United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge
suffering injuries when he slipped and fell in a Save-A-Lot
grocery store, Plaintiff Wayne Carroll filed a premises
liability suit against Defendants Moran Foods, LLC
(“Moran Foods”) and Save, LLC, as the owners and
operators of the grocery store. Compl., ECF No. 1-2. He
listed a Missouri address for Moran Foods and a Maryland
address for Save, LLC. Id. at 1. Moran Foods
nonetheless removed the case from the Circuit Court for
Prince George's County to this Court, based on diversity
jurisdiction. ECF Nos. 1, 1-1. According to Moran Foods,
although Carroll, a Maryland resident, “named Save, LLC
as a Defendant . . . [t]he proper Defendant to be named for
the allegations asserted in Plaintiff's Complaint is
Moran Foods, LLC d/b/a Save-A-Lot, Ltd., ” which
“maintained its principal place of business in
Minnesota, and is incorporated in the State of
Delaware.” Pet. for Removal ¶¶ 2, 6-7;
see also Id. at 1 (stating that it was
“incorrectly named as Save, LLC”); Stmt.
Concerning Removal ¶ 5, ECF No. 8 (“There are no
other Defendants in this matter.”).
filed an Opposition to Defendant's Petition for Removal,
asking this Court to remand the case to state court for lack
of jurisdiction, because “Save, LLC has its principal
place of business in Maryland, ” such that the parties
were not diverse. ECF No. 11. Moran Foods did not respond to
Carroll's filing but, within a week of Carroll's
Opposition, the parties filed a Stipulation of Dismissal of
Defendant Save, LLC only. Stip. of Dismissal, ECF No. 13.
Because Carroll's voluntary dismissal of Save, LLC cured
this Court's initial lack of jurisdiction, I will not
remand this case to state court.
district courts “have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum
or value of $75, 000, exclusive of interest and costs, and is
between- (1) citizens of different States . . .
.” 28 U.S.C. § 1332(a). When a plaintiff
files such an action in state court, the action “may be
removed by the defendant or the defendants, to the district
court of the United States for the district and division
embracing the place where such action is pending.” 28
U.S.C. § 1441(a). “Jurisdiction ‘depends
upon the state of things at the time . . . the action [is]
brought.'” Medish v. Johns Hopkins Health Sys.
Corp., 272 F.Supp.3d 719, 723 (D. Md. 2017) (quoting
Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S.
567, 570 (2004) (quoting Mollan v. Torrance, 9
Wheat. 537, 539, 22 U.S. 537 (1824))).
time Moran Foods removed this case from state court, there
were two defendants, one of which was a Maryland resident.
See Compl. 1. And, although Moran Foods insisted
that it was the only proper defendant, it did not assert
fraudulent joinder. See Giannasca v. Bank of
Am., No. ELH-17-2100, 2018 WL 6046814, at *7 (D. Md.
Nov. 19, 2018) (noting that fraudulent joinder is “an
exception to complete diversity” which “prevents
a plaintiff from including or adding a non-diverse defendant
solely for the purpose of defeating federal diversity
jurisdiction” and that, to invoke diversity
jurisdiction when there is not complete diversity, a
defendant must meet the heavy burden of showing fraud or
“that ‘there is no possibility that the plaintiff
would be able to establish a cause of action against the
in-state defendant in state court”). Thus, when Moran
Foods removed this case, there was not complete diversity,
and therefore this Court lacked subject matter jurisdiction.
28 U.S.C. § 1332(a).
Carroll voluntarily dismissed Save, LLC, the non-diverse
defendant, one month after removal. Stip. of Dismissal.
Notably, had Carroll's voluntarily dismissal of Save, LLC
preceded Moran Foods' removal of the case, then the
removal would have been proper and this Court would have had
diversity jurisdiction at the time of removal. See
Pittman v. Quest Diagnostics, Inc., No. ELH-15-3093,
2016 WL 540673, at *4 (D. Md. Feb. 11, 2016)
(“[D]ismissal of non-diverse parties is an occurrence
‘from which it may first be ascertained that the case
is one which is or has become removable . . . .”
(quoting 28 U.S.C. § 1446(b)(3)); 14C Wright &
Miller, Fed. Prac. & Proc. § 3731
(“[A] change in the parties to the state court action
through the plaintiff's voluntary dismissal of those
defendants whose presence destroyed complete diversity of
citizenship may make a previously unremovable action
removable.”). Thus, it appears wasteful and inefficient
to remand this now-removable action to state court, where
Moran Foods could remove it again to this Court, now that
diversity jurisdiction exists. See 28 U.S.C. §
other circuits,  construing Supreme Court precedent, have
held that “even in a diversity jurisdiction case, the
lack of jurisdiction can be cured when the reason for the
lack of diversity was the existence of a non-diverse party at
the time the case first reached the district court, ”
such as “when the non-diverse party is dismissed in
federal court.” See 16 Front St., L.L.C. v.
Mississippi Silicon, L.L.C., 886 F.3d 549, 555-56 (5th
Cir. 2018) (citing Caterpillar, Inc. v. Lewis, 519
U.S. 61 (1996); see also Brown v. Eli Lilly &
Co., 654 F.3d 347, 356 (2d Cir. 2011) (“[I]f a
jurisdictional defect exists at some time prior to a district
court's entry of judgment, the court's judgment is
still valid if the jurisdictional defect is cured before
final judgment is entered.”) (citing
Caterpillar, 519 U.S. 61); Dep't of Fair
Employment & Hous. v. Lucent Techs., Inc., 642 F.3d
728, 736 (9th Cir. 2011) (considering “whether
diversity jurisdiction would have existed if the case had
been filed in the posture it had at the time summary judgment
was granted” because “‘when there is no
appeal of a denial of a remand motion . . . the issue on
appeal is whether the federal court would have had
jurisdiction had the case been filed in federal court in the
posture it had at the time of the entry of the final
judgment'” (quoting Carpenters Health &
Welfare Tr. Fund v. Tri Capital Corp., 25 F.3d 849, 852
(9th Cir. 1994)).
16 Front Street, the Fifth Circuit considering
Caterpillar, 519 U.S. 61, observed:
It was undisputed in Caterpillar that at the time
the suit was removed from state court to federal court,
complete diversity of citizenship did not exist, and the
district court had clearly erred in denying the motion to
remand. But, as the suit progressed in federal court, the
non-diverse party was dismissed after a settlement was
reached between that party and the plaintiff. By the time of
trial and judgment, it was undisputed that “there was .
. . complete diversity.” The Supreme Court held that
the federal district court had subject matter jurisdiction to
try the case and render judgment.
16 Front St., 886 F.3d at 555 (citations to
Caterpillar omitted); see also Brown, 654
F.3d at 357 (“While it is true that ‘the
existence of federal subject matter jurisdiction over an
action removed from state court to federal court is normally
to be determined as of the time of removal,' the
‘critical issue' is whether there was complete
diversity at any time before the entry of judgment.”
(quoting Hallingby v. Hallingby, 574 F.3d 51, 56 (2d
Cir. 2009))). The Fifth Circuit concluded:
The Court's decision in Caterpillar stands for
the proposition that even in a diversity jurisdiction case,
the lack of jurisdiction can be cured when the reason for the
lack of diversity was the existence of a non-diverse party at
the time the case first reached the district court. The lack
of jurisdiction can be cured when the non-diverse party is
dismissed in federal court.
Id. at 556. The Fifth Circuit reasoned that the
Supreme Court later “explained in Grupo
Dataflux that ‘Caterpillar broke no new
ground, because the jurisdictional defect it addressed had
been cured by the dismissal of the party that had destroyed
diversity, '” and “‘[t]hat method of
curing a jurisdictional defect had long been an exception to
the time-of-filing rule.'” Id. (quoting
Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S.
560, 572 (2004)). And, “[i]n Grupo Dataflux,
the Court emphasized that in Caterpillar,
‘[the] Court unanimously held that the lack of complete
diversity at the time of removal did not require dismissal of
the case.'” Id. (quoting Grupo
Dataflux, 541 U.S. at 573). Indeed, the Supreme Court
stated in Grupo Dataflux that “[t]he
‘crux of the analysis in Caterpillar' . .
. ‘related not to cure of the jurisdictional
defect, but to cure of a statutory defect, namely,
failure to comply with the requirement of the removal statute
. . . that there be complete diversity at the time of
removal.'” Id. (quoting Grupo
Dataflux, 541 U.S. at 574).
given that Carroll voluntarily dismissed the non-diverse
defendant, resulting in complete diversity between the
parties, this Court has subject matter jurisdiction. See
Caterpillar, 519 U.S. at 77; 16 Front St., 886
F.3d at 555-56; Brown, 654 F.3d at 356;
Dep't ofFair Employment, 642 F.3d at
736. Carroll's request to remand is denied. I will issue
a revised scheduling order ...