Opinion
CAUSE NO. IP00-1780-C-T/G.
January 14, 2001.
ENTRY ON DEFENDANT'S MOTION FOR LEAVE TO AMEND THE NOTICE OF REMOVAL
Defendant, Allstate Insurance Company ("Allstate"), requests leave to amend paragraphs 5 and 6 of Defendant's Notice of Removal ("Removal Notice") to plead the citizenship of the parties at the time of the filing of the Complaint and at the time of removal. Plaintiff, Sarah M. (Louden) Pickett ("Ms. Pickett"), filed a motion to remand based in part on Allstate's failure to state in the Removal Notice the citizenship of the parties at the time the Complaint was filed.
Allstate, in its motion for leave to amend, does not dispute that it is required to plead the citizenship of the parties both at the time Complaint was filed and at the time of removal. See, e.g., In re Allstate Ins. Co., 8 F.3d 219, 221 (5th Cir. 1993) ("It is well settled that a removing party must allege diversity both at the time of the filing of the suit in state court and at the time of removal.") (quotation omitted). Nor does Allstate dispute that it failed to plead in the Removal Notice the citizenship of the parties at the time the Complaint was filed. However, Allstate maintains that 29 U.S.C. § 1653 authorizes this court to permit Allstate to correct this defect. That statute provides: "Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." 29 U.S.C. § 1653; see also In re Allstate, 8 F.3d at 221 n. 4 (citing, e.g., 14A CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 3739, at 575-76 (2d ed. 1985) ("Irregularities or defects in the removal procedure . . . ordinarily do not provide grounds for remand. They may be cured by amendment in federal court.").
It is clear that Allstate's defect in its Removal Notice is a procedural defect, not a jurisdictional defect. See Harmon v. OKI Sys., 902 F. Supp. 176, 177 (S.D. Ind. 1995) (holding that defects in the removal petition regarding the requirement to allege the citizenship of the parties were procedural defects), aff'd, 115 F.3d 477 (7th Cir. 1997). It is also clear that 29 U.S.C. § 1653 permits this court to authorize defendants to correct procedural defects in removal petitions. See Poulos v. Naas Foods, Inc., 959 F.2d 69, 70 n. 1 (7th Cir. 1992) (recognizing that 29 U.S.C. § 1653 permits a defendant to correct the form of a defective removal petition). Ms. Pickett seems to acknowledge that Allstate's error was procedural rather than jurisdictional. In her motion to remand, Ms. Pickett does not maintain that diversity of citizenship did not exist at the time the Complaint was filed in state court. Rather, Ms. Pickett merely contends that the Removal Notice was defective and for that reason, the case should be remanded to state court. Because the defects in the Removal Notice were procedural and, thus, "did not undermine jurisdiction[,]" Allstate's motion will be granted. See Harmon v. OKI Sys., 115 F.3d 477, 479 (7th Cir. 1997).
For the foregoing reasons, Allstate Insurance Company's motion for leave to amend its notice of removal is GRANTED.
ALL OF WHICH IS ORDERED this 14th day of January 2001.