Wright v. Combined Ins. Co. of America

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
Citation959 F.Supp. 356
Docket NumberCivil Action No. 4:96cv305-D-B.
PartiesDella WRIGHT, Plaintiff, v. COMBINED INSURANCE COMPANY OF AMERICA and Tammy Steele, Defendants.
Decision Date03 February 1997
959 F.Supp. 356
Della WRIGHT, Plaintiff,
Civil Action No. 4:96cv305-D-B.
United States District Court, N.D. Mississippi, Greenville Division.
February 3, 1997.

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Pat M. Barrett, Jr., Lexington, MS, for Plaintiff.

Helen J. Alford, Mobile, AL, for Defendants.


DAVIDSON, District Judge.

The present cause is before the court upon the motion of the plaintiff to remand this matter to the Circuit Court of Leflore County, Mississippi. Finding that the motion is well taken, the same shall be granted.

I. Generally

The plaintiff instituted this cause by filing her complaint on September 5, 1996 in the Circuit Court of Leflore County, Mississippi. The defendant Combined Insurance Company of America ("Combined"), subsequently filed a "Notice of Removal" on October 7, 1996, and removed the action to this court. Plaintiff Della Wright moved on November 11, 1996 to remand this cause to state court, and the defendant Combined has responded to that motion.1

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II. Standard for Motion to Remand

This court is required to remand any action over which it has no subject matter jurisdiction at any time before final judgment. Buchner v. F.D.I.C., 981 F.2d 816, 819 (5th Cir.1993); 28 U.S.C. § 1447. An objection to the subject matter jurisdiction of this court may be raised by any party at any time in the course of these proceedings, and may even be raised by the court sua sponte. See Mall v. Atlantic Fin. Fed., 127 F.R.D. 107 (W.D.Pa.1989); Glaziers, Glass Workers of Jacksonville v. Florida Glass and Mirror of Jacksonville, 409 F.Supp. 225, 226 (M.D.Fla.1976); 28 U.S.C. § 1447. Nevertheless, this court has no discretionary authority to remand federal-law actions to a state court. Burks v. Amerada Hess Corp., 8 F.3d 301, 304 (5th Cir.1993); Buchner v. F.D.I.C., 981 F.2d 816, 817 (5th Cir.1993); In re Wilson Indust., 886 F.2d 93, 96 (5th Cir. 1989). The court in Buchner noted that there are only three situations under statute in which a federal trial court may remand a claim to state court. Buchner, 981 F.2d at 819. Those circumstances are: (1) a trial court has discretion to remand state law claims that were removed along with one or more federal question claims; (2) it must act on a timely motion to remand based on a defect in removal procedure; and (3) it must remand a case over which it has no subject matter jurisdiction. Id. A district court exceeds its authority when it remands a case on grounds not permitted by statute. Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 351, 96 S.Ct. 584, 593, 46 L.Ed.2d 542 (1976); Buchner, 981 F.2d at 820. There is a single exception to the Thermtron rule, and that exception is "a district court has discretion to remand to state court a removed case involving pendent claims upon a proper determination that retaining jurisdiction over the case would be inappropriate." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 623, 98 L.Ed.2d 720 (1988). In Carnegie-Mellon, the court determined that retaining jurisdiction was inappropriate where only pendent state law claims remained to be decided after all federal claims had been dropped. Carnegie-Mellon, 484 U.S. at 354-56, 108 S.Ct. at 621-22.

When making determinations of whether remand is necessary, the defendant is the party who bears the burden of establishing that the removal to federal court is proper. Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir.1993); LeJeune v. Shell Oil Co., 950 F.2d 267, 271 (5th Cir. 1992); B., Inc. v. Miller Brewing Company, 663 F.2d 545, 549 (5th Cir.1981). Further, the removal statutes are strictly construed, and all doubts will be resolved against a finding of proper removal. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992); Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir.1979). In the case at bar, the defendant Combined asserts that this court has jurisdiction over the present action based upon diversity of citizenship among the parties, and also has original federal question jurisdiction over the plaintiff's claims. Therefore, it carries the burden of establishing federal jurisdiction in this action.

III. Discussion

A. The Defendant's Amended Notice of Removal

Combined has also moved this court to file an "Amended Notice of Removal" in this cause. A removing defendant may freely amend his notice of removal within the thirty (30) day period set forth in 28 U.S.C. § 1446(b) for the original filing of a notice of removal. See, e.g., Wormley v. Southern Pac. Transp. Co., 863 F.Supp. 382, 385 (E.D.Tex.1994); Zaini v. Shell Oil Co., 853 F.Supp. 960, 964 n. 2 (S.D.Tex. 1994); Energy Catering Servs., Inc. v. Burrow, 911 F.Supp. 221, 222 (E.D.La.1995). If a defendant seeks to amend the notice of removal at any time thereafter, he may only do so to clarify the jurisdictional grounds for removal which were unartfully stated in the original notice. He may not allege new jurisdictional grounds for removal. Wormley, 863 F.Supp. at 385; Zaini, 853 F.Supp. at 964 n. 2; Energy Catering, 911 F.Supp. at 223. Amendments in

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this context are governed by 28 U.S.C. § 1653, which states "[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." 28 U.S.C. § 1653.

In the case at bar, Combined did not file its request to file an Amended Notice of Removal until December 10, 1996, and therefore the request falls well outside the thirty (30) day period set forth in 28 U.S.C. § 1446(b). Upon review of the defendant's motion and Amended Notice, the court finds that the defendant is not seeking to allege a new ground for the exercise of jurisdiction by this court, but instead is merely seeking to clarify the allegations contained in the original notice. The original notice contained the charge that complete diversity of citizenship existed between the parties, but failed to identify the citizenship of defendant Tammy Steele. The Amended Notice contains particular allegations of Ms. Steele's citizenship. Lastly, the court observes that the plaintiff has not formally opposed the defendant's request to file an amended notice. Therefore, the motion of the defendant to file an "Amended Notice of Removal" shall be granted.

B. Diversity Jurisdiction

1. Removal before service of non-diverse parties

In her motion to remand, the plaintiff argues that:

Although Combined does not explicitly state the basis of its contention that complete diversity exists between the parties to this lawsuit, it does not contend that Defendant Steele was fraudulently joined. Rather, it implicitly argues that diversity exists because Plaintiff has not yet served her complaint upon Defendant Steele.

Plaintiff's Brief, p. 3. Combined does not appear to rely heavily upon this contention, if at all, as it does not address this matter in its response to the plaintiff's motion. In any event, as the plaintiff correctly notes, such a contention is without merit. The fact that a non-diverse party has yet to be served with process has no effect upon the propriety of removal. Pullman Co. v. Jenkins, 305 U.S. 534, 540, 59 S.Ct. 347, 350, 83 L.Ed. 334 (1939); Insinga v. LaBella, 845 F.2d 249, 255 (11th Cir.1988); Bourque v. Nan Ya Plastics Corp., 906 F.Supp. 348, 352 (M.D.La.1995); Horton v. Scripto-Tokai Corp., 878 F.Supp. 902, 906 (S.D.Miss.1995). This fact will alone be insufficient to warrant this court's retention of the present action.

2. Diversity of the parties

Combined relies more heavily upon the argument that complete diversity exists among the parties to this action. The citizenship of defendant Tammy Steele is central to this position of Combined. In her complaint, the plaintiff alleges that Ms. Steele is a citizen of the State of Mississippi, making her a non-diverse defendant and thereby defeating diversity jurisdiction. Combined argues that Ms. Steele is in fact a citizen of the state of Alabama, and therefore her presence in this action does not defeat diversity jurisdiction.

The parties do not appear to dispute the fact that Ms. Steele was at least at one time an Alabama citizen. Argument arises, however, as to whether her citizenship changed prior to the institution of this action. Ms. Steele herself asserts in effect that she remains a citizen of Alabama, and Combined has submitted to this court Ms. Steele's affidavit in which she maintains that:

1. she possesses and maintains an Alabama driver's license.

2. has registered to vote in the state of Alabama; and

3. resides at 612 Dearborn Avenue, Muscle Shoals, Alabama 35661, and has resided at that address for more than three years

4. has at all times considered Alabama as her permanent address and residence.

5. while at one time maintained an apartment in Mississippi as a "business address," she no longer does so.

Exhibit "A" to Defendant Combined's Response, Affidavit of Tammy Steele. The plaintiff, however, has presented proof to this court that in June of 1996, Ms. Steele applied for and later received, a resident license in Mississippi for the sale of insurance.

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In her application, Ms. Steele lists her resident address as 2424 Lawrence Hazel Road, Lawrence, Mississippi 39336. Further, the presented proof indicates that Ms. Steele canceled her Alabama insurance sales license that same month. She is currently listed with the Mississippi Insurance Department as holding a resident license, and her resident address as maintained by the Mississippi Insurance Department remains 2424 Lawrence Hazel Road, Lawrence, Mississippi 39336.2

In order to establish subject-matter jurisdiction in this court based upon diversity of citizenship between the parties, the parties must be completely diverse (i.e., no plaintiff may be a domiciliary of the same state as any defendant) and the amount in controversy must exceed $50,000.00.3 28 U.S.C. § 1332; ...

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