United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER 
M. BORDEN UNITED STATES MAGISTRATE JUDGE.
December 28, 2016, Defendant Fastenal Company, Inc.
(“Fastenal”) removed this action from the Circuit
Court of Montgomery County, Alabama on the basis of diversity
jurisdiction pursuant to 28 U.S.C. §§ 1332 and
1441. Doc. 1. At the time of removal, Defendant Robert Jason
Capes was an alleged citizen of Georgia but had not been
served by the plaintiff. Doc. 1 at ¶ 4. Removal was
accomplished via 28 U.S.C. § 1441(a), which states:
Except as otherwise expressly provided by Act of Congress,
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.
Doc. 1. Fastenal answered the plaintiff's complaint
contemporaneously with the filing of its notice of removal.
January 9, 2017, Fastenal filed an amended notice of removal
for the specific purpose of correcting Capes'
citizenship. Doc. 5. According to the amended removal
petition, Capes “is now and was at the time of the
filing of the original Complaint and at all times intervening
a resident citizen of Montgomery, Alabama.” Doc. 5 at
¶ 4. Removal was again based on diversity of citizenship
and accomplished via 28 U.S.C. § 1441(a). Indeed,
Fastenal alleged that this court had subject-matter
jurisdiction over this matter through § 1441
“because this action originally could have been filed
in this Court pursuant to 28 U.S.C. § 1332, as there is
complete diversity of citizenship between the Plaintiff and .
. . Fastenal.” Doc. 5 at ¶ 5. To support this
allegation, Fastenal alleged that the plaintiff “is a
resident of Alabama, ” that Fastenal is a citizen of
Minnesota, and that Capes, who was still unserved, is a
citizen of Alabama; therefore, according to Fastenal,
“there is complete diversity of citizenship under 28
U.S.C. § 1332.” Doc. 5 at ¶¶ 2-6.
February 21, 2017, Fastenal filed its second amended notice
of removal to clarify the plaintiff's
citizenship. Doc. 9. In this amended petition, Fastenal
alleged that the plaintiff is a resident citizen of Alabama,
that Fastenal is a citizen of Minnesota,  and that
Capes-still unserved-“is now and was at the time of the
filing of the original Complaint and at all times intervening
a resident citizen of Alabama.” Doc. 9 at ¶¶
2-6. Fastenal again alleged that removal was proper under
§ 1441 because there is complete diversity of
citizenship between the plaintiff and Fastenal and the amount
in controversy exceeds $75, 000, exclusive of interest and
costs. Doc. 9 at ¶¶ 5-6.
was served on May 9, 2017, and on May 30, 2017 he answered
the complaint and consented to removal. Docs. 20-22.
court is required to raise the issue of subject-matter
jurisdiction sua sponte at any point during the
litigation when a doubt about jurisdiction arises.
E.g., Smith v. GTE Corp., 236 F.3d 1292,
1299 (11th Cir. 2001). Accordingly, on February 22, 2018, the
court entered an order directing the defendants to address,
with supporting citations to relevant authority, the
1. For purposes of an action removed to federal court from
state court, whether subject-matter jurisdiction is
determined at the time of the initial notice of removal,
regardless of whether a subsequent amended notice of removal
demonstrates that the plaintiff and the defendant are no
2. For purposes of an action removed to federal court from
state court, whether the status of service on a defendant
affects removability under 28 U.S.C. § 1441(a) and, if
so, how. In other words, when determining whether
subject-matter jurisdiction exists, may the court disregard
the citizenship of a non-diverse defendant simply because he
has not been served at the time of removal?
3. For purposes of an action removed to federal court from
state court, if the court is not required to consider the
citizenship of an unserved non-diverse defendant at the time
a notice of removal is filed, does subsequent service on the
non-diverse defendant destroy or otherwise affect the
court's subject-matter jurisdiction?
Doc. 67. The defendants filed their response to the
show-cause order on March 8, 2018, and the plaintiff filed
her reply on March 15, 2018. Docs. 68 & 70. Because, as
explained below, original subject-matter jurisdiction did not
exist at the time the case was initially removed, and because
a district court must dismiss or remand an action at any time
it determines that subject-matter jurisdiction is lacking,
see Fed. R. Civ. P. 12(h)(3), the undersigned finds
that this case must be remanded to the Circuit Court of
Montgomery County, Alabama, as set forth below.
court has already noted, Fastenal removed this case through
28 U.S.C. § 1441(a), which permits the removal of a
state-court action to federal court when “the district
courts of the United States have original
jurisdiction.” The original jurisdiction supporting the
instant removal is diversity jurisdiction under 28 U.S.C.
§ 1332, which provides, in relevant part, that the
“district courts shall have original jurisdiction of
all civil actions where the matter in controversy exceeds the
sum or value of $75, 000, exclusive of interest and costs,
and is between . . . citizens of different States.” 28
U.S.C. § 1332(a)(1). It follows that since the propriety
of removal is determined at the time of removal, see,
e.g., Pintando v. Miami-Dade Housing Agency,
501 F.3d 1241, 1244 n.2 (11th Cir. 2007), for this court to
have subject-matter jurisdiction over the instant case,
diversity jurisdiction must have existed at the time Fastenal
filed its initial notice of removal. Otherwise, the original
jurisdiction on which Fastenal premised removal under §
1441 (i.e., diversity jurisdiction) would be absent.
reviewing the initial notice of removal, the January 9th
corrected notice of removal, and the parties' briefing,
the court finds that, at the time of removal, it did not have
original subject-matter jurisdiction on which removal could
be predicated under § 1441, and therefore Fastenal's
removal of this matter was improper. The court notes that
Fastenal's initial notice of removal alleged that Capes
was a citizen of Georgia. However, the January 9th amended notice
of removal, which was filed to correct Capes' alleged
citizenship, unequivocally alleges that Capes “is now
and was at the time of the filing of the original Complaint
and at all times intervening a resident citizen of
Montgomery, Alabama.” Doc. 5 at ¶ 4 (emphasis
added). Hence, it is clear from this allegation that Capes
was not a citizen of Georgia when either the complaint or the
initial notice of removal were filed-rather, he was an
Alabama citizen at all relevant ...