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Kille v. Fastenal Company, Inc.

United States District Court, M.D. Alabama, Northern Division

April 19, 2018

LA'SHONDA KILLE, Plaintiff,
v.
FASTENAL COMPANY, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER [1]

          GRAY M. BORDEN UNITED STATES MAGISTRATE JUDGE.

         On 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.[2] 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. Doc. 2.

         On 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.

         On February 21, 2017, Fastenal filed its second amended notice of removal to clarify the plaintiff's citizenship.[3] Doc. 9. In this amended petition, Fastenal alleged that the plaintiff is a resident citizen of Alabama, that Fastenal is a citizen of Minnesota, [4] 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.[5] Doc. 9 at ¶¶ 5-6.

         Capes was served on May 9, 2017, and on May 30, 2017 he answered the complaint and consented to removal. Docs. 20-22.

         The 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 following questions:

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 longer diverse.
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.

         As the 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.

         After 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.[6] 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 ...


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