Rodriguez et al v. Miller et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JESUS RODRIGUEZ AND PEYTON HEINS,
Plaintiffs
v.
JOE MILLER AND JOSHUA MILLER,
Defendants.
Case No. 26-4016-DDC-BGS
REPORT & RECOMMENDATION ON
DEFENDANTS’ MOTION FOR LEAVE TO FILE
AMENDED NOTICE OF REMOVAL AND ORDER DENYING
REQUEST FOR LIMITED JURISDICTIONAL DISCOVERY
Now before the Court is Defendants’ Motion for Leave to File Amended Notice of
Removal and Request for Limited Jurisdictional Discovery. (Doc. 16.) Therein, Defendants assert
that the requested amendment “corrects and clarifies factual allegations supporting that jurisdictional
basis and provides additional facts relevant to whether Plaintiff Peyton Heins is a nominal party
whose citizenship should be disregarded in determining diversity jurisdiction.” (Id., at 1.) Plaintiffs
have responded in opposition to Defendants’ motion and Defendants have replied. (Docs. 18, 19.)
For the reasons set forth below, the Court DENIES Defendants’ request to conduct “limited”
jurisdictional discovery and recommends to the District Court that Defendants’ motion to amend
the notice of removal be DENIED. 1
I. 	Factual Background.
Plaintiffs filed their Petition for Damages against Defendants Joe Miller and Josh Miller in
the District Court of Lyon County, Kansas, on December 18, 2025. (Doc. 4, at 1.) The land at issue
1 Defendants have also requested oral argument pursuant to D. Kan. Rule 7.2. (Doc. 16, at 7.) This request is also
DENIED as it would not materially assist the Court in resolving the issues herein. Rather, the Court is able to resolve
the issues based on the parties’ briefing.
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is owned by Plaintiff Jesus Rodriguez and is farmed by Plaintiff Heins; it adjoins land owned by
Defendants Joe and Joshua Miller. (Id.) In the state Petition, Plaintiffs sought damages against the
Defendants for $25,000 arising from the Defendants’ livestock ongoing destruction of a substantial
amount of crops planted by Heins on the land in question. (Id., at 1-6.) In their state court Answer,
Defendants bring counterclaims against Plaintiffs for abuse of process, trespass, defamation,
wrongful initiation of a criminal proceeding, interference with property and livestock, and civil
conspiracy. (Id., at 32-49.) Defendants seek damages in excess of $75,000. (Id., at 47.)
Defendants removed this action to federal court on February 5, 2026, alleging diversity of
citizenship as the jurisdictional basis stating that “[p]ursuant to 28 U.S.C. § 1332, this Court has
jurisdiction over this action because it is between citizens of different states, and the amount in
controversy is greater than $75,000, exclusive of interest and costs.” (Doc. 1). Because the notice of
removal suggested that Plaintiff Heins and Defendant Joshua Miller may both be citizens of Kansas,
which would destroy diversity, the Court directed the parties to file 7.1(a)(2) diversity disclosure
statements. Plaintiffs’ disclosure statement confirms that Plaintiff Rodriguez is a citizen of Florida
and that Plaintiff Heins is a citizen of Kansas. (Doc. 9). Defendants’ disclosure statement confirms
that Defendant Joe Miller is a citizen of Alaska and Defendant Joshua Miller is a citizen of Kansas.
(Doc. 6).
Plaintiffs subsequently filed a motion to remand the case back to state court. (Doc. 10.)
Therein, Plaintiffs argue that this Court lacks subject matter jurisdiction on two grounds: first, there
is not complete diversity because Plaintiff Heins and Defendant Joshua Miller are both citizens of
Kansas; and second, that the amount in controversy does not exceed $75,000. 	(Id., at 4-6.)
Plaintiffs have also filed a motion to dismiss Defendants’ counterclaims for failure to state a claim
on which relief may be granted. (Doc. 11.)
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In the present motion to amend the notice of removal, Defendants argue that the $75,000
amount in controversy has been met, that Plaintiff Heins is a “nominal party whose citizenship
should be disregarded in determining diversity jurisdiction.” (Doc. 16, at 1.) They also request the
Court to “permit limited jurisdictional discovery concerning the participation and interests of
Plaintiff Peyton Heins in this action.” (Id., at 1.)
II. 	Legal Standard.
“A defendant may remove a civil action to federal court if the plaintiff originally could have
filed suit in federal court.” Christenson Media Group, Inc. v. Lang Industrs., Inc., 782 F. Supp. 2d 1213,
1215 (D. Kan. 2011) (citing 28 U.S.C. § 1441(a) and Cunningham v. BHP Petroleum Great Britain PLC,
427 F.3d 1238, 1244-45 (10th Cir. 2005)). The notice of removal must contain “a short and plain
statement of the grounds for removal.” See § 1446(a).
By design, § 1446(a) tracks the general pleading requirement stated in
Rule 8(a) of the Federal Rules of Civil Procedure. See 14C C. Wright,
A. Miller, E. Cooper, & J. Steinman, Federal Practice and Procedure §
3733, pp. 639–641 (4th ed. 2009)[.] … Congress, by borrowing the
familiar ‘short and plain statement’ standard from Rule 8(a), intended
to ‘simplify the ‘pleading’ requirements for removal’ and to clarify that
courts should ‘apply the same liberal rules [to removal allegations] that
are applied to other matters of pleading.’ H. R. Rep. No. 100–889, p.
71 (1988).
Dart Cherokee Basin Op. Co., LLC v. Owens, 574 U.S. 81, 87, 135 S.Ct. 547, 553, 190 L.Ed.2d 495
(2014).
Removal statutes are to be narrowly construed. Pritchett v. Office Depot, Inc., 420 F.3d 1090,
1094–95 (10th Cir. 2005). Further, “there is a presumption against removal jurisdiction” and doubts
as to removal are to be resolved in favor of remand. Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th
Cir. 1995); Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982).
Federal courts have original diversity jurisdiction over all actions between “citizens of
different States” where the amount in controversy exceeds $75,000, exclusive of interest and costs.
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28 U.S.C. § 1332(a); see also CTR Partnership, L.P. v. Prairie Ridge Health & Rehabilitation, LLC, No. 25-
2331-JWB, 2026 WL 201156, *3 (D. Kan. Jan. 27, 2026). Where removal is based on diversity of
citizenship under § 1332, the notice must set forth the citizenship of each party so the court can
determine whether complete diversity exists. Parsons v. National Interstate Insurance Co., 544 F.Supp.3d
1202, 1205 (D. Utah 2021).
“Diversity jurisdiction requires complete diversity – no plaintiff may be a citizen of the same
state as any defendant.” Grynberg v. Kinder Morgan Energy Partners, L.P., 805 F.3d 901, 905 (10th Cir.
2015) (emphasis added). Thus, the court must consider each litigant’s state of citizenship to
determine whether diversity jurisdiction exists. 28 U.S.C. § 1332(a). “Where, as here, the issue is
determined on the basis of the pleadings and affidavits, that burden may be met by a prima facie
showing.” CTR Partnership, L.P., 2026 WL 201156, *3 (quoting IMM, LLC v. Plankk Techs. Inc., No.
19-cv-02629-CMA, 2020 WL 902320, at *2 (D. Colo. Feb. 25, 2020)).
Under 28 U.S.C. § 1447(c), there are “two types of improperly removed cases: those in
which the federal court has no subject matter jurisdiction and those with defects in the removal
procedure itself.” Christenson Media Group, 782 F. Supp. at 1216 (citation omitted). 	While a “defect
in subject matter jurisdiction is never waived and can be raised at any time[,] … [a] procedural defect
does not involve subject matter jurisdiction and may be waived if a party fails to object within 30
days after removal. Id.2 The lack of complete diversity between the parties would be a substantive
defect in jurisdiction that cannot be waived.
Under 28 U.S.C. §1653, “[d]efective allegations of jurisdiction may be amended, upon terms,
in the trial or appellate courts.” In other words, this section allows a party to amend defective
2 Plaintiffs’ motion to remand (Doc. 10) was filed within 30 days of the notice of removal; this motion raises the $75,000
threshold issue.
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jurisdictional allegations when such amendment would cure the deficiency. See Jenkins v. MTGLQ
Investors, 218 F. App’x 719, 723 (10th Cir. 2007).
“Without questioning that removal requirements should be strictly applied, the statute
authorizing correction of defects by amendment to conform to the true facts should not be
dissipated in the process, but should be given practical effect in accordance with its apparent intent.”
Hendrix v. New Amsterdam Cas. Co., 390 F.2d 299, 301-02 (10th Cir. 1968). “To be unduly restrictive
in determining ‘defects’ amendable under the statute in removal proceedings in principle would
preclude the practical correction of similar inadvertences in proceedings originally brought in the
federal courts, since the statute concerning amendments pertains to both.” Id., at 302 (citation
omitted). The United States Supreme Court has clarified that §1653 “addresses only incorrect
statements about jurisdiction that actually exists, and not defects in the jurisdictional facts
themselves.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831, 109 S. Ct. 2218, 2222, 104
L.Ed.2d 893 (1989).
III. 	Analysis.
Defendants’ motion to amend the removal notice results from Plaintiffs filing their motion
to remand. (Doc. 10.) Therein, Plaintiffs allege Defendants have improperly removed the present
case for two reasons – because the amount in controversy in insufficient and there is not complete
diversity between the parties. (See generally id.)
In support of their motion to amend the notice of removal, Defendants raise two arguments:
1) the proposed amendment “does not change the jurisdictional basis for removal” (Doc. 16, at 2)
and 2) Plaintiff Peyton Heins is a “nominal party,” thus his citizenship should not control a
determination of diversity (id., at 4). Defendants have also requested the Court allow limited
jurisdictional discovery. (Id., at 5-6.)
A. 	Plaintiff Peyton Heins is Not a “Nominal Party.”
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Defendants seek leave to amend their removal notice to “clarify facts demonstrating that
Plaintiff Peyton Heins is likely a nominal party whose citizenship should not be considered in
determining diversity jurisdiction.” (Doc. 16, at 4.) As discussed above, the Tenth Circuit has long
held that defendants may remedy defects in their notice of removal. See Lopez v. Denver & Rio Grande
W. R.R. Co., 277 F.2d 830, 832 (10th Cir. 1960); Jenkins, 218 F. App’x. at 723. The Tenth Circuit
also reasons that disallowing amendments to the notice of removal when the defendant makes
simple errors in its jurisdictional allegations “would be … too prone to equate imperfect allegations
of jurisdiction with the total absence of jurisdictional foundations, and would tend unduly to exalt
form over substance … 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).
In Hendrix, the Tenth Circuit noted that amendable, simple errors in jurisdictional allegations
include failing to include a party corporation’s principal place of business or referring to an
individual party’s state of residence rather than their citizenship. Id. There are, however, limits to
those defects that may be cured by an amended notice of removal:
[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 Wright & Miller's Federal Practice and Procedure § 3733 (rev. 4 th ed. 2020)(footnotes omitted).
Professor Moore similarly recognizes that “amendment 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 Moore’s Federal Practice § 107.30[2][a][iv], at 107-317 to -18 (3d ed. 2013).
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Therefore, when a defendant removes a case to federal court on the basis of diversity
jurisdiction, a court may allow that defendant to amend the removal notice, if necessary, “to allege
fully facts that satisfy, requirements by a preponderance of the evidence, diversity jurisdiction’s
requirements.” Lopez v. Vega, 2025 WL 2083316, at *9 (D. N.M. July 24, 2025) (citation omitted). In
other words, in amending a removal notice, a defendant may not assert a new basis for jurisdiction or
set forth a new allegation not present in the original removal notice; instead the amended notice may
merely present greater detail as to the same basis for jurisdiction originally asserted. 	Id. (citation
omitted).
The amended basis for jurisdiction set forth by Defendants is that Plaintiff Heins is a
“nominal party” whose citizenship need not be considered for diversity purposes. (Doc. 16, at 4-5.)
It is well-established in the Tenth Circuit that “ ‘the ‘citizens’ upon whose diversity a plaintiff
grounds jurisdiction must be real and substantial parties to the controversy. Thus, a federal court
must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real
parties to the controversy.’ ” Lenon v. St. Paul Mercury Ins. Co., 136 F.3d 1365, 1368 (10th Cir. 1998)
(quoting Navarro Savings Association v. Lee, 446 U.S. 458, 461-62, 100 S.Ct. 1779, 1782, 64 L.Ed.2d 425
(1980)).
This District has previously noted that a “federal court sitting in diversity must look to state
law to determine whether a plaintiff is the real party in interest.” Rainbow Communs., LLC v. Landover
Wireless Corp., No. 19-2187-JAR-GEB, 2019 WL 3239348, at *3 (D. Kan. July 18, 2019) (citing K–B
Trucking Co. v. Riss Int’l Corp., 763 F.2d 1148, 1153 (10th Cir. 1985) (citations omitted)). “Under
Kansas law, a real party in interest possesses the right sought to be enforced.” Id. (citing Atkins v.
Heavy Petroleum Partners, LLC, 86 F. Supp. 3d 1188, 1201 (D. Kan. 2015), United States v. Aetna Cas.
Co., 338 U.S. 366, 381, 70 S.Ct. 207, 215, 94 L.Ed. 171 (1949), and Weaver v. Emp’rs Fire Ins. Co., No.
88-1189-C, 1989 WL 46263, at *1 (D. Kan. April 10, 1989)).
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In support of this requested relief, Defendants have submitted an affidavit of Defendant
Joshua Miller, who describes Defendants’ “lack of contact or interaction” with Plaintiff Heins.
(Doc. 14-1.) For instance, Defendant Miller indicates he “do[es] not know Plaintiff and
Counterclaim Defendant Peyton Heins (“Mr. Heins”), [has] never talked to Mr. Heins, and to [his]
knowledge [has] never had any contact with Mr. Heins.” (Id., at 1.) Defendant Miller continues that
“[o]ther than [Heins’] name appearing on the lawsuit, [he is] not aware that he had made any effort
to contact either Defendant in this case.” (Id.) Defendants continue that
[t]he facts presently before the Court strongly suggest that Plaintiff
Heins has little or no direct involvement in the core dispute underlying
this litigation. … Other than Mr. Heins’ name appearing in the lawsuit,
Defendants are unaware of any involvement by Mr. Heins in the events
forming the basis of Plaintiffs’ claims. … Mr. Heins has never made
any demand, complaint, or communication to Defendants concerning
the alleged crop damage referenced in the Complaint. 	… [T]he
allegations 	in 	the 	Complaint 	… 	contain 	no 	factual 	allegations
describing any independent actions taken by Mr. Heins … [.] …
Defendants are unaware of any specific loss personally incurred by Mr.
Heins as a result of the conduct alleged in the Complaint. 	The
pleadings identify generalized allegations concerning crop damage but
do not identify any independent injury suffered by Mr. Heins apart
from the claims advanced jointly with Rodriguez. Finally, the conduct
of the litigation suggests that the dispute is being directed by
Rodriguez. 	All communications between counsel concerning the
dispute have focused on Rodriguez’s allegations and interests.
(Doc. 16, at 4-5.)
Plaintiffs respond
that Mr. Heins’ verified Petition alleges that he is the tenant farmer for
Rodriguez’s property at issue. Defendants do not dispute or put forth
any basis to dispute that Mr. Heins is the tenant farmer. 	Plaintiffs’
verified Petition demonstrates numerous photographs of Defendants’
goats grazing in the beans on Rodriguez’s property that Mr. Heins
planted. Mr. Rodriguez lives in Florida and did not plant the beans.
It is unclear why Defendants argue Mr. Heins would not have an
interest in recovering the loss of his beans or protecting himself from
future destruction of his crops.
(Doc. 18, at 2-3.)
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“[A] party invoking diversity jurisdiction bears the burden of proving its existence by a
preponderance of the evidence.” Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014) (citing
Mid-Continent Pipe Line Co. v. Whiteley, 116 F.2d 871, 873 (10th Cir.1940)). With this standard in
mind, the Court finds that Defendants have failed to establish by a preponderance of evidence that
Plaintiff Heins is a nominal party whose citizenship should not be considered in determining
diversity jurisdiction. Rather, based on all of the evidence before the Court, it is clear that Plaintiff
Heins is a real and substantial party to the controversy for purposes of this motion. Navarro Savings
Association v. Lee, 446 U.S. at 461-62, 100 S.Ct. at 1782.
The Court is unpersuaded by Defendants’ assertions that they have never communicated
directly with Heins. The Court is at a loss to see how this would be determinative of Heins’ interest
in the crops at issue, particularly when there is no dispute that Heins is the tenant farmer of the land
in question. As such, it follows that Heins would have been negatively impacted by the alleged
trespass at issue wherein it is alleged that “significant amounts” of the cash crops he planted have
been destroyed. (See Doc. 4, at 2.)
Thus, based on the information before the Court, Plaintiff Heins has a “real and substantial
interest” in the outcome of this litigation and, as such, he is not a nominal party to this litigation.
Rather, he has substantive rights at issue in this litigation, making him a real party in interest. Cf.
Rainbow Communs., LLC, 2019 WL 3239348, at *4 (holding that a party with the substantive right to
enforce the obligations of another entity under an operating agreement is a real party in interest,
rather than a nominal party). His citizenship is both relevant and necessary to the diversity
jurisdiction analysis herein. Thus, the requested amendment would not cure a mere procedural
defect, or clarify incorrect information, as to jurisdiction in the notice of removal. Rather, there is a
lack of complete diversity between the parties which is substantive in nature and cannot be waived
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or corrected through an amendment. Christenson Media Group, 782 F. Supp. at 1216 (citation
omitted).
Because Defendants have alleged that Plaintiff Heins and Defendant Joshua Miller are both
citizens of Kansas (see Doc. 6), the Court finds that complete diversity does not exist. The Court
thus recommends 3 that Defendants’ motion to amend the removal notice (Doc. 16) should be
denied as futile. See Baker v. PDC Energy, Inc., No. 14-2537-RM-MJW, 2014 WL 7445626, at *4 (D.
Colo. Dec. 30, 2014) (citing Jenkins, 218 F. App’x at 723 (additional citation omitted) (denying as
futile a motion to amend a notice of removal when the proposed amended notice of removal fails to
establish diversity jurisdiction).
The lack of complete diversity between Plaintiffs and Defendants independently requires
denial of Defendants’ motion to amend the removal notice. Thus, the Court need not reach a
determination on the issue of the amount in controversy as raised in Defendants’ motion.
B. 	There is No Basis for the Court to Allow Jurisdictional Discovery.
Because federal courts are courts of limited jurisdiction, “there is a presumption against …
jurisdiction … .” Penteco Corp. P’ship – 1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir.
1991). As the party invoking federal jurisdiction via the removal of this case to federal court,
Defendant bears the burden of proof to allege facts sufficient to show subject matter jurisdiction.
Id.
“The Court has an independent obligation to satisfy itself that subject matter jurisdiction is
proper.” Guzman v. Well Health Labs LLC, No. 22-2229-JWB-RES, 2022 WL 17830765, at *3 (D.
Kan. July 22, 2022) (citing Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011)). If the
3 The issue of whether the notice of removal may be amended directly impacts Plaintiff’s Motion to Remand, currently
pending before the District Court. (Doc. 10.) “[A] remand order is a final decision or dispositive action that must
ultimately be made by the district court to survive Article III scrutiny.” First Union Mortg. Corp. v. Smith, 229 F.3d 992,
996 (10th Cir. 2000). Thus, the undersigned Magistrate Judge is issuing a recommendation on the present Motion to
Amend the notice of removal. Cf id.
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Court concludes that subject matter jurisdiction does not exist, the court “must dismiss the cause at
any stage of the proceedings.” Penteco Corp. P’ship, 929 F.2d at 1521; see also Fed. R. Civ. P. 12(h)(3).
As the party seeking discovery, Defendant has the burden to show good cause. See generally Guzman,
2022 WL 17830765.
“District courts are endowed with broad discretion over discovery, including whether to
grant discovery requests with respect to jurisdictional issues.” Dental Dynamics, LLC v. Jolly Dental
Grp., LLC, 946 F.3d 1223, 1233 (10th Cir. 2020) (internal quotations and citations omitted); see also
Gwilt v. Harvard Square Ret. & Assisted Living, 537 F. Supp. 3d 1231, 1250 (D. Colo. 2021) (“A district
court has the authority to permit discovery in order for a party to prove diversity jurisdiction, yet
such discovery is discretionary.”). “Courts typically exercise their discretion to deny discovery on
diversity jurisdiction, holding that the party invoking the court’s jurisdiction must have a basis for so
doing prior to filing suit.” Coates v. Ashley Bldg. Corp., Inc., No. 23-2142-HLT-ADM, 2023 WL
6199732, at *4 (D. Kan. Sept. 22, 2023). A court denying a jurisdictional discovery request may be
an abuse of discretion where the party seeking discovery is prejudiced by the denial. Dental Dynamics,
946 F.3d at 1233 (citing Dutcher v. Matheson, 840 F.3d 1183, 1195 (10th Cir. 2016) and Sizova v. Nat'l
Inst. of Standards & Tech., 282 F.3d 1320, 1326 (10th Cir. 2002)). Defendant, as the party seeking
discovery, bears the burden of showing prejudice. See Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold
Casino and Resort, 629 F.3d 1173, 1189 n.11 (10th Cir. 2010). The Court notes that Defendants do
not discuss the issue of prejudice in their briefing.
Defendants argue that “courts routinely permit” limited jurisdictional discovery where facts
related to jurisdiction are in dispute or unclear. (Doc. 16, at 5.) 	They further assert that “[a]llowing
limited discovery here will enable the Court to determine whether Plaintiff Heins is a real party in
interest or merely a nominal party whose citizenship should be disregarded for purposes of diversity
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jurisdiction.” (Id.) They continue that such discovery would be directed at the nature of Plaintiff
Heins’ role and interest in this litigation including:
• whether Plaintiff Rodriguez is funding or otherwise paying for
the prosecution of this litigation;
• the extent to which Plaintiff Heins is participating in or directing
the prosecution of this lawsuit;
• 	communications 	between 	Plaintiffs 	concerning 	the 	alleged
damages forming the basis of the Complaint;
• whether Plaintiff Heins possesses any ownership, leasehold, or
crop-share 	interest 	in 	the 	soybean 	crop 	referenced 	in 	the
Complaint;
• whether Plaintiff Heins claims to have personally suffered any
economic loss arising from the alleged crop damage;
• the circumstances under which Plaintiff Heins became involved
in this lawsuit;
• whether Plaintiff Heins has entered into any agreements or
business arrangements with Plaintiff Rodriguez relating to this
lawsuit; and
• whether Plaintiff Heins has entered into any agreements or
business arrangements with Plaintiff Rodriguez relating to the
property, crops, or subject matter of this litigation.
(Id., at 6 (emphasis added).)
As an initial matter, the Court has concerns as to whether this list of discovery topics should
be considered “limited,” particularly given the list is modified by the word “including,” which
implies that Defendants may wish to seek discovery on additional topics. Further, Defendants’
requested “jurisdictional” discovery is not concerned with the citizenship of Plaintiff Heins. Rather,
the proposed topics listed focus on Heins’ business relationship with Plaintiff Rodriguez, his
ownership in the crops that were alleged to have been destroyed, and attorney billing issues for this
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litigation. In short, Defendants want to try to prove their unsupported allegation that Heins is a
nominal party to this litigation.
As the removing party, Defendant bears the burden to allege facts sufficient to establish
subject matter jurisdiction. In the notice of removal, Defendant identified the “residences” of all
related parties – which specifically identified Plaintiff Heins as a “resident” of Kansas and
Defendant Joshua Miller as a “resident” of Kansas. (Doc. 1, ¶ 7). Defendant further stated that
because “Plaintiff Rodriguez is a resident of the State of Florida, and Defendant Joe Miller is a
resident of the State of Alaska, there is diversity of citizenship. . .” Id. It is clear that Defendants
were not aware that complete diversity is required to remove an action to federal court, which means
that no plaintiff may be a citizen of the same state as a defendant, which is the case here. Now that
Defendants have been made aware of their error, they seek jurisdictional discovery in hopes they will
learn some iota of information to support the unsubstantiated allegation that Heins should be
treated as a nominal party. This is improper. See Village Townhomes v. Allied World Surplus Lines Ins.
Co., No. 23-2369-JAR-BGS, 2023 WL 6931333, at *1 (D. Kan. Sept. 26, 2023) (denying jurisdictional
discovery requested by a Defendant in a case removed to federal court); also see Guzman, 2022 WL
17830765, *5 (“[t]he Court will not grant leave for a jurisdictional fishing expedition . . .”).
Moreover, even if such discovery were otherwise appropriate, it would serve no purpose here.
The Court has already determined in Section A that Plaintiff Heins is a real and substantial party to
this litigation — not a nominal party. See supra Section A. That finding is based on the fact that Heins
is the tenant farmer of the land at issue and planted the very crops alleged to have been destroyed.
The nominal-party question has been resolved. There is therefore no remaining jurisdictional issue
that Defendants' proposed discovery could illuminate. 	As such, the Court DENIES Defendants’
request for jurisdictional discovery.
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IT IS THEREFORE RECOMMENDED to the District Court that Defendants’ request to
amend their notice of removal be DENIED as futile, because the lack of complete diversity
between Plaintiff Heins and Defendant Joshua Miller, both citizens of Kansas, is a substantive
jurisdictional defect that cannot be cured by amendment.
IT IS FURTHER ORDERED that Defendants’ motion for jurisdictional discovery is
DENIED.
IT IS SO ORDERED.
Dated this 15th day of April, at Wichita, Kansas.
/s/Brooks G. Severson
Brooks G. Severson
United States Magistrate Judge
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