Opinion
Case No. 02-2519-JWL
April 10, 2003
MEMORANDUM AND ORDER
Plaintiffs filed suit against defendant in state court alleging that defendant, without notice to or consent from plaintiffs, unlawfully converted plaintiffs' local telephone service from Southwestern Bell Telephone Company to ATT — conduct known as "slamming" and prohibited by K.S.A. § 50-6,103. In their petition, plaintiff sought civil penalties pursuant to K.S.A. § 50-6,103(d), damages for tortious interference with contract and damages for violations of the Kansas Consumer Protection Act, K.S.A. § 50-623 et seq. Thereafter, defendant removed the case to this court. Plaintiffs moved to remand the case, contending that defendant's notice of removal was defective because it did not demonstrate diversity of citizenship — the basis for defendant's removal. The court denied the motion and found that defendant's removal notice adequately demonstrated diversity of citizenship.
Plaintiffs then moved for reconsideration of the court's order denying their motion to remand. Specifically, plaintiffs urged that defendants had not set forth facts in its removal notice from which the court could determine, using the "total activity" test endorsed by the Tenth Circuit, see Amoco Rocmount Co. v. Anschutz Corp., 7 F.3d 909, 914-15 (10th Cir. 1993), defendant's principal place of business. The court held a hearing on plaintiff's motion for reconsideration, retained the motion under advisement and directed defendant to supplement the record with evidence pertinent to the total activity test. Consistent with the court's order, defendant submitted the affidavit of Paula Phillips, an individual with personal knowledge of the facts pertinent to assessing defendant's principal place of business pursuant to the total activity test. That affidavit clearly demonstrates that defendant's principal place of business, utilizing the factors relevant to the total activity test, is in New Jersey. Indeed, in their response to defendant's supplemental affidavit, plaintiffs essentially concede that Ms. Phillips' affidavit demonstrates diversity of citizenship consistent with the total activity test. Nonetheless, plaintiffs continue to press their argument that this case should be remanded.
According to plaintiffs, while defendant's affidavit demonstrates diversity of citizenship, that affidavit comes too late, as removability is determined by the pleadings and record before the court at the time of removal. Plaintiffs' argument, however, ignores a multitude of cases in which the courts, in applying the total activity test, have relied on post-removal affidavits or evidence presented during post-removal hearings regarding the defendant's principal place of business. See, e.g., Gafford v. General Elec. Co., 997 F.2d 150, 161-62 (6th Cir. 1993) (after defendant removed case to federal court and plaintiff challenged jurisdiction, district court held evidentiary hearing regarding defendant's principal place of business and considered post-removal affidavits); Petty v. Venable, Baetjer, Howard Civiletti, LLP, 2002 WL 31875567, at *1-2 (N.D.Tex. Dec. 18, 2002) (in analyzing plaintiff's motion to remand and, more specifically, defendant's principal place of business under total activity test, court held an evidentiary hearing at which time both sides were given an opportunity to present live testimony and additional evidence in support of their respective positions); Bogusz v. MPW Container Management Corp. of Michigan, 2002 WL 373465, at *1 (E.D.Mich. Feb. 19, 2002) (same); Terrell Independent Sch. Dist. v. Benesight, Inc., 2001 WL 1636418, at *3-4 (N.D.Tex. Dec. 18, 2001) (in analyzing motion to remand and defendant's principal place of business under total activity test, court considered facts presented in affidavits filed by defendant in its response to the motion to remand); Bivens v. Equitable Life Assurance Soc. of U.S., 2000 WL 343178, at *2-3 (M.D.Fla. Mar. 17, 2000) (same); Farella v. Home Depot, Inc., 1997 WL 181166, at *1-2 (S.D.N.Y. Apr. 14, 1997) (same).
Plaintiffs also argue that the court should remand this case based on public policy favoring limited federal jurisdiction over matters involving only state claims and because defendant is not "susceptible to local bias in state court" and, thus, is not the type of entity that diversity jurisdiction is designed to protect. The court, of course, will not consider arguments raised for the first time in a reply brief filed in support of a motion for reconsideration. See Minshall v. McGraw Hill Broadcasting Co., ___ F.3d ___, 2003 WL 1605832, at *11 (10th Cir. Mar. 28, 2003) (argument raised for the first time in reply brief is waived) (citing Coleman v. B-G Maintenance Management, 108 F.3d 1199, 1205 (10th Cir. 1997) (issues not raised in the opening brief are deemed abandoned or waived)).
Having uncovered no authority suggesting that the court cannot, in applying the total activity test for purposes of assessing the defendant's principal place of business after diversity of citizenship has been challenged by the plaintiff, consider the affidavit filed by defendant in connection with plaintiff's motion to remand, the court considers that affidavit and finds that it establishes diversity of citizenship. Plaintiff's motion for reconsideration of the court's order denying their motion to remand is denied.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiffs' motion for reconsideration of the court's order denying the motion to remand (doc. #20) is denied.
IT IS SO ORDERED.