Opinion
Case No. 03-4228-SAC.
May 26, 2004
MEMORANDUM AND ORDER
On April 21, 2004, the court ordered defendant Metsker's attorney who had removed this case from state court to show cause why this case should not be remanded for lack of subject matter jurisdiction. Having received the timely response of counsel to that show cause order, the court is convinced that it lacks subject matter jurisdiction of this case.
In his notice of removal, defendant Metsker alleged only federal question jurisdiction. Tacitly conceding that no federal question jurisdiction exists, defendant now alleges that removal is proper based on diversity jurisdiction. The right to remove a case to federal court depends upon the case disclosed by the pleadings when the petition for removal is filed. Woerter v. Orr, 127 F.2d 969, (10th Cir. 1942). Because "jurisdiction is determined at the time of the notice of removal, the movant must meet its burden in the notice of removal." Coca-Cola Bottling of Emporia, Inc. v. South Beach Beverage Co., Inc., 198 F. Supp.2d 1280, 1283 (D. Kan. 2002); Firstar Bank, NA v. West-Anderson, 2003 WL 21313849, *4 (D. Kan. 2003). Therefore, the court rejects defendant's attempt to change horses in the middle of the stream. Nonetheless, the court additionally considers the merits of defendant's assertions, and finds that remand is required for the reasons set forth below.
Under the removal statutes, an action seeking removal on diversity grounds must initially satisfy "complete diversity," i.e., all defendants must be diverse from all plaintiffs. See RMP Consulting Group, Inc. v. Datronic Rental Corp., 189 F.3d 478 (10th Cir. 1999) (Table). If even one of the state court defendants is domiciled in the same state as any plaintiff, diversity jurisdiction is lacking and removal is improper. See 28 U.S.C.A. §§ 1332, 1441, 1446, 1447.
The pleadings show that plaintiff Ag Services of America, Inc., and defendant AgriCredit Acceptance, L.L.C., are both citizens of the state of Iowa. Defendant agrees that these parties are not diverse, but notes that there is a pending motion to dismiss the Iowa defendant. Defendant contends that if the court grants the motion and dismisses defendant AgriCredit Acceptance, L.L.C., the complete diversity requirement will be met.
The motion to dismiss was filed Mar. 9, 2004. (Dk. 37).
For complete diversity to exist in a removed case, diversity must be present both at the time the notice of removal is filed in federal court and at the time the state court action was commenced. See Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996); Kanzelberger v. Kanzelberger, 782 F.2d 774, 776 (7th Cir. 1986). Accordingly, even if the court were to grant the pending motion to dismiss the Iowa defendant and cure the current lack of diversity, complete diversity would not have existed at the relevant times — the time the state court action was commenced and the time the notice of removal was filed.
The state court petition was filed on Oct. 8, 2003.
The notice of removal was filed on Dec. 23, 2003.
But even if the complete diversity requirement were met, remand would nonetheless be required because 28 U.S.C. § 1441(b) bars removal of an action on the basis of diversity by a citizen of the forum state. It states:
(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none 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) (emphasis added). Defendant Metsker is a citizen of the forum state in which this action is brought, see Dk. 1, Att. A (Petition), thus the case cannot be removed to federal court.
The court finds it unnecessary to reach other contentions raised by this defendant, including whether a reasonable estimate of attorneys' fees may be included in determining whether the jurisdictional amount is satisfied in this case, and whether the lack of diversity of a nominal defendant is material.
IT IS THEREFORE ORDERED that this case is remanded to state court. The Clerk is directed to mail a certified copy of this order to the Clerk of the Shawnee County District Court.