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,
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
"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
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
"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
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:
" 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.
" 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.
" 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 ...