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 the action but also to the time of removal.
Making express that which would normally be assumed from the
facts alleged is a formal change of the type which should be
allowed to prevent the loss of an important right.
Pro forma defects cannot suffice to deprive a party of a
plain entitlement to a federal forum. See D.J. McDuffie Inc. v.
Old Reliable Fire Ins., 608 F.2d 145 (5th Cir. 1979) (failure
to allege citizenship at the time suit was brought and at the
time of removal can be cured by amendment), cert. denied,
449 U.S. 830, 101 S.Ct. 97, 66 L.Ed.2d 35 (1980); Barrow
Development Co. v. Fulton Ins. Co., 418 F.2d 316 (9th Cir.
1969) (permitting removal petition to be amended on appeal to
allege both state of incorporation and principal place of
business of corporate parties); George v. Douglas Aircraft Co.,
332 F.2d 73 (2d Cir. 1964) (complaint by individual residents
of Texas against Delaware corporation based on diversity was
defective for failure to assert that corporation's principal
place of business was not Texas, but court would assume that
complaint could have been amended to allege this), cert.
denied, 379 U.S. 904, 85 S.Ct. 193, 13 L.Ed.2d 177 (1964).
The Amended Notice of Removal, filed March 7, 1991, cures the
jurisdictional defect by amplifying the allegations of
citizenship, i.e., by alleging that the respective citizenships
of CBS and Snyder did not change between the time the
proceeding was commenced and the time it was removed. In the
instant case, Snyder's amendment was in no way inconsistent
with his original Notice. It is more analogous to a
clarification or amplification of an ill-pleaded allegation
than it is to the assertion of an entirely new ground for
The amendment is authorized by the terms of 28 U.S.C. § 1653,
which provides that, "[d]efective allegations of jurisdiction
may be amended, upon terms, in the trial or appellate courts."
In Hendrix v. New Amsterdam Casualty Company, 390 F.2d 299
(10th Cir. 1968), the Court of Appeals for the 10th Circuit
affirmed the trial court's decision permitting the amendment of
a removal petition to add allegations of the principal place of
business of the defendant insurance company and the citizenship
of the plaintiff insured. The plaintiff contended that the
defendant's diversity allegations were fatally flawed, thus
requiring remand. The court rejected such an inflexible rule
and concluded that the plaintiff's approach would be contrary
to 28 U.S.C. § 1653 and the interests of justice:
We are not unmindful of numerous district court
opinions which question the power to allow such
amendments under varying circumstances after the
time for initially filing removal petitions has
expired. But if applied to circumstances
comparable to those of the present case, we
believe that their reasoning would be too grudging
with reference to the controlling statute, too
prone to equate imperfections with the total
absence of jurisdictional foundations, and would
exalt form over substance and legal flaw-picking
over the orderly disposition of cases properly
committed to the federal courts.
390 F.2d at 301 (footnotes omitted). This reasoning has been
followed in a majority of the cases in this District which have
confronted the issue.*fn5 Other district courts have likewise
concluded that the failure to allege properly the citizenship
of the parties both at the time the action was commenced and at
the time removal is sought is a defect which can be cured by an
amended removal petition.*fn6 While some
cases cited by CBS involved the failure to allege diversity of
citizenship at the time the action was filed, Outdoor World
Corp. v. Calvert, 618 F. Supp. 446 (E.D.Va. 1985); Garza v.
Midland National Insurance Co., 256 F. Supp. 12 (S.D.Fla. 1966);
Carlton Properties Inc. v. Crescent City Leasing Corp.,
212 F. Supp. 370 (E.D.Pa. 1962), these cases are factually distinct
from the situation at issue here, the failure to allege
diversity at the time of removal. In the former category of
cases, the missing jurisdictional allegation raises the
inference that the defendant might have changed its citizenship
after the state court action was filed solely in order to
invoke the jurisdiction of the federal court. PepsiCo., Inc. v.
Wendy's Int'l. Inc., 118 F.R.D. 38, 40-41 (S.D.N.Y. 1987). This
Court has noted that the purpose of the rule requiring
allegations of diversity both at the commencement of the action
and at the time of removal is to "prevent a nondiverse
defendant from manipulating the court's jurisdiction by
changing its state of residence after the action is commenced
and then seeking to remove based on the newly created
diversity." PepsiCo., 118 F.R.D. at 40 (citation omitted).
Here, where the missing allegation relates to diversity at the
time of removal, the policy of avoiding manipulation does not
come into play.
This Court finds that Snyder's deficient allegation of
diversity at the time of removal is not tantamount to "the
total absence of jurisdictional foundations," and that there is
no underlying controversy over the propriety of federal
jurisdiction. See Hendrix, 390 F.2d at 301. CBS has not shown
that it would be prejudiced if this Court were to allow Snyder
to amend his petition for removal. This Court hereby accepts
the Amended Notice of Removal and finds that Snyder has met the
burden of establishing his right to remove.*fn7
For the reasons set forth above, CBS's motion for remand is