX is deemed to be a citizen of New York

and New Jersey. (See Rmv. Not. at 3.) 28 U.S.C. § 1332(c)(1). 

The Court also assumes for the purposes of the discussion here

that Hong Jae Lee is a New Jersey citizen. (Id. at 4.) Pursuant

to the forum-defendant rule, a state court action that could have

been brought initially in federal court under Section 1332 is

“removable only if none of the parties in interest properly

joined and served as defendants is a citizen of the State in

which such action is brought”. 28 U.S.C. § 1441(b); see Lincoln

Prop. Co. v. Roche, 546 U.S. 81, 84 (2005) (stating “[d]efendants

may remove an action on the basis of diversity of citizenship if

there is complete diversity between all named plaintiffs and all

named defendants, and no defendant is a citizen of the forum

State”); Bor. of W. Mifflin v. Lancaster, 45 F.3d 780, 785 (3d

Cir. 1995) (stating “[Section] 1441(b) diversity cases have an

additional obstacle to removal: a resident defendant is barred

from removing to federal court”). It appears that removal of

this action is barred.

JURISDICTIONAL ALLEGATIONS

The defendants allege that Hong Jae Lee “is, upon information

and belief, a resident of . . . New Jersey”. (Rmv. Not. at 4.) 

2

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An allegation as to where a party resides, is licensed, or has a

place of business — as opposed to is a citizen or is domiciled —

will not properly invoke the Court’s jurisdiction. See McCracken

v. ConocoPhillips Co., 335 Fed.Appx. 161, 162-63 (3d Cir. 2009);

Cruz v. Pennsylvania, 277 Fed.Appx. 160, 162 (3d Cir. 2008). In

addition, a citizenship allegation that is based upon information

and belief “does not convince the Court that there is diversity

among the parties”. Vail v. Doe, 39 F.Supp.2d 477, 477 (D.N.J.

1999); see S. Freedman & Co. v. Raab, 180 Fed.Appx. 316, 320 (3d

Cir. 2006) (stating citizenship is to be alleged “affirmatively

and distinctly”). Assuming for the purposes of the jurisdictional

discussion here that the citizenship of Hong Jae Lee is unclear,

KEX has prevented the Court from discerning whether each

plaintiff is a citizen of a different state in relation to Hong

Jae Lee. See 28 U.S.C. § 1332(a)(1).

THE ACTION WILL BE REMANDED

The defendants have filed four letters or responses related

to the Order To Show Cause. (See dkt. entry nos. 5, 8, 10 & 14.) 

But the defendants fail to address in any of those papers whether

KEX is indeed deemed to be a New Jersey citizen or whether Hong

Jae Lee is indeed a New Jersey citizen, and thus have ignored the

Court’s concerns over the forum-defendant rule. The plaintiffs,

in response, object to removal based on the forum-defendant rule. 

(See, e.g., dkt. entry no. 7, Pls. Response at 4-5.)

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The defendants also have failed to specifically address Hong

Jae Lee’s citizenship. The defendants’ burden as the removing

parties of demonstrating subject matter jurisdiction — “is never

waived”, and cannot be bypassed. Liberty Mut. Fire Ins. Co. v.

Yoder, 112 Fed.Appx. 826, 828 (3d Cir. 2004).

The Court will therefore (1) grant the Order To Show Cause

to the extent that it concerns remand of the action (a) for

failure to demonstrate jurisdiction under Section 1332, and (b)

based on the forum-defendant rule under Section 1441(b), (2)

vacate the Order To Show Cause to the extent that it raises other

issues, and (3) remand the action to New Jersey state court.1

The Court will issue an appropriate Order and Judgment.2

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: April 15, 2011

 Even if Hong Jae Lee is indeed a New Jersey citizen and 1

there is jurisdiction under Section 1332, the forum-defendant

rule still bars removal.

 As the action will be remanded, the Court cannot address 2

the issue of venue argued by the defendants. (See, e.g., dkt.

entry no. 10, Defs. Response at 1-2.) The defendants, however,

are not barred from seeking relief related to the issue of venue

in New Jersey state court. See, e.g., TIG Ins. Co. v. Wojtunik,

No. A-0331-08T1, 2009 WL 4824500, at *5-8 (N.J. App. Div. Dec.

16, 2009) (discussing doctrine of forum non conveniens).

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