Christenson Media Group, Inc. v. Lang Industries, Inc.
782 F. Supp. 2d 1213
D. Kan.2011Background
- Plaintiff Christensen sued Lang and Enviroventures for breach of contract in Kansas state court; defendants removed to federal court in the District of Kansas.
- Removal notices (Sept. 17, 2010) claimed federal jurisdiction under 28 U.S.C. § 1332 and included Exhibit A with process; no process attached to initial removal.
- An Amended Notice of Removal (Nov. 24, 2010) purported to attach process (Exhibit B) but did not attach actual process; plaintiff moved to remand or for default judgment.
- Plaintiff argued (1) lack of attached process, (2) lack of explicit diversity allegations, and (3) improper filing in state court; plaintiff also moved to remand supplemental under 28 U.S.C. § 1446(b).
- Court denied remand and denied the supplemental remand; allowed defendants 10 days to cure the removal defects with attached process and to file proper state-court removal.
- Court held removal jurisdiction not defeated by minor procedural defects; denied default judgment as premature; directed cure by defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to attach process warrants remand | Plaintiff: missing process requires remand. | Defendants: defect curable and does not destroy jurisdiction. | Procedural defect curable; remand not required. |
| Whether diversity was adequately alleged | Plaintiff: lack of specific principal places of business defeats diversity. | Defendants amended to specify principal places of business in Sullivan County, NY. | Amended notice cures defect; remand denied on diversity grounds. |
| Whether filing of removal notice in state court complied with 1446(d) | Plaintiff: out-of-state attorney filed unsigned notice in state court, improper. | Defendants: associated with Kansas counsel; signature issue curable. | Defendants may cure; filing not fatal. |
| Whether amended removal within 30 days is required under 1446(b) | Plaintiff: amended removal not timely under 1446(b). | Amendments may be permitted; cure allowed. | Section 1446(b) does not require a 30-day amendment window; cure permitted; remand denied. |
| Whether plaintiff is entitled to default judgment for lack of answer | Plaintiff seeks default under Rule 55 for failure to answer within time after removal. | Defendants failed to answer within period; but default judgment requires entry of default first. | Default judgment premature; must seek entry of default first. |
Key Cases Cited
- Yellow Transp., Inc. v. Apex Digital, Inc., 406 F.Supp.2d 1213 (D. Kan. 2005) (procedural defects in removal may be curable)
- Huffman v. Saul Holdings, Ltd. P'ship, 194 F.3d 1072 (10th Cir. 1999) (subject-matter jurisdiction defects cannot be waived; procedural defects curable in some contexts)
- Cornwall v. Robinson, 654 F.2d 686 (10th Cir. 1981) (remand appropriate for certain removal defects; context of amendments)
- Buell v. Sears, Roebuck & Co., 321 F.2d 468 (10th Cir. 1963) (diversity allegations may be amended; jurisdictional foundations not necessarily absent)
- Hendrix v. New Amsterdam Casualty Co., 390 F.2d 299 (10th Cir. 1968) (district court may allow amendment to specify diversity; discretionary)
- Kinney v. Columbia Savings & Loan Ass'n, 191 U.S. 78 (1903) (amendment of removal notices allowed where jurisdictional basis generally alleged)