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STEIN v. SPRINT COMMUNS. CO.

June 19, 1997

JOSHUA S. STEIN, On behalf of himself and all others similarly situated, Plaintiff,
v.
SPRINT COMMUNICATIONS COMPANY, L.P., a Delaware Limited Partnership, Defendant.



The opinion of the court was delivered by: GETTLEMAN

 This opinion supersedes the court's memorandum opinion and order issued in the instant case on June 17, 1997.

 Plaintiff Joshua Stein filed this putative class action on behalf of himself and others similarly situated against defendant Sprint Communications Company *fn1" ("Sprint") in the Circuit Court of Cook County on September 9, 1996. Plaintiff, a New York resident, is a college student in Virginia who enrolled in defendant's "Moonlight Madness" plan which charged a fixed $ .09/minute rate for domestic long distance phone calls made between specified hours. The plaintiff class members include all defendant's customers enrolled or participating in its fixed per-minute rate calling plans (such as the "Moonlight Madness" or "dime a minute" calling plan). Plaintiff alleges that defendant marketed its fixed per-minute rate calling programs without disclosing the fact that all calls are subject to an $ .80 surcharge. In his prayer for relief, plaintiff requests compensatory damages and a permanent injunction requiring defendant to stop its misrepresentations, disclose the amount of the surcharges, and provide long distance service as contracted for with plaintiff and the class members.

 On October 10, 1996, defendant filed a notice of removal in this court pursuant to 28 U.S.C. § 1446 and based on diversity jurisdiction under 28 U.S.C. § 1332. In February 1997, plaintiff filed the instant motion to remand the case for lack of subject matter jurisdiction. Thereafter, defendant filed a motion for leave to file a response instanter in excess of 15 pages because it wished to assert federal question jurisdiction as an additional basis for removal.

 For the reasons set forth below, the court denies defendant's request to assert federal question jurisdiction. Further, the court reserves its ruling on plaintiff's motion to remand at this time. The parties are ordered to submit briefs in accordance with the schedule set below.

 DISCUSSION

 I. New Basis for Removal

 Pursuant to 28 U.S.C. §§ 1441, 1446, a defendant may remove to federal court a case filed in state court for which federal jurisdiction exists. Section 1446(a) requires the notice of removal to contain a "short and plain statement of the grounds for removal." Section 1446(b) sets forth a time limit for filing a notice of removal:

 
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. [Emphasis added.]

 Once a case has been removed, the plaintiff may file a motion to remand pursuant to 28 U.S.C. § 1447(c). Section 1447(c) requires the plaintiff to file a motion to remand based on defects in removal procedure within 30 days after the filing of the notice of removal. However, a motion to remand for lack of subject matter jurisdiction may be filed at any time before final judgment. See 28 U.S.C. § 1447(c); In the Matter of Continental Casualty Co., 29 F.3d 292, 294 (7th Cir. 1994).

 In the instant case, defendant filed a notice of removal based on diversity jurisdiction, 28 U.S.C. § 1332, on October 10, 1996, within the 30 day time limit under § 1446(b). Plaintiff filed the instant motion to remand for lack of subject matter jurisdiction on February 10, 1997. Shortly thereafter, defendant responded to the motion to remand, accompanied by a motion to file instanter a brief in excess of fifteen pages so that it could assert a new basis for removal: federal question jurisdiction under 18 U.S.C. § 1331. Plaintiff argues that it is too late for defendant to allege a new basis for removal over five months after plaintiff filed its original complaint.

 Although the Seventh Circuit has not squarely addressed the issue, several other courts have held that a defendant may not amend its notice of removal after the 30-day limit in § 1446(b) to remedy a substantive defect in the petition. See, e.g., Iwag v. Geisel Compania Maritima, 882 F. Supp. 597 (S.D. Tex. 1995); Wyant v. Nat'l Railroad Passenger Corp., 881 F. Supp. 919, 924 (S.D.N.Y. 1995) (citing cases in Second Circuit); Castle v. Laurel Creek Co., 848 F. Supp. 62 (S.D.W.Va. 1994). Admittedly, § 1446(b) presents some tension with 28 U.S.C. § 1653, which permits amendments of pleadings at any time to show jurisdiction. Id. ("Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.").

 Section 1653, although it relates to amendments of pleadings, has been applied to amendments of removal petitions. See, Shaw v. Dow Brands, 994 F.2d 364 (7th Cir. 1993) (30-day time limit to amend removal petition is not jurisdictional and amendments to correct "defective allegations of jurisdiction" in are permitted under § 1653). Most courts have placated the tension between § 1446(b) and § 1653 by permitting amendments only for "technical defects" in the jurisdictional allegations in the notice of removal after the 30-day limit has expired. See e.g., Shaw, 994 F.2d at 368-69 (permitting amendment of removal petition which belatedly added one of several defendants' consent to removal); Energy Catering Services, Inc. v. Burrow, 911 F. Supp. 221 (E.D. La. 1995) (the defendant could not amend notice of removal to assert admiralty jurisdiction where original notice focused solely on diversity jurisdiction); Iwag, 882 F. Supp. at 601 (interpreting § 1653 as not allowing removing party to assert grounds for jurisdiction not in original pleading); Holt v. Lockheed Support Systems, 835 F. Supp. 325 (W.D. La. 1993) (denying amendment to assert federal question jurisdiction, while original notice of removal asserted diversity and supplemental jurisdiction); see also Wright, Miller & Cooper, Federal Practice and Procedure § 3733 at 537-38 (2d ed. 1985) ("The petition may be amended only to set out more specifically grounds for removal that already have been stated, albeit imperfectly, in the original petition; new grounds may not be added and missing allegations may not be furnished."). Cf. International Gateway Communications v. Communication Telesystems International, 922 F. Supp. 122, 124 (N.D. Ill. 1996) (the defendant's failure to include specific time frame of diversity jurisdiction could be cured after 30-day limit where procedural deficit did not prejudice the plaintiff).

 To determine whether an amendment is "technical" or "substantive," courts have looked to the face of the removal petition. Compare Borne v. New Orleans Health Care, 116 B.R. 487, 491 (E.D. La. 1990) (declining to permit the defendant to assert a wholly new ground for removal where that ground did not appear on the face of the removal petition), with Industrial Nat'l Bank of East Chicago v. Employers Casualty Co., 1986 U.S. Dist. LEXIS 30788, 1986 WL 1008 (N.D. Ill) (permitting amendment to removal petition under § 1653 ...


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