Roberts v. Panhandle Eastern Pipe Line Co.

737 F. Supp. 545, 1990 U.S. Dist. LEXIS 5654, 1990 WL 61077
CourtDistrict Court, W.D. Missouri
DecidedMay 4, 1990
DocketNo. 90-0026-CV-W-9
StatusPublished
Cited by4 cases

This text of 737 F. Supp. 545 (Roberts v. Panhandle Eastern Pipe Line Co.) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roberts v. Panhandle Eastern Pipe Line Co., 737 F. Supp. 545, 1990 U.S. Dist. LEXIS 5654, 1990 WL 61077 (W.D. Mo. 1990).

Opinion

ORDER DENYING PLAINTIFF’S MOTION TO REMAND CASE TO STATE COURT AND GRANTING DEFENDANT’S MOTION FOR LEAVE TO FILE AN AMENDED NOTICE OF REMOVAL

BARTLETT, District Judge.

Plaintiff has filed a Motion to Remand this case to the Circuit Court of Jackson County, Missouri. Defendant opposes plaintiff’s motion and has filed a Motion for Leave to Amend Notice of Removal which plaintiff opposes.

[546]*546This is an action originally filed in the Circuit Court of Jackson County, Missouri, in which plaintiff Linda K. Roberts alleges she was damaged by defendant Panhandle Eastern Pipe Line Company’s unlawful employment practice and intentional infliction of emotional distress.

On or about December 14, 1989, service was obtained on defendant. On January 8, 1990, defendant filed its Notice of Removal of this action to this court. Defendant asserted the following jurisdictional basis for removing this case to federal court:

The above-described action is one of which this Court has original jurisdiction under the provisions of Title 28 U.S.C. § 1332, and is one which may be removed to this Court by the Petitioner, pursuant to the provisions of Title 28 U.S.C. § 1441, in that it is a civil action wherein the matter in controversy exceeds the sum or value of $50,000, exclusive of interest and costs, and is between citizens of different states. The Plaintiff, Linda K. Roberts, at the time this action was commenced, was and still is a citizen of the State of Missouri; Petitioner Panhandle Eastern Pipe Line Company is a Delaware corporation with its principal place of business in Texas.

Notice of Removal at II 3.

Plaintiff contends that defendant’s Notice of Removal, particularly as set forth in ¶ 3, fails to state sufficient facts and allegations with which to confer jurisdiction on this court. Specifically, plaintiff asserts that defendant fails to plead the necessary jurisdictional grounds for diversity jurisdiction because defendant does not allege defendant’s place of incorporation or principal place of business as of the date plaintiff filed her Petition in state court.

Defendant contends that the allegations contained in its notice are sufficient to satisfy the requirements of the removal statute, 28 U.S.C. § 1446. Defendant further argues that even if the allegations in its notice are insufficient to state proper grounds for removal, defendant should be permitted to file an Amended Notice of Removal under 28 U.S.C. § 1653 which provides that defective allegations of jurisdiction may be amended in the trial or appellate courts.

Title 28 U.S.C. § 1446, as amended in 1988, states in pertinent part:

(a) A defendant or defendants desiring to move any civil action or criminal prosecution from the state court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of Federal Rules of Civil Procedure and containing a short and plain statement for the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) The notice of removal of a civil action or proceeding shall be filed within thirty days after receipt by defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter....
This court has previously held that: Removal petitions must allege citizenship of the parties at the time the actions were commenced and at the time of removal in order to invoke federal jurisdiction under the removal statute, and the necessary allegations of citizenship cannot be supplied by inference.

William Kalivas Const. Co. v. Vent Control of Kansas City, 325 F.Supp. 1008, 1009 (W.D.Mo.1970) (citing Matteson v. Bresette, 250 F.Supp. 646 (W.D.Mo.1966)).

“[A] corporation shall be deemed 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).

The Judicial Improvements and Access to Justice Act, effective November 19, 1988, amended 28 U.S.C. § 1446 and changed the title of the removal document from “Petition” for Removal to “Notice” of Removal. Defendant contends that this change sug[547]*547gests that less detail is required in the pleading seeking removal. Therefore, defendant contends that because it referred to and attached to its Notice of Removal a copy of plaintiffs Petition, the allegations contained in plaintiff’s Petition relevant to the citizenship of the parties are incorporated into its removal notice.

Even if I were to consider the allegations in plaintiffs Petition, defendant still fails to make the necessary allegations about defendant’s citizenship. Plaintiff’s Petition states that defendant was a Delaware corporation at the time the Petition was filed. In addition, plaintiff’s Petition states that defendant’s corporate headquarters was located in Houston, Texas, at the time the Petition was filed. However, no allegation exists as to defendant’s principal place of business. Therefore, because the facts supporting federal jurisdiction must be alleged with particularity, plaintiff’s state court Petition and defendant’s Notice of Removal even when read together do not allege facts sufficient to support removal based on diversity jurisdiction.

Defendant requests leave to file an Amended Notice of Removal pursuant to 28 U.S.C. § 1653 in order to correct what it considers, at most, to be a technical defect.

Title 28 U.S.C. § 1653 states: “Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” In 1970, this court construed petitions for removal strictly and did not permit amendments to cure defective allegations of jurisdiction once the statutory period for removal had expired:

“Ordinarily the general rule of strict construction in favor of state court jurisdiction would be followed. This rule requires that doubtful matters, such as defendant’s right to amend the petition for removal in these cases be resolved in favor of state court jurisdiction, and leave to amend denied, unless exceptional circumstances exist.”

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Bluebook (online)
737 F. Supp. 545, 1990 U.S. Dist. LEXIS 5654, 1990 WL 61077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-panhandle-eastern-pipe-line-co-mowd-1990.