IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

JAMES BYRON COLLUM and )

MARY COLLUM, )

Plaintiffs, )

)

v. ) CIVIL ACTION NO. 15-00208-CG-N

)

SOUTHERN SPECIALTY )

SERVICES, INC., et al., )

Defendants. )

REPORT AND RECOMMENDATION

This case was removed to this Court from the Circuit Court of Marengo 

County, Alabama, by the Defendant Southern Specialty Services, Inc. (“SSS”) 

pursuant to 28 U.S.C. § 1441(a).1 SSS’s Notice of Removal (Doc. 1) claims diversity 

of citizenship under 28 U.S.C. § 1332(a)(1) as the sole basis for the Court’s subject 

matter jurisdiction. See 28 U.S.C. § 1446(a) (“A defendant or defendants desiring to 

remove any civil action from a State court shall file in the district court of the United 

States for the district and division within which such action is pending a notice of 

removal...containing a short and plain statement of the grounds for removal...”). 

The Plaintiffs have filed a Motion to Remand (Doc. 25) under 28 U.S.C. § 

1447(c), raising the lone argument that SSS failed to timely comply with the 

undersigned’s previous Order (Doc. 20) to correct its deficient allegations in support 

of diversity jurisdiction. SSS has timely filed a response (Doc. 27) in opposition to 

the motion. Though given the opportunity to do so (see Doc. 26), the Plaintiffs have 

not filed a reply to the response. This matter is now under submission and has 

 1 The other two Defendants have joined removal. (Docs. 4, 7).

Case 2:15-cv-00208-CG-N Document 30 Filed 06/02/15 Page 1 of 4
2

been referred to the undersigned United States Magistrate Judge for entry of a 

report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B)-(C) and Federal 

Rule of Civil Procedure 72(b). Upon consideration, and for the reasons stated 

herein, the undersigned RECOMMENDS that the Plaintiffs’ Motion to Remand 

(Doc. 25) be DENIED.

On April 28, 2015, the undersigned, sua sponte on review of the Court’s 

subject matter jurisdiction, determined that SSS had failed to properly allege the 

citizenships of the natural person Plaintiffs for purposes of establishing diversity 

jurisdiction, based on the plethora of circuit authority holding that “[c]itizenship, 

not residence, is the key fact that must be alleged . . . to establish diversity for a 

natural person.” E.g., Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994) 

(emphasis added). (See Doc. 20). Nevertheless, “[d]efective allegations of 

jurisdiction may be amended, upon terms, in the trial or appellate courts” 28 

U.S.C. § 1653. Moreover, the Eleventh Circuit has expressly held “that the failure 

to establish a party's citizenship at the time of filing the removal notice is a 

procedural, rather than jurisdictional, defect.” Corporate Mgmt. Advisors, Inc. v. 

Artjen Complexus, Inc., 561 F.3d 1294, 1296 (11th Cir. 2009) (quotation omitted). 

Thus, “[i]f 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.” 

Id. at 1297. Accordingly, the undersigned ordered SSS to file, no later than April 5, 

2015, a supplement to its notice of removal that properly alleged the citizenships of 

the Plaintiffs. (Doc. 20).

Case 2:15-cv-00208-CG-N Document 30 Filed 06/02/15 Page 2 of 4
3

SSS failed to do by the ordered deadline. However, one day after the 

deadline, SSS filed a motion for leave to file its supplement to the notice of removal 

out of time, explaining that the supplement had been timely drafted but 

inadvertently not filed by the deadline. (Doc. 22) Under Federal Rule of Civil 

Procedure 6(b)(1)(B), “[w]hen an act may or must be done within a specified time, the 

court may, for good cause, extend the time...on motion made after the time has 

expired if the party failed to act because of excusable neglect.” The Court granted 

SSS’s motion for leave to file out of time, (see Doc. 23 [5/6/2015 Endorsed Order by J. 

Granade]); thereafter, SSS promptly filed its supplement (Doc. 24), which properly 

alleges the citizenships of the Plaintiffs for purposes of diversity jurisdiction.

The Plaintiffs do not challenge the accuracy or sufficiency of any of SSS’s 

allegations establishing diversity jurisdiction in their motion to remand, nor have

they offered any argument as to how the Court abused its discretion under Rule 

6(b)(1)(B) in granting SSS additional time to cure the procedural defect of failing to 

specifically allege citizenship in its notice of removal, as authorized by § 1653. See

Corporate Mgmt. Advisors, 561 F.3d at 1296; Clinkscales v. Chevron U.S.A., Inc., 831 

F.2d 1565, 1568-69 (11th Cir. 1987) (reviewing district court’s decision under Rule 

6(b) for abuse of discretion).

 Accordingly, it is RECOMMENDED that the Plaintiffs’ Motion to Remand 

(Doc. 25) be DENIED.

Notice of Right to File Objections

A copy of this report and recommendation shall be served on all parties in the 

Case 2:15-cv-00208-CG-N Document 30 Filed 06/02/15 Page 3 of 4
4

manner provided by law. 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. See 28 U.S.C. § 636(b)(1); 

Fed. R. Civ. P. 72(b); SD ALA LR 72.4. The parties should note that under Eleventh 

Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in accordance with the 

provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the 

district court's order based on unobjected-to factual and legal conclusions if the party 

was informed of the time period for objecting and the consequences on appeal for 

failing to object. In the absence of a proper objection, however, the court may review 

on appeal for plain error if necessary in the interests of justice.” 11th Cir. R. 3-1. 

In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and recommendation where the 

disputed determination is found. An objection that merely incorporates by reference 

or refers to the briefing before the Magistrate Judge is not specific.

DONE this the 2nd day of June 2015.

/s/ Katherine P. Nelson 

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

Case 2:15-cv-00208-CG-N Document 30 Filed 06/02/15 Page 4 of 4