Commercial Litigation and Arbitration

After 30 Day Removal Period Has Expired, Notice of Removal May Not be Amended to Assert New Ground for Federal Jurisdiction

From Geismann v. Aestheticare, LLC, 2008 U.S. Dist. LEXIS 106545 (D. Kan. April 9, 2008):

***28 U.S.C. § 1446(a) requires defendant to effect removal by filing a notice of removal in the federal court. Subsection (b) of that statute mandates that defendant file the notice of removal within 30 days after receiving notice of the removable claim…. At any point during this 30-day period, defendant is free to amend the notice of removal…. After the expiration of the 30-day period, defendant may amend the notice of removal under 28 U.S.C. § 1653, which provides that "[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." …


Section 1653 permits amendment of "incorrect statements about jurisdiction that actually exists, and not defects in the jurisdictional facts themselves." Daneshvar v. Graphic Tech., Inc., 237 Fed. Appx. 309, 314 (10th Cir. 2007) (quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831 (1989)). In other words, Section 1653 does not allow the Court to amend a pleading so as to produce jurisdiction where none actually existed before. …. Section 1653 is designed to broadly permit amendment of jurisdictional allegations defective in form, not substance, so as to avoid dismissal on technical grounds. … The Court maintains discretion in applying Section 1653 and should construe the statute "liberally to permit the action to be maintained if it is at all possible to determine from the record that jurisdiction does in fact exist." ... Although Section 1653 allows defendant to cure technical defects in a notice of removal, it does not allow for the addition of a new ground for removal.

***Having failed to establish jurisdiction under Section 1332(a) [diversity], Aestheticare seeks to amend the notice of removal to satisfy Section 1332(d) [CAFA]. …[T]his shift affects a substantial change in the theory of jurisdiction and the underlying facts necessary to support such jurisdiction. Altogether, the fundamental differences between Sections 1332(a) and 1332(d) suggest that when the original notice of removal alleged jurisdiction under only Section 1332(a), asserting jurisdiction under Section 1332(d) in the amended notice of removal constitutes a new ground for removal. Although this is a matter of first impression, the Court's conclusion is consistent with the opinions of other courts which have described Sections 1332(a) and 1332(d) as independent bases of jurisdiction. [Citations omitted]. Because Section 1653 does not permit the addition of a new ground for removal through amendment of the notice of removal, the Court overrules Aestheticare's motion to amend the notice of removal.

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