Opinion
No. 02-3265
January 8, 2003
ORDER AND REASONS
Plaintiff, Sandra Mahan, filed this suit in the 24th Judicial District Court for the Parish of Jefferson against the owner and the driver of a car that allegedly caused her injuries in a motor vehicle accident, and against the insurer of the car's owner and plaintiffs own uninsured motorist insurer. Record Doc. No. 1, Petition for Damages; Supplemental and Amended Petition for Damages; Second Supplemental and Amended Petition for Damages. One of the defendants, AIU Insurance Company ("AIU"), removed the action to this court on October 29, 2002, based exclusively on diversity of citizenship jurisdiction. Record Doc. No. 1, Notice of Removal.
AIU filed a Motion for Leave to File an Amended Notice of Removal on December 13, 2002, more than 30 days after the notice of removal was filed. Record Doc. No. 12. Plaintiff filed a timely opposition memorandum. Record Doc. No. 13.
There is "a well-recognized rule that a party may not amend its removal notice more than thirty days after removal to assert a new ground for removal." Davis v. Life Investors Ins. Co., 214 F. Supp.2d 691, 693 (S.D. Miss. 2002) (Lee, C.J.). However, an exception to this rule permits untimely amendments of jurisdictional allegations that are merely defective.
In Blakeley v. United Cable System, 105 F. Supp.2d 574 (S.D. Miss. 2000) [(Lee, C.J.)], this court . . . noted that "[w]ithin the thirty-day period (for removal) prescribed by § 1446(b), a defendant may freely amend its notice of removal" id at 578, and observed further that in the view of the majority of courts, at least in more recent times, a defendant may still be allowed to amend its removal petition even after expiration of this thirty-day period in order to cure defective allegations of jurisdiction, id. (citing D.J. McDuffie, Inc. v. Old Reliable Fire Ins. Co., 608 F.2d 145, 146 (5th Cir. 1979)) (holding that amendment of removal petition was properly allowed to correct jurisdictional allegations in removal petition which were defective or faulty due to defendants' failure to specifically allege the citizenship of the parties at the time the suit was brought and at the time the removal petition was filed; missing allegation was not a fatal omission which could not be cured by amendment). The court explained:
The authorization for such amendments derives from 28 U.S.C. § 1653, which states that "defective allegations of jurisdiction may be amended . . . in the trial and appellate courts." Thus, where a defendant, for example, has alleged the existence of diversity jurisdiction in its removal petition but has failed to allege all of the specific facts, or has incorrectly alleged some of the facts underlying its jurisdictional conclusion, courts have allowed amendments to cure these deficiencies. . . .Davis, 214 F. Supp.2d at 693 (quoting Blakeley, 105 F. Supp.2d at 578-79); accord In re Allstate Ins. Co., 8 F.3d 219, 221 n. 4 (5th Cir. 1993).
Thus, as the Fifth Circuit held in D.J. McDuffie. Inc. and Allstate, ART can amend its notice of removal to cure a defective allegation of jurisdiction, which was not a fatal omission that could not be cured by amendment. In its original notice of removal, ART asserted that plaintiff is a citizen of the State of Louisiana and that AIU "is and was at the time of filing of plaintiffs petition, a foreign corporation, with its principal place of business in the State of Texas." Record Doc. No. 1, Notice of Removal, at ¶ 4. In the current motion, ART alleges that it wants to correct its jurisdictional allegation by amended notice of removal to assert that its principal place of business is in New York, not Texas.
28 U.S.C. § 1332 (c)(1) states: For the purposes of this section and section 1441 of this title — (1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business,. . . . 28 U.S.C. § 1332 (c)(1) (emphasis added). AIU's notice of removal was defective in its jurisdictional allegations because the notice failed to allege the State in which AIU was incorporated. See Form 2(a), Appendix of Forms to the Federal Rules of Civil Procedure. Because AIU's proposed amendment again fails to allege the State of its incorporation, the amendment fails to cure the defective jurisdictional allegation in AIU's original notice.
The remainder of Section 1332(c)(1) does not apply because both insureds have been joined as defendants in this direct action against AIU and another insurance company.
Leave to amend pleadings "shall be freely given when justice requires." Fed.R.Civ.P. 15(a). We have explained that the propriety of allowing amendment to cure jurisdictional defects should be governed by the same standard as other amendments to pleadings, namely the standard set forth by the Supreme Court:
In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the other party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be "freely given."Whitmire v. Victus Ltd., 212 F.3d 885, 889 (5th Cir. 2000) (citing Foman v. Davis, 371 U.S. 178, 182 (1962) (additional citations omitted) (emphasis added).
Because the amendment ART currently proposes fails to cure its defective jurisdictional allegation, allowing the amendment would be futile. Accordingly, IT IS ORDERED that the motion is DENIED.