Arlington Community Federal Credit Union v. Berkley Regional Insurance
Arlington Community Federal Credit Union v. Berkley Regional Insurance
Opinion of the Court
MEMORANDUM OPINION
In this removed diversity insurance coverage dispute, the threshold issue is the propriety of the removal on diversity jurisdiction grounds. Specifically, two questions are raised:
(1) whether plaintiff, a federally chartered corporation, which is not covered by 28 U.S.C. § 1332, is “localized” in Virginia and thus a Virginia citizen for diversity of citizenship purposes where, as here, plaintiff has its principal place of business in Virginia, all of its branch offices are in Virginia, and the vast majority of its business operations are in Virginia; and, if so,
(2) whether a removal notice adequately states jurisdictional grounds for removal where, as here, defendant’s removal notice cites as the grounds for removal (i) diversity of citizenship and (ii) plaintiffs principal place of business in Virginia, but does not specify that plaintiff is localized in Virginia, or allege facts relating to the application of the localization doctrine.
For the reasons stated from the bench and elucidated here, diversity jurisdiction is present in this case, the notice of removal is adequate, and, in any event, defendant, in these circumstances, may properly be permitted to amend its notice of removal to add factual allegations in support of diversity jurisdiction as its basis or ground for removal.
I.
Plaintiff Arlington Community Federal Credit Union (“ACFCU”) is a federal credit union engaged, inter alia, in the business of offering its members various finan
Defendant Berkley Regional Insurance Company (“Berkley”) is a Delaware corporation engaged in the business of insurance. Berkley issued an insurance policy to ACFCU, titled Financial Institution Bond for Credit Unions, Bond No. CUB 6002662-11 (hereinafter the “Policy”).
The Policy, by its terms, provides coverage for various losses and also excludes coverage in certain circumstances. Specifically pertinent here is the policy provision which provides coverage for:
(0)(1) Loss resulting directly from fraudulent instruction through E-mail, Telefacsimile or Telephonic means received by the Insured from a person who purports to be the Accountholder, the Accountholder’s authorized representative or an employee but is not the Accountholder, [or] the Accountholder’s authorized representative or an Employee, provided:
(a) the Insured performed a Callback Verification -with respect to the instruction, or
(b) the Insured followed a commercially reasonable security procedure set forth in a written funds transfer agreement, signed by the Account-holder or the Accountholder’s authorized representative, that governs the transaction and instruction.
Also pertinent here is exclusion q, which excludes coverage for:
(q) loss resulting directly or indirectly from a fraudulent instruction through Email, Telefacsimile, or Telephonic means, or ACH debit from the Account-holder’s account that was originated through another financial institution, except as may be covered under the Employee or Director Dishonesty Insuring Agreement, or the Funds Transfer Insuring Agreement.
On September 25, 2013, ACFCU received a wire transfer request from a person claiming to be an ACFCU member. In these circumstances, ACFCU procedures require that the responding employee verify the request by calling the requesting party back to verify pertinent security, information. Consistent with these procedures, the ACFCU employee on duty called the requestor twice at home to verify pertinent security information. In doing so, the ACFCU employee apparently confirmed the source and validity of the wire transfer before wiring the funds in accordance with the request. The amount of the wire transfer was $198,760. In fact, the request was fraudulent, and ACFCU made a claim under the Policy for this loss. Berkley acknowledged coverage for this loss under the Policy chiefly because ACFCU had performed the required callback verification in accordance with both the terms of the Policy, as well as ACFCU’s internal security procedures.
On September 27, two days later, ACFCU received a telephone call from a person purporting to be the same ACFCU member who submitted the wire transfer request two days earlier. In this call, this individual made a second wire transfer request. This time, ACFCU’s representative did not, as required by ACFCU procedures and the Policy, call the requestor back to verify pertinent security information. Instead, ACFCU’s representative chose to verify, in the same telephone call,
Because Berkley denied coverage for the loss stemming from the September 27 transaction, ACFCU filed a lawsuit in the Circuit Court for the County of Arlington, (i) alleging that Berkley breached the terms of the Policy by denying coverage and (ii) seeking a declaration that Berkley must provide coverage for the September 27 loss. Berkley then removed the case, alleging diversity of citizenship, while noting that ACFCU’s principal place of business is in Virginia, and further alleging that the amount in controversy requirement was met. ACFCU now seeks a remand of the case, arguing (i) that federal subject matter jurisdiction does not exist and (ii) that Berkley’s notice of removal is defective in failing to include adequate allegations in support of removal, and the 30-day window for amending the notice of removal has elapsed. See 28 U.S.C. § 1446(b). Berkley opposes ACFCU’s motion to remand on both grounds, and also filed a motion to dismiss ACFCU’s complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
II.
The focus of the parties’ jurisdictional dispute is the citizenship of ACFCU, a federally chartered corporation. If, for diversity purposes, ACFCU is a citizen of Virginia, as Berkley claims, diversity jurisdiction exists, given that Berkley is a Delaware corporation. On the other hand, if, as ACFCU claims, ACFCU is not a citizen of any state, then diversity jurisdiction does not exist and the absence of subject matter jurisdiction would require a remand.
The history of the citizenship of federally chartered corporations is both interesting and worth briefly recounting here. Neither Congress nor the Supreme Court has specifically addressed the question of the citizenship of a federally chartered corporation for diversity jurisdiction purposes. In 1958, when Congress amended 28 U.S.C. § 1332(c) to expand corporate citizenship to include a corporation’s principal place of business, the statute remained silent as to the citizenship of federally chartered corporations.
[s]uch an evaluation should involve a more expansive inquiry into the corporation’s business. A variety of factors are relevant to this inquiry, such as the corporation’s principal place of business, the existence of branch offices outside the state, the amount of business transacted in different states, and any other data providing evidence that the corporation is local or national in nature.
Id. at 606. The Loyola decision transformed the localization inquiry from a binary test—whether a corporation’s activities are only confined within one state— to a more nuanced and comprehensive analysis of the corporation’s presence and activities in various states. The Eleventh Circuit justified its “more expansive approach” on the ground that it “comport[ed] with diversity jurisdiction’s purpose of avoiding any possible bias favoring the party from the state in which the state court proceeding is brought.” Id. The four-factor Loyola test is now the prevailing test used by district courts in this circuit and elsewhere in the localization inquiry.
To begin with, it is undisputed that ACFCU’s principal place of business, the first factor in the Loyola localization analy
Apart from the Loyola test, the policy considerations underlying the localization doctrine also favor a finding of localization in this ease. Since ACFCU’s operations, member base, branches, and principal place of business are all in Virginia, it might be said that ACFCU would receive favorable treatment from a Virginia state court (so-called “home cooking”) if this case were remanded. Therefore, this is a case where ACFCU is a “local institution” and it is appropriate to find that it is a citizen of Virginia, thus allowing Berkley the choice of removing the case to federal court to prevent any potential benefit ACFCU might receive from a Virginia state court. See Lake Hiawatha, 272 F.2d at 454-55 (noting that a federal credit union was a “peculiarly local institution of a single community in the state of New Jersey”).
In sum, the “overwhelming” amount of both ACFCU’s members and business are in Virginia, and application, of the Loyola factors along with the underlying rationale for diversity jurisdiction points convincingly to the conclusion that ACFCU is localized in Virginia. See TCT, 2011 WL 817496 at ?6 (“[T]he overwhelming amount of [plaintiffs] business, as well as the overwhelming number of its members, is located in New York.”). It follows that because its business is localized in Virginia, ACFCU is a Virginia citizen and hence, diversity jurisdiction exists.
III.
This conclusion does not end the analysis, as ACFCU contends that even assuming ACFCU is localized in Virginia, Berkley’s notice of removal did not allege localization as the basis for diversity jurisdiction and therefore, the notice is defective, requiring a remand. ACFCU further contends that it is too late for Berkley to amend its removal notice, as the 30-day removal period has expired. See 28 U.S.C. § 1446(b). ACFCU’s contention raises two questions: first, whether Berkley’s notice of removal sufficiently alleged the basis or ground for removal, and second, assuming Berkley’s notice of removal is deficient, whether Berkley is permitted to amend its notice of removal despite the passage of the 30-day removal period.
[J]ust as a plaintiffs complaint sufficiently establishes diversity jurisdiction if it alleges that the parties are of diverse citizenship and that [the amount in controversy exceeds the jurisdictional minimum] so too does a removing party’s notice of removal sufficiently establish jurisdictional grounds for removal by making jurisdictional allegations in the same manner.
Id. at 200. It is undisputed that Berkley’s notice of removal alleges both that “the parties are diverse” and that the “amount in controversy is $153,893.00, which exceeds the minimum amount in controversy requirement.”
When a notice of removal does not meet the requirements of 28 U.S.C. § 1446(a), courts are faced with two choices: (i) to remand the case to state court based on a defendant’s failure to allege subject matter jurisdiction, or (ii) to permit a defendant to amend the notice of removal. As a general rule, amendments to removal notices are proper when “there is a technical defect and there are averments sufficient to show jurisdiction.” Kinney v. Columbia Sav. & Loan Ass’n, 191 U.S. 78, 83, 24 S.Ct. 30, 48 L.Ed. 103 (1903). In this regard, the Fourth Circuit has adopted the rule that “after thirty days, district courts have discretion to permit amendments that correct allegations already present in the notice of removal. Courts have no discretion to permit amendments furnishing new allegations of a jurisdictional basis.” Wood v. Crane Co., 764 F.3d 316, 323 (4th Cir. 2014); see also Iceland Seafood, 285 F.Supp.2d at 726.
The line between allegations of a jurisdictional ground or basis for removal which are “missing” from a notice of removal as opposed to allegations that are merely “imperfectly stated” is not always entirely distinct. Federal courts, including courts in this district, have interpreted this principle as allowing defendants to amend their removal notices only when they are elaborating on an existing basis or ground for subject matter jurisdiction, but not where a defendant seeks to introduce a new ground or basis for subject matter jurisdiction.
It is undisputed that in this case, Berk-ley’s notice of removal states, in relevant part:
At the time the Complaint was filed and at the time of the removal, Arlington was and continues to be a community credit union organized under the Federal Credit Union Act, 12 U.S.C. §§ 1651-1795k, its principal place of business is in Virginia, and [it] is a citizen of Virginia. See Compl. ¶¶,3-4. Therefore, the parties are diverse.15
ACFCU argues that Berkley’s notice of removal is defective because it alleges only that ACFCU’s principal place of business is in Virginia, a fact which is determinative of state corporation citizenship, but is, by itself, not dispositive as to whether & federal corporation is localized. See Iceland Seafood, 285 F.Supp.2d at 723. ACFCU is correct that, as it currently stands, Berk-ley’s notice of removal does not address whether ACFCU is localized in Virginia. Nonetheless, Berkley should be permitted to amend its notice of removal, as the removal notice states accurately, if perhaps imperfectly, that diversity jurisdiction is the basis or ground for removal. First, Berkley’s amendment simply seeks to elucidate the reasons for the existence of diversity jurisdiction. Importantly, Berk-ley is not asserting a new basis or ground for subject matter jurisdiction in amending its removal notice. Second, while principal place of business is not' the only consideration in the localization -analysis, it is the first Loyola factor. See Loyola, 58 F.3d at 606. In other words, where, as here, Berkley’s notice of removal contains some allegations to support diversity jurisdiction on the-basis of localization, Berkley may amend its notice, even if the notice does not contain all of the necessary specifics to support ACFCU’s localization in Virginia. See Richmond, 508 F.Supp. at 805.
ACFCU, relying on Tincher and Iceland Seafood, argues that permitting Berkley to amend its notice of removal would allow Berkley to introduce a new subject matter jurisdiction ground or basis absent from its notice of removal. This argument is unpersuasive. Both Tincher and Iceland Seafood involved defendants seeking to raise a new basis or ground for subject matter jurisdiction well after the 30-day removal period.
Relevant considerations of fairness also favor allowing Berkley to amend its notice of removal. Berkley’s amendment causes no prejudice or surprise to ACFCU. Moreover, this is a case where Berkley’s allegation of diversity, while imperfectly stated, is correct. And the Fourth Circuit is clear that at the end of the day, the veracity of diversity allegations should trump the “choice of verbiage,” used to make those allegations. Nutter, 1991 WL 193490 at *2. Therefore, based on the foregoing analysis, Berkley is properly afforded leave to amend its notice of removal.
IV.
In sum, application of relevant jurisdictional principles leads to the conclusion that: (1) ACFCU is localized in Virginia such that diversity jurisdiction exists in this case; (2) Berkley’s original notice of removal contained sufficient allegations to satisfy 28 U.S.C. § 1446, so amendment of its notice of removal is not necessary; and (3) even assuming Berkley’s original notice of removal is defective, Berkley may amend its notice because the amendment seeks only to cure imperfectly stated allegations but does not seek to add a new basis or ground for subject matter jurisdiction.
An appropriate Order has issued.
. Following oral argument, Berkley’s motion to dismiss was granted without prejudice and ACFCU was granted leave to amend its complaint. See Arlington Cmty. Fed. Credit Union v. Berkley Reg’l Ins. Co., 57 F.Supp.3d 589, No. 1:14cv1022, 2014 WL 5529668 (E.D.Va. Oct. 10, 2014) (Doc. 26) (Order).
. See Lehman Bros. Bank, FSB v. Frank T. Yoder Mortg., 415 F.Supp.2d 636, 639
.See Lehman Bros., 415 F.Supp.2d at 639 ("[L]ower courts have uniformly construed § 1332(c) to apply only to companies incorporated under state law ....”) (emphasis added). See also Hancock Fin. Corp. v. Fed. Sav. and Loan Ins. Corp., 492 F.2d 1325, 1329 (9th Cir. 1974) (federal corporation had "citizenship in no particular state for diversity purposes”).
. These reasons led the Third Circuit to conclude both that the localization doctrine was a valid application of diversity jurisdiction, and that the defendant, Lake Hiawatha Federal Credit Union, was localized in New Jersey. Lake Hiawatha, 272 F.2d at 456. The Third Circuit also noted that Congress’s 1958 amendment of 28 U.S.C. § 1332 was evidence that "localizations less extreme than we have in this case will suffice to establish corporate citizenship in the administration of diversity jurisdiction.” Id.
. See, e.g., Equilease Corp. v. State Fed. Sav. and Loan Ass’n, 647 F.2d 1069, 1070 (10th Cir. 1981) (finding without discussion that "[fjederal jurisdiction vests by virtue of diversity of citizenship”); First Southern Fed. Sav. & Loan Ass’n of Mobile, Ala. v. First Southern Sav. and Loan Ass’n of Jackson County, Miss., 614 F.2d 71, 72-73 (5th Cir. 1980) (same); Cmty. Fed. Sav. and Loan Ass'n of Overland v. General Cas. Co. of America, 274 F.2d 620, 621 (8th Cir. 1960) (same).
. See Little League Baseball, Inc. v. Welsh Pub. Group, Inc., 874 F.Supp. 648, 652-54 (E.D.Pa. 1995) (noting that even though corporation’s principal place of business was in Pennsylvania, corporation’s daily operations were in Pennsylvania, and corporation owned land, buildings, and facilities in Pennsylvania, the corporation was not localized because its charter authorized the corporation to take action outside Pennsylvania and "plaintiff's activities extend well beyond the territory of the Commonwealth”); Burton, 574 F.Supp. at 521-22 (finding that even though United States Olympic Committee ("USOC”) had its principal place of business in Colorado, owned substantial real estate holdings in Colorado, owned no facilities or other property outside Colorado, and only paid taxes in Colorado, the USOC was not localized because it was "authorized to do business ... nationwide”).
. See, e.g., TCP Fed. Credit Union v. Cumis Ins. Soc., Inc., No. 1:10-cv-150, 2011 WL 817496 at *6 (N.D.N.Y. March 2, 2011) ("[A]l-though [p]laintiff may conduct a small portion of its business outside New York State, the overwhelming amount of its business, as well as the overwhelming number of its members, is located in New York. Therefore, the Court finds that [defendant ... has met its burden to show that the localization [doctrine] applies to [p]laintiff.... ”); Lehman Bros., 415 F.Supp.2d at 640; Iceland Seafood v. Nat’l Consumer Co-op. Bank, 285 F.Supp.2d 719, 725-26 (E.D.Va. 2003); Sovereign Bank v. Chicago Title Ins. Co., No. Civ. A. 00-596, 2000 WL 1100800 at *2-*3 (E.D.Pa. Aug. 7, 2000). It is worth noting that both Little League and Burton pre-date Loyola, and the outcomes in both of those cases might have been different if those decisions had applied the Loyola factors.
. See https://www.arlingtoncu.org/about-us/ (emphasis added).
. Arlington Cmty. Fed. Credit Union v. Berkley Reg’l Ins. Co., No. 1:14cv1022 (E.D.Va. Aug. 8, 2014) (Doc. 1) at 2.
. See also Dart Cherokee Basin Operating Co., LLC v. Owens, 730 F.3d 1234, 1238 (10th Cir. 2013) (removing party "need only allege the jurisdictional amount in its notice of removal and must prove that amount only if the plaintiff challenges the allegation”).
.Interestingly, commentators have also endorsed a variation on this approach to notices of removal: "the better rule is that detailed grounds for removal need not be set forth in the notice. Rather, it should be sufficient if the court is provided the facts from which its jurisdiction can be determined.” C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 3733 (1976).
. Some district courts in this circuit have contrasted a "strict constructionist” approach to amendments of notices of removal with a "liberal approach.” The former allows amendment "only for the purpose of setting forth more specifically grounds that had been imperfectly stated in the original petition,” and the latter permits amendment "where the imperfection in the jurisdictional allegation is a mere defect.” Wood, 764 F.3d at 323. But the Fourth Circuit has held that "these two schools differ only in verbiage” and both approaches follow the same principle that defendants may amend their removal notices to expand upon existing grounds or bases for subject matter jurisdiction in their removal notices, but may not allege new bases or grounds for subject matter jurisdiction. Id.
. See Wood, 764 F.3d at 323 ("Courts have no discretion to permit amendments furnishing new allegations of a jurisdictional basis.") (emphasis added); USX Corp. v. Adriatic Ins. Co., 345 F.3d 190, 205 (3d Cir. 2003) (amendment was proper because defendant "did not rely on a basis of jurisdiction different from that originally alleged” and did not seek to create an "entirely new basis for jurisdiction”); Whitmire v. Victus Ltd., 212 F.3d 885, 890 (5th Cir. 2000) ("[AJllowing a party to amend its pleadings to inform the court of an existing basis for subject matter jurisdiction” was proper).
. See also FHC Options, Inc. v. Security Life Ins. Co. of America, 993 F.Supp. 378, 382 ("[Defendant's] assertion that it was a ‘Norfolk corporation' is an imperfectly stated allegation of diversity, not a missing allegation of diversity. Therefore, the Court will ... allow [defendant] to amend its [n]otice of [removal] ... .”).
. Arlington Cmty. Fed. Credit Union v. Berkley Reg’l Ins. Co., No. 1:14cv1022 (E.D.Va. Aug. 8, 2014) (Doc. 1) at 2.
.The fraudulent joinder doctrine is an "exception to the requirement of complete diversity” making the fraudulent joinder argument in Tincher a new basis for subject matter jurisdiction independent from normal diversity jurisdiction allegations based on 28 U.S.C. § 1332. See Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999).
Reference
- Full Case Name
- ARLINGTON COMMUNITY FEDERAL CREDIT UNION v. BERKLEY REGIONAL INSURANCE COMPANY
- Cited By
- 9 cases
- Status
- Published