UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1213

LENA HARDAWAY,

Plaintiff – Appellant,

v.

CHECKERS DRIVE-IN RESTAURANTS, INC.; CHECKERS/RALLY 

RESTAURANT; ADVENTURES THREE INC.; DOUGLAS S. GORDON 

INSURANCE SERVICES; JOHN DOE INSURANCE COMPANY; IMOGENE F. 

HOLMES; DOES 1-25,

Defendants - Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Roger W. Titus, District Judge. 

(8:11-cv-01575-RWT)

Submitted: June 14, 2012 Decided: June 20, 2012

Before KING, WYNN, and DIAZ, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Lena Hardaway, Appellant Pro Se. Richard E. Schimel, BUDOW & 

NOBLE, PC, Bethesda, Maryland, for Appellee Checkers Drive-In 

Restaurants, Inc.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Lena Hardaway appeals from the district court’s order 

dismissing her civil suit for lack of diversity jurisdiction. 

On appeal, Hardaway contends that the district court erred by 

failing to permit her to file an amended complaint “correcting” 

her own domicile allegations and dropping nondiverse defendants. 

We vacate the district court’s order and remand for further 

consideration.

District courts have original jurisdiction over civil 

actions in which the amount in controversy exceeds $75,000 and 

when the dispute is between citizens of different states. 28 

U.S.C. § 1332(a)(1) (2006). A party seeking to invoke 

diversity jurisdiction has the burden of showing complete 

diversity of citizenship. See Krasnov v. Dinan, 465 F.2d 1298, 

1301 (3d Cir. 1972). The presence of a defendant who is a 

citizen of the same state as the plaintiff destroys complete 

diversity and, therefore, federal jurisdiction. Owen Equip. 

& Erection Co. v. Kroger, 437 U.S. 365, 373-74 (1978); 

Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 691 

(4th Cir. 1978). 

Here, the district court found that Hardaway’s attempt 

to amend her complaint was not permitted given the general rule 

that complete diversity between the plaintiffs and the 

defendants must exist at the time the complaint is filed. See
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Grupo Dataflux v. Atlas Global Group, 541 U.S. 567, 570 (2004). 

However, Fed. R. Civ. P. 21 provides that “[o]n motion or on its 

own, the court may at any time, on just terms, add or drop a 

party.” Rule 21 invests a district court “with authority to 

allow a dispensable nondiverse party to be dropped at any time.” 

Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 (1989) 

(former version of Rule 21). In fact, if the nondiverse 

defendants are severable and their dismissal will not prejudice 

the remaining defendants, the jurisdiction of the court should 

be retained, and the suit dismissed as to the nondiverse 

defendants. Id. at 835; see also Koehler v. Dodwell, 152 F.3d 

304, 308 (4th Cir. 1998) (recognizing the well-settled rule that 

“a [dispensable] party . . . whose presence deprives the court 

of jurisdiction may be dropped or severed from the action” to 

preserve jurisdiction); Caperton, 585 F.2d at 691-92 (same).

Accordingly, we find that the district court erred by 

determining that the “time of filing rule” was applicable and 

without exception. Instead, the court should have determined 

whether the defendants sought to be dropped were dispensable 

parties, whether dropping these defendants would result in 

diversity jurisdiction, and whether the remaining defendants 

would be prejudiced by their dismissal. Because the record does 

not contain full argument on this issue or on the issue of 

whether Hardaway should be permitted to “correct” her own 
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domicile allegations,* we vacate the district court’s order and 

remand for further proceedings. We dispense with oral argument 

because the facts and legal contentions are adequately presented 

in the materials before the court and argument would not aid the 

decisional process.

VACATED AND REMANDED

 * “An averment of residence is not the equivalent of an 

averment of citizenship, for the purposes of jurisdiction . . . 

Allegations of jurisdiction which are defective should be 

discovered and corrected in the District Court.” Texaco-Cities 

Serv. Pipe Line Co. v. Aetna Cas., 283 F.2d 144, 145 (8th Cir. 

1960).