IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

VAN P. FINGER, : 

 : 

 Plaintiff, : 

 : 

VS. : CIVIL ACTION NO. 10-00192-KD-B 

 : 

STATE FARM FIRE AND CASUALTY : 

COMPANY, : 

 : 

 Defendant. : 

REPORT AND RECOMMENDATION

This case is before the Court on Plaintiff Van P. Finger’s 

Motion to Remand (Doc. 3), Defendant State Farm Fire and Casualty 

Company’s Motion for Leave to File an Amended Notice of Removal 

(Doc. 8), and Response in Opposition to Motion to Remand (Doc. 9) 

and Plaintiff’s Response in Opposition to Defendant’s Motion for 

Leave. (Doc. 11). Based upon a careful review of Plaintiff’s 

motion, and Defendant’s motion, the memorandums in opposition, 

and the case file, the undersigned RECOMMENDS that Plaintiff’s 

Motion to Remand be DENIED, and that Defendant’s Motion for Leave 

be GRANTED. 

I. Background

Plaintiff State Farm Fire and Casualty Company (hereinafter 

“State Farm”) removed this action from the Circuit Court of 

Mobile County, Alabama on the basis of diversity jurisdiction. 

(Doc. 1). In its Notice of Removal, State Farm avers that “Upon 

information and belief, Plaintiff Van P. Finger was and is a 

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citizen of the State of Alabama, residing in Baldwin County, 

Alabama.” (Doc. 1 at page 1). State Farm further alleges that 

“State Farm is organized and existing under the laws of the 

state of Illinois with its principal place of business in the 

state of Illinois. State Farm is a citizen of the state of 

Illinois.” (Id. at page 2) Plaintiff, on May 5, 2010, filed a 

Motion to Remand. (Doc. 3) In his motion, Plaintiff asserts 

that this action should be remanded back to state court because 

Defendant’s allegations regarding citizenship are defective. 

According to Plaintiff, it is sufficient for Defendant to make 

allegations based upon “information and belief,” and Defendant’s 

Notice does not address the citizenship of the parties at the 

time the Complaint was initially filed. In opposing Plaintiff’s 

motion, Defendant argues that the citizenship allegations in the 

Notice are sufficient, and that, if the allegations are deemed 

to be deficient, Defendant should be allowed to amend its notice 

pursuant to 28 U.S.C. § 1653. Contemporaneous with the filing 

of its response, Defendant sought leave to file an amended 

notice of removal. The proposed amended notice was attached to 

the motion for leave. Plaintiff filed a response in opposition 

to Defendant’s motion for leave1

. In his response, Plaintiff 

 1 The proposed amendment contains allegations regarding the 

parties’ citizenship both at the time the Complaint was 

originally filed, and at the time of removal. (Doc. 8, Ex. A) 

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argues that federalism, strict construction of the removal 

statutes and presumption in favor of remand militates against 

allowing Defendant to amend the Notice.

II. Analysis

A. Standard of Review

On a motion to remand, “the removing party bears the 

burden of establishing jurisdiction.” Diaz v. Sheppard, 85 F. 3d 

1502, 1505 (llth Cir. 1996). The removal statute should be 

construed narrowly with doubt construed against removal. This 

strict construction of removal statutes prevents “exposing the 

plaintiff to the possibility that they may win a final judgment 

in federal court, only to have it determined that the court 

lacked jurisdiction....” Crowe v. Coleman, 113 F. 3d 1536, 1538 

(llth Cir. 1997). Subject matter jurisdiction based on 

diversity of citizenship exists in civil actions where the 

amount in controversy exceeds $75,000 and the action is between 

“citizens of different states and in which citizens or subjects 

of a foreign state are additional parties.” 28 U.S.C. 

§ 1332(a)(3). The burden of establishing subject matter 

jurisdiction rests with the party invoking federal jurisdiction. 

McCormick v. Aderholt, 293 F. 3d 1254, 1257 (llth Cir. 2002). 

That party must prove, by a preponderance of the evidence, the 

facts supporting federal jurisdiction. Id. 

B. Discussion

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Normally, a notice of removal must be filed within thirty 

days after the defendant has received “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). A defendant 

may freely amend the notice of removal within the thirty day 

period of § 1446(b). After the thirty day period has expired 

however, a party may only amend defective allegations of 

jurisdiction pursuant to 28 U.S.C. § 16532. Fuller v. Exxon 

Corp., 131 F. Supp. 2d 1323 (S. D. Ala 2001). It is generally 

held that outside of this initial thirty day period, amendments 

are permitted only to fix “technical defects” in the 

jurisdictional allegations, not to submit wholly new grounds for 

removal jurisdiction. Id. at 1328. Examples of technical defects 

include an instance where the removal notice claimed diversity, 

but failed to identify the citizenship of an individual 

defendant or place of incorporation for a corporate defendant. 

See, e.g., D.J. McDuffie v. Old Reliable Fire Insurance Co., 608 

F. 2d 145 (5th Cir. 1979)3

. 

 2 28 U.S.C. § 1653 provides that ‘[s]effective allegations of 

jurisdiction may be amended, upon terms, in the trial or 

appellate courts.”

3 Bonner v. City of Prichard, Ala., 661 F. 2d 1206, 1207 

(llth Cir. 1981(en banc)(adopting the prior precedent of the 

former Fifth Circuit as binding precedent in the Eleventh 

Circuit.) 

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In D.J. McDuffie, the Fifth Circuit addressed the issue of 

whether the district court erred in permitting the defendants to 

cure the omission of citizenship allegations from their removal 

petition pursuant to 28 U.S.C. § 1653. In their original 

petition for removal, the defendants failed to specifically 

allege the citizenship of the parties at the time the suit was 

brought, and at the time the removal petition was filed. The 

district court allowed the defendants to amend their removal to 

cure the omission, and on appeal, the plaintiffs argued that the 

missing citizenship allegations constituted a fatal omission 

which could not be cured by amendment. Rejecting the 

plaintiffs’ argument, the Fifth Circuit held that § 1653 

authorized the amendment to correct the missing citizenship 

allegations. D.J. McDuffie, 608 F.2d at 146. 

Recently, in Corporate Management Advisors, Inc. v. Artjen

Complexus, Inc., 561 F. 3d 1294 (llth Cir. 2009), the Eleventh 

Circuit also addressed the issue of the appropriateness of 

amendments to correct defective citizenship allegations. In 

Corporate Management, the defendants appealed the district 

court’s sua sponte remand of a case to state court based on the 

defendant’s defective allegations regarding citizenship. The 

Eleventh Circuit concluded that the district court erred in 

remanding the case, and observed that “the failure to establish 

a party’s citizenship at the time of filing the removal notice 

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is a ‘procedural, rather than jurisdictional, defect. . .” Id. 

at 1296 (citing In re Allstate Ins. Co., 8 F.3d 219, 221 (5th

Cir. 1993). The Court further observed that “[W]here subject 

matter jurisdiction exists and any procedural shortcomings may 

be cured by resort to § 1653, we can surmise no valid reason for 

the court to decline the exercise of jurisdiction.” (citing In 

re Allstate, 8 F.3d at 223 and Ellenburg v. Spartan Motors

Chassis, Inc., 519 F. 3d 192, 198 (4th Cir. 2008)). The Eleventh 

Circuit went on to hold that “If a party fails to specifically 

allege citizenship in their notice of removal, the district 

court should allow that party “to cure the omission,” as 

authorized by 1653.” (citing D.J. McDuffie, 608 F. 2d at 146-

47). 

The undersigned finds that notwithstanding Plaintiff’s 

assertions to the contrary, the above-referenced decisions make 

clear that defective citizenship allegations in removal petitions 

are not fatal, and can be corrected outside of the 30 day window 

provided in 28 U.S.C. § 1446(b) by virtue of § 1653. Moreover, 

the undersigned has considered Plaintiff’s arguments that 

federalism, strict construction of the removal statutes and the 

presumption in favor of remand militate in favor of denying the 

requested amendment, and rejects said arguments in light of firm 

precedent holding that defective citizenship allegations are not 

fatal, and the fact that Plaintiff herein has not argued or 

otherwise suggested that there exists a lack of complete 

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diversity of citizenship between the parties to this action. 

Indeed, the undersigned has reviewed Defendant’s requested 

amendment, and finds that said amendment would effectively cure 

the alleged pleading deficiency. Accordingly, the undersigned 

RECOMMENDS that Plaintiff’s Motion to Remand be DENIED, and that 

Defendant’s Motion for Leave be GRANTED. 

The attached sheet contains important information regarding 

objections to this recommendation. 

DONE this 30th day of July, 2010.

 /s/ Sonja F. Bivins_____ 

 UNITED STATES MAGISTRATE JUDGE 

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND 

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND 

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or 

anything in it must, within fourteen (14) days of the date of 

service of this document, file specific written objections with 

the Clerk of this court. Failure to do so will bar a de novo

determination by the district judge of anything in the 

recommendation and will bar an attack, on appeal, of the factual 

findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); 

Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. 

Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The 

procedure for challenging the findings and recommendations of 

the Magistrate Judge is set out in more detail in SD ALA LR 72.4 

(June 1, 1997), which provides that: 

A party may object to a recommendation entered by 

a magistrate judge in a dispositive matter, that 

is, a matter excepted by 28 U.S.C. § 

636(b)(1)(A), by filing a ‘Statement of Objection 

to Magistrate Judge’s Recommendation’ within ten 

days4 after being served with a copy of the 

recommendation, unless a different time is 

established by order. The statement of objection 

shall specify those portions of the 

recommendation to which objection is made and the 

basis for the objection. The objecting party 

shall submit to the district judge, at the time 

of filing the objection, a brief setting forth 

the party’s arguments that the magistrate judge’s 

recommendation should be reviewed de novo and a 

different disposition made. It is insufficient 

to submit only a copy of the original brief 

submitted to the magistrate judge, although a 

copy of the original brief may be submitted or 

referred to and incorporated into the brief in 

support of the objection. Failure to submit a 

brief in support of the objection may be deemed 

an abandonment of the objection. 

 4 Effective December 1, 2009, the time for filing written 

objections was extended to “14 days after being served with a 

copy of the recommended disposition[.]” Fed. R. Civ. P. 

72(b)(2). 

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 A magistrate judge's recommendation cannot be appealed to a 

Court of Appeals; only the district judge's order or judgment 

can be appealed. 

2. Transcript (applicable Where Proceedings Tape Recorded). 

Pursuant to 28 U.S.C. § 1915 and FED. R. CIV. P. 72(b), the 

Magistrate Judge finds that the tapes and original records in 

this case are adequate for purposes of review. Any party 

planning to object to this recommendation, but unable to pay the 

fee for a transcript, is advised that a judicial determination 

that transcription is necessary is required before the United 

States will pay the cost of the transcript. 

 

DONE this 30th day of July, 2010. 

 /s/ SONJA F. BIVINS_______ 

 UNITED STATES MAGISTRATE JUDGE 

 

 

 

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