Opinion
Civil Action No. 3:01-CV-1127-M.
October 10, 2001.
ORDER
On June 13, 2001, defendant American Airlines ("American") removed this case to federal court, contending the Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 3014, T.S. No. 876 (1934), note following 49 U.S.C. § 40105, et seq. (the "Warsaw Convention") governs Plaintiffs' claims and supports removal. On August 23, 2001, after Plaintiffs challenged American's assertion that the Warsaw Convention governed Plaintiffs' claims, American filed its Motion for Leave to Amend its Notice of Removal, arguing federal question jurisdiction exists based on federal airline tariffs. The Court granted leave on August 27, 2001, without awaiting a response from Plaintiffs. Before this Court is Plaintiffs' Motion for Reconsideration of this Order, filed on September 12, 2001. The Court, after considering the merits of Plaintiffs' Motion for Reconsideration, American's Response, and Plaintiffs' Reply, all directed to whether the amendment of the Notice of Removal was proper, GRANTS Plaintiffs' Motion, believing it has full authority to reconsider its prior interlocutory ruling permitting the amendment.
A petition for removal must be filed within thirty days after a defendant's receipt of the removable pleading. 28 U.S.C. § 1446(b). Pursuant to 28 U.S.C. § 1653, defective jurisdictional allegations may be amended. The effect of the two statutes is to allow a notice of removal to be amended freely within thirty days of service of the pleading disclosing federal subject matter jurisdiction. Thereafter, however, the notice of removal may be amended only to set forth more specifically grounds for removal which were imperfectly stated in the original notice of removal. 28 U.S.C. § 1653; Firemen's Ins. Co. of Newark, N.J. v. Robbins Coal Co., 288 F.2d 349 (5th Cir.), cert. denied, 368 U.S. 875 (1961).
The time for American to freely amend its removal papers indisputably lapsed. For an amendment of its Notice of Removal to be proper, therefore, the amendment must set forth more specifically the grounds for removal but not supply a missing allegation or assert a new ground for removal. Plaintiffs' cases, in which leave to amend was denied, generally concern new allegations, such as the omission of the statement that all defendants consented to removal or the absence of citizenship allegations in diversity cases. See Stafford v. Mobil Oil Corp., 945 F.2d 803, 805 (5th Cir. 1991); Aetna Cas. Surety v. Hellman, 796 F.2d 770, 770 (5th Cir. 1986); American Educators Fin. Corp. v. Bennet, 928 F. Supp. 1113, 1114 (M.D. Ala. 1996); Winters Gov't Sec. Corp. v. Cedar Point State Bank, 446 F. Supp. 1123, 1127 (S.D. Fla. 1978). These cases do not clearly address the current situation, where federal question jurisdiction was alleged, albeit under different authority (the Warsaw Convention) than is now relied upon (federal tariffs).
Yet the case principally relied on by American is also not dispositive. In Wormley v. Southern Pacific Transp. Co., 863 F. Supp. 382, 385 (E.D. Tex. 1994), the court allowed the defendant to amend its removal papers to clarify its ground for removal — the existence of an indemnity contract. The Wormley defendant had already alleged federal jurisdiction due to the United States' ownership of more than one half of its capital stock. Its amendment clarified the contractual relationship between the parties.
In the instant case, American contends, by its amendment, that Plaintiffs' claims arise under laws that regulate tariffs in connection with foreign air travel. That allegation does not merely clarify American's assertion that removal was proper because Plaintiffs' claims arise under the Warsaw Convention. Both grounds for removal relate to the federal control of foreign air travel, but tariff regulation is controlled by the Department of Transportation ("DOT") rather than by a treaty. The DOT sets forth rules, regulations, and classifications of fares and practices governing foreign air travel. American's claim that the "contract for carriage" constructed under laws governing tariffs controls the outcome of this suit asserts a new and different claim than American's assertion that Plaintiffs' exclusive right of action falls under the Warsaw Convention.
Although the cases provide limited guidance, the Court finds American's addition of the tariff ground for removal more like the addition of a missing basis for removal than simply perfecting or supplementing an erroneous allegation properly raised in the first notice of removal. This Circuit does not permit a party, by amendment, to assert new grounds for jurisdiction under § 1653, where none existed previously, even in the removal context. See Boelens v. Redman Homes, Inc., 759 F.2d 504, 512 (5th Cir. 1985); Zaini v. Shell Oil Co., 853 F. Supp. 960, 963 (S.D. Tex. 1994); Woodlands II v. City Savings and Loan Assoc. of San Angelo, 703 F. Supp. 604, 608 (N.D. Tex. 1989) (Fish, J.). The Court's Order of August 27, 2001, granting Defendant's Motion for Leave to Amend its Notice of Removal is hereby VACATED, and Defendant's Motion for Leave to Amend its Notice of Removal is DENIED. The Court will determine the Motion to Remand based on the original Notice of Removal, which relies on the Warsaw Convention.
Though not raised by either party, Whitmire v. Victus Ltd. T/A Master Design Furniture, 212 F.3d 885, 888 (5th Cir. 2000), is the most recent Fifth Circuit case discussing § 1653. There, the district court dismissed the plaintiff's federal law claims but denied the plaintiff leave to plead facts establishing diversity jurisdiction. Whitmire stressed the flexibility inherent in § 1653 and held that the plaintiff there should have been allowed to amend. In Whitmire, diversity jurisdiction was present from the beginning of the case but only became an issue after the federal question claims were dismissed. To dismiss instead of allowing plaintiff to assert diversity facts in her complaint was a technical position the Fifth Circuit would not endorse. Although this holding may lead one to question the cases cited by Plaintiff's denying leave to amend, Whitmire does not change the result in the instant case. Indeed, the Whitmire court reiterated its rejection of arguments that § 1653 could properly be invoked to assert new claims to serve as a basis for jurisdiction where none existed before.