Sena v. Kowalski et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DIANDRO SENA
Plaintiff,
v. No. 1:25-cv-00728-SMD-GBW
DAVID KOWALSKI, and
PACIFIC OFFICE AUTOMATION, INC.,
Defendants.
MEMORANDUM ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Remand, Doc. 5 (“Mot. to
Remand”), filed August 4, 2025. Defendant Pacific Office Automation, Inc. (“Pacific”) filed its
response on August 25, 2025. Doc. 11 (“Def.’s Resp.”). Plaintiff filed his reply on September 12,
2025. Doc. 17 (“Pl.’s Reply”). The Court has reviewed the parties’ submissions, the record, and
the relevant law, and for the reasons below, the Motion is GRANTED.
BACKGROUND
The following recitation of events is based on Plaintiff’s amended complaint, Doc. 1-2
(“Am. Compl.”), the motion to remand, and Defendants’ notice of removal (Doc. 1).
On February 17, 2022, Defendant David Kowalski allegedly struck the rear of Plaintiff
Diandro Sena’s vehicle in Albuquerque, New Mexico, while distracted by his cell phone. Am.
Compl. ¶¶ 7, 11. Following the impact, Plaintiff was transported by ambulance to Presbyterian
Hospital. Id. ¶ 13.
On October 11, 2024, Plaintiff Sena filed the original complaint in the Second Juridical
District Court of the State of New Mexico, alleging that Kowalski was a resident of New Mexico.
Mot. to Remand at 1, 2. In his answer, Kowalski denied the allegations regarding his residency,
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stating he lacked sufficient knowledge to respond. Id. To establish Kowalski’s residency at the
time of filing, Plaintiff cites a 2022 police report listing Kowalski’s Albuquerque address and his
New Mexico driver’s license issued in May 2023. Id. In a March 2025 interrogatory answer,
Kowalski provided a North Carolina office address but stated that, prior to the filing of the
amended complaint and the removal, he was “in the process of moving” and did not have a
residential address. Id.; see Def.’s Resp. at 7.
On June 25, 2025, Plaintiff filed an amended complaint that added Pacific, Kowalski’s
employer, as a party defendant. The amended complaint alleged that Pacific is vicariously liable
for Kowalski’s negligence because Kowalski was acting within the course and scope of his
employment with Pacific at the time of the accident. Am. Compl. ¶ 18; Mot. to Remand at 2.
Pacific subsequently removed the case to federal court, asserting diversity jurisdiction. See
Doc. 1. The notice of removal asserts that complete diversity exists because, at the time of the
removal, Pacific was a citizen of Oregon, Kowalski was a citizen of North Carolina, and Plaintiff
was a citizen of New Mexico. See id. ¶¶ 14–19.
Pacific alleges that Kowalski was a citizen of North Carolina both when the amended
complaint was filed in June 2025 and when the case was removed in July 2025. Id. ¶ 15. However,
Pacific does not dispute that Kowalski remained a New Mexico resident at the time the original
complaint was filed.
Plaintiff files the present motion to remand, contending that complete diversity must exist
both at the time the initial complaint was filed and at the time of removal. See Mot. to Remand at
3. Pacific objects, arguing that the Court should instead assess citizenship only at the time of the
removal and at the time the amended complaint was filed adding Pacific as a party. Def.’s Resp.
at 1.
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LEGAL STANDARD
To establish diversity jurisdiction, the defendant must show that there is “complete
diversity of citizenship” between all adverse parties. Symes v. Harris, 472 F.3d 754, 758 (10th Cir.
2006). For diversity jurisdiction purposes, a person’s domicile determines citizenship. See
Crowley v. Glaze, 710 F.2d 676, 678 (10th Cir. 1983). It has long been the case that “the
jurisdiction of the court depends upon the state of things at the time of the action brought.” Grupo
Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570 (2004). Courts have adhered to this time-of-
filing rule “regardless of the costs it imposes.” Id.
Federal courts are courts of limited jurisdiction; thus, there is a presumption against
removal jurisdiction, which the defendant seeking removal must overcome. See Laughlin v. Kmart
Corp., 50 F.3d 871, 873 (10th Cir. 1995); Fajen v. Found. Rsrv. Ins. Co., 683 F.2d 331, 333 (10th
Cir. 1982).
Once diversity of citizenship is challenged, the burden is on the defendant as the party
invoking federal jurisdiction to show that it exists. State Farm Mut. Auto. Ins. Co. v. Dyer, 19 F.3d
514, 518 (10th Cir. 1994). 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
947, 953 (10th Cir. 2008).
DISCUSSION
The Court must first identify the relevant timeframe for complete diversity. Although it is
well established that “the jurisdiction of the court depends upon the state of things at the time of
the action brought,” there is “a lingering question with respect to removed cases regarding whether
diversity must exist at the time of the state court filing or only upon removal.” See Grupo Dataflux,
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541 U.S. at 570; see also Elling v. Mesa Biotech, Inc., No. 1:19-CV-00547-LF-SCY, 2019 WL
5168616, at *3 n.4 (D.N.M. Oct. 15, 2019).
Defendant Pacific contends that because it was joined via an amended complaint rather
than the initial filing, the Court should evaluate citizenship at the time of that amended complaint
and the subsequent notice of removal. Def.’s Resp. at 1. Plaintiff, on the other hand, invokes the
“time-of-filing rule,” arguing that diversity must be assessed based on the “state of facts” existing
when the initial state court complaint was filed. Pl.’s Reply at 1.
Determining diversity of citizenship in this matter therefore requires examining three
critical time points: (1) the filing of the original state complaint, where Defendants offer no
evidence to rebut Kowalski’s New Mexico citizenship; (2) the filing of the amended state
complaint, when Kowalski was a North Carolina citizen; and (3) the time of removal to federal
court, when Kowalski remained a North Carolina citizen.
Under Plaintiff’s interpretation, the time-of-filing rule “set[s] citizenship in stone” at a
specific point in time, unaffected by subsequent events such as a defendant’s change of domicile.
Id. at 4. The Court agrees with Plaintiff: in this case, diversity should be determined by the facts
existing at the time the original state complaint was filed and at the time of removal.
I. The Original State Court Filing Governs the Diversity Inquiry in This Action
This exact inquiry, regarding the “critical time point” for determining diversity jurisdiction,
is the subject of a federal court split. 13E Wright & Miller’s Federal Practice & Procedure § 3608
(3d ed. 2014).
The Federal Practice and Procedure treatise notes that most courts require complete
diversity only at the time the removal petition is filed, though a “large minority of courts require
complete diversity not only when removal is sought, but also when the original action is filed in
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the state court.” Id. However, a majority of seven circuit courts now require diversity to exist both
at the initial filing and upon removal. See Pacheco v. Allen, No. 20-CV-0146 SMV/JHR, 2020
WL 2541960, at *3 (D.N.M. May 19, 2020) (citing Chapman v. Crane Co., 694 F. App’x 825, 828
(2d Cir. 2017); Reece v. Bank of N.Y. Mellon, 760 F.3d 771, 777 (8th Cir. 2014); Strotek Corp. v.
Air Transp. Ass’n of Am., 300 F.3d 1129, 1131 (9th Cir. 2002); Jerome-Duncan, Inc. v. Auto-By-
Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999); Coury v. Prot, 85 F.3d 244 (5th Cir. 1996); Rowland
v. Patterson, 882 F.2d 97, 99 (4th Cir. 1989); Kanzelberger v. Kanzelberger, 782 F.2d 774, 776–
77 (7th Cir. 1986)).
While the Tenth Circuit has not squarely addressed this split, it concluded in Siloam Springs
Hotel, without further discussion, that “it is clear the relevant time period for determining the
existence of complete diversity is the time of the filing of the complaint.” Siloam Springs Hotel,
L.L.C. v. Century Sur. Co., 781 F.3d 1233, 1239 (10th Cir. 2015); see also Elling, 2019 WL
5168616, at *3.
For the instant motion, the Court finds the majority circuit approach particularly persuasive
under the specific circumstances of this case, a view consistent with the Tenth Circuit’s conclusion
in Siloam Springs Hotel. The application of the time-of-filing rule here follows both logic and the
statutory requirements for removal. “Under 28 U.S.C. § 1441(a), a defendant may remove the
action to federal court if the federal court has original jurisdiction over the action. In other words,
removal is reserved for those cases ‘that originally could have been filed in federal court.’”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); Hunt v. Lamb, 427 F.3d 725, 727 (10th Cir.
2005). To determine whether this case “could have been filed” in federal court, the Court must
analyze the record as it existed when Plaintiff filed the initial complaint. Caterpillar Inc., 482 U.S.
at 392; see also Pacheco, 2020 WL 2541960, at *3.
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Adopting the time-of-filing rule, the Court recognizes that once an action commences with
the filing of the initial complaint, a party’s subsequent change of domicile does not affect the
presence or absence of diversity jurisdiction. See Smith v. Sperling, 354 U.S. 91, 93 n.1 (1957).
While the Court acknowledges the aforementioned federal court split regarding the “critical time
point” for this inquiry, it finds that jurisdiction “once attached, is not impaired by a party’s later
change of domicile.” Id. As Chief Justice Marshall explained, jurisdiction “depends upon the state
of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent
events.” Id. (citing Mollan v. Torrance, 22 U.S. 537, 539 (1824)); see also Sperling, 354 U.S. at
93; Galu v. Attias, 923 F. Supp. 590, 595 (S.D.N.Y. 1996).
The Supreme Court reaffirmed this principle in Grupo Dataflux, holding that if diversity
did not exist when an action commenced, it cannot be created by a party’s later change of domicile.
See 13E Wright & Miller’s Federal Practice & Procedure § 3608 (3d ed. 2014) (“[T]he courts
generally are in agreement that [diversity] cannot be created by a later change of domicile by one
of the parties or some other potentially diversity-creating event.”). By the same logic, if a later
change of domicile cannot create diversity, such a change should not destroy it. See Grupo
Dataflux, 541 U.S. at 575 (noting that the Supreme Court has never held that “a party’s post-filing
change of citizenship can cure a time-of-filing jurisdictional defect”).
Without resolving the broader split, the Court concludes that, in this case, diversity is best
assessed at the time the action was filed in state court. Crucially, the addition of Defendant Pacific
is not what affects complete diversity here. Instead, Defendant Kowalski, who was named in the
original complaint, changed his domicile after the case commenced. Allowing this change of
domicile to create diversity is inconsistent with the fundamental removal inquiry: whether the
complaint, as filed in state court, could have originally been brought in federal court.
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Case law often warns against the potential for jurisdictional manipulation. A bulk of
precedent concludes that the motive behind changing one’s domicile before a suit commences is
immaterial, provided complete diversity exists at the time of filing. That conclusion changes,
however, if the change of domicile occurs after the suit has already begun. While the Court does
not imply that Mr. Kowalski relocated for the purpose of creating diversity, permitting a change of
domicile by an existing party to create diversity jurisdiction would expand federal access beyond
what the removal statute envisions.
Defendant Pacific also argues that Plaintiff’s voluntary act of amending the complaint to
add a new party triggered removal under the exception detailed in the Tenth Circuit ruling in
DeBry.1 Def.’s Resp. at 5. Pacific correctly notes that a plaintiff is the master of the complaint.
See id. For example, a plaintiff’s decision to add or dismiss federal claims dictates the Court’s
jurisdiction over a case. However, in this instance, the claims and allegations against the original
Defendant Kowalski remain substantively identical between the initial and amended complaints.
See Doc. 1-3. The only substantive difference in the amended complaint is the addition of
Defendant Pacific and the assertion of a vicarious liability claim against it. See Am. Compl. ¶¶ 17–
19.
1 Defendant Pacific cites several cases for the proposition that complete diversity should be assessed only at the time
of removal. See Def.’s Resp. at 2–5 (citing Blanda v. Cisar, No. CV-21-01185-PHX-JAT, 2021 WL 4305917, at *1
(D. Ariz. Sept. 22, 2021); Lewis v. Lewis, 358 F.2d 495, 502 (9th Cir. 1966); Drevaleva v. Alameda Health Sys., No.
22-CV-01585-EMC, 2022 WL 2644086 (N.D. Cal. July 7, 2022), aff’d, No. 22-16150, 2023 WL 2584258 (9th Cir.
Mar. 21, 2023)). The Court focuses its detailed analysis on the controlling authority in Debry, but it finds Defendant’s
other citations largely distinguishable.
With the sole exception of Blanda, none of the cited authorities supports the proposition that a defendant may
alter a case’s removal status by changing domicile after the litigation has already commenced. Blanda assessed
diversity at the time of removal and remanded the case because the defendants failed to establish that the parties were
diverse at the time of removal. This Court’s analysis and methodology, which requires that diversity exist both at the
time of the initial filing and at the time of removal, reaches the same result as Blanda. Furthermore, Blanda rejected
the bifurcated approach that Pacific advocates for, in which the citizenship of later-added defendants is assessed
separately at the time they are brought into the case. Though the Court acknowledges the split among authorities on
this point, the specific circumstances of this case compel the application of the time-of-filing rule and require remand.
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This scenario also does not trigger the Debry exception, which allows removal when a
plaintiff’s voluntary act creates a basis for removal that did not previously exist. See DeBry v.
Transamerica Corp., 601 F.2d 480, 487 (10th Cir. 1979). In Debry, removal was proper because
the plaintiff’s second amended complaint revealed a voluntary change in the plaintiff’s own
domicile. Id. Because the defendant “had nothing to do with creating the condition that gave rise
to the removal” and because “[i]t was the plaintiff’s act which gave rise to the removal,” the court
held that the plaintiff’s voluntary act rendered the case removable. Id.
Defendant Pacific argues that Plaintiff’s qualifying voluntary act in this case is the filing
of an amended complaint. However, the “voluntary act” that Debry refers to is not the filing of an
amended complaint, but the plaintiff’s change of domicile. Debry, 601 F.2d at 486–87. As Debry
specified, the voluntary act must “effect[] a change rendering a case subject to removal which had
not been removable before the change.” Id. at 487. Filing an amended complaint does not in itself
create diversity; a change in domicile does.
This instant case presents the opposite factual scenario. Plaintiff had nothing to do with
creating the condition that allegedly triggered this removal—Defendant Kowalski’s change of
domicile. It was Kowalski’s own act of moving that serves as the basis for removal, not any
voluntary act by the Plaintiff. A voluntary act on the part of Plaintiff would instead involve, for
example, the voluntary dismissal of the non-diverse defendant Kowalski and retention of the
diverse defendant Pacific in the suit. See id. at 487.
Pacific argues that from a policy perspective, it is more reasonable to determine diversity
both at the time of removal and at the filing of the amended complaint, especially since Pacific
was not a party to the original complaint. See Def.’s Resp. at 4. Even if this argument had merit,
it would only apply where the joinder of a new defendant creates or destroys diversity. Here,
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Pacific’s addition has no such effect. Because Defendants fail to establish that Kowalski was
diverse from Plaintiff at the commencement of the action, the case cannot be properly removed
regardless of whether Pacific is diverse. It is illogical to suggest that an original defendant’s
citizenship “refreshes” or “resets” with the amended complaint. Determining citizenship at the
time of the amendment rather than the initial filing is not only arbitrary but also invites
jurisdictional manipulation by defendants.
This conclusion is further affirmed by the Supreme Court’s unanimous decision in Royal
Canin, which revisited the time-of-filing rule in diversity cases. See Royal Canin U. S. A., Inc. v.
Wullschleger, 604 U.S. 22, 36 (2025). The Court specifically addressed whether an amended
complaint “supersedes” the original for purposes of federal jurisdiction. Id. at 23. Citing Rockwell,
the Court noted that as the “master of the lawsuit,” a plaintiff who initially files federal claims but
later “scraps” them can divest a federal court of jurisdiction over the remaining state-law suit. Id.
at 36, 38 n.8.
In a footnote to this analysis, however, the Supreme Court emphasized that the Rockwell
rule, which looks to the operative pleading, differs from how the time-of-filing rule works in
diversity cases. Id. at 36 n.5. In diversity cases, the Supreme Court explained, the time-of-filing
rule “evaluates a party’s citizenship (e.g., whether the defendant is in fact from New York) at the
time a suit is brought, and never again later.” Id. (citing Rockwell Int’l Corp. v. United States, 549
U.S. 457, 473 (2007)).
As Rockwell clarified, this rule concerns only the actual “state of things” relevant to
jurisdiction, the objective facts on the ground, rather than the specific claims or parties the plaintiff
chooses to include in a complaint. See Royal Canin, 604 U.S at 36 n.5. The distinction seems to
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rest on the principle that while plaintiffs control their selection of claims and parties, they cannot
alter the objective “state of things,” such as a party’s actual domicile at the time of filing.
As the removing party, the defendant bears the burden of proving all jurisdictional facts
and establishing a right to removal. See Dyer, 19 F.3d at 518. In this case, Defendants never
attempted to prove that Kowalski was diverse from Plaintiff at the time the original state court
complaint was filed in October 2024. Instead, Defendants addressed diversity only as of the date
of the amended complaint and the subsequent removal. See Def.’s Resp. at 6–7. Following the
legal analysis set forth above, the Court evaluates complete diversity at two critical points: the
initial state court filing and the subsequent removal to federal court. Because Defendant Pacific
failed to show that complete diversity existed when this action first initiated in state court,
Defendant has not met this burden. Consequently, removal is improper, and the Court remands
this case to the Second Judicial District Court of the State of New Mexico.
CONCLUSION
IT IS ORDERED that Plaintiffs’ Motion to Remand is GRANTED as described above.
____________________________________
SARAH M. DAVENPORT
UNITED STATES DISTRICT JUDGE
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