Hall v. The Coca-Cola Company et al

Filing 14

OPINION AND ORDER denying 9 Motion to Remand to State Court. Defendant is GRANTED leave to amend the notice of removal within 7 days of the date of this Opinion and Order. Signed by District Judge Mark S. Davis on 10/10/18. (bpet, )

UNITED

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division
MARY JANE HALL,

Plaintiff,
Case No.:

V.

THE COCA-COLA COMPANY,

2:18cv244

et a l . .

Defendants.

OPINION AND ORDER

This matter is before the Court on a

by plaintiff Mary Jane Hall
Remand,

ECF No.

9.

Motion to Remand filed

('"Plaintiff"

or

After Plaintiff was

''Hall").

Mot.

injured when a

to

product

display fell on her at the commissary on Joint Expeditionary Base
Little Creek

("Little Creek"),

she brought suit against multiple

defendants in the Circuit Court of the City of Norfolk, Virginia.
Compl.,

ECF

("Defendant"

contending

No.
or

that

1-1.
"Prime

Defendant
Team")

Prime

removed

jurisdiction was

Team

the

proper

case

under

jurisdiction because Plaintiff was injured on a
military base.

a

Notice of Removal, ECF No. 1.

Motion to Remand,

challenging the

Services,
to

this

federal

Inc.
Court,

enclave

federally owned

Plaintiff then filed

sufficiency of Defendant's

notice of removal and arguing Defendant should not be granted leave
to amend.

ECF No.

hearing

necessary.

is

9.

The motion has been fully briefed and no

For the

reasons

noted below,

the

Court

DENIES P l a i n t i f f ' s Motion for Remand and GRANTS Defendant Leave to
Amend.

I.

On

FACTUAL BACKGROUND AND

March

2,

2016,

while

PROCEDURAL HISTORY

Plaintiff

was

at

the

commissary

located on Little Creek, a basketball goal post, which was part of
a

product

display,

fell

and

injured her.

Compl.,

ECF No.

1-1.

Plaintiff initiated the present negligence action against Prime
Team

and

several

other

defendants

in

the

Circuit

Court

for

the

City of Norfolk on March 1, 2018. Id. The Complaint alleges that
Prime

Team was

monitoring,

one

of

the

and stocking"

parties

the display.

answered in state court in April,

No.

1-4.

responsible
Id.

2018.

for

"managing,

The other defendants

State Court Docket,

ECF

Prime Team timely filed a notice of removal on May 9,

2018, to which the other defendants consented.^ Notice of Removal,
ECF.

No.

1.

The

notice

brought

in

of

removal

federal

court

stated that

the

originally

case

under

could have

federal

been

enclave

jurisdiction. Id. Defendant alleges that Little Creek is a federal

enclave

because

it

is

a

military

base

owned

by

the

federal

government. Id. To support the assertion of federal ownership, the

notice of removal included a link to a history of Little Creek on
the Environmental Protection Agency's website referencing the land

^ As of the date of this decision, defendants Ryan Roderick and Robert Adams
have not been served. The parties do not dispute whether they were required to
consent.

as ''federal military property." Id.
an attachment,

the

original

The notice also included, as

Order Vesting Title

in

the

United

States from 1942. Id. Further, Defendant noted that the commissary

itself is operated by a federal agency

(the Defensive Commissary

Agency) and cited numerous cases in which courts exercised federal
enclave jurisdiction over similar military bases. Id.

The notice

also asserts that Little Creek is owned by the Department of the
Navy and that the case implicates federal interests because the
injury occurred at the federally operated commissary. Id.
Defendant does not assert any basis for removal other than

federal enclave jurisdiction.
II.

A.

LEGAL

STANDARD

Federal Enclave Jurisdiction

As

courts

of

limited subject matter

jurisdiction,

federal

courts may exercise "only the jurisdiction authorized them by the
United States Constitution and by federal statute."
ex rel. Vuyyuru v.

Jadhav,

555 F.3d 337,

347

United States

(4th Cir.

2009).

The

primary sources of federal court jurisdiction are diversity and
federal

question

jurisdiction.

Diversity

jurisdiction

pennits

courts to hear c i v i l actions between ''citizens of different states"

where

the

interests

amount

and

in

controversy

costs."

jurisdiction

exists

Constitution,

laws,

in

28

exceeds

U.S.C.

"all

civil

§

$75,000

1332.
actions

"exclusive

Federal
arising

or treaties of the United States."

of

question
under

the

28 U.S.C.

§

1331.

This

case

implicates

a

type

of

federal

question

jurisdiction knovm as federal enclave jurisdiction.

Federal enclave jurisdiction arises from Article I, Section
8 of the United States Constitution, which provides that "Congress

shall have Power . . .

to exercise exclusive Legislation .

.

.

over all Places purchased by the Consent of the Legislature of the
State

in

which

Magazines,
U.S.

Arsenals,

Const,

States

for

enclaves,

the

art.

I,

federal

and

the

Same

shall

be,

Dock-Yards,
§
use

8,

cl.

under

federal

for

the

and other

17.

Erection

needful

of

Forts,

Buildings."

Lands obtained by the United

this

clause

government

are

may

known

as

exercise

federal

exclusive

legislative jurisdiction within the lands' boundaries. See Surplus

Trading Co. v. Cook,

281 U.S.

647,

652

(1930)

("It has long been

settled that where lands for such a purpose are purchased by the

United

States

with

the

consent

of

the

State

legislature,

jurisdiction theretofore residing in the state passes,

of

the constitutional provision,

the

in virtue

to the United States,

thereby

making the jurisdiction of the latter the sole jurisdiction."). To
exercise

federal

legislative

jurisdiction on enclaves,

federal government must acquire land within a state,
must cede or consent to federal

(3)

the

federal

245,

264,

267

jurisdiction.

(1963).

the

(2) the state

jurisdiction over the land,

government must accept

United States, 371 U.S.

(1)

and

Paul v.

Judicial

subject

matter

jurisdiction

is

derived

from

the

legislative jurisdiction on federal enclaves. See 13D Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure § 3563

ed.)

(3d

Because the federal government has legislative jurisdiction,

the laws in effect on that land are generally considered the laws
of

the

federal

government,

jurisdiction to

hear cases

Stewart & Co. v.

Sadrakula,

which
that

gives

courts

occur on the

309 U.S.

94,

99

subject

land.

(1940)

matter

See James

(holding that

state laws in place when land was purchased continued as laws of

the federal territory); see also Mater, 200 F.2d at 124; Colon v.
United States, No. GJH-17-775,

(D.

Md.

2018).

Courts,

2018 U.S. Dist. LEXIS 42761, at *27

including

the

United States

Court

of

Appeals for the Fourth Circuit, have held that federal courts have

federal

question

federal enclaves.

1250

(9th Cir.

F.2d 662,

jurisdiction

(citations

(4th Cir.

Mater v.

Inc.,

851 F.

Hoi ley,

Supp.

omitted);

1959);

Hous., 901 F. Supp. 2d 654, 664
Indus.,

tort

claims

that

arise

on

Durham v. Lockheed Martin Corp., 445 F.3d 1247,

2006)

665-66

over

819,

200 F.2d 123,

Stokes v.

Federico v.

Adair,

265

Lincoln Military

(E.D. Va. 2012); Akin v. Big Three
821-22
124

(E.D.

(5th Cir.

Tex.

1994)

1952))

(citing

(" [A] ny law

existing in territory over which the United States has exclusive
sovereignty must derive its authority and force from the United
States and is for that reason federal law.").

The Tenth Circuit has observed that the existence of judicial

subject

matter

question"

jurisdiction on

that factors

federal

enclaves

in federal policy,

is

a

''complex

the state law at the

time the land was acquired, whether that state law has been altered
by federal

legislation,

and whether

the

''exclusive,

concurrent or proprietorial

Shoell,

40

F.3d

subject

matter

324,

328

(10th

jurisdiction

is

Cir.

federal

jurisdiction."

1994) .

derived

government has

from

Because

the

Celli v.
judicial

existence

of

federal legislative jurisdiction, the three elements necessaiy for
legislative jurisdiction are used to determine whether the court

can exercise its

jurisdiction over a

case that happened on the

land.

First,

a

court must determine if the federal government has

acquired title to the land. Paul, 371 U.S. at 267. This is normally
a relatively easy determination.
Second,

because t i t l e over the land is not sufficient,

even

if such title exists, a court must still decide whether the state

has ceded or consented to jurisdiction of the federal government.
See id.

not

have

As the Second Circuit has noted,

jurisdiction

over

all

lands

the United States "does

owned

by

the

federal

government within the state" by virtue of mere title. United States

V.

Davis,

726 F.3d 357,

363-64

(2d Cir.

2013). Davis goes on to

list several cases in which federal courts found that they could
not

exercise

federal

enclave

jurisdiction

despite

federal

ownership of the land.

Id. at 364.

Courts look to the state law

at the time the land was acquired or other indications of consent,
such as letters between government officials, to determine whether
and to what extent the state consented to jurisdiction. See Jones
V.

John Crane-Houdailie.

Inc.,

No.

CCB-11-2374,

LEXIS 48931, at *10 (D. Md. Apr. 6, 2012)
of a

2012 U.S.

Dist.

(considering the language

Maryland statute consenting to jurisdiction of the federal

government); Federico, 901 F. Supp. 2d at 662 (looking at a letter
from a

director of real estate for the Navy to the Governor of

Virginia

adjusting

Moreover,

jurisdiction

from

to

concurrent).

the state may consent to or cede either exclusive or

concurrent jurisdiction. See Kleppe v.

542

exclusive

(1976).

The

federal

New Mexico,

426 U.S.

529,

government may also originally possess

exclusive jurisdiction but cede concurrent jurisdiction back to
the state.

See Federico,

901 F.

Supp.

2d at 662,

668.

Concurrent

jurisdiction does not bar a federal court from hearing state law
claims, but in such cases, the court should deteimine whether there

is a compelling argument for federal enclave jurisdiction based on
substantial federal

interests.

Akin,

851 F.

Supp.

at 822

& n.l

(holding whether the government had concurrent jurisdiction over
the land was irrelevant to whether there was a
because

the

controversy

federal

interests);

on

Federico,

federal

901 F.

land

Supp.

federal question

involved

substantial

2d at 664

(agreeing

with the court in Akin that there should be federal jurisdiction

over

federal

state

enclaves

interference

Ching v. Aila,

No.

under

with

concurrent

substantial

14-00253 JMS-RLP,

at 26-28 (D. Haw. Aug. 22, 2014)
misinterpreted

established

jurisdiction to prevent

federal

interests).

But

see

2014 U.S. Dist. LEXIS 117707

(arguing that the Federico court

federal

question

jurisprudence

in

applying a "subjective" federal interest standard).
Third,

after a

state consents,

the federal

government must

accept jurisdiction for any land purchased after 1940. 40 U.S.C.

§

3112

("It

is conclusively presumed that

jurisdiction has not

been accepted until the Government accepts jurisdiction over land
as provided in this

section.");

see Paul,

371 U.S.

at

265.

To

accept jurisdiction, the head of a Government agency or department
or another authorized officer must file

"a notice of acceptance

with the Governor of the State or in another manner prescribed by
the

laws

of

the

State

where

the

land

is

situated."

40

U.S.C.

§

3112

Therefore, without a showing of federal ownership of the land,
consent to jurisdiction,

and acceptance of jurisdiction,

a

court

cannot exercise subject matter jurisdiction over cases on a federal
enclave.

B.

Removal

Removal
accordingly,
statute

implicates
requires

strictly

significant

district

against

federalism

courts

removal.
8

to

concerns

construe

Campbell

v.

the

and,

removal

Hampton

Roads

Bankshares, Inc., 925 F. Supp. 2d 800, 803 (E.D. Va. 2013)
Venezuela v.

781,

784

Massimo Zanetti Beverage USA,

(E.D. Va.

2007)).

Inc.,

525 F.

(citing
Supp.

2d

Federal district courts may only keep

a case if the court has subject matter jurisdiction and the case
could have been brought in federal court originally.

28 U.S.C.

§

1441.

Section 1441 of Title 28 of the United States Code, provides

that

"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 district
court of the United States for the district and division embracing

the place where such action is pending."
a case to federal court,

Id. § 1441(a) . To remove

defendants must file a notice of removal

within thirty days of when the grounds for removal become apparent.
Id.

§

1446.

Such notice must contain a

copy of the process,

pleadings,

and orders already served as well as "a short and plain statement
of the grounds for removal." Id. § 1446(a). The Fourth Circuit has
held that this language requiring a ''short and plain statement" is

"deliberately parallel"

to Federal Rule of Civil Procedure 8 (a)

and that i t would be "inappropriate for .

notice of

removal

to meet

a

.

. the removing party's

higher pleading standard than one

imposed on a plaintiff in drafting an initial complaint." Ellenburg
V.

Spartan Motors Chassis,

Inc.,

519 F.3d 192,

9

199-200

(4th Cir.

2008)

(citing Bell Atlantic Corp.

v.

Twombly,

127 S.

Ct.

1955,

1964-65 (2007)). Further, the Supreme Court has concluded that the

notice requirement ''tracks the general pleading requirement'' and
does not call for a defendant to include evidence supporting the

basis for jurisdiction. Dart Cherokee Basin Operating Co., LLC v.
Owens,

135 S.

Ct.

547,

552-53

(2014) .

The pleading standard,

as

articulated in Twombly and Iqbal requires only that the parties

allege

enough

Ashcroft V.

544,

570.

plausibly

facts

Iqbal,

to

556

Therefore,

allege

create
U.S.

a

that

a

662,

party's

the

plausible
678

(2009);

notice

district

basis

Twombly,

of

court

for

removal

has

relief.
550

U.S.

need

only

subject

matter

jurisdiction.
C.

Leave

t o Amend

If the Court decides that a notice of removal is insufficient,

i t may look to 28 U.S.C.
allegations

of

§ 1653,

jurisdiction may be amended,

trial or appellate courts."

has

explained that

statements

about

defects

the

Inc.

in

which provides that "defective

28

28 U.S.C.

U.S.C.

§

1653

jurisdiction

that

jurisdictional

facts

V. Alfonzo-Larrain,

490 U.S.

826,

upon terms,

§ 1653.

The Supreme Court

"addresses
actually

only

exists,

themselves."
830-31

in the

incorrect
and

not

Newman-Green,

(1989).

One line of cases reflects a "strict" application of 28 U.S.C.
§ 1653, disallowing amendments after 28 U.S.C. § 1446(b)'s thirtyday statutory period for removal. See, e.g.. Covert v. Auto. Credit
10

Corp., 968 F. Supp. 2d 746, 749-50 (D. Md. 2013)
amend

because

allegation;

''Defendant

did

not

merely

it utterly failed to allege a

(denying leave to

make

a

defective

jurisdictional fact,

namely that the size of the putative class is greater than 100
persons"); Iceland Seafood Corp. v. Nat^l Consumer Coop. Bank, 285

F. Supp. 2d 719, 726-27 {E.D. Va. 2003); Tincher v. Ins. Co., 268

F. Supp. 2d 666, 667-68
& Potomac R.R.

805-07

(E.D.

Co.

Va.

v.

(E.D. Va. 2003); Richmond, Fredericksburg

Intermodal Servs. ,

1981)

(''The view of

Inc.,

strict

508 F.

Supp.

804,

construction holds

that all statutory requisites of diversity jurisdiction must be
alleged at least imperfectly in the original petition for removal,
otherwise the petition may not be amended after expiration of the

30-day removal period."); Thompson v. Gillen, 491 F. Supp. 24, 27
(E.D. Va. 1980)

(allowing amendments only for "setting forth more

specifically grounds for removal which had been imperfectly stated

in the original petition; missing allegations may not be supplied
nor new allegations furnished").
a more "liberal" approach.

See,

Another line of cases has taken
e.g.,

Nutter v.

945 F.2d 398, 1991 U.S. App. LEXIS 22952, at * 6
1991)

(unpublished

diversity

verbiage")

table

jurisdiction

decision)

(stating

should matter more

New Rents,

(4th Cir. Oct. 1,

that

than

Inc.,

the

the

truth

of

"choice

of

(quoting Goforth v. Allstate Ins. Co., 213 F. Supp, 595

(W.D.N.C. 1963)); Muhlenbeck v. Ki, LLC, 304 F. Supp. 2d 797, 799-

802 (E.D. Va. 2004)

(holding that courts should follow a two-step
11

process

to

grounds

determine

for

if

removal

a

party

are

"imperfectly

completely'' and, if imperfect,
''technical"

can amend:

(1)

decide

stated"

or

if

the

''omitted

(2) decide whether the amendment is

or "material and substantial");

Ginn v.

Stegall,

132

F.R.D. 166, 167 (E.D. Va. 1990)

("It is well settled that amendment

is

defective

liberally allowed

to

cure

allegations

of

removal

jurisdiction.").
In

2014,

the

Fourth

Circuit

addressed

the

historical

differences between the "strict" and "liberal" approaches. Wood v.
Crane Co.,

764 F.3d 316,

323

(4th Cir.

2014).

The court stated:

these two schools differ only in verbiage. The upshot is
the same;
after thirty days,
district courts have
discretion to permit amendments that correct allegations
already present in the notice of removal. Courts have no

discretion
to
permit
amendments
furnishing
new
allegations of a jurisdictional basis. . . . The trick
lies in placing a
case within one of those two
categories.
Id.

Courts

amendments

have
that

since

held

"elaborate

that,

after

the

on an existing

thirty-day

basis

or

limit,

ground

for

subject matter jurisdiction already stated" are permissible, but
amendments that "seek to inject a new basis or ground for subject
matter

jurisdiction"

are

impermissible.

57 F.

Supp.

Cmty.

3d 589,

Fed.

Credit Union v.

Berkley Reg'l Ins.

(E.D. Va.

(allowing a party to amend its notice of removal

2014)

Co.,

Arlington

598

to properly allege the citizenship of a company when i t failed to

allege that it was localized, a factor required for citizenship of

12

a federal corporation) ; see AEA v. Volvo Penta of the Ams., LLC,

77

F.

Supp.

3d 481,

487-88

(E.D.

Va.

2015)

(holding that

the

defendant was not permitted to amend its notice of removal to add

separate federal question jurisdiction which the court considered
a ''new allegation[] of a jurisdictional basis" because the original
notice only alleged maritime jurisdiction);
Gardner, No.

*16-19

3:14CV683

(E.D.

Va.

Jan.

(RCY),

12,

see also Britton v.

2015 U.S. Dist. LEXIS 3746, at *10,

2015) (granting leave to amend for an

''imperfectly stated technical defect"

of verb tense related to

timing of citizenship because it would not raise a
factual

dispute

and

did

not

add

an

entirely

significant

new

basis

for

jurisdiction); Evans v. GEICO Gen. Ins. Co., No. 3:14-CV-659, 2014
U.S. Dist. LEXIS 166919, at *10
Therefore,

courts

correct present

(E.D. Va. Dec. 2,

2014).

have discretion to allow amendments

allegations

but

"have

that

no discretion to permit

amendments furnishing new allegations of a jurisdictional basis."
Wood, 764 F.3d at 323. The difference between imperfect and missing
can be a difficult line to draw. Arlington Cmty. Fed. Credit Union,

57 F. Supp. 3d at 597. On one end of the spectrum are amendments,
like

in Wood,

that

attempt

to

add a

completely new basis

for

jurisdiction. Wood, 764 F.3d at 321-24 (forbidding an amendment to

add the separate basis of federal question jurisdiction when no

such basis was originally alleged) ; AEA,
88.

On the other end of

the

77 F.

Supp.

spectrum are cases
13

that

3d at 487require

a

slight change in wording to perfect an allegation of the same basis
for jurisdiction. See Britton, 2015 U.S. Dist. LEXIS 3746, at *1619;

Evans,

2014

U.S,

Dist.

LEXIS

166919,

at

*

15-18.

Moreover,

after deciding that an amendment would fix an imperfectly stated,

rather than a

missing,

allegation,

whether the amendment is technical,

some

courts

then determine

or material and substantial,

based on the factual dispute the amendment would cause.

Britton,

2015 U.S. Dist. LEXIS 3746, at *17-19; Muhlenbeck, 304 F. Supp. 2d
at

799-802.

The

court

must

decide

where

within

the

range

of

amendments a particular case falls to determine if the amendment
is permissible.
III.

Plaintiff
Defendant's

argues

notice

that

of

ANALYSIS

this

removal

case

failed

must
to

be

remanded because

establish

that

(1)

the

Commonwealth of Virginia consented to or ceded jurisdiction,

(2)

the federal government accepted jurisdiction, and (3)
substantial

federal

interest.

Plaintiff

further

there was a
claims

that

Defendant should not be granted leave to amend its notice. For the
reasons
notice

stated below,
of

removal

was

the

Court agrees with Plaintiff

insufficient

because

it

did

that

not

allege

essential elements of federal enclave jurisdiction. However,

Court holds that Defendant should be granted leave to amend.

14

the

the

A. Sufficiency of Defendant's Notice of Removal
For the reasons

stated below,

the Court concludes that

the

notice of removal is insufficient because i t fails to allege two

essential elements of federal enclave jurisdiction:

(1) consent by

the Commonwealth and (2) acceptance by the federal government.2

Though it need not prove the basis for

jurisdiction,

the

notice of removal must plausibly allege the basis while satisfying

the

pleading

Cherokee,

standards

135 S.

Ct.

Norair Eng'g Corp.
2016

U.S.

Jones,

Dist.

at 553-54;

v.

URS Fed.

LEXIS

2012 U.S.

established

Dist.

172586,

in Twombly and

Ellenburg,

Servs.,
at

Inc.,

*6-8

LEXIS 48931,

at

Iqbal.

Dart

519 F.3d at 199-200;
No.

CV RDB-16-1440,

(D.

Md.

Dec.

*9.

However,

14,

2016);

"it is not

enough to allege in terms that the case is removable or belongs to
one of the enumerated classes, or otherwise to rest the right upon

mere legal conclusions." Chesapeake & O.R.
U.S.

146,

151-52

accepted as true,

(1914).

Although

factual

Co.

v.

Cockrell,

allegations

232

must

be

[s] tatements of bare legal conclusions 'are not

2 Though Plaintiff also claims that the notice fails to establish that there
was

a

substantial

federal

interest.

Plaintiff

mischaracterizes

this

as

a

required element of federal enclave jurisdiction. While substantial federal
interests are important for courts to consider when there is only concurrent
jurisdiction, it is not an established element. See Federico, 901 F. Supp. 2d

at 672; s^ also Ching, 2014 U.S. Dist. LEXIS 117707, at *26-28. The court in
Federico focused part of its analysis on federal interests, to determine whether
federal enclave jurisdiction could exist,
because there was concurrent
jurisdiction over the land. 901 F. Supp. 2d at 672-73. Even if substantial
federal interests were required as a separate element that needed to be alleged.
Defendant at least alleged that there was a federal interest because the
incident occurred in a federally operated store on federal land. Notice of
Removal, ECF No. 1. Thus, i t is not necessary for the Court to evaluate whether
there is a substantial federal interest for the purpose of determining whether
the notice plausibly alleged federal enclave jurisdiction.
15

entitled to the assumption of truth' and are insufficient to state
a claim." Sizemore v. Burnette, No. 5:17-cv-02498, 2018 U.S. Dist.

LEXIS 37042,

at *4

(S.D. W. Va. Mar 1,

2018)

(quoting Iqbal,

556

U.S. at 679.

Iqbal requires that a complaint ''contain sufficient

factual matter, accepted as true, to 'state a claim to relief that
is

plausible

Twombly,
The

on

its

550 U.S.
issue

face.'"

Iqbal,

556

U.S.

at

678

(quoting

at 570).

in

this

case

is

whether

the

notice

of

removal

alleging federal enclave jurisdiction contains sufficient facts to
satisfy the Twombly and Iqbal standards when the notice of removal
fails to allege consent by the state and acceptance by the federal
government. To determine whether the notice is sufficient without
the allegation of these elements, the Court compares this case to
other notice of

jurisdiction,

(2)

removal

cases

dealing with

diversity jurisdiction,

(1)

and

federal

(3)

enclave

class action

j urisdiction.^

3 Cases discussing the sufficiency of jurisdictional allegations in complaints
are also instructive for notices of removal because the pleading standard for
a complaint is the same as the standard for a notice of removal. See Ellenburg,
519 F.3d at 199. For example, this Court has held that a jurisdictional
allegation in a complaint was factually insufficient because the party
incorrectly alleged the citizenship of a limited liability company ("LLC").
SunTrust Bank v. Village at Fair Oaks Owner, LLC, 766 F. Supp.2d 686, 691-92

(2011).
Rather than properly alleging the citizenship of the LLC's members,
the complaint was deemed imperfect because it only alleged that the LLC was a
Virginia LLC and had its principal office and headquarters in Norfolk, Virginia.
Id. at 691. The complaint's allegations were insufficient because it did not
allege facts to establish jurisdiction. Id.
16

1.

Federal

Enclave Cases

A few courts have considered whether an allegation of federal

enclave jurisdiction was sufficient in a
courts in this circuit have found that a

defective

where

it

notice of removal.

Two

notice of removal was not

generally alleged enclave

jurisdiction and

specifically alleged the federal government acquired title to the
land, but failed to allege consent by the state and acceptance by

the

federal

government.

In an

unpublished

2012

decision,

the

federal district court in Maryland held that "notice of removal

[based
failing

on
to

legislative
No.

6,

federal
allege

enclave

Maryland's

jurisdiction."

CCB-11-2374,

jurisdiction]

2012 U.S.

consent

Jones v.
Dist.

is

not

to

exclusive

LEXIS 48931,

at *9

for

federal

John Crane-Houdailie,

2012). The court in Jones reasoned that,

whether something is a

defective

Inc.,

(D. Md. Apr.

although determining

federal enclave is "fact-intensive,"

the

pleading standard only needs ''to raise a right to relief above the
speculative level" Id. at *11

(quoting Twombly,

550 U.S. at 555).

The court rested its decision on a Maryland general consent statute

providing exclusive jurisdiction over land purchased by the United
States for arsenals and on "repeated references by judges in [the
Maryland district]

court

to

the

federal

enclave

status"

of

the

land. Id. at *10-12. A 2016 decision by the Maryland district court

also declared that a notice of removal was not facially defective,
even though i t did not allege consent of the state or acceptance
17

by the federal government.

Norair Eng'g Corp.,

2016 U.S.

Dist.

LEXIS 172586, at *6-8. The court again rested part of its decision
on the fact that prior federal court cases had declared the land
t o be a

federal

enclave.

Id.

at

*8

Defendant's Brief in Opposition to remand in this case has

employed reasoning similar to that used in Jones and Norair by
pointing out that there was a similar consent statute in Virginia
at

the time

decisions

that Little Creek was purchased,

of

Virginia's

Attorney

General

and by providing

declaring

that

the

federal government has exclusive jurisdiction over Little Creek.
However,
federal

this case is different from Jones and Norair because a
court

has

enclave. Moreover,

never

deemed

Little

Creek

to

be

a

federal

those facts are only provided in the Brief in

Opposition. In the absence of a prior federal court determination,
the fact that Defendant's Brief in Opposition provides a factual

basis

for

the missing elements

is not enough for

notice to be deemed sufficient. See Wood,

the original

764 F.3d at 325

("[T]he

notice of removal itself—rather than any subsequent docket entryis the document to which the court must refer.").

As

discussed

jurisdiction

generally

elements. See Paul,
at 363-64

11-397,

above,

the

existence

requires

a

371 U.S. at 264,

party

of

federal

to

establish

267; see also Davis,

enclave

three

726 F.3d

(2d Cir. 2013); Wood v. Am. Crescent Elevator Corp., No.

2011 U.S.

Dist.

LEXIS 52239,
18

at *6-7

(E.D.

La.

May 13,

2011)

("In order for federal enclave jurisdiction to exist,

(1)

the United States must purchase land from a state for the purpose
of

erecting

forts,

needful buildings,

magazines,
(2)

arsenals,

dock-yards,

and

was

government

after

other

the state legislature must consent to the

jurisdiction of the federal government,
acquired

or

194 0,

the

federal

(3)

if the property
must

accept

jurisdiction 'by filing a notice of acceptance with the Governor
of the State or in another manner prescribed by the laws of the

State where the land is situated.'")

(quoting 40 U.S.C.

3112(b))

(internal citations omitted). A notice of removal must allege all

of the necessary jurisdictional facts such that a district judge
can determine whether jurisdiction exists. Covert v. Auto. Credit

Corp. ,
Charles

968

F.

Supp.

2d 746,

Alan Wright

749-50

& Arthur

R.

(D.

Md.

Miller,

2013)

Federal

(citing 14C
Practice

and

Procedure § 3733 (4th ed.)). Legal conclusions are insufficient to
state a claim. Iqbal, 556 U.S. at 678-79. Moreover, mere conclusory

statements that a piece of land is a federal enclave are not enough
to meet defendant's burden in a

Ameron

Int'l

Corp,

147810, at *7-9
held that

No.

(N.D.

the mere

notice of

16-cv-06074-JSC,

Cal.,

Oct.

25,

removal.

2016

2016).

See Ballard v.

U.S.

Dist.

LEXIS

The court in Ballard

statement that an Air Force base was a

federal

enclave was not enough to allege a factual basis for jurisdiction
in the notice of

removal.

Id.

The defendant

19

in Ballard failed

to

show ownership of the land,

let alone any of the other elements.

Id.

Unlike

alleged

the

defendant

sufficient

facts

in

Ballard,

to

show

Prime

ownership

government—one of the required elements.
is generally not

enough.

Team

has

by

at

the

least

federal

However, ownership alone

A court cannot determine if

it has

federal enclave jurisdiction without facts showing title, consent,
and acceptance.
that

there

Therefore,

is

Without alleging those
federal

notwithstanding

unique facts,

enclave

the

elements,

jurisdiction

fact

that

some

an allegation
is

conclusory.

courts

have,

excused the requirement to allege title,

and acceptance,

the Court concludes that,

in general,

on

consent,

failure to

allege any one of those three elements necessary for existence of
federal

enclave

jurisdiction

renders

a

notice

of

removal

insufficient.

The notice of removal in this case did not allege sufficient

facts for removal. It contained a conclusory statement that Little
Creek

is

a

jurisdiction,

federal

enclave

cited cases

over

which

federal

courts

calling other military bases

have

federal

enclaves, and gave factual support for the first required elementthat the United States has title to the land.
these factual allegations as true,

Even accepting all

the "removal notice .

.

. does

not contain enough information for the district judge to determine

whether jurisdiction exists." Covert,
20

968 F. Supp. 2d at 749-50.

"The acquisition of title by the United States is not sufficient
to effect that exclusion."
Mason Co.

Circuit

v.

Paul/

Tax Commission,

highlighted

in

371 U.S.

302

Davis,

U.S.

there

at 267

186,

are

197) .

a

(quoting Silas
As

the

of

number

Second

cases,

including cases that happened on federal military bases, in which
federal

courts

found

that

federal

enclave

jurisdiction did not

exist even though the United States owned the land.
F.3d at 363-64. Therefore,
satisfies

enclave

726

though alleging ownership of the land

one element necessary for

jurisdiction,

Davis,

enclave

courts

to

jurisdiction

exercise federal

is

not

plausibly

asserted without allegations of the state's consent and the federal
government's

acceptance.

Prime

Team's

notice

only

alleges

ownership of the land and fails to allege both consent by the state
and acceptance by the federal government.

2. Diversity Cases

In determining whether Defendant sufficiently alleged enclave
jurisdiction in its notice of removal,

cases

discussing

the

clarity

required

resting on diversity jurisdiction."^

i t is helpful to look at

in

a

notice

of

removal

Courts have considered notices

Some courts require citizenship to be pleaded with specificity to adequately
establish diversity jurisdiction. See, e.g., Hall v. Backyard Leisure, LLC, No.
3:13cv211, 2013 U.S. Dist. LEXIS 188922, at *4-6 (E.D. Va. Apr. 4, 2013) (holding
that the notice of removal needed to "set forth with specificity the names and

citizenship" of the members of the LLC). This specificity requirement does not
change

Ellenburg's

plausibility

diversity jurisdiction.

requirement.

519 F.3d at 200.

Ellenburg

was

a

The court eliminated a

case

about

specificity

standard for pleading jurisdiction in a notice of removal in favor of a
plausibility standard.
Id.;
see Hamrick v.
Rest.
Mgmt Grp.,
LLC,
No.
2:14cv02762, 2014 U.S. Dist. LEXIS 131613, at *8-9 (S.D. W. Va. Sep. 19, 2014)
21

of removal insufficient in diversity cases when the party failed
to adequately allege either of the essential elements of diversity
jurisdiction. See,

e.g.,

*13

Original Notice,

(''Defendant's

Britton,

2015 U.S.

Dist.

therefore,

LEXIS 3746,

was

defective

at

in

that it failed to allege diversity at the time the Complaint was
filed.");

2013

U.S.

DBS,

Inc.

Dist.

v.

Selective Way Ins.

LEXIS

97112,

at

*4-6

Co.,

(E.D.

No.

Va.

2:13-cv-312,

July 10,

2013)

(holding that a defendant's allegation of diversity jurisdiction
in the notice of removal

was insufficient because a grammatical

error made i t unclear whether i t alleged a corporation's principal

place of business at the time the complaint was filed or just at

the

time

the

notice

was

filed) .

Even when parties

alleged

an

element such as citizenship, but did so unclearly or imperfectly,
courts

still

held

Nutrex Research,

the

Inc.,

notice

429 F.

(holding that calling a

was

insufficient.

Supp.

party a

2d 723,

"resident"

See

725-26

of a

(D.

Johnson

Md.

v.

2006)

state was not

sufficient to allege that party was a citizen of that state for

diversity purposes); Muhlenbeck, 304 F. Supp. 2d at 800-01 (ruling

(noting that a plaintiff's argument that the defendant's pleading for diversity
jurisdiction lacked specificity was without merit because Ellenburg held that
a higher pleading standard was not required). Even if citizenship itself may
have to be pleaded specifically to make a jurisdictional allegation plausible,
the notice of removal as a whole need only meet the plausibility standard.
Although, arguably, a specificity requirement could make the pleading standard
higher in diversity jurisdiction cases and thus make a comparison to them less
persuasive, for the purposes of this opinion the comparison is instructive
because the pleading standard is still plausibility which applies to all notices
of removal. The specificity for citizenship is an indicator of how enough facts
need to be pleaded to allege a plausible basis for any type of jurisdiction.
22

that a defendant imperfectly stated its grounds for removal when

it

alleged

diversity

jurisdiction

but

improperly

alleged

citizenship of an LLC). Applying the notice of removal diversity
pleading

standard

to

the

notice

of

removal

federal

allegations at issue here produces the same result.

determine

notices

are

insufficient

for

enclave

Just as courts

imperfect

or

missing

allegations of the elements of diversity, if there is an imperfect
or missing allegation of any of the elements of federal enclave
jurisdiction,
insufficient

jurisdiction

courts
because

and

should

generally

federal

courts

jurisdictional

facts

consider

are

the

courts

should

be

of

notice
limited

pleaded

with

enough specificity to make the notice plausible.^
Notices

have

been

deemed

deficient

for

as

little

grammatical errors that make jurisdiction unclear. Britton,
U.S.

Dist.

LEXIS

3746

at

*6,

*19;

Evans,

2014

U.S.

Dist.

as

2015
LEXIS

166919, at *10. Without any mention of the consent or acceptance
elements.

Defendant's notice is

even more unclear than one

that

alleges citizenship but potentially at the wrong time. See Britton,
2015 U.S.

Dist.

LEXIS 3746,

at *12-13.

5 See supra note 4. Though Ellenburg required plausibility not specificity, the
line of diversity cases shows that some facts, such as citizenship, must be
specifically pleaded to reach the level of plausibility required. See, e.g.,
Britton, 2015 U.S. Dist. LEXIS 3746, at *13 (holding a notice of removal was
insufficient because the party failed to specifically allege citizenship at the
time of filing).
23

3.

Class Action Cases

Similar concerns arise in the class action context because,

as a form of diversity jurisdiction®, jurisdiction in class action
cases requires a showing of three elements:

100 people,

(2) any member of the class is a citizen of a different

state than any defendant,

and

over $5,000,000.

§ 1332(d);

748.

(1) the class is over

Courts

28 U.S.C.

have

determined

(3)

the amount in controversy is

that

Covert,

968 F.

notices

2d at

removal

of

Supp.

were

insufficient for omitting any one of these required elements. See,

e.g. , Covert,
notice

of

968 F. Supp.

removal

putative class,

2d at 751

completely omits

(D. Md.
to

2013)

allege

the

(''Defendant's
size

of

the

which is one of the three required elements for

federal jurisdiction under CAFA."); cf. Dart Cherokee, 135 S. Ct.
at 552-53

(holding that a defendant's notice of removal need only

contain a plausible allegation that the amount in controversy was
sufficient

under

the

Class

class action jurisdiction,

Action

Fairness

Act

C'CAFA")).

Like

federal enclave jurisdiction requires

a showing of three distinct elements. See Covert, 968 F. Supp. 2d
749-51.

s

Strawn v.

AT&T Mobility LLC,

530

F.3d 293,

298

(4th Cir.

2008)

("The

relevant portions of CAFA were enacted to amend the requirements for diversity
jurisdiction and to amend the rules for removing cases to federal court, and

while CAFA expressly altered certain requirements for asserting diversity
jurisdiction and removing class actions, it did not reverse the established
principles for alleging and demonstrating jurisdiction on removal.")
24

The Covert court's analysis of class action jurisdiction is
instructive in this case because i t deals with a defendant failing

to allege an element required for

jurisdiction.

See id.

The

notice in Covert failed to allege the element of class size as

required for jurisdiction under CAFA.

Id.

at 751.

Similarly,

Defendant's notice

elements of

consent and

fails

to allege the

acceptance as required for federal enclave jurisdiction. There was
not even a

''threadbare recital'' of either element.

See Iqbal,

556

U.S. at 678. Applying the general principle, used in class action
cases,

that

federal

courts,

as

courts

of

limited

jurisdiction,

cannot exercise jurisdiction unless all the required elements are
established, a court cannot exercise jurisdiction over a case that

occurred on a federal enclave without evaluating whether the facts
support the existence of the elements.

If a court cannot exercise

jurisdiction without

the

dictates

that

a

considering all

notice

of

removal

would

elements,
be

then

deficient

reason

unless

it

alleges all of those elements.

Therefore,

as has been similarly decided in the context of

both class action and diversity cases under the principle above,
the notice of removal in t h i s case i s insufficient because i t does

not allege all the elements of federal enclave jurisdiction.
B.

Leave

After

t o Amend

concluding

insufficient,

that

Defendant's

notice

of

removal

is

the Court must evaluate whether Defendant may be
25

granted leave to amend the notice.

For the reasons noted below,

the Court determines that the notice contains an imperfect, versus
a missing,

allegation,

and the request for leave to amend would

only address a technical matter, rather than one that is material
and substantial.

1. Imperfect Versus Missing Allegations

The statute permitting amendments states that a
allegation of jurisdiction may be amended.
determine what defects

can be amended,

"defective"

28 U.S.C.

courts

§ 1653. To

have developed a

distinction between imperfect and missing allegations.

Courts in

the Fourth Circuit have split as to what fell within each category.
The

stricter

line

of

allegations of elements of

cases

suggests

that

adding

missing

jurisdiction should not be permitted

even if i t is the same basis for jurisdiction. See Covert, 968 F.
Supp.

2d

at

750-51.

In

Covert,

the

court

did

not

permit

an

amendment when the parties failed to allege an element required

for jurisdiction under CAFA.

at 751. The court held the missing

element would be adding a new allegation, not fixing an imperfect
one.
that

at 751. The more liberal line of cases, however, suggests
the veracity of

1991 U.S. App.

LEXIS,

jurisdiction is

the

true concern.

at *6.

According to the Fourth Circuit,

the distinction between the

strict and liberal cases is only a matter of language.
F.3d at 323.

Nutter,

Ultimately,

Wood, 764

both suggest that amendments should be
26

permitted

unless

they

jurisdiction. Wood,
In this case,

key

elements

are

to

add

an

entirely

new

basis

for

764 F. 3d at 323.
the notice is missing factual allegations of

for

federal

enclave

jurisdiction,

Defendant's

omission of two of the elements falls in between requiring a minor
amendment, such as those that fix grammatical errors, and a major
amendment,

such

jurisdiction.

as

those

that

add

a

whole

new

basis

for

While Defendant's amendment would add more than a

''change in verbiage," i t does not rise to the level of alleging a
new ground for jurisdiction. See DBS,
97112,

Inc., 2013 U.S. Dist. LEXIS

at *6.

The question then becomes whether the

absence of

required

elements renders the allegation of jurisdiction imperfect and thus
amenable

missing

to

amendment,

allegations

amended.

elements

of

whether

it

means

jurisdiction

such

that

that

the

it

notice

may

not

is

be

The court concludes that adding factual allegations of

only

jurisdiction.

Defendant

or

seeks
Evans,

continues

to
2014

''elaborate
U.S.

to allege

on

Dist.

federal

an

existing

LEXIS

166919,

enclave

basis"
at

*

of
10.

jurisdiction but

only seeks to add new facts that make the allegation sufficient.
An amendment will permit Defendant to include facts to complete
the

conclusory

allegation

that

the

court

has

federal

enclave

jurisdiction. See Arlington Cmty. Fed. Credit Union, 57 F. Supp.
3d at 596 ("[D]efendants may amend their notices of removal when,
27

for example,

'jurisdiction is alleged in a conclusory fashion'")

(quoting Richmond, Fredericksburg & Potomac R.R. Co., 508 F. Supp.
at 805) .

Though Covert, a pre-Wood case from the strict line of cases,

suggests

that

a

missing

element

therefore may not be amended,
cases that are
Arlington

and

is

a

missing

In

and

this Court looks to two post-Wood

instructive on whether a
Britton.

allegation

Arlington,

notice may be amended;
the

court

permitted

an

amendment where the defendant alleged diversity of citizenship but

failed to allege localization of a federal corporation. Arlington
Cmty.

Fed.

Credit

localization

is

Union,

an

57

important

F.

Supp.

3d

consideration

at
in

598-99.

Although

determining

the

element of citizenship, the court held that an amendment would be

permitted because

it

"simply seeks

to

explain the

reasons

for

existence of diversity jurisdiction already stated in" the notice
of removal.

Id.

In Britton,

the court permitted an amendment to a

notice of removal to ''clarify that diversity existed at the time
the Complaint was filed." Britton,

*16,

*19.

2015 U.S. Dist. LEXIS 3746, at

The defendant had used a present tense verb to allege

the citizenship of the parties in its notice of removal. Id. The
court explained that an amendment should be permitted because the
defendant did not

seek to allege a

new basis

sought to fix an imperfect allegation. Id.

28

for

removal,

but

This case is more closely analogous to Arlington. The notice

in Arlington

failed

to

allege

a

consideration for determining a
Cmty.

Fed.

Credit Union,

57 F.

factor
party's

Supp.

that

was

an

important

citizenship."' Arlington

3d at 598.

Likewise,

Prime

Team failed to allege factors that are important to consider for
federal

enclave

elements

of

jurisdiction.

consent

and

Prime

Team completely omits

acceptance,

unlike

the

the

defendant

in

Arlington who alleged the element of citizenship but omitted the
fact

of

However,

localization

is

used

to

determine

citizenship.

like the amendment sought by the defendant in Arlington

to add facts
alleged,

which

an

to explain the
amendment

require i t to allege an entirely new basis of jurisdiction,

but

enclave

imperfect.

Team's

jurisdiction already
not

federal

Prime

of

would

would add facts

to

existence

notice

to the existing basis.

jurisdiction

Though strict

merely

cases prior

still

The missing elements of

render
to Wood,

such

allegation

such as

Covert,

suggest that failing to allege an element of jurisdiction is fatal,
post-Wood case law seems to permit amendments unless they allege
a

completely new basis for jurisdiction.

Supp.

2d at

751

with Wood,

764

Compare Covert,

F.3d 328;

968 F.

Arlington Cmty.

Fed.

Credit Union, 57 F. Supp. 3d at 598; AEA, 77 F. Supp. 3d at 487-

The court in Arlington held that the notice was sufficient, but alternatively
considered whether, if the notice were insufficient, leave to amend should be
granted. Therefore, the analysis is instructive for this case. Arlington Cmty.
Fed. Credit Union, 57 F. Supp. 3d at 599.
29

88.

Prime

Team

jurisdiction.

does

not

seek

to

allege

a

new

basis

for

It simply seeks to fix an imperfect allegation by

adding the missing elements of federal enclave jurisdiction.
Therefore,

the

notice

in

this

case

is

imperfect

and

the

amendment only seeks to correct the allegation of federal enclave

jurisdiction, not to allege a missing basis for jurisdiction.
2.

Technical Versus Material and Substantial Amendments

Once determining that a notice is imperfect, some courts then
consider

whether

the

amendment

substantial." Muhlenbeck,
U.S.

Dist.

LEXIS

3746,

at

is

"technical"

3 04 F.

Supp.

*8.

an

significant factual dispute,

If

or

''material

2d at 801;
amendment

and

Britton,

would

lead

2015
to

a

it may be material and substantial

and, thus, should not be permitted. Muhlenbeck, 304 F. Supp. 2d at
801.

Though

allegations,

analysis

treated
the

is

would

technical

related

considerations.

separately

because

Adding

clearly cause

a

an

from

versus

it

missing

material

involves

and

imperfect
substantial

substantially

entirely new basis

significant

and

factual

for

dispute

jurisdiction
because

parties would have to analyze an entirely new argument.
other hand,

similar

the

On the

changing a verb tense to properly reflect the alleged

citizenship would not lead to a new dispute because the parties
were

already

on

notice

that

defendant

alleged

diversity

of

citizenship. See Britton, 2015 U.S. Dist. LEXIS 3746, at *17-19.

30

Whether something is a
analysis

that may

actually has

lead

federal enclave is a

to more

jurisdiction.

dispute

However,

it

fact intensive

over whether
is not

the

the

Court

same type of

factual dispute contemplated when a new basis of jurisdiction is
alleged.

While

allegation,

adding

new

i t is only a

elements

adds

new

facts

into

the

technical amendment to make the notice

properly allege the existing basis for jurisdiction. Adding new
facts should not be a barrier to amendment when the notice alleges
the same type of

jurisdiction because it just seeks to be more

specific in its existing allegation of jurisdiction to make the

jurisdiction plausible.

jurisdiction,

Unlike adding an entirely new basis for

which would lead to a

whole new factual

dispute

because the parties were not on notice that the basis was being
alleged,

when

the

allegation of

jurisdiction

is

the

same,

the

parties are both on notice of the facts that could be in dispute.®
Though more than a change in verbiage. Defendant is not trying
to allege a

new basis for jurisdiction.

Permitting an amendment

allows Defendant to add facts to his existing, imperfect allegation
of

federal

enclave

jurisdiction and,

thus,

Defendant

should be

granted leave to amend.

® Fairness is also important to consider when permitting a party to amend its
jurisdictional allegations. See Arlington Cmty. Fed. Credit Union, 57 F. Supp.
3d at 599. An amendment would cause no prejudice or surprise to Plaintiff in
this case because Defendant does not seek to allege a new basis for jurisdiction.
Plaintiff is already on notice that federal enclave jurisdiction is at issue.
31

IV.

CONCLUSION

For the foregoing reasons,
DENIED,

leave

Pursuant to 28 U.S.C.

to

amend

the

defective

Plaintiff's motion to remand is

§ 1653, Defendant is hereby GRANTED

jurisdictional allegations

in the

notice of removal within seven (7) days of the date of this Opinion
and Order.

The Clerk is DIRECTED to send a

and Order to a l l counsel of
IT

IS

SO

copy of this Opinion

record.

ORDERED.

/s/DlM
Mark S.
UNITED

Norfolk, Virginia

October /D , 2018

32

STATES

Davis

DISTRICT

JtJDGE