Conca v. RJ Lee Group Inc et al

Filing 20

ORDER DENYING MOTION TO REMAND AND GRANTING MOTION TO AMEND denying 9 Plaintiff's Motion to Remand; granting 16 Defendants' Motion to Amend Signed by Senior Judge Edward F. Shea. (VR, Courtroom Deputy)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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No.

JAMES L. CONCA,

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Plaintiff,

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4:15-CV-5017-EFS

ORDER DENYING MOTION FOR REMAND
AND GRANTING MOTION TO AMEND

v.
RJ LEE GROUP INC., ET AL.,

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Defendants.

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Before

the

Court,

without

oral

argument,

is

Plaintiff

James

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Conca's Motion for Remand, ECF No. 9, and Defendants RJ Lee Group

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Inc.,

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Motion to Amend their Notice of Removal, ECF No. 16.

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the Court to remand this matter to state court because the notice of

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remand does not sufficiently establish diversity jurisdiction under 28

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U.S.C. § 1332.

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their notice of removal is sufficient.

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motion, Defendants provide additional information to demonstrate that

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removal was proper and argue that they should be permitted to amend

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their notice of removal if the Court finds it lacking.

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Defendants also filed a motion to amend their notice of removal, ECF

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No. 16, which Plaintiff also opposes, ECF No. 19.

Richard

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ORDER - 1

Lee,

Sandra

Lee,

David

James,

and

Patricia

James’s

Plaintiff asks

Defendants oppose the motion to remand, arguing that
In response to Plaintiff’s

Subsequently,

Having reviewed the

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pleadings and the file in this matter, the Court is fully informed and

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denies the motion for remand and grants the motion to amend.
I.

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LEGAL STANDARD

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To remove a civil action from state court, a defendant must file

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a notice of removal “containing a short and plain statement of the

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grounds for removal.”

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the notice of removal within 30 days of receiving service of a summons

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or a copy of the initial pleading.

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removed only if the federal district court has original jurisdiction

28 U.S.C. § 1446(a).

Id. § 1446(b).

An action may be

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over the matter.

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Shamrock Oil & Gas Corp. v. Sheets 313 U.S. 100, 108 (1941), and the

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party

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jurisdiction is appropriate.

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F.2d 769, 771 (9th Cir. 1986).

seeking

A

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federal

Id. § 1441(a).

The defendant must file

removal

court

has

has

Section 1441 is strictly construed,

the

burden

of

establishing

federal

Gould v. Mut. Life Ins. Co. of N.Y., 790

diversity

jurisdiction

over

an

action

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between citizens of different states with an amount in controversy

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exceeding $75,000.

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of the state where it is incorporated and of the state where it has

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its

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individual is a citizen of the state where she is domiciled.

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v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).

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domicile is her permanent home, where she resides with the intention

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to remain or to which she intends to return.”

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person residing in a given state is not necessarily domiciled there,

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and thus is not necessarily a citizen of that state.”

principal

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ORDER - 2

28 U.S.C. § 1332(a).

place

of

business.

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A corporation is a citizen

U.S.C.

§ 1332(c)(1).

Id.

An

Kanter

“A person’s

Therefore, “[a]

Id.

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To determine whether removal was appropriate, a federal court

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considers the face of the complaint and may also look to the notice of

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removal and require the parties to submit relevant evidence.

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Singer v. State Farm. Mut. Auto Ins. Co., 116 F.3d 373, 377 (9th Cir.

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1997) (stating that the court may follow the preceding procedure to

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determine the amount in controversy on removal); McPhail v. Deere &

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Co.,

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documentation can provide the basis for determining the amount in

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controversy,

529

F.3d

947,

including

956

(10th

Cir.

“affidavits

If it

other

(stating

evidence

appears

that

other

submitted

that the

in

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federal

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removed improperly, the district court must remand the case and may

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award costs and fees.

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court” after removal).

or

2008)

See

case was

28 U.S.C. § 1447(c).

In some cases, a notice of removal may be amended after the 30-

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day removal period has expired.

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amended to supplement or clarify a ground for removal that has already

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been stated but not to add a new ground for removal that was not

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present

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Federal Practice & Procedure § 3733 (4th ed. 2009) (stating that after

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the 30-day period for removal has expired, “most cases indicate that

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defendants may amend the notice only to set out more specifically the

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grounds for removal that already have been stated, albeit imperfectly,

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in the original notice”); see also Emeldi v. Univ. of Or., 698 F.3d

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715, 723, 731 (9th Cir. 2012) (upholding delayed amendment of notice

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of removal that incorrectly alleged the county in which the underlying

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suit had been filed); Wood v. Crane Co., 764 F.3d 316, 323 (4th Cir.

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2014) (“[A]fter thirty days, district courts have discretion to permit

previously.

ORDER - 3

See

14C

Generally, a notice of removal may be

Wright,

Miller,

Cooper

&

Steinman,

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amendments that correct allegations already present in the notice of

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removal.”); Matrix Z, LLC v. Landplan Design, Inc., 493 F. Supp. 2d

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1242, 1245–46 (S.D. Fla. 2007) (permitting amendment of the notice of

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removal to provide specifics regarding the parties’ principal places

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of

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conclusory assertion that parties were citizens of different states).

business

The

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where

basis

original

for

this

notice

rule

is

of

28

removal

U.S.C.

included

§ 1653,

which

only

a

states,

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“[d]efective allegations of jurisdiction may be amended, upon terms,

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in the trial or appellate courts.”

28 U.S.C. § 1653.

The Supreme

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Court has clarified that this statute applies to “incorrect statements

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about

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jurisdictional

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Larrain, 490 U.S. 826, 831 (1989).

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that

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particular state, such that diversity jurisdiction existed, “but the

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complaint did not so allege.”

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§ 1653 supports this interpretation.

jurisdiction

section

that

facts

1653

actually

themselves.”

would

apply

and

not

Newman-Green,

if

defects

Inc.

v.

in

the

Alfonzo-

The Supreme Court has explained
a

party

Id. at 831.

II.

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exists,

were

domiciled

in

a

The legislative history of

Id.

ANALYSIS

“Federal jurisdiction must be rejected if there is any doubt as

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to the right of removal in the first instance.”

Gaus, 980 F.2d at

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663.

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there can be no doubt that diversity of citizenship is present and

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diversity jurisdiction proper in this case.

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face, indicates that RJ Lee Group is headquartered in Pennsylvania and

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that Richard and Sandra Lee and David James reside in Pennsylvania.

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Complaint, ECF No. 1-2 ¶¶ 2, 4–5.

Having reviewed the pleadings and the file, the Court finds

ORDER - 4

The complaint, on its

The complaint also states that

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Plaintiff resides in Benton County, Washington.

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of

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states,” and that “complete diversity of citizenship exists.”

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of Removal, ECF No. 1 ¶¶ 5, 11.

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resident

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principal place of business is in Pennsylvania, and that all of the

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individual defendants are residents of Pennsylvania.

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These statements of residence alone are insufficient to establish

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diversity jurisdiction because it is citizenship not residence that

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removal

matters.

of

states,

Benton

“the

action

County,

is

between

Id. ¶ 6.
citizens

The notice

of

different
Notice

It further states that Plaintiff is a

Washington,

that

RJ

Lee

Corporation’s

Id. ¶¶ 6–8.

See Kanter, 265 F.3d at 857.

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However, in response to Plaintiff’s motion to remand, Defendants

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submitted verifications from each of the individual defendants stating

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that they are presently, and indefinitely intend to remain, citizens,

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residents, employees, property owners, registered voters, and licensed

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drivers in Pennsylvania.

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James, and Patricia James, ECF Nos. 12-1, 12-2, 12-3 & 12-4.

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considering the verifications, as it is permitted to do, see Singer,

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116 F.3d at 377, the Court finds that Defendants are domiciled in

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Pennsylvania

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Pennsylvania for diversity jurisdiction purposes.

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F.3d at 857.

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and

have

Decls. of Richard Lee, Sandra Lee, David

established

that

they

are

After

citizens

of

See Kanter, 265

Plaintiff persistently argues that his citizenship has not been

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established.

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Complaint or in his briefing on these motions does Plaintiff suggest

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that he is not a citizen of Washington.

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that Plaintiff “permanently relocated” to Washington and resides in

ORDER - 5

See ECF No. 15 at 2; ECF No. 19 at 2–3.

Nowhere in his

In fact, the complaint states

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Benton County, Washington.

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Plaintiff alleges that he previously lived and worked in New Mexico,

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Complaint, ECF No. 1-2 ¶ 13, he does not indicate that he has ever

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lived or worked in Pennsylvania or intended to make it his permanent

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home.

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Plaintiff’s citizenship has not been established but providing no

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indication that Plaintiff is a citizen of Pennsylvania); ECF No. 19 at

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2–3 (same).

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not a citizen of Pennsylvania, then diversity jurisdiction is proper.

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See

Plaintiff’s

Complaint, ECF No. 1-2 ¶¶ 6, 20.

Reply,

ECF

No.

15

at

2

Though

(arguing

that

As long as Plaintiff is a citizen of some state and is

28 U.S.C. § 1332.
The Court finds that Defendants have met their burden of showing

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that diversity jurisdiction is appropriate.

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of removal, and Defendants’ verifications establish that Defendants

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are all Pennsylvania citizens.

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“permanently

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there when the complaint was filed.

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hinted in his briefing that he is a citizen of any state other than

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Washington.

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efficient, and would waste even more judicial resources, to remand

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this matter when there is no doubt that diversity jurisdiction is

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proper and that Defendants’ failure to properly plead the parties’

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citizenship

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defect.

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grant Plaintiff’s request for costs and attorney fees under 28 U.S.C.

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§ 1447(c).

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ORDER - 6

relocated”

The

for

Court

to

diversity

The complaint states that Plaintiff

Benton

finds

The complaint, the notice

that

County,

Washington,

and

resided

Plaintiff has not so much as

it

jurisdiction

would

be

purposes

neither

was

a

fair

nor

technical

Because the Court declines to remand the case, it may not

Despite

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finding

that

Defendants

established

diversity

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jurisdiction, in an abundance of caution, the Court permits Defendants

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to amend their notice of removal to clearly allege the citizenship of

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all parties.

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(holding that even if the error in the notice of removal was fatal to

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federal jurisdiction, amendment of the notice of removal cured the

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defect even though the amendment occurred after the 30-day period for

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removal expired).

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in the jurisdictional facts themselves.”

28 U.S.C. § 1653; see Emeldi, 673 F.3d at 1222–23, 1230

This is not a situation where there are, “defects
Newman-Green, 490 U.S. at

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831.

Instead, Defendants’ notice of removal contained incomplete

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statements about diversity jurisdiction that actually exists.

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Therefore, the Court exercises its discretion to permit Defendants to

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amend the notice of removal.

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at 858 (citing § 1653 and stating that defects in a notice of removal

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that alleged only the residence of one defendant and stated that the

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other defendants were not citizens of the same state as the plaintiff

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could have been cured by an amendment).

See 28 U.S.C. § 1653; Kanter, 265 F.3d

III. CONCLUSION

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See id.

Diversity
by

jurisdiction

Defendants’

is

proper

technical

in

failure

this

is

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party’s citizenship in their notice of removal.

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remand the case and permits Defendants to promptly amend their notice

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of removal.

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ORDER - 7

each

The Court declines to

Accordingly, IT IS HEREBY ORDERED:
1.

plead

not

defeated

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properly

and

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to

case

Plaintiff’s Motion for Remand, ECF NO. 9, is DENIED.

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2.

is GRANTED.

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Defendants’ Motion to Amend Notice of Removal, ECF No. 16,

3.

Defendants

are

to

promptly

file

an

amended

notice

of

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removal which will completely replace and supersede the

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original notice of removal, ECF No. 1.

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IT IS SO ORDERED.

The Clerk’s Office is directed to enter this

Order and provide copies to all counsel.
DATED this

6th

day of April 2015.

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s/Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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Q:\EFS\Civil\2015\5017.deny.mot.remand.lc2.docx

ORDER - 8