Barrow Development Company, Inc. v. The Fulton Insurance Company

This is an appeal in a civil action brought in the Superior Court of the State of Alaska and removed, on the ground of the diverse citizenship of the parties ( 28 U.S.C. § 1332 (a) (1)), to the United States District Court for the District of Alaska. Appellee — defendant below — prompted by our question concerning the sufficiency of the showing of diversity, now seeks leave to amend the removal petition ( 28 U.S.C. § 1446 ), pursuant to 28 U.S.C. § 1653 which provides that “defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate court.” 1 We are firmly convinced that this statute applies to removed action as well as to those initiated in United States District Courts. Hernandez v. Watson Bros. Transportation Co., 165 F.Supp. 720 (D.C.D.Colo.1958); Firemen’s Ins. Co. of Newark, N. J. v. Robbins Coal Co., 288 F.2d 349 (5th Cir. 1961), cert. den. 368 U.S. 875 , 82 S.Ct. 122 , 7 L.Ed.2d 77 ; Royal Crest Development Corp. v. Republic Ins. Co., 225 F.Supp. 76 (E.D.N.Y.1963). However, since removal must be effected by a defendant within 30 days after receiving a copy of the complaint ( 28 U.S.C. § 1446 ), the removal petition cannot be thereafter…

I respectfully dissent.

A defendant desiring to remove any action from a state court shall file in the District' Court of the United States “a verified petition containing a short and plain statement of the facts which entitle him or them to removal” ( 28 U.S.C. § 1446 ).

This state court litigation was removed to the federal district court on a petition which did not allege any facts to establish diversity jurisdiction, or any other federal court jurisdiction. It merely stated the legal conclusion that the plaintiff was a citizen of Alaska and defendant was a citizen of New York. Neither the petition nor any of the other pleadings even alleged the defendant was a corporation. This case was tried in a federal court on pleadings which did not disclose whether the defendant was a corporation, a partnership, or some other type of association. The district court was completely devoid of jurisdiction and should have remanded the case to the state court.

As Mr. Chief Justice Hughes stated in McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 , 56 S.Ct. 780, 785 , 80 L.Ed. 1135 (1935), “The prerequisites to the exercise of jurisdiction are specifically defined *…

418 F.2d 316 12 A.L.R.Fed. 420 BARROW DEVELOPMENT COMPANY, Inc., Appellant, v. The FULTON INSURANCE COMPANY, Appellee. No. 22791. United States Court of Appeals Ninth Circuit. Nov. 4, 1969. William Erwin (argued), of Savage, Erwin & Curran, Anchorage, Alaska, for appellant. Daniel Moore, Jr. (argued), of Delaney, Wiles, Moore & Hayes, Anchorage, Alaska, for appellee. Before HAMLEY and KOELSCH, Circuit Judges, and * BYRNE, District judge. KOELSCH, Circuit Judge: 1 This is an appeal in a civil action brought in the Superior Court of the State of Alaska and removed, on the ground of the diverse citizenship of the parties (28 U.S.C. 1332(a)(1)), to the United States District Court for the District of Alaska. Appellee-- defendant below-- prompted by our question concerning the sufficiency of the showing of diversity, now seeks leave to amend the removal petition (28 U.S.C. 1446), pursuant to 28 U.S.C. 1653 which provides that 'defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate court.' 1 We are firmly convinced that this statute applies to removed action as well as to those initiated in United States District Courts. Hernandez v. Watson…