United States District Court, W.D. Tennessee, Eastern Division
DOROTHY M. BAKER, Plaintiff,
APPLE INVESTORS GROUP LLC, d/b/a APPLEBEE'S NEIGHBORHOOD GRILL AND BAR, Defendant.
ORDER DENYING PLAINTIFF'S MOTION TO REMAND AND
GRANTING DEFENDANT'S MOTION TO STRIKE
THOMAS ANDERSON CHIEF UNITD STATES DISTRICT JUDGE
Dorothy M. Baker filed this action in the Dyer County Circuit
Court against Apple Investors Group, LLC d/b/a Applebee's
Neighborhood Grill & Bar (“Applebee's), and
Sherry D. Cox, manager of Applebee's, for injuries she
allegedly received as the result of a slip and fall accident.
Defendant Applebee's removed the action to this Court on
February 22, 2019, with jurisdiction predicated on diversity
of citizenship, 28 U.S.C. § 1332. Plaintiff has filed a
motion to remand to state court (ECF No. 11), and Defendant
has filed a response to the motion. (ECF No. 12.) Defendant
has filed a motion to strike Sherry D. Cox from the pleadings
(ECF No. 15), and Plaintiff has responded to that motion.
(ECF No. 17.) For the reasons set forth below, the motion to
remand is DENIED, and the motion to strike
grounds for Plaintiff's motion to remand are based, in
part, on Defendant's defective notice of removal.
Therefore, the Court will look at Defendant's motion to
strike first to determine whether those defects may be cured
by Defendant's motion. It is undisputed that both
Plaintiff and Sherry D. Cox are residents of Tennessee, while
Defendant Applebee's is a resident of Florida. It is also
undisputed that the presence of Cox in this lawsuit would
defeat the Court's § 1332 diversity jurisdiction.
Plaintiff contends that Cox was present in the lawsuit at the
time of removal because Defendant Applebee included her in
its notice of removal and supporting documentation, including
listing her in the style of the case and in the allegations
that support the basis of the removal, even though Cox is not
listed as a defendant in the amended complaint filed in state
court and no allegations are made against her. Defendant has
responded that the inclusion of Cox in those documents was a
“clerical error” and has moved to strike Cox from
the removal papers.
1446(a) of Title 28 of the United States Code sets forth the
procedural requirements for a proper notice of removal.
A defendant or defendants desiring to remove any civil action
from a State court shall file in the district court of the
United States for the district and division within which such
action is pending a notice of removal signed pursuant to Rule
11 of the Federal Rules of Civil Procedure and containing a
short and plain statement of the grounds for removal,
together with a copy of all process, pleadings, and orders
served upon such defendant or defendants in such action.
28 U.S.C. § 1446. In the present case, Defendant's
notice of removal contains the following defects: the notice
of removal states that Cox and Plaintiff are citizens of
Tennessee; Cox is listed as a party in the body of the
removal pleadings as well as the case captions in each of its
filings; the civil cover sheet lists Cox as a party to the
lawsuit; and Defendant failed to include copies of all the
state court records in its notice of removal such as the
return of service for Defendant and for Cox and the consent
order allowing Plaintiff permission to file an amended
the expiration of the thirty-day period for seeking removal,
the notice of removal may be amended only to correct
technical defects such as “an imperfect statement of
citizenship, or [to] state the previously articulated grounds
more fully, or [to] correct the jurisdictional amount.
Completely new grounds for removal may not be added and
missing allegations may not be furnished ....” 14C
Charles A. Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 3733 at 357-61
(3d ed.1998) (footnotes omitted). See also Uppal v. Elec.
Data Sys., 316 F.Supp.2d 531, 535 (E.D. Mich. 2004)
(collecting cases holding that, after the thirty-day period,
a defendant may seek to amend the notice of removal
“only . . . to clarify the jurisdictional grounds for
removal, which were unartfully stated in the original
present case, Defendant filed its motion to strike Cox from
the pleadings after the expiration of the allowable time
period for seeking removal. Therefore, the Court must
determine if her inclusion in the removal papers was a
technical defect such that Defendant should be allowed to
strike her from those papers. The Court finds that
Defendant's motion is meritorious because striking Cox
from the pleadings at this juncture is a “technical
correction” rather than an assertion of “new
grounds for jurisdiction.” See Cent. Bank v.
Jerrolds, 2015 WL 1486368 at *5 n. 5 (W.D. Tenn. Mar.
31, 2015) (Although “technical corrections” are
permitted, “new grounds for federal jurisdiction”
may not be asserted after the initial 30-day removal window
expires. (citations omitted)). C.f. Tech Hills II Assocs.
v. Phoenix Home Life Mut. Ins. Co., 5 F.3d 963, 969 (6th
Cir. 1993) (granting leave to amend removal notice to add
allegations of citizenship of individual partners (who were
already parties) in further support of defendant's claim
that there was complete diversity); Gafford v. G .E.
Co., 997 F.2d 150, 164 (6th Cir. 1993) (allowing amended
notice of removal to correct defendant's principal place
of business). The Court grants Defendant's motion to
strike Sherry D. Cox from its removal pleadings pursuant to
the authority cited above.
alternative, Defendant asks the Court to strike Cox from the
pleadings under Rule 21 of the Federal Rules of Civil
Procedure. Rule 21 allows a court to retain jurisdiction by
severing claims against nondiverse dispensable defendants.
See Newman-Green, Inc. v. Alfonzo- Larrain,
490 U.S. 826, 832 (1989) (“[I]t is well settled that
Rule 21 invests district courts with authority to allow a
dispensable nondiverse party to be dropped at any time, even
after judgment has been rendered.”); Soberay Mach.
& Equip. Co. v. MRF Ltd., 181 F.3d 759, 763 (6th
Cir. 1999) (“[I]t is appropriate to drop a nondiverse
and dispensable party from litigation in order to achieve
diversity.”); Safeco Ins. Co. v. City of White
House, 36 F.3d 540, 545 (6th Cir. 1994) (“Rule 21
of the Federal Rules of Civil Procedure permits a district
court to retain diversity jurisdiction over a case by
dropping a nondiverse party if that party's presence in
the action is not required under Federal Rule of Civil
fact that Plaintiff filed an amended complaint in state court
eliminating her claims against Cox is evidence that Cox is a
dispensable party to the litigation. Therefore, the Court
also grants Defendant's motion to strike under Rule 21.
the Court will consider Plaintiff's motion to remand. A
defendant may remove any civil action “of which the
district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). Once a case is
removed, a plaintiff may bring a motion to remand under 28
U.S.C. § 1447(c). “[R]emoval statutes are to be
narrowly construed, ” Long v. Bando Mfg. Of
America, Inc., 201 F.3d 754, 757 (6th Cir. 2000), and
“all doubts as to the propriety of removal are resolved
in favor of remand.” Coyne v. Am. Tobacco Co.,
183 F.3d 488, 493 (6th Cir. 1999). The removing party bears
the burden of showing that federal jurisdiction exists.
See Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868,
871-72 (6th Cir. 2000). Plaintiff contends that this matter
should be remanded for lack of diversity because (1) the
removal papers list Cox, who is nondiverse, as a defendant
and (2) Cox has not been dismissed from the lawsuit even
though the amended complaint does not name her as a
Plaintiff's first contention concerning the removal
papers, as discussed above, the inclusion of Cox was merely a
technical defect that has been cured by the granting of
Defendant's motion to strike. Plaintiff's second
contention is also without merit. It is well settled that an
amended complaint supersedes the original complaint. See
Florida Dep't of State v. Treasure Salvors, Inc.,
458 U.S. 670, 702 (1982) (White, J., concurring in part &
dissenting in part on other grounds, joined by Powell,
Rehnquist, & O'Connor, JJ.) (“[O]nce accepted,
an amended complaint replaces the original.”); H.G.
Hill Realty Co. v. Re/Max Carriage House, Inc., 428
S.W.3d 23, 35 (Tenn. Ct. App. 2013) (explaining that an
amended complaint “supersedes and destroys the original
complaint as a pleading”).
was granted permission by the state court to file an amended
complaint (Consent Order, ECF No. 11-4), and she did so.
(Amd. Cmplt. pp. 9 - 13, ECF No. 1-2). The amended complaint
makes no allegations against Cox and does not list her as a
defendant; therefore, she was not a party to this lawsuit at
the time of removal, and complete diversity exists.
Accordingly, Plaintiff's motion to remand is denied.
summary, Defendant Appleby's motion to strike Sherry D.
Cox from the removal pleadings is GRANTED.
The Clerk of the Court is directed to terminate Cox as a
defendant. Defendant will have fourteen (14) days from the
entry of this order in ...