A. MOTION TO REMAND
The complaint initiating this personal injury action in state court was served on the defendant, Bostitch Division of Textron, Inc. (hereinafter "Bostitch"), on March 7, 1985. A timely petition for removal of the action to federal court was filed on March 28, 1985. The plaintiff has filed a Motion to Remand this case to state court, stating that the petition for removal failed to properly allege diversity jurisdiction relative to the date of the commencement of the state court action. Subsequently, the defendant, after the thirty days permitted by 28 U.S.C. § 1446 for removal of a case, filed a Motion for Leave to File an Amended Petition for Removal, in order to more properly allege the basis for removal jurisdiction. The Court has examined the pleadings and determined that although jurisdiction allegations in the removal petition are defective, we will grant the defendant's Motion for Leave to Amend.
Removal jurisdiction is to be strictly construed. Shamrock Oil and Gas Corp. v. Sheets, 313 U.S. 100, 85 L. Ed. 1214, 61 S. Ct. 868 (1941). Federal courts are courts of limited jurisdiction. State courts, in contrast, are courts of general jurisdiction. The exercise of removal jurisdiction infringes upon a State's sovereignty. See Chicago Rock Island & Pacific Railway v. Martin, 178 U.S. 245, 248, 44 L. Ed. 1055, 20 S. Ct. 854 (1900). The right of a defendant to remove a case to federal court is, therefore, limited by the scope of original federal jurisdiction. Grubbs v. General Electric Credit Corp., 405 U.S. 699, 31 L. Ed. 2d 612, 92 S. Ct. 1344 (1972).
This Court is of the view that the petition for removal is defective. The defendant in this case based its petition for removal on diversity of citizenship. A petition for removal must allege that diversity of citizenship existed at the time the petition was filed and also that diversity existed at the time suit was commenced in state court. The petition filed by the defendant, however, only alleged diversity of citizenship at the time of the filing of the petition. It is silent as to citizenship at the time the suit was commenced in state court. The petition alleged that the defendant is a corporation existing under the laws of Rhode Island with a principal place of business in Rhode Island and that the plaintiff is an individual residing in Pennsylvania. The allegation that a party "is" a citizen of a certain state is not sufficient to show citizenship at the commencement of the action. Phoenix Insurance Co. v. Pechner, 95 U.S. (5 Otto) 183, 24 L. Ed. 427 (1877). It is clear that the record must show diversity at both times. See Jackson v. Allen, 132 U.S. 27, 34, 33 L. Ed. 249, 10 S. Ct. 9 (1889).
The defendant has filed a Motion to Amend its petition for removal pursuant to 28 U.S.C. § 1653 which provides: "defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." During the thirty-day removal period a defendant seeking removal generally has a right to amend his petition. Here, however, the statutory period for filing the removal petition, and thus for establishing jurisdiction, expired prior to the filing of the defendant's motion.
Although the statutory time frame cannot be extended, some courts have allowed a defendant to amend its removal petition after the thirty-day period has run if the petition is merely defective. One such case was Harper v. National Flood Insurers Association, 494 F. Supp. 234 (M.D.Pa. 1980), in which the court commented on the cases not permitting amendment after the thirty days.
A fair reading of those cases is that a defendant may not, after the 30-day filing period, amend the petition for removal in such a manner as to change or alter the import of the petition, the resultant effect being to create jurisdiction where none existed before. Hence the rule that only technical changes, as well as amendments to cure defective allegations, will be permitted. 494 F. Supp. at 236 (emphasis in original).