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NASCO, INC. v. NORSWORTHY

February 25, 1992

NASCO, INC.
v.
DON NORSWORTHY, et al.



The opinion of the court was delivered by: THOMAS A. HIGGINS

Judge Higgins

 MEMORANDUM

 The Court has before it the plaintiff's motion to remand this action to the Circuit Court for Robertson County, Tennessee (filed January 21, 1992; Docket Entry No. 9).

 For reasons set forth below, the Court grants the plaintiff's motion and remands this action.

 I. Background.

 On September 13, 1991, Nasco amended its complaint, adding three other former employees as defendants: Ron Hallmark, a resident of the State of Texas; Ron Clark, a resident of the State of Tennessee; and Michael Almeida, a resident of the State of Minnesota. Nasco subsequently settled its dispute with defendant Clark, and dismissed him from this action on November 27, 1991. The remaining defendants received notice of Clark's dismissal on November 29, 1991.

 On December 27, 1991, twenty eight days after receipt of the notice of the dismissal of defendant Clark, defendants Norsworthy, Hallmark and Almeida removed this action to this Court. See Notice of Removal (filed December 27, 1991; Docket Entry No. 1). As grounds for removal, the defendant stated as follows:

 1. There is complete diversity of citizenship of the parties; Defendant, Norsworthy and Defendant, Hallmark are residents of the State of Texas; Defendant Almeida is a resident of the State of Minnesota; Defendant Ron Clark, who is a Tennessee resident, has been voluntarily dismissed for the suit by Plaintiff on November 27, 1991; Plaintiff, Nasco, Inc. is a corporation organized and existing under the laws of the State of Tennessee with its principal place of business in the State of Tennessee.

 Id. at 1. The defendants also stated that the amount in controversy exceeds $ 50,000. See id.

 At some point after the filing of the original complaint, and before the filing of the amended complaint, defendant Norsworthy commenced an action against Nasco in the 191st Judicial District Court of Dallas County, Texas. Nasco removed that action to the United States District Court for the Northern District of Texas where it is currently pending. Nasco has filed a motion to stay that action pending a resolution in this case. Similarly, after the filing of the amended complaint in this action and prior to removal to this Court, defendants Hallmark and Almeida commenced an action against Nasco in the United States District Court for the Northern District of Texas. Again, Nasco filed a motion to stay that action pending a resolution in this case. The federal district court in Texas has granted stays in both of these actions. See Docket Entry No. 16 (filed February 19, 1992).

 It is undisputed that the issues presented in the two Texas actions are virtually identical to the issue presented in this action. Further, a review of the chronology of events also reveals that, while the action before this Court was the first to be filed, it is the last case of the three to arrive in federal court.

 II. Discussion.

 Nasco argues that this action should be remanded to the Circuit Court for Robertson County for two reasons: (1) the defendants' notice of removal is fatally flawed for failure to properly allege diversity of citizenship; and (2) the ...


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