Citations
- 113 F. Supp. 3d 1135
Full opinion text
MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on: (i) the Plaintiffs’ Opposed Motion to Remand, filed May 6, 2015 (Doc. 20)(“Mo-tion to Remand”); and (ii) Defendant Reliable, LLC’s Motion to Amend Notice of Removal to the United States District Court for the District of New Mexico, filed May 8, 2015 (Doc. 21)(“Motion to Amend”). The Court held a hearing on June 22, 2015. The primary issues are (i) whether Defendant Reliable, Inc. (“Defendant Reliable”) can establish that the Court had diversity jurisdiction over this case when the Plaintiffs filed the Complaint for Wrongful Death and Loss of Consortium and Other Damages Under the New Mexico Wrongful Death Act and New Mexico Statutory and Common Law, filed in state court on January 12, 2015, filed in federal court on April 7, 2015 (Doc. l-2)(“Complaint”); and (ii) whether the Court should permit Defendant Reliable to amend the Notice of Removal to the United States District Court for the District of New Mexico, filed April 7, 2015 (Doc. l)(“Notice of Removal”). Because Defendant Reliable cannot show that it was no longer a New Mexico citizen when the Plaintiffs filed the Complaint, the Court will grant the Motion to Remand and will remand the case to state court. Additionally, because the Motion to Amend does not allege a new jurisdictional theory, but alleges only additional facts to cure a technical defect in the Notice of Removal, the Court will grant the Motion to Amend.
PROCEDURAL BACKGROUND
The Plaintiffs filed suit in state court, alleging a number of state law causes of action that arise out of a fatal car accident that occurred because of an allegedly defective tire. See Complaint at 1. The Plaintiffs name, as Defendants, “Reliable, Inc., a New Mexico domestic for-profit corporation,” Cooper Tire & Rubber Company, and Defendant Ford Motor Company. Complaint at 1 (capitalization altered for readability). Against Cooper Tire, the Plaintiffs allege causes of action for Defective Design, Manufacturing, and Marketing, Negligence, Breach of Express and Implied Warranties, Strict Liability, and Punitive and Exemplary Damages. See Complaint ¶¶ 160-124, at 4-25. Against Ford Motor, the Plaintiffs allege causes of action for Strict Liability, Breach of Express and Implied Warranties, Negligence, and Punitive and Exemplary Damages. See Complaint ¶¶ 125-41 at 25-29. Against Reliable, Inc. they allege causes of action for Negligence, Strict Liability, Breach of Express and Implied Warranties, and Punitive and Exemplary Damages. See Complaint ¶¶ 142-61, at 29-32.
1. Notice of Removal.
Defendant Rehable removed the case to federal court on April 7, 2015. See Notice of Removal at 1. Defendant Reliable asserts that the Plaintiffs misnamed it in the Complaint as “Reliable, Inc.,” but that its name is “Reliable LLC.” Notice of Removal at 1. Defendant Reliable asserts that each of the Plaintiffs was, or is, a New Mexico citizen. See Notice of Removal ¶¶ 2-5, at 2. It contends that, on December 31, 2014, the president of Reliable, Inc. executed a plan to convert Reliable, Inc. from a New Mexico corporation into a New Mexico limited liability company, Reliable, LLC (“Reliable, LLC NM”). Notice' of Removal ¶ 7, at 2 (citing Plan of Conversion'of Reliable, Inc. into Reliable, LLC, filed April 7, 2015 (Doc. l-3)(“Plan of Conversion”)). Defendant Reliable states that the plan-was effective when Reliable LLC NM’s Articles of Organization were filed with the State of New Mexico, see Notice of Removal ¶ 8, at 2 (citing Plan of Conversion ¶,1, at 1), and that the Articles of Organization were' filed in New Mexico on January 12, 2015, see Notice of Removal ¶ 9, at 3 (citing Statement' of Acceptance of Appointment by Designated Initial Registered Agent, filed April 7, 2015 (Doc. 1-4) (“Articles of Organization”); Letter Approving Statement of Conversion and Articles of Organization, filed April 7, 2015 (Doc. 1-5) (“Letter Approving Conversion”)). Reliable asserts that the New Mexico Secretary of State’s office approved and filed the Plan of Conversion and the Articles of Organization on January 12, 2015. See Notice of Removal ¶ 10, at 3.
Defendant Reliable states that, on December 31, 2014, the authorized representatives signed the Agreement and Plan of Merger of .Reliable LLC into Reliable LLC, filed April 7, 2015 (Doc. 1-6)(“Agreement of Merger”), and the Articles of Merger of Reliable, LLC and Reliable, LLC, filed April 7, 2015 (Doc. 1-7) (“Articles of Merger”). Notice of Removal ¶¶ 11-12, at 3. It contends that, on January 12, 2015, the New Mexico Office of the Secretary of State received and confirmed that the Agreement of Merger conformed with the law. See Notice of Removal ¶ 13, at 3. Defendant Reliable says that, on January 12, 2015, at 8:21 a.m. Eastern Standard Time (“EST”), Reliable, LLC (“Reliable, LLC DE”) was formed under Delaware laws. See Notice of Removal ¶ 14, at 3 (citing State of Delaware Limited Liability Company Certificate of Formation of Reliable, LLC, filed April 7, 2015 (Doc. l-9)(“Delaware Certificate of Formation”)).
Defendant Reliable argues that the Complaint was filed in New Mexico state court on January 12, 2015, at 8:34 a.m. MST. See Notice of Removal ¶ 1, at 1-2. It contends that diversity jurisdiction is determined at the time the Complaint is filed, and that, when the Complaint was filed, Reliable, Inc. no longer existed, because it had been converted into. Reliable, LLC NM, and then merged into Reliable, LLC DE. See Notice of Removal ¶¶ 15-16, at 3. Defendant Reliable asserts that, on January 12, 2015, at 8:34 MST, Reliable, LLC DE was the proper party to this lawsuit. See Notice of Removal ¶ 17, at 3. Defendant Reliable argues that a limited liability company is deemed to be a citizen of each state in which its members reside, and that none of Reliable, LLC DE’s members are residents or citizens of New Mexico. See Notice of Removal ¶¶ 18-19, at 4. Defendant Reliable maintains that, because Ford and Cooper Tire are foreign corporations with principal places of business in states other than New Mexico, there is complete diversity of citizenship between the Plaintiffs and the Defendants. See Notice of Removal ¶¶ 23-26, at 4. Reliable states that the Plaintiffs served Reliable,, Inc. on March -11, 2015, and that, although the Complaint does not state a specific monetary demand, it is over $75,000.00. See Notice of Removal- ¶ 22, at 4; id, ¶¶ 27-29, at 4-5.
2. The Motion to Remand.
The Plaintiffs filed the Motion to Remand on May 6, 2015. See, Motion to Remand at 1. The Plaintiffs argue that Defendant Reliable is unable to establish that it converted to a Delaware limited liability company, that Defendant Reliable’s corporate reorganization appears to be a scheme to manufacture diversity jurisdiction, and that Defendant Reliable fails to establish the citizenship of all necessary entities. See Motion to Remand-at 1. They maintain that Rehable, Inc. became Reliable, LLC DE only after the State of New Mexico received the Articles of Organization and the Plan of Conversion .on January 12, 2015, but that Defendant .Reliable cannot show what time of dny the State of New Mexico received those documents. See Motion to Remand at 2 & 4. The Plaintiffs contend that Defendant Reliable — the removing party — has the burden of proving that removal was proper. See Motion to Remand at 3-4.
The Plaintiffs argue that, if the New Mexico Secretary of State received the filings after 8:34 a.m. Mountain Standard Time (“MST”), it would not affect the Court’s jurisdiction, because a change of citizenship after filing suit cannot be used' to create or defeat jurisdiction. See Motion to Remand at 4 (citing Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 571, 124 S.Ct., 1920, 158 L.Ed.2d 866 (2004); Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954, 956 (5th Cir.1966); McDaniel v. Loya, 304 F.R.D. 617, 625 (D.N.M.2015) (Browning, J.)). They maintain that, because the Court cannot reasonably ascertain Defendant Reliable’s citizenship as of 8:34 a.m. MST, the Court should remand the case to state court. See Motion to Remand at 4-5.
The Plaintiffs contend that Defendant Reliable’s reorganization appears to be a sham to manufacture diversity jurisdiction. See Motion to Remand at 5. They assert that 28 U.S.C. § 1359 prohibits the exercise of jurisdiction, in the face of collusive conveyances. See Motion to Remand at 5. The Plaintiffs state that § 1359 also prohibits collusive formation and conversion of entities, and that the Court must consider whether Defendant Reliable’s conduct was improper or collusive. See Motion to Remand at 6 (citing Lester v. McFaddon, 415 F.2d 1101, 1104 (4th Cir.1969)). They argue that courts have held that corporations violate § 1359 when they merge with other corporations to manufacture diversity jurisdiction, even if the restructure had other purposes, and when a parent corporation takes title óf a 'subsidiary for the purpose of invoking federal jurisdiction. See Motion to Remand at 6-7 (citing Toste Farm Corp. v. Hadbury, 70 F.3d 640, 641-42 (1st Cir.1995); Green & White Const. Co. v. Cormat Const. Co., 361 F.Supp. 125, 128 (N.D.Ill.1973)). The Plaintiffs contend that courts. recognize that jurisdictional fules should not be used to perpetrate a fraud on the court and that, if there is a fraud,' courts should not elevate form over substance, but should accomplish whatever piercing or adjustment is necessary to protect the'Court’s jurisdiction. See Motion to Remand at 7. ■ :
The Plaintiffs argue that thé record does not reveal the citizenship of all necessary entities. See Motion to Remand at 7. They maintain that the citizenship of a limited liability company is every state in which its members are citizens, and, that, while Defendant Reliable asserts that it is a limited liability company, in the Notice of Removal, it does not identify the members of the newly created limited liability company or disclose their citizenship. See Motion to Remand at 8. The Plaintiffs contend that, in the Notice of Removal, Defendant Reliable stated only that none of Reliable LLC DE’s members are residents of New Mexico. See Motion,to Remand at 8, The Plaintiffs assert that, in Affordable Communities of Missouri v. EF & A Capital Corp., No. CIV 08-1509 CAS, 2008 WL 4966731 (E.D.Mo. Nov. 19, 2008), the Honorable Charles A. Shaw, United States District Judge for the Eastern District of Missouri, found that the- statement that no member of the defendant limited liability company was a citizen of Nevada was insufficient to establish diversity jurisdiction. See Motion to Remand at 8. The Plaintiffs maintain that the Notice of Removal,is fatally defective, because it does not account for the citizenship of all necessary entities. See Motion to Remand at 9.
Defendant Reliable. responded- to the Motion to Remand on June 3, 2015. See-Reliable, LLC’s . Response to Plaintiffs’ Motion to Remand at 1, filed June 3, 2015 (Doc. 34)(“Remand Response”). It begins the Remand Response by setting forth the case’s factual background. See Remand Response at 2-4. Defendant Reliable contends that, on June 19, 2009, Elvira De La Rosa (“E. De La Rosa”) purchased a 2006 Ford Ranger from Reliable, Inc., and that, on June 4, 2014, Javier De La Rosa (“J. De La Rosa”) was , in car accident while driving the Ford Ranger. See Remand Response at 2. Defendant Reliable states that, on June 19,- 2009, it was one of approximately sixty-five automobile dealerships — each of which was a privately held entity — -which the Van Tuyl family individually owned. See Remand Response at 2. Defendant Reliable asserts that, in October, 2014, Berkshire Hathaway announced that it would acquire from the Van Tuyl family a controlling interest in their car dealerships. See Remand Response at 2. Defendant Reliable states that, as a part of that acquisition, Reliable, Inc. was to be converted into Reliable, LLC NM and then merged into Reliable, LLC DE. See Remand Response at 2.
Defendant Reliable argues that the Agreement, of .Merger states that the merger should, become effective at. the time of filing the certifícate of merger and that, at the effective time, each separate entity would cease to exist. See Remand Response at 3. It contends that the Articles of Merger were executed on December 31, 2008, but the merger was not deemed effective, until. January , 12, 2015. See Remand Response at 3. Defendant Reliable maintains that the Delaware Cer-tifícate of Formation stated that it would be effective on January 12, 2015, and that the- Delaware Office of the Secretary of State certified the formation of Reliable, LLC DE at 8:21 a.m. EST on January 12, 2015. See Remand Response at 3. It states that the Delaware Office of the Secretary of State certified the merger of Reliable,, LLC NM and Reliable, LLC DE at 8:23 a.m. EST on January 12, 2015. .See Remand Response at 3 (citing Certificate of Merger, filed June 3, 2015 (Doc, 34-4)(“Certificate of Merger”)). Defendant Reliable argues that, at that time, Reliable; LLC NM became a Delaware citizen. See Remand Response, at 3-5 (citing Del.Code Ann. tit. 8, § 259(a)). It asserts that the Plaintiffs filed the Complaint at 8:34 a.m. MST on January 12, 2015, over two hours after Reliance, Inc. converted into Reliance, LLC NM and merged with Reliance, LLC DE. See Remand Response at 4. Defendant Reliable maintains that, before being served with the Complaint on March 11, 2015, it and its predecessors were unaware of J. De La Rosa’s death and a potential lawsuit. See Remand Response at 4.
Defendant Reliance asserts that, at 8:21 a.m. EST, when the Delaware Certificate of Formation was filed with the Delaware Secretary of State, Reliable," LLC DE came into existence. See Remand Response at 4-5 (citing Del.Code Ann. tit. 8, § 106; Nord Serv., Inc. v. Palter, 548 F.Supp.2d 366, 375 (E.D.Tex.2008); DiAntonio v. Ament, CIV.A. No. 94C-05-089, 1995 WL 339072 (Del.Super.Ct. May 10, 1995) (unpublished); Rest. Equip. Serv. v. Cohen, CIV A. No. 90A-JN 3, 1991 WL 113386, at *2 (Del.Super.Ct. Apr. 3, 1991) (unpublished); Cleary v. N. Del. A-OK Campground, Inc., CIV.A. No. 85C-OC-70, 1987 WL 28317, at *4 (Del.Super.Ct. Dec. 9, 1987) (unpublished)). Defendant Reliable states that, as the surviving entity, Reliable, LLC DE’s citizenship is the relevant one, because the separate existence of all constituent entities ceased at the time of the merger. See Remand Response at 5-6 (citing Del.Code Ann. tit. 8 § 259(a); Meadows v. Bicrodyne Corp., 785 F.2d 670 (9th Cir.1986); Hoefferle Truck Sales, Inc. v. Divco-Wayne Corp., 523 F.2d 543, 549 (7th Cir.1975)). Defendant Reliable contends that, for diversity purposes, federal courts consider the citizenship of the surviving corporation. See Remand Response at 6. It maintains that the Agreement of Merger states that Reliable, LLC DE shall file the Delaware Certificate of Formation with the Delaware Secretary of State, that the merger shall be effective at the time in which the Delaware Certificate of Formation is filed with the Delaware Secretary of State, and that Reliable, LLC NM shall cease to exist at the effective time. See Remand Response at 6.
Defendant Reliable asserts that the timing of the New Mexico corporate filings' does not determine its citizenship. See Remand Response at 7. It states that New Mexico courts give full faith and credit to other states’ acts. See Remand Response at 7 (citing 28 U.S.C. § 1738; Huntington Nat. Bank v. Sproul, 1993-NMSC-051, ¶ 38, 116 N.M. 254, 861 P.2d 935, 947). Defendant Reliable argues that New Mexico courts should give full faith and credit to Delaware law, which dictates that Reliable, LLC DE came into existence on January 12, 2015, at 8:21 a.m. EST, and that Reliable, LLC NM became a Delaware citizen on January 12, 2015, at 8:23 EST, when it merged with Reliable LLC DE. See Remand Response at 7. Defendant Reliable also argues that the Agreement of Merger’s plain language states that Reliable, LLC NM ceased to exist when it merged with Reliable, LLC DE. See Remand Response at 8.
Concerning the Plaintiffs’ jurisdiction-manufacturing argument, Defendant Reliable states that its reorganization and merger were done for legitimate business reasons, wholly unrelated to this lawsuit, and that they were the result of Berkshire Hathaway’s acquisition of the Van Tuyl family’s dealerships. See Remand Response at 8. Reliable contends that it needs to demonstrate only a legitimate, non-pretextual reason for the merger. See Remand Response at 89. It maintains that the conversion of Reliable, Inc. into Reliable, LLC NM and the merger of Reliable, LLC NM with Reliable, LLC DE occurred because of the Berkshire Hathaway’s acquisition, and that, when the reorganization was formulated and later enacted, Defendant Reliable had no knowledge of J. De La Rosa’s death of of a potential lawsuit. See Remand Response at 9-11.
Concerning whether the Notice of Removal is effective on its face, Defendant Reliable asserts that Affordable Communities of Missouri v. EF & A Capital Corp. is not controlling, and that, even if it were, Defendant Reliable cured the defect with the Motion to Amend. See Remand Response at 11. Defendant Reliable contends that the United States Court of Appeals for the Tenth Circuit and the Court recognize a defendant’s right to cure technical defects in a notice of removal. See Remand Response at 11 (citing Jenkins v. MTGLQ Investors, 218 Fed.Appx. 719, 723 (10th Cir.2007) (unpublished); Zamora v. Wells Fargo Home Mortg., 831 F.Supp.2d 1284, 1292 (D.N.M.2011) (Browning, J.)). Defendant Reliable states that, when a defendant makes simple errors in its jurisdictional allegations, the Court should not exalt form over substance, but should allow the defendant to cure the defects. See Remand Response at 11-12 (citing Hendrix v. New Amsterdam Cas. Co., 390 F.2d 299, 300-02 (10th Cir.1968); D.J. McDuffie, Inc. v. Old Reliable Fire Ins. Co., 608 F.2d 145, 146-47 (5th Cir.1979)). Defendant Reliable argues that, before the Plaintiffs filed the Motion to Remand, it disclosed the identity of its two members and the fact that neither were New Mexico citizens. See Remand Response at 12. It maintains that, if the Notice of Removal contained an error, it was a de minimis technical error that has been cured. See Remand Response at 12.
The Plaintiffs replied to the Remand Response on June 8, 2015. See Plaintiffs’ Reply to Defendant’s Response to Plaintiffs’ . Motion for Remand, filed June 8, 2015 (Doc. 41)(“Remand Reply”). The Plaintiffs argue that Defendant Reliable’s corporate conversion shows that Defendant Reliable cannot establish that Reliable, Inc. ceased to exist as a New Mexico citizen before 8:34 a.m. MST. See Remand Reply at J-2.. They contend that, in the Notice of. Removal, Defendant Reliable stated that the conversion from Reliable, Inc. to Reliable, LLC NM was effective when the State of New Mexico received the Articles of Organization, but that, now realizing that it cannot prove when the State of New Mexico received the Articles of Organization, it is arguing that the conversion took place when the State of Delaware received the Certificate of Merger. See Remand Reply at 2.. The Plaintiffs maintain that, when the Certificate . of Merger was filed, Reliable, Inc. still existed and .Reliable, LLC NM had not yet been created. See. Remand Reply at 2.
. The Plaintiffs assert that, while the Articles of Organization are not time stamped, they were not filed until after 8:00 a.m. MST, because that is when the New Mexico Secretary of State’s offices open. See Remand Reply at 2. The Plaintiffs state that there are three possible interpretations of Reliable’s reorganization:
1. The Delaware certificate of merger filed at 6:23 AM MST had no legal effect whatsoever, because Reliable LLC (NM) did not exist. Under this interpretation, Defendant continues to be a New Mexico citizen.
2. The certificate of merger filed at 6:23 AM MST became legally effective at whatever time later in the day that the New Mexico Secretary of State received the Articles of Organization for Reliable LLC (NM). Under this interpretation, Defendant became a Delaware citizen, but cannot show that occurred prior to the filing of Plaintiffs complaint at 8:34 MST. . ,
3. The certificate - of merger between Reliable LLC (DE) and the not-yet-existing Reliable LLC (NM) was effective at- 6:23 AM MST. However, at this point, Reliable • Inc. was a stranger to the transaction. Reliable Iric.’s citizenship only changed when it filed a Plan, of Conversion in New Mexico converting into Reliable LLC (NM). Defendant cannot show this occurred prior to the filing of Plaintiffs complaint at 8:34 MST.
Remand Reply at 2-3. The Plaintiffs argue that Defendant Reliable initially asserted ' that the second interpretation is correct, but that, after realizing it cannot prove the timing of the New Mexico filings, it is arguing that the merger ceased Reliable, Inc.’s corporate existence. See Remand Reply at 3. The Plaintiffs maintain, however, that Reliable, Inc. continued to exist until the Articles of Organization were filed. See Remand Reply at 3-4.
Regarding the Agreement of Merger’s language, the Plaintiffs contend that the Agreement of Merger concerns Reliable, LLC NM and does not mention Reliable, Inc. See Remand Reply at 4. The Plaintiffs argue that the Agreement of Merger contemplated that Reliable, LLC NM would exist at the effective time. See Remand Reply at 4. They assert that, because the merger did not involve Reliable, Inc., the merger did not affect Reliable, Inc. until it took affirmative steps to convert into Reliable, LLC NM. See Remand Reply at 4.
3. The Motion to Amend.
On' May 8, 2014, Defendant Reliable filed the Motion to Amend. See Motion to Amend- at 1. Defendant Rehable asserts that, in the Notice of Removal, it alleges that none of its members are citizens of New Mexico, and that, in the Corporate Disclosure Statement, filed April 15, 2015 (Doc. 16)(“Corporate Disclosure”), it identified its two members as Berkshire Hathaway-Automotive, Inc. and Reliable Hold-co, Inc, See Motion to Amend ¶¶ 1-3, at 1-2. Reliable states that, while its Corporate Disclosure identifies its two members and the Notice of Removal states that its members are not New Mexico citizens, the Notice of Removal does not specifically identify its two members. See Motion to Amend 115, at 2. It contends that it has a right to cure technical defects in the Notice of Removal. See Motion to Amend ¶¶ 6-7, at 2-3. Defendant Reliable requests that the Court allow it to amend the Notice of Removal to identify its two members and to. identify their citizenships and principal places of business. See Motion to Amend ¶ 8, at 3. It asserts that this amendment would merely cure a possible technical defect without alleging a new basis for jurisdiction. See 'Motion to Amend ¶ 9, at 3. Defendant Reliable attaches an amended copy of the Notice of Removal to the Motion to Amend. See Amended Notice of Removal to the United States. District Court for the District of New Mexico, filed May 8, 2015 (Doc; 21-l)(“Amended Notice of Removal”).
The Plaintiffs responded to the Motion to Amend on May 21, 2015. See Plaintiffs [sic] Response in Opposition to Defendant’s Motion to Amend Notice of Removal [Doc. 21], filed May 21, 2015 (Doc. 28)(“Amend Response”). The Plaintiffs assert that federal courts routinely reject attempts to amend a notice of removal after the expiration of the thirty-day period to supply omitted allegations of citizenship. See Amend Response at 1. The Plaintiffs contend that, in Van Horn v. Western Electric Co., 424 F.Supp. 920, 923 (E.D.Mich.1977), the court denied the defendant’s request to amend the notice of removal, when the defendant alleged that it was diverse from the plaintiff,- but failed to allege specific facts, including where its principal place of business was. See Amend Response at 1-2. The Plaintiffs state that, in Barnhill v. Insurance Company of North America, 130 F.R.D. 46 (D.S.C.1990), the court took a restrictive view of amending a notice of removal to allege the defendant’s place of incorporation and principal place of business, because of a number of policy considerations:
(i) preventing federal court infringement upon the rightful independence and sovereignty of state courts; (ii) ensuring that judgments obtained, in a federal forum are'not vacated on appeal because of improvident removal; (iii) reducing uncertainty as to the court’s jurisdiction in the marginal cases, which a more liberal construction-of the removal statute would promote; (iv) permitting amendment past the thirty-day time limit would eviscerate the specific time provision Congress enacted; and (v) _ state court hostility toward non-resident defendants has been significantly reduced sinee diversity jurisdiction was created.
Amend Response at 2 (quoting Barnhill v. Ins. Co. of N. Am., 130 F.R.D. at 50-51) (citations omitted in Amended Response, but not in case).
The Plaintiffs argue that, in Richmond, Fredericksburg & Potomac Railroad Co. v. Intermodal Services, Inc., 508 F.Supp. 804 (E.D.Va.1981), the court held that an amendment under 28 U.S.C. § 1653 to correct an omission in the notice of removal— specifically, an allegation that that defendant’s principal place of business created diversity — was not permitted outside of 28 U.S.C. § 1446(b)’s thirty-day period. See Amend Response at 3. The Plaintiffs maintain that a number of courts do not permit additional allegations of citizenship after the thirty-day period. See Amend Response at 3-4 (citing Thompson v. Gillen, 491 F.Supp. 24, 27 (E.D.Va.1980); Hubbard v. Tripp, 611 F.Supp. 895, 896-97 (E.D.Va.1985); Jennings Clothiers of Ft. Dodge, Inc. v. U.S. Fid. & Guar. Co., 496 F.Supp. 1254, 1255 (N.D.Iowa.1980); Outdoor World Corp. v. Calvert, 618 F.Supp. 446, 448 (E.D.Va.1985); UMLIC Consol., Inc. v. Spectrum Fin. Servs. Corp., 665 F.Supp.2d 528, 533 (W.D.N.C.2009)).
Defendant Reliable replied to the Amend Response on June 4, 2015. See Reliable, LLC’s Reply in Support of Motion to Amend Notice of Removal, filed June 4, 2015 (Dpc. 36)(“Amend Reply”). It maintains that there were no technical errors in the Notice of Removal, and that, even if there were, the Tenth Circuit’s well-established law freely allows for leave to cure such an error. See Amend Reply at 1-2. Defendant Reliable argues that the Plaintiffs rely on district court cases from outside the Tenth Circuit to support their thirty-day-period argument that is contrary to Tenth Circuit law. See Amend Reply at 2. Defendant Reliable distinguishes Van Horn v. Western Electric Co. and Barnhill v. Insurance Company of North America by arguing that they involved corporate defendants, while it is a limited liability company, and that it stated in the Notice of, Removal that none of its members are New Mexico citizens. See Amend Reply at 2-3. Defendant Reliable also asserts, that it has produced evidence showing that is members are not New Mexico citizens. See Amend Reply at 3.
4. The June 22,2015, Hearing.
The Court held a hearing on June 22, 2015. See Transcript of Hearing (taken June 22, 2015)(“Tr.”). "The Court began the hearing by telling the parties that the issue in the case seemed to be whether private parties, through a contractual agreement, could eliminate a corporation, or whether — as the Court thought to be the case — the state must be the one to dissolve the corporation. See Tr. at 2:9-3:2 (Court). The Court noted that, because the Defendants have the burden of proving that the Court has jurisdiction, and because it is unlikely anyone can show that Reliable, Inc. was not in existence when the Plaintiffs filed the lawsuit, it should probably grant the Motion to Remand. See Tr. at 3:2-12 (Court). As for the Motion to Amend, the Court said that, because the additions do not change the theory for removal, it was inclined to grant the Motion to Amend. See Tr. at 3:13-21 (Court).
For the Motion to Amend, Defendant Reliable mostly repeated its arguments from the briefing. See Tr. at 4:6-7:2 (Salazar-King). The Plaintiffs did not argue against the Court granting the Motion to Amend, but, instead, said that they understand and appreciate the Court’s leniency in granting amendments. See Tr. at 7:6-24 (Ball, Court). The Court, thus, granted the Motion to Amend. See Tr. at 8:6-8 (Court).
The Court again noted that it believed that a New Mexico corporation could not come into existence or be dissolved without the State of New Mexico’s blessing, and that, if Reliable, Inc. existed on the books in New Mexico when the Plaintiffs filed the Complaint, it was the defendant in the case. See Tr. at 8:16-9:13 (Ball, Court). The Plaintiffs agreed that dissolving a corporation is a function of the state, and that a New Mexico corporation cannot dissolve itself through a contractual agreement or though forming another company in Delaware. See Tr. at 9:14-10:6 (Ball). They contended that the Motion to Remand comes down to timing and that, because Defendant Reliable carries the burden of proof, which it cannot meet, the Court must remand the case to state court. See Tr. at 10:10-16 (Ball).
Defendant Reliable asserted that, initially, there were three issues before the Court, but that, because the Court granted the Motion to Amend, the second has been resolved. See Tr. at 11:1-8 (Salazar-King). Defendant Reliable used a demonstrative to set forth the timeline of events: (i) on June 19, 2009, E. De La Rosa purchased the 2006 Ford Ranger from Reliable Nissan, which Reliable, Inc. owned; (ii) on June 4, 2014, J. De La Rosa was killed in a car accident involving the 2006 Ford Ranger; (iii) in October, 2014, Berkshire Hathaway announced that it would acquire the car dealerships and that the acquisitions were to be executed in the first quarter of 2015; (iv) on December 31, 2014, the Plan of Conversion and the Agreement of Merger were executed; (v) on January 12, 2015, at 8:21 a.m. EST, the Delaware Secretary of State certified the merger of Reliable, LLC DE and Reliable, LLC NM; and (vi) on January 12, 2015, at 8:34 a.m. MST, the Plaintiffs filed their Complaint. See Tr. at 11:12-12:15 (Salazar-King). Defendant Reliable maintained that it was converted to Reliable, LLC NM and then merged with Reliable, LLC DE at 8:23 a.m. EST on January 12, 2015. See Tr. at 12:11-15 (Salazar-King).
The Court asked Defendant Reliable if its position is that, on December 31, 2014, when the Plan of Conversion was executed, Reliable, Inc. was converted into Reliable, LLC NM, and Defendant Reliable said that statement was its position. See Tr. at 13:6-13 (Salazar-King, Court). The Court asked whether state or federal law should apply to determine when Rehable, Inc. ceased to exist, and Defendant Reliable said state law, and provided the Court with two Delaware statutes concerning the formations of corporations and the effect of merging two corporate entities. See Tr. at 13:18-15:9 (citing DeLCode Ann. tit. 8, § 106; Del.Code Ann. tit. 8, § 259). Defendant Reliable contended that, when the Articles of Incorporation were filed in Delaware, Reliable, Inc. ceased to exist, pursuant to Section 259 to Title 8 of the Delaware Code. See Tr. at 15:14-16:2 (Salazar-King, Court). Defendant Reliable argued that, in Meadows v. Bicrodyne Corp., the United States Court of Appeals for the Ninth Circuit held that a California corporation had been dissolved and subsumed into a Delaware corporation at the time of the merger, and that, for the Court to grant the Motion to Remand, it would have to find that Reliable, Inc. and Reliable, LLC existed simultaneously. See Tr. at 16:2-11 (Salazar-King).
Defendant Reliable asserted that, on January 12, 2015, it no longer existed, because the Letter Approving Conversion dissolved Reliable, Inc. See Tr. at 17:10-18:1 (Salazar-King, Clemens, Court). The Court said that, while Reliable, Inc. may have dissolved on January 12, 2015, Defendant Reliable cannot show what time it dissolved and that Defendant Reliable has the burden of showing that it dissolved before 8:34 a.m. MST. See Tr. at 18:8-12 (Court). Defendant Reliable agreed with the Court that, as of 7:59 a.m. MST, Reliable, Inc. still existed, because the New Mexico Secretary of State’s office did not open until 8:00 a.m, MST, and that, because the Secretary of State does not time stamp articles of incorporation, it is unknown at what precise time of day' Reliable, Inc. was dissolved. See Tr. at 18:17-19:4 (Salazar-King, Court). Defendant Reliable maintained, however, that, while the New Mexico Secretary of State does not use. a time, stamp, under the logical sequence of events, for Reliable, LLC DE to be merged with Reliable, LLC NM, Reliable, Inc. must have been dissolved. See Tr. at 19:15-24 (Salazar-King). Again, Defendant Reliable said that, more than two hours before the Plaintiffs filed the.Complaint, Rehable, Inc. had been dissolved and converted into Reliable, LLC NM, and then merged into Reliable, LLC DE. See Tr. at 20:13-25 (Salazar-King).
The Court asked Defendant Reliable why § 53-19-60 of the New Mexico Statutes Annotated did not govern when Reliable, Inc. dissolved, and Defendant Reliable said that it agreed with the Court that New Mexico has control over the dissolution of its own corporations. See Tr. at 21:1-20 (Salazar-King, Court). Immediately afterwards, however, Defendant Reliable went back to arguing that Delaware statutes caused Reliable, Inc. to dissolve at a certain time. See Tr. at 21:25-22:9 (Salazar-King, Court). Defendant Reliable conceded that § 53-19-60 governed when conversion takes effect and that, because the State of New Mexico does not time stamp, it cannot establish the specific time when -the articles were executed in New Mexico. See Tr. at 22:16-23 (Salazar-King). Yet, it continued to argue that the Agreement of Merger and conflict of laws require Delaware law to apply. See Tr. at 22:23-23:11 (Salazar-King).
The Plaintiffs replied that they did not believe that Defendant Reliable did anything nefarious and that the timing of the reorganization was merely a coincidence. See Tr. at 25:1-12 (Ball). They maintained that Defendant Reliable cannot prove the time at which Reliable, Inc. was converted to Reliable, LLC NM. See Tr. at 25:13-26:14 (Ball). The Plaintiffs argued that, while they do not believe that Defendant Reliable did any wrongdoing in this case, if the Court does not require Defendant Reliable to establish the exact time in which Reliable, Inc. dissolved, other unscrupulous defendants could take advantage of the judicial system by reorganizing their corporate structures immediately after a lawsuit is filed. See Tr. at 26:14-27:7 (Ball). The Court told the parties that it was inclined to 'grant the Motion to ‘Remand, but that it needed to look at the issue further. See Tr. at 27:10-15 (Court).
LAW REGARDING DIVERSITY JURISDICTION
“Subject-matter jurisdiction under 28 U.S.C. § 1332(a)(1) requires: (i) complete diversity among the parties;- and (ii) that ‘the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.’ ” Thompson v. Intel Corp., No. CIV 12-0620 JB/LFG, 2012 WL 3860748, at *12 (D.N.M. Aug. 27, 2012) (Browning, J.)(citing 28 U.S.C. § 1332(a)). As the Court has previously explained, “[t]he Supreme Court of the United States has described this statutory diversity requirement as ‘complete diversity,’ arid it is present only when no party on one side of a dispute shares citizenship with any party on the-other side of a dispute.” McEntire v. Kmart Corp., No. CIV 09-0567 JB/LAM, 2010 WL 553443, at *3 (D.N.M. Feb. 9, 2010) (Browning, J.)(citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267-68, 2 L.Ed. 435 (1806), overruled in part by Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); McPhail v. Deere & Co., 529 F.3d 947, 951 (10th Cir.2008)). The amount-in-controversy requirement is an “estimate of the amount that will be put at issue in the course of the litigation.” Valdez v. Metro Prop. & Cas. Ins. Co., 867 F.Supp.2d 1143, 1162-63 (D.N.M.2012) (Browning, J.)(citing McPhail v. Deere & Co., 529 F.3d at 956). The Court will discuss the two requirements in turn.
1. Diversity of Citizenship.
For diversity jurisdiction purposes, a person’s domicile determines citizenship. See Crowley v. Glaze, 710 F.2d 676, 678 (10th Cir.1983). “A person’s domicile is defined as the place in which the party has a residence in fact and an intent to remain indefinitely, as of the time of the filing of the lawsuit.’’ McEntire v. Kmart Corp., 2010 WL 553443, at *3 (citing Crowley v. Glaze, 710 F.2d at 678). See Freeport-McMoRan, Inc. v. KN Energy, Inc., 498 U.S. 426, 428, 111 S.Ct. 858, 112 L.Ed.2d 951 (1991) (‘We have consistently held that if jurisdiction exists at "the time an action is commenced, such jurisdiction may not be divested by subsequent events.”). If-neither a person’s residence nor the location where the person has-an intent to remain can be established, the person’s domicile is that of his or her parents at the time of the person’s birth. See Gates v. Comm’r of Internal Revenue, 199 F.2d 291, 294 (10th Cir.1952) (“[T]he law assigns to every child at its birth a domicile of origin. The domicile of origin which the law attributes to an individual is the domicile of his parents. It continues until another domicile is lawfully acquired.”). Additionally, “while residence and citizenship are not the same, a person’s place of residence is prima facie evidence of his or her citizenship.” McEntire v. Kmart Corp., 2010 WL 553443, at *3 (citing State Farm Mut. Auto. Ins. Co. v. Dyer, 19 F.3d 514, 520 (10th Cir.1994)). A corporation, on the other hand, is “deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” Gadlin v. Sybron Int’l Corp., 222 F.3d 797, 799 (10th Cir.2000) (quoting 28 U.S.C. § 1332(c)(1)).
2. Amount in Controversy.
The statutory amount-in-controversy requirement, which presently stands at $75,000.00, must be satisfied as between a single plaintiff and a single defendant for a federal district court to have original jurisdiction over the dispute; “a plaintiff cannot aggregate independent claims against multiple defendants to satisfy the amount-in-controversy requirement,” nor can multiple plaintiffs aggregate their claims against a single defendant to exceed the threshold. Martinez v. Martinez, No. CIV 09-0281 JB/KBM, 2010 WL 1608884, at *18 (D.N.M. Mar. 30, 2010) (Browning, J.). If multiple defendants are jointly liable, or jointly and severally liable, on some of the claims, however, the amounts of those claims may be aggregated to satisfy the amount-in-controversy requirement as to all defendants jointly liable for the claims. See Alberty v. W. Sur. Co., 249 F.2d 537, 538 (10th Cir.1957); Martinez v. Martinez, 2010 WL 1608884, at *18. Similarly, multiple plaintiffs may aggregate the amounts of their claims against a single defendant if the claims are not “separate and distinct.” Martin v. Franklin Capital Corp., 251 F.3d 1284, 1292 (10th Cir.2001) (Seymour, C.J.), abrogated on other grounds by Dart Cherokee Basin Operating Co. v. Owens, — U.S. -, 135 S.Ct. 547, 190 L.Ed.2d 495 (2014). Multiple claims by the same plaintiff against the same defendant may be aggregated, even if the claims are entirely unrelated. See 14AA Charles A. Wright, Arthur R. Miller, Edward H. Cooper, Vikram D. Amar, Richard D. Freer, Helen Hershkoff, Joan E. Steinman, & Catherine T. Struve, Federal Practice and Procedure, Jurisdiction § 3704, at 566-95 (4th ed.2011). While the rules on aggregation sound complicated, they are not in practice: if a single plaintiff — regardless whether he or she is the only plaintiff who will share in the recovery — can recover over $75,000.00 from a single defendant — regardless whether the defendant has jointly liable 'co-defendants — then the court has original jurisdiction over the dispute between that plaintiff and that defendant. The court can then exercise supplemental jurisdiction over other claims and parties that “form part of the same case or controversy under Article III,” 28 U.S.C. § 1367(a), meaning that they “derive from a common nucleus or operative fact,” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
Satisfaction of the amount-in-eontroversy requirement must be established by a preponderance of the evidence. See McPhail v. Deere & Co., 529 F.3d at 953. In the context of establishing an amount-in-controversy, the defendant seeking removal could appear to be bound by the plaintiffs chosen amount of damages in the complaint, which would seem to allow a plaintiff to avoid federal jurisdiction “merely by declining to allege the jurisdictional amount [in controversy].” McPhail v. Deere & Co., 529 F.3d at 955. The United States Court of Appeals for the Tenth Circuit’s decision in McPhail v. Deere & Co. has foreclosed such an option from a plaintiff who wishes- to remain in state court. McPhail v. Deere & Co. holds that a defendant’s burden in establishing jurisdictional facts is met if the defendant proves “jurisdictional facts that make it possible that $75,000 is in play.” 529 F.3d at 955.
The Supreme Court recently clarified that a defendant seeking removal to federal court need only include in the notice of removal a plausible allegation that the amount in controversy exceeds the jurisdictional threshold. See Dart Cherokee Basin Operating Co. v. Owens, — U.S. -, 135 S.Ct. 547, 554, 190 L.Ed.2d 495 (2014). The district court should consider outside evidence and find by a preponderance of the evidence whether the amount in controversy is satisfied “only when the plaintiff contests, or the court questions, the defendant’s allegation.” Dart Cherokee Basin Operating Co. v. Owens, 135 S.Ct. at 554.
LAW REGARDING REMOVAL AND REMAND
If a civil action filed in state court satisfies the requirements for original federal jurisdiction — meaning, most commonly, federal-question or diversity jurisdiction — the defendant may invoke 28 U.S.C. § 1441(a) to remove the action to the federal district court “embracing the place where such action is pending.” 28 U.S.C. § 1441(a). See Huffman v. Saul Holdings LP, 194 F.3d 1072, 1076 (10th Cir.1999) (“When a plaintiff files in state court a civil action over which the federal district courts would have original jurisdiction based on diversity of citizenship, the defendant or defendants may remove the action to federal court....”)(quoting Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996)). In a case with multiple defendants, there must be unanimous consent to removal; any one defendant may spoil removal and keep the case in state court. See 28 U.S.C. § 1446(b)(2)(A). Only true defendants have removal rights: plaintiffs defending counterclaims and third-party defendants may not remove an action, and their consent, is not required for removal if all the true defendants consent, See Hamilton v. Aetna Life & Cas. Co., 5 F.3d 642 (2d Cir.1993); Wiatt v. State Farm Ins. Co., 560 F.Supp.2d 1068 (D.N.M.2007) (Browning, J.).
To remove a case based on diversity, the diverse defendant must demonstrate that all of the usual prerequisites of diversity jurisdiction are satisfied. Under 28 U.S.C. § 1332(a), a federal district court possesses original subject-matter jurisdiction over a case when the parties are diverse in citizenship and the amount in controversy exceeds $75,000.00. See 28 U.S.C. § 1332(a); Johnson v. Rodrigues, 226 F.3d 1103, 1107 (10th Cir.2000). Diversity between the parties must be complete. See Caterpillar Inc. v. Lewis, 519 U.S. at 68, 117 S.Ct. 467; Radii v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1225 (10th Cir.2004). In addition to the requirements of original jurisdiction, § 1441(b)(2) lays out the “forum-defendant rule,” which provides that a case may not be removed on the basis of diversity jurisdiction if any defendant is a citizen of the state in which the state-court action was brought.
[W]e note that § 1441(b)(2) — the so-called forum-defendant rule — provides as a separate requirement that “[a] civil action otherwise removable solely on the basis of [diversity] jurisdiction ... may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”
Brazell v. Waite, 525 Fed.Appx. 878, 884 (10th Cir.2013) (unpublished) (alterations in original) (quoting 28 U.S.C. § 1441(b)(2)). The forum-defendant rule applies only to cases removed under diversity jurisdiction; a defendant may remove a case brought against it in its home state on the basis of federal-question jurisdiction. See 28 U.S.C. § 1441(b). Last, a case cannot be removed if it began with a nondiverse party or a forum-citizen defendant, and only later came to satisfy the requirements of removal jurisdiction, unless: .(i) the plaintiff voluntarily dismissed the removal-spoiling party, see DeBry v. Transamerica Corp., 601 F.2d 480, 488 (10th Cir.1979); Flores-Duenas v. Briones, No. CIV 0660 JB/CG, 2013 WL 6503537, at *12 n. 6, *26 (D.N.M. Dec. 1, 2013) (Browning, J.)(describing the .operation of the “voluntary-involuntary” rule); or. (ii) the removal-spoiling party, was fraudulently joined or procedurally mis-joined. These doctrines are described below.
1. The Presumption Against Removal. ■
Federal courts are courts of limited jurisdiction; thus, there is a presumption against " removal jurisdiction, which the defendant seeking removal must overcome. See Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.1982); Martin v. Franklin Capital Corp., 251 F.3d at 1290; Bonadeo v. Lujan, No. CIV 08-0812 JB/ACT, 2009 WL 1324119, at *4 (D.N.M. April 30, 2009) (Browning, J.)(“Removal statutes are strictly construed, and ambiguities should be resolved in favor of remand.”). The defendant seeking removal must establish that federal court jurisdiction is proper “by a preponderance of the evidence.” McPhail v. Deere & Co., 529 F.3d at 953. See Bonadeo v. Lujan, 2009 WL 1324119, at *4 (“As the removing party, the defendant bears the burden of proving all jurisdictional facts and of establishing a right to removal.”). Because federal courts are courts of limited jurisdiction,.the Tenth Circuit has ruled that “courts must deny such jurisdiction if not affirmatively apparent on the record.” Okla. Farm Bureau Mut. Ins. Co. v. JSSJ Corp., 149 Fed.Appx. 775, 778 (10th Cir.2005) (unpublished), abrogated on other grounds by Dart Cherokee Basin Operating Co. v. Owens, 135 S.Ct. at 547. On the other hand, this strict construction and presumption against removal should not be interpreted as,-a hostility toward removal cases in the federal courts. See McEntire v. Kmart Corp., 2010 WL 553443, at *2 (citing Bonadeo v. Lujan, 2009 WL 1324119, at *12 (“Strict construction does not mean judicial hostility toward removal. Congress provided for removal, and courts should not create rules that are at tension with the statute’s language in the name of strict construction.”)).
“It is well-established that statutes conferring jurisdiction upoñ the federal courts, and particularly removal statutes, aré to be narrowly construed in light of our constitutional role as limited tribunals.” Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1095 (10th Cir.2005) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); United States ex rel. King v. Hillcrest Health Ctr., 264 F.3d 1271, 1280 (10th Cir.2001)). “All doubts are to be resolved against removal.” Fajen v. Found. Reserve Ins. Co., 683 F.2d at 333. “The burden of establishing subject-matter jurisdiction is' on 'the party asserting jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir.2002).
2. The Procedural Requirements of Removal.
Section 1446 of Title 28 of the United States Code governs the procedure for removal. “Because removal is entirely a statutory right, the relevant procedures to effect removal' must be followed.” Thompson v. Intel Corp., 2012 WL 3860748, at *5. A removal that does not comply with the express statutory requirements is defective, and the Court must, upon request, remand the case to state court. See Huffman v. Saul Holdings LP, 194 F.3d at 1077. See also Chavez v. Kincaid, 15 F.Supp.2d 1118, 1119 (D.N.M. 1998) (Campos, J.)(“The [rjight to remove a case that was originally in state court to federal court is purely statutory, not constitutional.”).
Section 1446(a) provides that a party seeking removal of a matter to federal court shall file a notice of removal in the district and division where the state action is pending, “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.” Such notice of removal is proper if filed within thirty days from the date when the case qualifies for federal jurisdiction. See Caterpillar Inc. v. Lewis, 519 U.S. at 68-69, 117 S.Ct. 467; 28 U.S.C. § 1446(b). The Tenth Circuit has further elaborated that, for the thirty-day period to begin to run, “this court requires clear and unequivocal notice from the [initial] pleading itself’ that federal jurisdiction is available. Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir.1998). The Tenth Circuit specifically disagrees with “cases from other jurisdictions which impose a duty to investigate and determine removability where the initial pleading indicates that the right to remove may exist.” Akin v. Ashland Chem. Co., 156 F.3d at 1036.
After the notice of removal is filed, all state-court proceedings are automatically stayed, and the other defendants in the case — if not all defendants joined in the removal — have thirty days to consent to the removal of the action. See 28 U.S.C. § 1446(b)(2). “When a civil action is removed solely under section 1441(a) [the standard removal statute, which excludes multiparty, multiforum jurisdiction], all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). The failure of all defendants to consent to removal will result in remand. The rule of unanimity applies to all defendants, whether they are required parties under rule 19 or merely proper parties under rule 20. Defendants who have not been served, however, need not join in removal. See Kiro v. Moore, 229 F.R.D. 228, 230-32 (D.N.M.2005) (Browning, J.).
Section 1447(c) permits the district court to “require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). The Supreme Court has stated:
The appropriate test for awarding fees under § 1447(c) should recognize the desire to deter removals sought for the purpose of prolonging litigation and imposing costs on the opposing party, while not undermining Congress’ basic decision to afford defendants a right to remove as a general matter, when the statutory criteria are satisfied.
Martin v. Franklin Capital Corp., 546 U.S. 132, 140, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005). The Tenth Circuit has limited district courts’ discretion to impose costs and fees to those cases in which the removal was objectively unreasonable. See Garrett v. Cook, 652 F.3d 1249, 1254 (10th Cir.2011) (“[C]ourts may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.’-’).
3. Amendment of the Notice óf Removal.
In Caterpillar, Inc. v. Lewis, the Supreme Court held that a defect in subject-matter jurisdiction cured before entry of judgment did not warrant reversal or remand to state court. See 519 U.S. at 70-78, 117 S.Ct. 467. Citing Caterpillar, Inc. v. Lewis, the Tenth Circuit has held that “a defect in removal procedure, standing alone, is not sufficient to warrant vacating judgment and remand to state court if subject matter jurisdiction existed in the federal court.” Browning v. Am. Family Mut. Ins. Co., 396 Fed.Appx. 496, 505-06 (10th Cir.2010) (unpublished). In McMahon v. Bunn-O-Matic Corp., 150 F.3d 651 (7th Cir.1998) (Easterbrook, JO, the United States Court of Appeals for the Seventh Circuit noticed, on appeal, defects in the notice of removal, including that the notice failed to properly allege diversity of citizenship. See 150 F.3d at 653 (“As it happens, no one paid attention to subject-matter jurisdiction. ”). The Seventh Circuit nevertheless permitted the defective notice of removal to be amended on appeal to properly establish subject-matter jurisdiction. See 150 F.3d at 653-54.
The Tenth Circuit has allowed defendants to remedy defects in their petition or notice of removal. See Jenkins v. MTGLQ Investors, 218 Fed.Appx. 719, 723 (10th Cir.2007) (unpublished)(granting unopposed motion to amend notice of removal -to properly allege jurisdictional facts); Watkins v. Terminix Int’l Co., Nos. CIV 96-3053, 96-3078, 1997 WL 34676226, at *2 (10th Cir. May 22, 1997) (per curiam)(unpublished)(remindin'g . the defendant that, on remand, it-' should move- to amend the notice of removal to properly allege jurisdictional facts); Lopez v. Denver & Rio Grande W. R.R. Co., 277 F.2d 830, 832 (10th Cir.1960) (“Appellee’s motion to amend its petition for' removal to supply sufficient allegations of citizenship and principal pla'ce of business existing at the time of commencement of this action is hereby granted, and diversity jurisdiction is therefore present.”). The Tenth Circuit has further reasoned that disallowing amendments to the notice of removal, even after the thirty-day removal window had expired, when the defendant made simple errors in its jurisdictional allegations, “would be too grudging with reference to the controlling statute, too prone to equate imperfect allegations of jurisdiction with the total absence of jurisdictional foundations, and would tend unduly to exalt form over substance and-legal flaw-picking over the orderly disposition of cases properly committed to federal courts.” Hendrix v. New Amsterdam Cas. Co., 390 F.2d 299, 301 (10th Cir.1968). The Tenth Circuit has noted that a simple error in a jurisdictional allegation includes failing to identify, a corporation’s principal place of business or -referring to an individual’s state of residence rather than citizenship. See Hendrix v. New Amsterdam Cas. Co., 390 F.2d at 301. In McEntire v. Kmart Corp., when faced with insufficient allegations in the notice of removal — allegations of “residence” not “citizenship” — the Court granted the defendants leave to amend their notice of removal to cure the errors in some of the “formalistic technical requirements.” 2010 WL 553443, at *8 (citing Hendrix v. New Amsterdam Cas. Co., 390 F.2d at 300-02). Further, in Thompson v. Intel Corp., the Court permitted the. defendant, Intel Corp., to amend its notice of removal to include missing jurisdictional elements, including evidence that its principal place of business and corporate headquarters — the center of Intel Corp.’s direction, control, and coordination of activities — is out of state, so that the diversity . requirements were, met. See 2012 WL 3860748, at *1.
There are limits to the defects that an amended notice of removal may cure, however, as Professors Charles Alan Wright and Arthur R. Miller explain:
[A]n amendment of the removal notice may seek to accomplish any of several objectives: It may correct an imperfect statement of citizenship, state the previously articulated grounds more fully, or clarify the jurisdictional amount; In most circumstances, however, defendants may not add completely new grounds 'for removal or furnish, missing allegations,-even if the court rejects the first-proffered basis of removal, and the court will not, on its own motion, retain jurisdiction on the basis of a ground that is present but that defendants have not relied upon,
14 C. Wright & A. Miller, Federal Practice and Procedure § 3733, at 651-659 (4th ed.2009)(footnotes omitted). Professor Moore has similarly recognized': “[A]mendment may be permitted after the 30-day period if the amendment corrects defective allegations of jurisdiction, but not to add a new basis for removal jurisdiction.” 16 J. Moore, D. Coquillette, G. Joseph, S. Schreiber, G. Vairo, & C. Varner, Moore’s Federal Practice § 107.30[2][a][iv], -at 107-317 to -18 (3d ed.2013). Thus, where diversity jurisdiction is asserted as a basis for removal of an action to federal court, the district court may -permit the removing defendant to amend its removal notice, if necessary, to fully allege facts which satisfy the requirements of diversity jurisdiction by a preponderance of the evidence. See Carrillo v. MCS Indus., Inc., No. CIV 12-0573, 2012 WL 5378300, at *14 (D.N.M. Oct. 15, 2012) (Browning, J.)(permitting party to amend its notice of removal when the removing party did “not assert[ ] a new basis for jurisdiction, or a new allegation not present "in its Notice of Removal; rather, the ... Amended Notice of Removal provide[d] greater detail regarding the same basis for jurisdiction asserted in the ... Notice of Removal”). Cf. New Mexico ex rel. Balderas v. Valley Meat Co., No. CIV 14-1100 JB/KBM, 2015 WL 3544288, at *25 (D.N.M. May 20, 2015) (Browning, J.Xdenying amendment when it sought to assert a new jurisdictional basis that was not raised' in the notice of removal).
4. Fraudulent Joinder.
A defendant may remove a case to .federal .court based upon diversity jurisdiction in the absence of1 complete diversity if a plaintiff joins a nondiver se party fraudulently to defeat federal jurisdiction. See Am. Nat’l Bank & Trust Co. v. Bic Corp., 931 F.2d 1411, 1412 (10th Cir.1991); Hernandez v. Menlo Logistics, Inc., No. CIV 12-0907 JB/WPL, 2013 WL 5934411, at *14-17 (D.N.M. Sept. 30, 2013) (Browning, J.). A defendant may remove on the basis of fraudulent joinder either' while the nondiver se. party is still joined or after it is dismissed from the case — the doctrine can thus function as an exception to either complete diversity or the voluntary-involuntary rule. “‘[A] fraudulent joinder analysis [is] a jurisdictional inquiry,’ ” Bio-Tec Envtl., LLC v. Adams, 792 F.Supp.2d 1208, 1214 (D.N.M.2011) (quoting Albert v. Smith’s Food & Drug Ctrs., Inc., 356 F.3d 1242, 1247 (10th Cir.2004)), and, thus,.the Tenth Circuit instructs that the district court should “pierce the pleadings, consider the entire record, and determine the basis of joinder by any means available,” Dodd v. Fawcett Publ’ns, Inc., 329 F.2d 82, 85 (10th Cir.1964) (citations omitted). “A district court may disregard a nondiverse ..party named in the state court complaint and retain jurisdiction if joinder of the nondiverse party is a sham or fraudulent.” Baeza v. Tibbetts, No. CIV 06-0407 MV/WPL, 2006 WL 2863486, at *3 (D.N.M. July 7, 2006) (Vazquez, J.). The Supreme Court, has stated: “Merely to traverse the allegations upon which the liability of the resident defendant is rested or to apply the epithet ‘fraudulent’ to the joinder will not suffice: the showing must be such as compels the conclusion that the joinder is without right and made in bad faith.” Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 152, 34 S.Ct. 278, 58 L.Ed. 544 (1914). The Tenth Circuit has explained that allegations of fraudulent joinder complicate the analysis whether removal is proper, because, “[wjhile a court normally evaluates the propriety of a removal by determining whether the allegations on the face of the complaint satisfy the jurisdictional requirements, fraudulent joinder claims are assertions that the pleadings are deceptive.” Nerad v. AstraZeneca Pharms., Inc., 203 F