County for failure of a co-defendant to join in the removal to
Plaintiff instituted this suit in the state court on November
9, 2001. In essence, she claims that she and not defendant
Norman Harris ("Harris"), her late husband's business partner,
is entitled to $100,000 in life insurance payable by defendant
Principal Life Insurance Company ("Principal Life") as a result
of her late husband's death. On January 11, 2002, Principal Life
filed an answer and new matter in the state court in which it
stated it is a mere stakeholder. While it concedes that the
$100,000 is owing, it cannot determine whether the money is due
to Harris or to plaintiff. It is willing to pay the money into
the registry of the court.
On January 16, 2002, defendant Harris timely filed the notice
required under 28 U.S.C. § 1446(a) and (b) to remove this action
on the ground that diversity of citizenship exists between
plaintiff and the two defendants and that the amount in
controversy exceeds $75,000, exclusive of interest and costs.
Plaintiff does not contest that these prerequisites of subject
matter jurisdiction have been satisfied. Instead, she urges this
court to remand on the ground that Principal Life has not joined
in the removal notice. Harris counters that Principal Life is
merely a nominal defendant whose consent to remove is not
The Supreme Court held in Salem Trust Co. v. Manufacturers'
Finance Co., 264 U.S. 182, 44 S.Ct. 266, 68 L.Ed. 628 (1924), a
case removed from a state court, that the citizenship of a
nominal defendant was not to be considered in applying the
long-standing principle that a plaintiff must have different
citizenship from all defendants to sustain subject matter
jurisdiction based on diversity. See Strawbridge v. Curtiss, 7
U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); see also Wis. Dep't of
Corr. v. Schacht, 524 U.S. 381, 388, 118 S.Ct. 2047, 141
L.Ed.2d 364 (1998). The Court explained that it was not
necessary for the plaintiff and a defendant to be citizens of
different states where the "only obligation [of that defendant]
is to pay over the amount deposited with it when it is
ascertained which of the other parties is entitled to it."
Salem Trust, 264 U.S. at 190, 44 S.Ct. 266. Principal Life is
like the stakeholder in Salem Trust. It is simply holding
funds until it is determined to which of two other parties the
funds belong. Thus, for purposes of subject matter jurisdiction,
Principal Life's citizenship should be disregarded.
The Supreme Court in Salem Trust did not explicitly address
the issue of whether a nominal defendant must join in a removal
notice. There the nominal defendant, which apparently did not
join in removal, was not diverse, while Principal Life, the
nominal defendant here, has different citizenship than the
plaintiff. Because Salem Trust holds that the citizenship of a
nominal defendant is irrelevant for diversity purposes, it would
seem to serve no useful purpose to require its joinder for
removal to be effective. A stakeholder such as Principal Life,
whether diverse or not, has no direct interest in the lawsuit or
in the forum in which the lawsuit is to be adjudicated. While
normally all defendants must consent to removal, that rule does
not apply where the nonconsenting party is a nominal defendant.
See Balazik v. County of Dauphin, 44 F.3d 209, 213 n. 4 (3d
Cir. 1995); Landman v. Borough of Bristol, 896 F. Supp. 406,
409 n. 2 (E.D.Pa. 1995); Ogletree v. Barnes, 851 F. Supp. 184,
187 (E.D.Pa. 1994) (citations omitted).
We now turn to the question whether Harris' removal notice was
fatally defective in failing to set forth that Principal Life
was a nominal defendant. Section
1446(a) requires, among other things, that the notice of removal
contain "a short and plain statement of the grounds for
removal."*fn2 28 U.S.C. § 1446(a). Although Harris identified
the parties' complete diversity of citizenship and the requisite
jurisdictional amount under 28 U.S.C. § 1332(a) as the basis for
removal, he neglected to mention that Principal Life also had
the status of a stakeholder. On February 19, 2002, after the
motion for remand was served and more than thirty days after the
filing of the removal notice, Harris filed an amended notice of
removal. In it he identified Principal Life as a nominal
defendant for the first time.
Our Court of Appeals in Lewis v. Rego Co., 757 F.2d 66 (3d
Cir. 1985) expressed flexibility with respect to the wording of
removal notices. There, a co-defendant had not been served at
the time the three other defendants filed their removal
petition, making the consent of that defendant irrelevant for
removal purposes. Id. at 68; see also 28 U.S.C. § 1448. The
removal petition had merely said that "no entry of appearance
has yet been made on behalf of [the fourth defendant]," rather
than that no service had been effected. Lewis, 757 F.2d at 68.
While recognizing the difference between the two concepts, the
Court of Appeals held that the statement concerning
non-appearance was sufficient to include non-service and upheld
the removal against a challenge that it was defective in not
stating the proper grounds for removal under § 1446(a). Id. at
68-69. As a result, the Lewis court declined to decide whether
an amended notice of removal after the expiration of the thirty
day removal period was necessary or proper to cure any defect.
Id. at 69 n. 2.
The Supreme Court, however, had previously recognized the
right to amend a removal petition to include relevant
information previously omitted. Willingham v. Morgan,
395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). There, an inmate at
the United States Penitentiary at Leavenworth instituted a
lawsuit in a state court against the penitentiary's warden and
chief medical officer. The question was whether the defendants'
conduct was under color of office so as to make the action
removable under 28 U.S.C. § 1442. The defendants' removal
petition did not contain a statement that their contacts with
plaintiff were solely in performing their official duties. Only
in later affidavits in support of their motion for summary
judgment did this information appear. The Supreme Court
acknowledged that it should have been included in the removal
petition. Nonetheless, the Court found the removal to be proper.
It declared that, "for purposes of this review it is proper to
treat the removal petition as if it had been amended to include
the relevant information contained in the later-filed
affidavits." Willingham, 395 U.S. at 408 n. 3, 89 S.Ct. 1813
(citations omitted). In support of its reasoning, it cited
28 U.S.C. § 1653, which provides that "[d]efective allegations of
jurisdiction may be amended, upon terms, in the trial or
We need not decide whether it was necessary for Harris to
state as a ground for removal under § 1446(a) that
Principal Life was not only a diverse defendant but also a
nominal defendant.*fn3 Even if there was a defect in Harris'
initial notice of removal, Willingham would permit the amended
notice filed here to remedy any error, particularly since the
amendment did not affect the court's subject matter jurisdiction
but simply corrected a technical omission.*fn4 See
28 U.S.C. § 1653; N. Ill. Gas Co. v. Airco Indus. Gases,
676 F.2d 270, 273-74 (7th Cir. 1982); Camacho v. Cove Trader, Inc.,
612 F. Supp. 1190, 1192 (E.D.Pa. 1985). Citing to Willingham, the
Seventh Circuit in Northern Illinois Gas allowed a defendant
to amend its removal petition to state that the other defendant
was a nominal party. Significantly, by the time that Harris
filed his notice of removal on January 16, 2002, Principal Life
had already filed in the state court its answer and new matter
in which it stated that it was merely a stakeholder. Thus, when
removal occurred, the state court record clearly delineated and
all parties were on notice that Principal Life was a nominal
defendant, a description plaintiff does not challenge. N. Ill.
Gas, 676 F.2d at 274. If a defendant's removal petition was
deemed amended in Willingham to state that he was acting at
all times under color of office, surely Harris may amend his
removal notice to explain that his codefendant is a stakeholder.
Accordingly, we will deny the motion of plaintiff to remand
this action to the Court of Common Pleas of Bucks County.
AND NOW, this day of February, 2002, for the reasons set forth
in the accompanying Memorandum, it is hereby ORDERED that the
motion of plaintiff to remand this action to the Court of Common
Pleas of Bucks County is DENIED.