The opinion of the court was delivered by: William C. Conner, District Judge.
This action to stay arbitration proceedings was initiated in
state court on January 22, 1991. The matter is currently before
this Court on the motion of CBS Inc. ("CBS") to remand this
action to state court, pursuant to 28 U.S.C. § 1447(c). CBS
argues that the Notice of Removal is fatally defective as it
does not allege complete diversity both at the time of the
commencement of the action and at the time of removal. For the
reasons set forth below, CBS's motion for remand is denied.
This is an action in which CBS is seeking to stay labor
arbitration initiated by James Snyder, a/k/a "Jimmy the Greek."
The arbitration arises out of the January, 1988 discharge by
CBS of Mr. Snyder, a well-known football analyst and sports
On January 15, 1991, Mr. Snyder commenced an arbitration
proceeding against, inter alia, CBS, Neal Pilson ("Pilson"),
and Ted Shaker ("Shaker") (collectively "petitioners"), by
filing a Statement of Claim with the American Arbitration
Association. On January 22, 1991, petitioners commenced a
special proceeding in the Supreme Court of the State of New
York, New York County to stay the arbitration.
On February 20, 1991, Snyder filed a Notice of Removal in
this Court. The asserted jurisdictional basis for removal was
diversity of citizenship. The Notice of Removal, however, was
defective because it did not allege the citizenship of Pilson
and Shaker at the time the proceeding was commenced and did not
allege the citizenship of
Snyder and CBS at the time the proceeding was removed.*fn1
On March 7, 1991, Snyder filed an Amended Notice of Removal
after expiration of the time for removal and without leave of
the Court.*fn2 The Amended Notice of Removal alleges,
inter alia, that "[n]o change of citizenship of the parties has
occurred since the commencement of this action." Thus, it
alleges the citizenships of CBS, Pilson, and Shaker both when
the proceeding was commenced and when the proceeding was
On March 8, 1991, petitioners made a motion to remand this
proceeding on the ground that a notice of removal may not be
amended to cure a fundamental jurisdictional pleading defect
after the statutory 30-day limit of § 1446(b) has expired.*fn3
The sole issue before this Court is whether the
jurisdictional defect in Snyder's Notice of Removal may be
cured by an untimely amendment.
A party seeking removal predicated on diversity of
citizenship must allege sufficient facts to show diversity both
at the time of the commencement of the action in state court
and at the time of removal. Stevens v. Nichols, 130 U.S. 230,
231, 9 S.Ct. 518, 519, 32 L.Ed. 914 (1889). A petition for
removal may be amended freely within the statutory 30-day
period calculated from the date of service of the initial state
court pleading. Thereafter it may be amended to set forth more
specifically grounds for removal which were imperfectly stated
in the original petition. The prior decisions have made a
distinction between an "imperfect" or "defective" allegation
and a wholly missing allegation, which cannot be supplied by
amendment after the 30-day period has run.
The issue which this Court must resolve is the nature of the
defect. Where the defect is "fundamental," as CBS asserts is
the case here, the notice of removal may not be untimely
amended. See Conticommodity Services, Inc. v. Lemme, Slip Op.
No. 82 Civ. 6930 (CBM) (S.D.N.Y. March 3, 1983); Jacobs v.
District Director of Internal Revenue, 217 F. Supp. 104, 105-06
(S.D.N.Y. 1963). On the other hand, where the defect is
"technical" and there are averments reflecting an imperfect
attempt to show jurisdiction, as Snyder and putative intervenor
American Federation of Television and Radio Artists ("AFTRA")
assert is the case, the trial court has the power to permit
untimely amendment of the petition. See generally 14A C.
Wright, A. Miller & E. Cooper Federal Civil Practice and
Procedure § 3733 at 536-37.
CBS argues that the Notice of Removal is completely silent on
the citizenship of CBS and Snyder at the time of removal and
that it accordingly cannot be determined from the face of the
Notice of Removal whether complete diversity existed between
the parties at the time of removal. For this reason, CBS
asserts, remand is appropriate. Moreover, CBS asserts, nothing
in CBS's state court pleading provides this necessary
information.*fn4 CBS urges that here defendant does not seek
to amend an allegation imperfect in form, but, rather, seeks to
introduce one not heretofore made. Citing F & L Drug Corp. v.
American Cent. Ins. Co., 200 F. Supp. 718, 722 (D.Conn. 1961),
it asserts that "where the essential facts necessary to justify
removal are not alleged, either perfectly or imperfectly, then
the case must be remanded. . . . An absence of an allegation
cannot be regarded as an allegation defective in form."
Snyder contends that inasmuch as the factual requisites of
federal jurisdiction undisputedly exist, and a good faith,
albeit clumsy, attempt was made to allege them, he should be
permitted to amend his petition to assert those facts despite
the fact that the 30-day period has elapsed. This Court agrees.
The Notice of Removal alleges that CBS was a New York
corporation at the time the action was filed. Indeed, CBS's
state court petition so alleged, and it has never been amended.
There is no reason to believe that CBS changed its state of
incorporation or its principal place of business in the
four-week interval between the filing of that pleading and the
filing of the Notice of Removal. Therefore, anyone reading the
Notice of Removal would logically assume that the allegation
respecting CBS's residence applied not only to the time of
commencement of ...