Barrow Development Company, Inc. v. The Fulton Insurance Company

BYRNE, District Judge:

I respectfully dissent.

A defendant desiring to remove any action from a state court shall file in the District' Court of the United States “a verified petition containing a short and plain statement of the facts which entitle him or them to removal” ( 28 U.S.C. § 1446 ).

This state court litigation was removed to the federal district court on a petition which did not allege any facts to establish diversity jurisdiction, or any other federal court jurisdiction. It merely stated the legal conclusion that the plaintiff was a citizen of Alaska and defendant was a citizen of New York. Neither the petition nor any of the other pleadings even alleged the defendant was a corporation. This case was tried in a federal court on pleadings which did not disclose whether the defendant was a corporation, a partnership, or some other type of association. The district court was completely devoid of jurisdiction and should have remanded the case to the state court.

As Mr. Chief Justice Hughes stated in McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 , 56 S.Ct. 780, 785 , 80 L.Ed. 1135 (1935), “The prerequisites to the exercise of jurisdiction are specifically defined * *. They are conditions which must be met by the party who seeks the exercise of jurisdiction in his favor. He must allege in his pleading the facts essential to show jurisdiction. If he fails to make the necessary allegations he has no standing.” (Emphasis added.)

It is interesting to note that not a single Supreme Court case is cited by the majority. The requirement that facts showing diversity of citizenship be expressly alleged has been firmly established by the Supreme Court. An early Court under John Marshall held that “an averment of jurisdiction shall be positive —that the declaration shall state expressly the facts on which the jurisdiction depends. It is not sufficient, that jurisdiction may be inferred, argumentatively, from its averment.” Brown v. Keene, 8 Pet. 110, 114 , 8 L.Ed. 885 (1834); see also; Metcalf v, City of Watertown, 128 U.S. 586 , 9 S.Ct. 173 , 32 L.Ed. 543 (1888); Crehore v. Ohio & Mississippi Ry. Co., 131 U.S. 240 , 9 S.Ct. 692 , 33 L.Ed. 144 (1889) ; Graves v. Corbin, 132 U.S. 571 , 10 S.Ct. 196 , 33 L.Ed. 462 (1890); Chesapeake & Ohio Railway Co. v. Cockrell, 232 U.S. 146 , 34 S.Ct. 278 , 58 L.Ed. 544 (1914); Chicago, Rock Island & Pac. Railway v. Whiteaker, 239 U.S. 421 , 36 S.Ct. 152 , 60 L.Ed. 360 (1915) ; Southern Railway Co. v. Lloyd, 239 U.S. 496 , 36 S.Ct. 210 , 60 L.Ed. 402 (1916) ; Wilson v. Republic Iron & Steel Co., 257 U.S. 92 , 42 S.Ct. 35 , 66 L.Ed. 144 (1921); Thomas v. Board of Trustees of Ohio State University, 195 U.S. 207 , 25 S.Ct. 24 , 49 L.Ed. 160 (1904); Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 , 61 S.Ct. 868 , 85 L.Ed. 1214 ‘ (1914); American Fire and Casualty Co. v. Finn, 341 U.S. 6 , 71 S.Ct. 534 , 95 L.Ed. 702 (1951).

*321 The majority state they are “firmly convinced that ( 28 U.S.C. § 1653 ) applies to removed actions as well as to those initiated in United States District Courts”. I agree. However, § 1653 provides : “Defective allegations of jurisdiction may be amended * * * ”. Here there are no allegations of jurisdiction, defective or otherwise, to be amended. There is a complete absence of any “statement of the facts which entitle him or them to removal”, as required by § 1446. This is not a case where there was a “flaw, imperfection or blemish” 1 in allegations of fact, but a complete omission of any allegations of jurisdictional facts to establish the conclusion that The Fulton Insurance Company was a “citizen of New York,” either by alleging it was a partnership or association whose individual members were citizens of New York, or alleging it was a corporation incorporated under the laws of the State of New York, with its principal place of business in that state. There is absolutely nothing to show whether it is a partnership, an association, or a corporation, nor is any fact alleged to establish the basis for federal court jurisdiction.

The majority cites a number of cases which indicate anxiety and care for litigants who have failed to properly allege facts to establish jurisdiction in the federal courts. Such cases have criticized other courts for being “overly harsh” and “too grudging with reference to the controlling statute”. It is the function of courts of appeal to decide cases on the basis of the law without regard to sympathy or solicitude for the parties or fear that the law is too “harsh” or “grudging”.

Since removal must be effected by a defendant within 30 days after receiving a copy of the complaint ( 28 U.S.C. § 1446 ), the removal petition cannot now be amended to add allegations of substance. Surely allegations of substance would be required in the present case to establish federal jurisdiction, regardless of whether the purpose of the amendment were to show the existence of diversity jurisdiction of a partnership, an association, or a corporation.

I would remand the case to the district court and direct that court to remand it to the state court where it belongs.

. Definition of “defective”, Black’s Law Dictionary.