Opinion
Civil No. AMD 09-346.
April 14, 2009
MEMORANDUM
Plaintiff Donald Cooper filed this case as a putative class action in the Circuit Court for Baltimore County. He alleged wrongdoing (in claims arising solely under state law) by defendant United Auto Credit Corporation in respect to defendant's practices in financing at retail and repossessing motor vehicles. Defendant timely filed its notice of removal pursuant to 28 U.S.C. § 1441 on February 13, 2009, specifically asserting the existence of federal jurisdiction on the basis of diversity of citizenship, 28 U.S.C. § 1332(a)(3). Notice of Removal, ¶ 1. Thereafter, plaintiff timely moved to remand the case to state court, arguing that federal jurisdiction did not exist because the amount in controversy requirement of the diversity statute could not, as a matter of law, be shown.
In response to the motion to remand, and well over 30 days after it had been served with process, defendant abandoned its assertion that removal was proper on the basis of diversity of citizenship. Rather, defendant sought to "amend" its notice of removal in order to "clarify" that it actually intended to invoke federal jurisdiction on the basis of 28 U.S.C. §§ 1332(d), 1453, that is, the Class Action Fairness Act of 2005, Pub.L. No. 109-2, 119 Stat. 4 ("CAFA"). This, the defendant is not allowed to do. Strawn v. AT T Mobility, LLC, 530 F.3d 293, 298 (4th Cir. 2008) ("We thus conclude that in removing a class action based on diversity jurisdiction under 28 U.S.C. §§ 1453 and 1332(d), the party seeking to invoke federal jurisdiction must allege it in his notice of removal."). Despite defendant's coy disclaimer, its proposed amendment of the notice of removal is not remotely intended to "clarify" or to correct "[d]efective allegations of jurisdiction," 28 U.S.C. § 1653; rather, it is clearly intended to assert a basis for federal jurisdiction that it wholly failed to assert in its earlier, timely notice of removal. Cf. Peck v. Cingular Wireless, LLC, 2009 WL 673681 (W.D. Wash. March 12, 2009). "A notice of removal may be amended more than thirty days after the time to remove has expired `only to set out more specifically the grounds for removal that already have been stated, albeit imperfectly, in the original notice. . . . Completely new grounds for removal jurisdiction may not be added and missing allegations may not be furnished, however.'" Bova v. U.S. Bank, N.A., 446 F.Supp.2d 926, 937 (S.D.Ill. 2006) (quoting Alsup v. 3-Day Blinds, Inc., 435 F.Supp.2d 838, 844 n. 2 (S.D.Ill. 2006) (quoting 14C Wright, Miller, Cooper Steinman, FEDERAL PRACTICE PROCEDURE § 3733)); but see Hooks v. American Medical Sec. Life Ins. Co., 2006 WL 2504903 (W.D.N.C. Aug. 29, 2006).
Perhaps, under some circumstances, the court would be justified in deeming CAFA jurisdiction as simply a sub-species of diversity jurisdiction. Cf. Hooks, supra. In the instant notice of removal, however, defendant specifically: (1) alleges jurisdiction "pursuant to 28 U.S.C. § 1332(a)(3);" (2) alleges facts showing complete diversity; and specifically (3) alleges that the amount in controversy "is reasonably expected to exceed $75,000." Notice of removal, ¶¶ 1, 3, 4, 7. The only mention of class action is in passing ("Plaintiff . . . seeks class certification. . . ."), id. ¶ 7. It may be that the notice of removal was simply a revised document, as it alleges that service was on the resident agent of "Defendant WAMU." Id., ¶ 2. There is no such defendant joined in this case.
For the reasons set forth, the motion to amend the notice of removal shall be denied and the motion to remand shall be granted.