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YARBROUGH v. BLAKE

December 18, 1962

JOHN L. YARBROUGH, PLAINTIFF,
v.
ROBERT S. BLAKE, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

The question for determination is whether the court, upon the filing of a petition for removal by the defendant, obtained jurisdiction of the subject matter of the cause of action.

The complaint was filed in the Circuit Court for the Southern District of Logan County, Arkansas, on September 6, 1962. Summons was issued on the same date and served on the Secretary of State on the next day, September 7, 1962. The petition for removal was filed September 25, 1962, within the time required by 28 U.S.C. § 1446(b).

The only jurisdictional allegations contained in the complaint are that the plaintiff "is a resident of 1907 South Utica Place, Fort Smith, Arkansas; that the defendant is a minor male person, eighteen years of age, residing at 6439 Roselawn, Richmond, Virginia; that the accident, injuries and damages herein complained of occurred in the Southern District of Logan County, Arkansas."

The plaintiff further alleged that on August 9, 1962, the plaintiff received severe, painful and permanent personal injuries which were the direct and proximate result of the carelessness and negligence of the defendant in the operation of an automobile on a public highway. The plaintiff sought to recover the sum of $35,930.00 from the defendant.

On September 25, 1962, the defendant, Robert S. Blake, filed his petition for removal in which he alleged:

    "The said John L. Yarbrough [plaintiff] is a
  resident of Fort Smith, Arkansas, and the accident
  complained of took place in Logan County, Arkansas.
  The petitioner and defendant, Robert S. Blake, is a
  resident of Richmond, Virginia, and was a resident of
  Richmond, Virginia at the time of the accident. The
  amount sued for is $35,000.00. Petitioner states that
  due to the fact that he is a non-resident and that
  the amount sued for is in excess of $10,000.00, he is
  entitled to have this case removed from the Southern
  District of the Circuit Court of Logan County,
  Arkansas, to the United States Federal District Court
  for the Western District of Arkansas."

On October 31, 1962, this court gave notice to all of the attorneys for parties having litigation pending in this court that a pre-trial conference would be held in all cases on November 19, 1962. On the date of the pre-trial conference, the attorneys for the defendant appeared, but the attorney for the plaintiff did not appear. At that time the court advised the attorneys for the defendant that it was of the opinion that the court did not obtain jurisdiction of the cause of action because of defendant's failure to allege in the petition for removal that diversity of citizenship existed between plaintiff and defendant, and the court at the same time requested the attorneys for the defendant to submit brief on the question of this court's jurisdiction. No brief had been received on November 28, 1962, and on that date the court addressed and mailed to the attorney for the defendant a letter in which the court stated:

    "You will remember that at pretrial I suggested
  that if you desired to be heard on the question of
  the removal of this case, that I would appreciate it
  if you would advise me immediately and furnish such
  authorities as you might desire the court to
  consider.
    "To date I have heard nothing from you, and I shall
  thank you to give the matter your attention.
    "In this connection I prepared a memorandum for my
  own guidance prior to the pretrial conference, and a
  copy of the same is herewith enclosed."

Following the mailing of the letter, the Judge of this Court called the attorney for the defendant on the telephone and requested that a brief be submitted immediately, and was advised by the attorney that such brief would be submitted in support of his contention that the court should grant the defendant the right to amend the petition for removal by alleging diversity of citizenship. To date no brief has been received and, in order to speedily dispose of such matters, the court has given further consideration to the question of jurisdiction without the benefit of briefs or arguments from either the attorney for plaintiff or the defendant.

Without question, it is the duty of the court on its own motion to consider and determine whether it has jurisdiction to proceed with the trial of a case.

28 U.S.C. § 1441(a), provides:

    "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."

28 U.S.C. § 1332(a), (1961 Supp.), provides:

    "(a) The district courts shall have original
  jurisdiction of all civil actions where the matter in
  controversy exceeds the sum or value of $10,000,
  exclusive of interest and costs, and is between — (1)
  citizens of different States; * * *."

28 U.S.C. § 1446(a), defines the cases in which a removal may be made and provides that a defendant desiring to remove any civil action from a state court "shall file in a district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal * * *."

Subsection (b) of Section 1446 prescribes the mode of obtaining a removal and the time within which the petition for removal is required to be filed.

Thus, it will be seen that Subsection (a) is jurisdictional but that Subsection (b) is modal and formal. Therefore, the conditions of Subsection (a) are indispensable and must be shown by the record. Diversity of citizenship of the parties or some other jurisdictional fact is absolutely essential and cannot be waived, "and the want of it will be error at any stage of the cause, even though assigned by the party at whose instance it was committed." Ayers v. Watson (1885), 113 U.S. 594, 598, 5 S.Ct. 641, 642, 28 L.Ed. 1093.

Subsection (a) of the statute, supra, may be compared with Rule 8(a), Federal Rules of Civil Procedure prescribing the contents of pleadings as follows:

    "A pleading which sets forth a claim for relief,
  whether an original claim, counterclaim, cross-claim
  or third-party claim, shall contain (1) a short and
  plain statement of the grounds upon which the court's
  jurisdiction depends, unless the court already has
  jurisdiction and the claim needs no new grounds of
  jurisdiction to support it, * * *."

In other words, it is incumbent on any party seeking relief in a federal court to specifically allege the facts upon which the jurisdiction of the court depends. "It is plain that the court acquires its jurisdiction from the petition * * *." Tucker v. Kerner (7th Cir., 1950), 186 F.2d 79, 82.

Notwithstanding the time has long since expired for the filing of a petition for removal containing a statement of the required jurisdictional facts, the defendant has orally contended that he should be allowed to file an amendment to the petition for removal and allege diversity of citizenship rather than diversity of residence. Doubtlessly such contention is based upon Kinney v. Columbia Savings & Loan Association, 191 U.S. 78, 24 S.Ct. 30, 48 L.Ed. 103. In that case, Mr. Justice Brewer at page 80 of 191 U.S., at page 31 of 24 S.Ct. stated the question before the court as follows:

    "Had the Federal court the power to permit the
  amendment of the petition for removal? The suit was
  removable. Diverse citizenship in fact existed and
  the amount in controversy was over $2,000. The right
  to remove existed, but the petition for removal was
  defective. If it had been sufficient there would have
  been no need of amendment. The question is whether it
  was so defective as to be incurable. In other words,
  was the case one in which the court had power to
  permit the facts to be stated in order to secure to
  the defendant the removal to which it had a right?"

The court answered the question by holding that, where the allegation of jurisdictional facts was defective, the trial court was correct in allowing the petition for removal to be amended to reflect the facts. The case has been cited and discussed in many subsequent decisions of the federal courts, and some of the lower federal courts following Kinney have concluded that if the jurisdictional facts are merely defectively stated, that an amendment may be allowed by the court to which the cause was removed. To illustrate, Judge Sanborn, speaking for the Court of Appeals of the Eighth Circuit in National Quicksilver Corporation v. World Ins. Co. of Omaha, Neb. (8th Cir., 1944), 139 F.2d 1, at page 2 said:

    "We think that the giving of a defective bond on
  removal does not defeat jurisdiction, and that the
  defect is subject to correction. (Citing cases.) Even
  in the absence of amendment, we have no doubt that if
  suit were brought to recover upon a defective removal
  bond, the court would treat it as what it was
  intended to be, a proper statutory bond on removal."

As heretofore stated, the jurisdictional allegations in the complaint and in the petition for removal do not in any wise allege diversity of citizenship but only diversity of residence. "It is diversity of citizenship and not diversity of residence which gives a federal court jurisdiction in a case where the requisite jurisdictional amount is in controversy. 28 U.S.C. § 1332." Texaco-Cities Service Pipe Line Co. et al. v. Aetna Casualty & Surety Co. (8th Cir., 1960), 283 F.2d 144, 145.

28 U.S.C. § 1653, provides:

    "Defective allegations of jurisdiction may be
  amended, upon terms, in the trial or appellate
  courts."

No decision has been found holding that, after the time for filing a petition for removal has expired, a defendant may amend his petition for removal by alleging diversity of citizenship when no mention or allegation was made in the original petition for removal filed within the time permitted by the statute. Therefore, Section 1653, supra, does not authorize an amendment to a petition for removal after the time for filing petition has expired where the petition is completely devoid of any allegation of diversity of citizenship. See Alvey v. Sears, Roebuck & Co. (W.D.Mo., 1958), 162 F. Supp. 786.

In Roseberry v. Fredell (E.D.Ky., 1959), 174 F. Supp. 937, the court, beginning at page 939, said:

    "[3] The petition must show the citizenship of the
  parties at the time of the commencement of the
  action. A failure to so state is a fatal defect which
  cannot be corrected unless an offer to amend is made
  within the prescribed statutory period for the filing
  of a petition for removal. Crehore v. Ohio &
  Mississippi Railway Company, 131 U.S. 240, 9 S.Ct.
  692, 33 L.Ed. 144; Mattingly v. Northwestern Virginia
  Railroad Co., 158 U.S. 53, 15 S.Ct. 725, 39 L.Ed.
  894.
    "[4] The defendants' motion for leave to amend the
  petition for removal cannot be sustained since the
  petition for removal was in reality not a petition
  for removal because of its failure to allege
  jurisdictional facts and the amendment would have had
  to have been filed within the statutory time allowed
  for the filing of a petition for removal. Hernandez
  v. Watson Bros. Transportation Co., D.C., 165 F. Supp. 720.
    "28 U.S.C.A. § 1446(b) provides that a petition for
  removal of a civil action shall be filed within
  twenty days after the receipt by the defendant,
  through service or otherwise, of a copy of the
  initial pleading or within twenty days after the
  service of summons upon the defendant. That period of
  time has long since expired and to permit an
  amendment beyond the limitation fixed would be to
  ignore the whole purpose of the statute.
    "[5] 28 U.S.C.A. § 1653 provides that defective
  allegations of jurisdiction may be amended, upon
  terms, in the trial or appellate courts. That statute
  can avail nothing here since the petition for removal
  is entirely lacking in jurisdictional allegations. To
  permit an amendment would not be a cure of technical
  defects but the stating of original jurisdictional
  facts. Browne v. Hartford Fire Insurance

  Company, D.C. 1959, 168 F. Supp. 796. This court had
  the same question before it in the case ...

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