IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

CATHERINE V. STRANEN )

and MERCANTILE NATIONAL BANK )

OF INDIANA, as Trustee )

Under Trust No. 6720-LT, )

)

Plaintiffs, )

)

vs. ) NO. 3:13-CV-005

)

RONALD STRUBLE and )

JOSHUA GODDARD d/b/a )

COWBOYS EXCAVATING, )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court sua sponte on the Notice of

Removal, filed by defendant Joshua Goddard, d/b/a Cowboys

Excavating, on January 3, 2013. (DE #2.) For the reasons set

forth below, this Court ORDERS defendant Joshua Goddard, d/b/a

Cowboys Excavating, to submit an amended Notice of Removal, along

with a brief and/or any documents necessary, stating with precision

the basis for the assertion of diversity jurisdiction. The amended

Notice of Removal must be filed no later than January 24, 2013, or

the Court may sua sponte issue a remand to the Porter Superior

Court for lack of subject matter jurisdiction. 

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BACKGROUND

On November 13, 2013, Catherine V. Stranen (“Plaintiff

Stranen”) and Mercantile National Bank of Indiana, as Trustee Under

Trust No. 6720-LT (“Mercantile National Bank”) (collectively,

“Plaintiffs”), filed a Complaint in the Porter County Superior

Court (64D02-1211-CT-11500). (DE #1.) The Complaint alleges that

defendant Ronald Struble (“Defendant Struble”) owns property

adjacent to Plaintiffs’ real estate and that, in September of 2011,

defendant Joshua Goddard, d/b/a Cowboys Excavating (“Defendant

Goddard”), “trespassed upon Plaintiffs’ Real Estate, destroyed,

removed, and/or converted numerous trees and lumber” while “working

as an agent for and/or with the consent and authority” of Defendant

Struble. (Id. at 2.) The Complaint further alleges that Plaintiff

Stranen is a “resident” of Chicago, Illinois and that Plaintiffs

own real estate in Starke County, Indiana. (Id. at 1.) The

Complaint lists Defendant Struble as a “resident” of Hebron,

Indiana and Defendant Goddard as a “resident” of Rensselaer,

Indiana. (Id.) 

On January 3, 2013, a Notice of Removal was filed by Defendant

Goddard via his counsel. (DE #2.) In that Notice, Defendant

Goddard states that he was served with Summons on or about November

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13, 2013.1 (Id. at 2.) He further declares that “Plaintiff is a

resident of Chicago, Illinois,” that “Defendant Struble is an

Indiana resident,” and that “Defendant Goddard is an Indiana

resident of Rensselaer, Indiana.” (Id.) He does not reference the

citizenship of the additional named plaintiff Mercantile National

Bank. However, Plaintiff Goddard does state that the amount in

controversy is in excess of $75,000. (Id.) It is on these bases

that Defendant Goddard states that the Court has diversity

jurisdiction pursuant to 28 U.S.C. § 1332. 

DISCUSSION

A case may be removed from state court to federal court if it

is based on statutorily permissible grounds and if it is timely.

Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004). 

See 28 U.S.C. § 1441; 28 U.S.C. § 1446. The Seventh Circuit has

directed that, “[c]ourts should interpret the removal statute

narrowly and presume that the plaintiff may choose his or her

forum. Any doubt regarding jurisdiction should be resolved in

favor of the states, and the burden of establishing federal

jurisdiction falls on the party seeking removal.” Doe v.

Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993) (citations

1

 Defendant Goddard states that the Notice is "being filed within

thirty (30) days after receipt by Defendant Goddard through service or

otherwise, of a copy of a pleading, motion, order or other paper from which it

may be first ascertained that the case is one which is or has become removable

in accordance with 28 U.S.C. § 1446(b)(3), and is therefore timely." (DE #2,

pp. 2-3.)

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omitted). The party seeking removal must demonstrate that removal

is proper. Boyd, 366 at 529. “[I]t is not enough to file a

pleading and leave it to the court or the adverse party to negate

jurisdiction.” Brill v. Countrywide Home Loans, Inc., 427 F.3d

446, 447 (7th Cir. 2005) (citing Lujan v. Defenders of Wildlife,

504 U.S. 555, 561 (1992)). When challenged, the party seeking

federal jurisdiction bears the burden of proving by a preponderance

of the evidence that a case belongs in federal court. Meridian

Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540-43 (7th Cir. 2006). 

Even where not challenged by a party, “federal courts are always

obliged to inquire sua sponte whenever a doubt arises as to the

existence of federal jurisdiction.” Tylka v. Gerber Products Co.,

211 F.3d 445, 447 (7th Cir. 2000) (quotation marks and citation

omitted). See also Smith v. American General Life and Acc. Ins.

Co., Inc., 337 F.3d 888, 892 (7th Cir. 2003) (A court has an

“independent obligation” to ensure that federal subject matter

jurisdiction exists.)

 

Subject-matter Jurisdiction

Defendant Goddard removed this case from state court based on

diversity jurisdiction. 28 U.S.C. § 1332. For diversity

jurisdiction to exist, the parties are required to have diverse

citizenship and the matter in controversy must exceed the sum or

value of $75,000. 28 U.S.C. § 1332(a). Diversity of citizenship

must be properly alleged. See Tylka, 211 F.3d at 447-48. “In

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federal law citizenship means domicile, not residence.” America’s

Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074

(7th Cir. 1992)(citing Gilbert v. David, 235 U.S. 561 (1915)). 

“[R]esidence may or may not demonstrate citizenship, which depends

on domicile—that is to say, the state in which a person intends to

live over the long run. An allegation of ‘residence’ is therefore

deficient.” Heinen v. Northrop Grumman Corp., 671 F.3d 669, 670

(7th Cir. 2012). See also Tylka, 211 F.3d at 448 (Allegations of

residency are insufficient to establish diversity jurisdiction

because the terms citizenship or domicile are not synonymous with

residence.) 

In this case, both the Complaint and the Notice of Removal are

silent as to the citizenship of any party. The Notice of Removal

describes Plaintiff Stranen as a resident of Illinois and

Defendants Struble and Goddard as residents of Indiana. This is

insufficient to establish diversity jurisdiction. Furthermore,

neither the Complaint nor the Notice of Removal shed any light on

the citizenship or status of Mercantile National Bank, a named

party in this action. As such, the Notice of Removal is defective,

and Defendant Goddard must amend his Notice of Removal to

adequately establish the citizenship of all named parties before

the Court can determine whether subject-matter jurisdiction is

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proper.2 See Heinen, 671 F.3d at 670; 28 U.S.C. § 1653 (defective

allegations of jurisdiction may be amended upon terms). Defendant

Goddard must file the amended Notice of Removal no later than

January 24, 2013, or the Court may sua sponte issue a remand to the

Porter Superior Court for lack of subject matter jurisdiction. 

Procedural Considerations

Even if diversity jurisdiction can be adequately established,

the Seventh Circuit has advised that not every case may be properly

removed. See Hurley v. Motor Coach Industries, Inc., 222 F.3d 377,

378 (2000). For example, pursuant to the “forum defendant” rule,

a diversity action “may not be removed if any of the parties in

interest properly joined and served as defendants is a citizen of

the State in which such action is brought.” 28 U.S.C. §

1441(b)(2). In other words, a “home-state defendant” is

technically incorrect in requesting removal because “[t]he primary

purpose behind removal in diversity cases is to allow an out-ofstate defendant to avoid potential bias when appearing in the

plaintiff’s chosen forum.” Assaf, M.D. v. Trinity Medical Center,

696 F.3d 681, 684-85 (7th Cir. 2012). This type of removal error,

however, is procedural rather than jurisdictional and may be waived

2 The Court notes that allegations of federal subject matter

jurisdiction should be made on personal knowledge, not on the basis of

information and belief; furthermore, only affidavits made on personal

knowledge have any value. America's Best Inns, Inc. v. Best Inns of Abilene,

L.P., 980 F.2d 1072, 1074 (7th Cir. 1992); see also Yount v. Shashek, 472

F.Supp.2d 1055, 1058, n. 1 (S.D.Ill. 2006).

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by a plaintiff if a motion to remand is not filed within 30 days

after the filing of the original notice of removal. Id. at 685;

see also 28 U.S.C. 1447(c).

Additionally, a suit in which multiple defendants are named

“may not be removed unless all the defendants consent to removal.” 

Save-A-Life Foundation, Inc. v. Heimlich, 601 F.Supp.2d 1005, 1007

(N.D. Ill. 2009) (citing McMahon v. Bunn-O-Matic Corp., 150 F.3d

651, 653 (7th Cir. 1998)). “[A]ll defendants who have been

properly joined and served must join in or consent to the removal

of the action.” 28 U.S.C. 1446(b)(2)(A). This type of defect in

the removal process is also non-jurisdictional, and a plaintiff’s

objection must be raised within 30 days or is forfeited. McMahon,

150 F.3d at 653.

Finally, a notice of removal “shall be filed within 30 days

after the receipt by the 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.” 28 U.S.C.

§ 1446(b)(1). If the case is not removable based on the initial

pleading, “a notice of removal may be filed within 30 days after

receipt by defendant, through service or otherwise, of a copy of an

amended pleading, motion, order or other paper from which it may

first be ascertained that the case is one which or has become

removable.” 28 U.S.C. § 1446(b)(3). Although the 30 day time

limits in section 1446(b) are not jurisdictional, they are

mandatory and strictly applied rules of procedure. Northern

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Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 273 (7th

Cir. 1982). 

The procedural considerations described above have given the

Court pause upon its initial review of the Notice of Removal. It

appears as though Defendant Goddard is a “home-state defendant” and

will not be entitled to removal if Plaintiffs object and file a

timely motion to remand. It is also not clear from the record

provided whether Defendant Struble has been properly served in this

case, and, if so, whether he consents to the removal of the action. 

Furthermore, questions remain regarding the timing of the filing of

the Notice; Defendant Goddard has not provided any information

related to a pleading, motion, order or other paper which made the

removability of this case first ascertainable.3 

That said, because these types of errors are nonjurisdictional, the Court will not rule on such concerns sua

sponte. Instead, should Plaintiffs choose to timely file a motion

to remand pursuant to 28 U.S.C. 1447(c), the Court will address the

arguments raised upon receipt of such motion. 

CONCLUSION

For the reasons set forth above, this Court ORDERS defendant

Joshua Goddard, d/b/a Cowboys Excavating, to submit an amended

Notice of Removal, along with a brief and/or any documents

3

 Defendant Goddard asserts that he was served with summons on or about

November 13, 2012; the Notice of Removal was filed with this Court

approximately 50 days later. (DE #2.) 

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necessary, stating with precision the basis for the assertion of

diversity jurisdiction. The amended Notice of Removal must be

filed no later than January 24, 2013, or the Court may sua sponte

issue a remand to the Porter Superior Court for lack of subject

matter jurisdiction. 

DATED: January 17, 2013 /s/RUDY LOZANO, Judge

United States District Court

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