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Britton v. Gardner

United States District Court, E.D. Virginia, Richmond Division

January 13, 2015

PATRICIA S. BRITTON, Plaintiff,
v.
EDWARD F. GARDNER, Defendant.

MEMORANDUM OPINION

RODERICK C. YOUNG, Magistrate Judge.

This matter comes before the Court by consent of the parties pursuant to 28 U.S.C. § 636(c)(1) on Plaintiffs Motion and Notice for Order Remanding Action to State Court (ECF No. 7) and Defendant's Motion for Leave to File Amended Notice of Removal (ECF No. 13). In resolving these motions, the Court must determine whether Defendant's Original Notice of Removal (Notice of Removal, ("Original Notice"), ECF No. 1) was satisfactory on its face and, if not, whether Defendant should be granted leave to amend his Original Notice. Because the Court finds that Defendant's Original Notice was defective, but also finds that Defendant should be permitted to amend the Original Notice, the Court DENIES Plaintiffs Motion (ECF No. 7) and GRANTS Defendant's Motion (ECF No. 13).

I. PROCEDURAL POSTURE

On September 10, 2014, Plaintiff initially filed a Complaint against Defendant in this matter in the Circuit Court of the County of Henrico, Virginia, seeking $895, 000 in compensatory damages (Complaint, ECF No. 1-1). On or about September 22, 2014, process was served on the Secretary of the Commonwealth, Defendant's statutory agent.[1] (Original Notice ¶ 3.) On October 7, 2014, Defendant filed his Original Notice with this Court. In the Original Notice, Defendant alleged that diversity existed between the parties and that the amount in controversy exceeded $75, 000. (Original Notice ¶¶ 1-5.) Specifically, Defendant alleged that "plaintiff... is a citizen of the Commonwealth of Virginia, " and that "defendant... is a citizen of the State of Tennessee." (Original Notice ¶¶ 1-2.) Further, Defendant highlighted that "[pjrocess addressed to the Defendant was served upon the Secretary of the Commonwealth." (Original Notice ¶ 3.) Finally, Defendant specifically alleged that this Court had jurisdiction over the case pursuant to 28 U.S.C. § 1332. (Original Notice ¶ 5.)

On November 6, 2014, Plaintiff filed a motion to remand this suit to the Circuit Court for the County of Henrico, Virginia (Mot. and Notice for Order Remanding Action to State Ct. ("Mot. Remand"), ECF No. 7). Plaintiff argues that "Defendant's Notice of Removal is defective because it fails to allege that diversity jurisdiction existed both at the time of the filing of the Complaint... and at the time of the filing of the Notice of Removal." (Mot. Remand at 1.) Plaintiff specifically argues that Defendant's failure to follow the double designation requirement is a substantial defect in the Original Notice that prohibits this Court from exercising diversity jurisdiction over the suit. (Mem. Supp. PL's Mot. Remand ("PL's Mem."), ECF No. 8 at 3-5, 9.) Plaintiff further argues that Defendant cannot amend the Original Notice, because amendments beyond the thirty-day removal period cannot supply missing jurisdictional allegations. (PL's Mem. at 5-9).

On November 6, 2014, Defendant filed an Amended Notice of Removal (Amended Notice of Removal ("Am. Notice"), ECF No. 10). In the Amended Notice, Defendant specifically alleges that "plaintiff... is now and was at the time of the filing of this matter a citizen of the Commonwealth of Virginia, " and that "defendant... is now and was at the time of filing of this matter a citizen of the State of Tennessee." (Am. Notice ¶¶ 1-2.)

On November 7, 2014, Plaintiff objected to Defendant's Amended Notice, arguing that Defendant must obtain leave of the Court before amending his Original Notice, because the thirty-day removal period had run. (PL's Objection to Def.'s Am. Notice of Removal ("PL's Objection"), ECF No. 11 at 1); see 28 U.S.C. §§ 1446(b)(1), 1653. Thereafter, on November 21, 2014, Defendant moved for leave to file an amended notice of removal (Def.'s Mot. Leave to File Am. Notice of Removal ("Def.'s Mot. Am."), ECF No. 13). Defendant supported his Motion to Amend with a concurrently filed memorandum (Def.'s Mem. Law in Supp. Def.'s Mot. for Leave to File Am. Notice of Removal ("Def.'s Mem."), ECF No. 14). That same day, Defendant also filed a memorandum in opposition to Plaintiffs Motion to Remand (Def.'s Mem. in Opp'n to PL's Mot. Remand and Objection to Def.'s Am. Notice of Removal ("Def.'s Mem. in Opp'n"), ECF No. 15).

Thereafter, Plaintiff filed a reply brief to Defendant's Memorandum in Opposition (PL's Rep. Br. and Objection to the Filing of Def.'s Mem. in Opp'n to PL's Mot. to Remand ("PL's Rep."), ECF No. 16) and a memorandum in opposition to Defendant's Motion to Amend (PL's Mem. in Opp'n to Def.'s Mot. for Leave to File Am. Notice of Removal ("PL's Mem. in Opp'n"), ECF No. 17). This matter is now before the Court on Plaintiffs Motion to Remand (ECF No. 7) and Defendant's Motion to Amend (ECF No. 13).

II. STANDARD OF REVIEW

"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). The United States Code provides that the federal district courts "shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000... and is between... citizens of different States." 28 U.S.C. § 1332(a). Moreover, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants [to the appropriate federal district court]." 28 U.S.C. § 1441(a).

This Court has recognized that "when diversity of citizenship is a basis of removal jurisdiction, it must exist both at the time the original action is filed in the state court and at the time the removal is sought." Hubbard v. Tripp, 611 F.Supp. 895, 896 (E.D. Va. 1985) (quoting 14A Charles Alan Wright et al., Federal Practice and Procedure, Jurisdiction § 3723 (2d ed.1985)) (internal quotation marks omitted).[2]

To effectuate removal, a defendant must file a notice of removal with the federal court within thirty days of receiving service of the initial pleading. 28 U.S.C. § 1446(b). The notice of removal must "contain[] a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon [the] defendant." 28 U.S.C. § 1446(a). Moreover, the Fourth Circuit has approvingly quoted the District Court for the Western District of North Carolina's statement that "jurisdiction ought to depend more upon the truth of defendant's allegation of diversity than upon the... choice of verbiage." Nutter v. New Rents, Inc., 945 F.2d 398, *2 (4th Cir. 1991) (unpublished) (quoting Gofroth v. Allstate Ins. Co., 213 F.Supp. 595 (W.D. N.C. 1963)).

Generally, during the thirty-day removal period, a defendant may "amend its removal petition to include either missing or imperfectly stated grounds for removal." Muhlenbeck v. KI, LLC, 304 F.Supp.2d 797, 799 (E.D. Va. 2004) (citing Thompson v. Gillen, 491 F.Supp. 24, 27 (E.D. Va. 1980)). Following the thirty-day removal period, however, a defendant may only amend its notice of removal with leave of court. See id. "As a general rule, under 28 U.S.C. 1653, allegations of jurisdiction imperfectly stated in the original petition for removal may be amended even after the expiration of the thirty-day removal period, whereas missing allegations may not be supplied nor new allegations furnished." Id. (citation omitted) (internal quotation marks omitted).

In discussing the differences between "imperfectly stated" and "missing" jurisdictional allegations, ...


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