The opinion of the court was delivered by: John W. Sedwick United States District Judge
[Re: Motions at Dockets 23 and 30]
At docket 23, plaintiff Michele S. Kahle ("Kahle") moved to remand this matter to Alaska Superior Court for the Third Judicial District at Nome. At docket 28, defendant JLG Industries, Inc. ("JLG" or "defendant") opposed the motion and amended its notice of removal at docket 26. Kahle replies at docket 29.
Although JLG already filed its amended notice of removal at docket 26, JLG moved this court to accept the amended notice at docket 30. Kahle opposed this motion at docket 31. JLG replied at docket 32. Kahle's request for leave to file a sur-reply at docket 33 was granted at docket 34. As instructed, Kahle filed her sur-reply at docket 35. JLG responded to Kahle's sur-reply at docket 36.
Oral argument was not requested on either motion, and would not assist the court.
On July 19, 2009, Kahle, then proceeding pro se, instituted multiple actions, including this one, against five different defendants in Alaska Superior Court for the Third Judicial District at Nome. Of the five defendants, four have removed to this court.*fn1
Each matter arises from the July 19, 2007 death of Tyler Thomas Kahle ("Tyler") at the Rock Creek Gold Mine Construction Project in Nome. Tyler was an employee of Alaska Mechanical, Inc., and was allegedly killed while a passenger in a 1997 JLG 120HX manlift bearing serial number 0541920300031742. The lift purportedly toppled over while descending from an elevated location. Kahle alleges damages arising from Tyler's death pursuant to AS 09.55.580 in excess of $2 million and costs in excess of $500,000. JLG seeks to remove this matter based on diversity jurisdiction, 28 U.S.C. §§ 1332 and 1441. Specifically, JLG contends that the amount in controversy stated in Kahle's complaint is well in excess of the $75,000 jurisdictional floor, and that complete diversity exists between JLG, a Pennsylvania corporation, and Kahle, a resident of Wisconsin.*fn2
Kahle moves to remand the matter on several grounds: (1) JLG failed to allege Kahle or Tyler's citizenship, rendering the jurisdictional basis for diversity inadequate; (2) JLG failed to obtain the consent of all defendants prior to removal; and (3) Alaska Gold is a citizen of Alaska, destroying complete diversity.*fn3 JLG responds first by amending its notice of removal to cure its initial failure to allege Kahle and Tyler's citizenship pursuant to 28 U.S.C. § 1653.*fn4 Although "unnecessary," JLG also moves to file its amended notice, which was previously filed, out of "an abundance of caution."*fn5
Kahle vigorously opposes such an amendment, arguing that it improperly adds a new jurisdictional basis for diversity in the face of opposition regarding Kahle and Tyler's citizenship.*fn6 JLG opposes Kahle's motion to remand, arguing that there is no dispute that (1) neither Kahle nor Tyler were ever citizens of Pennsylvania; (2) no consent was required because no co-defendants were named; and (3) Alaska Gold's citizenship is immaterial because Alaska Gold is a non-party.*fn7 Because the outcome of the motion to remand turns on the outcome of the motion to amend the notice of removal, the court addresses the latter motion first.
The first issue to be resolved is whether JLG should be permitted under 28 U.S.C. § 1653 to amend its notice of removal to add the claim that Kahle and Tyler are citizens of Wisconsin. JLG contends that its amended notice was intended to correct a defect, not to add an entirely new basis for jurisdiction. Section 1653 states that "[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts."*fn8 In the context of a removal notice, § 1653 permits defective allegations of subject-matter jurisdiction to be amended liberally, and to be cured at any time prior to judgment*fn9 - indeed, as one prominent commentator noted, "cases disallowing amendment seem unnecessarily grudging in their attitude, as do ...