                               PUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                              No. 15-1211


JANE DOE #1, a minor, by her next friends and guardians, Ben
and    Kelly   Houdersheldt;    BEN    HOUDERSHELDT;   KELLY
HOUDERSHELDT; JANE DOE #2, a minor, by her next friends and
guardians, Ben and Kelly Houdersheldt,

                Plaintiffs - Appellees,

           v.

MATT BLAIR,     an    individual;   RES-CARE,     INC.,    a   foreign
company,

                Defendants - Appellants.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.      Irene C. Berger,
District Judge. (5:14-cv-23501)


Argued:   January 28, 2016                      Decided:   March 21, 2016


Before SHEDD and FLOYD, Circuit Judges, and Loretta C. BIGGS,
United States District Judge for the Middle District of North
Carolina, sitting by designation.


Reversed and remanded by published opinion.    Judge Floyd wrote
the opinion, in which Judge Shedd and Judge Biggs joined.


ARGUED:   Edward  Taylor   George,  MACCORKLE   LAVENDER,  PLLC,
Charleston, West Virginia, for Appellants.    Erwin Leon Conrad,
CONRAD & CONRAD, PLLC, Fayetteville, West Virginia, for
Appellees.   ON BRIEF: Michael E. Mullins, MACCORKLE LAVENDER,
PLLC, Charleston, West Virginia, for Appellant Matt Blair. John
P. Fuller, Suleiman O. Oko-ogua, BAILEY & WYANT, PLLC,
Charleston, West Virginia, for Appellant Res-Care, Inc. Jamison
T. Conrad, CONRAD & CONRAD, PLLC, Fayetteville, West Virginia;
Thomas A. Rist, RIST LAW OFFICES, Fayetteville, West Virginia,
for Appellees.




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FLOYD, Circuit Judge:

       This    appeal    challenges    the       district       court’s     sua    sponte

order    remanding      the   underlying         case     to    state     court.        The

district      court   determined     that       federal     diversity      jurisdiction

had     not   been     established    because         the      removing     defendant—a

corporation—failed to allege its principal place of business.

Defendants argue that the district court did not have authority

to remand the case.           Plaintiffs contend that we do not have

jurisdiction to review the remand order.                       Because the district

court    based   its    remand   order      on    a   procedural        defect     in   the

removal notice, we conclude both that we have jurisdiction to

review the remand order and that the district court did not have

authority to issue the remand order sua sponte.                      Accordingly, we

reverse the district court’s remand order and remand this case

to the district court for further proceedings.



                                         I.

       On March 27, 2014, Jane Doe #1, through her next friends

and guardians Ben and Kelly Houdersheldt, filed a complaint in

West Virginia state court against Matt Blair (Blair) and Res-

Care, Inc. (Res-Care).           On July 14, 2014, Res-Care removed the

case    to    federal   court,   asserting        subject       matter     jurisdiction

based on diversity of citizenship.                 In the removal notice, Res-

Care alleged that Jane Doe #1 was a West Virginia resident,

                                            3
Blair   was    a     Virginia      resident,        and    it    was   incorporated    in

Kentucky.      However, Res-Care did not allege the state in which

it had its principal place of business.                          An amended complaint

subsequently added Jane Doe #2 and the Houdersheldts—all West

Virginia residents—as plaintiffs.

      On January 20, 2015, 191 days after Res-Care removed the

case, the district court sua sponte remanded the case to state

court      because    “federal      diversity        jurisdiction       has   not    been

established.”         J.A. 54.          The court determined that “[a]bsent

some assertion from either party as to ResCare’s principal place

of business, th[e] Court lacks jurisdiction.”                          J.A. 56.     Blair

filed a motion to alter or amend under Federal Rule of Civil

Procedure 59(e) and for reconsideration under Rule 60, which

Res-Care joined.          Blair noted in his motion that no party had

challenged the court’s jurisdiction and that the parties were

able to determine that Res-Care’s principal place of business is

Louisville, Kentucky.              Plaintiffs did not oppose the motion.

The   district       court   denied     the       motion   and    Res-Care    and   Blair

timely appealed.



                                           II.

                                           A.

      At     the     outset,       we    must       determine      whether     we    have

jurisdiction         to   review    the    district         court’s     remand      order.

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“Congress has placed broad restrictions on the power of federal

appellate      courts      to   review     district       court   orders    remanding

removed   cases       to   state       court.”     Things    Remembered,       Inc.   v.

Petrarca, 516 U.S. 124, 127 (1995).                   Title 28 U.S.C. § 1447(d)

provides that remand orders are generally “not reviewable on

appeal    or     otherwise.”             However,     the     Supreme      Court      has

“interpreted      §    1447(d)     to     cover    less    than   its   words      alone

suggest.”       Powerex Corp. v. Reliant Energy Servs., Inc., 551

U.S. 224, 229 (2007).           As we have previously noted, § 1447(d)

     is tightly circumscribed to cover only remand orders
     within the scope of 28 U.S.C. § 1447(c), based on (1)
     a district court’s lack of subject matter jurisdiction
     or (2) a defect in removal other than lack of subject
     matter jurisdiction that was raised by the motion of a
     party within 30 days after the notice of removal was
     filed.

Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196

(4th Cir. 2008) (citing 28 U.S.C. § 1447(c)) (internal quotation

marks omitted);         see     also    Things    Remembered,     516   U.S.    at    127

(“[O]nly remands based on grounds specified in § 1447(c) are

immune from review under § 1447(d).” (citation omitted)).

     Under this statutory scheme, a district court may remand a

case sua sponte for lack of subject matter jurisdiction at any

time, 28 U.S.C. § 1447(c), and such an order is not reviewable,

id. § 1447(d).         However, “a remand based on a defect other than

lack of subject matter jurisdiction must be effected by granting

a timely filed motion”; if such an order is “entered without a

                                            5
motion at all,” § 1447(d) does not bar our review.                        Ellenburg,

519 F.3d at 197; see also Corp. Mgmt. Advisors, Inc. v. Artjen

Complexus, Inc., 561 F.3d 1294, 1296 (11th Cir. 2009) (“[W]e

have jurisdiction to review whether the district court exceeded

its authority under § 1447(c) by remanding this case because of

a perceived procedural defect in the removal process without

waiting for a party’s motion.” (citation and internal quotation

marks omitted)).

       “[A]    district      court’s    mere     citation    to     §    1447(c)    is

insufficient to bring a remand order within the purview of that

provision.”       In re Blackwater Sec. Consulting, LLC, 460 F.3d

576,   584     (4th   Cir.    2006).      “We    must     instead       look   to   the

substantive reasoning behind the order to determine whether it

was issued based upon the district court’s perception that it

lacked subject matter jurisdiction.”                Id.     Our jurisdiction to

review the district court’s remand order here depends on whether

the order was based on lack of subject matter jurisdiction or a

procedural defect in the removal process.



                                         B.

       Three    other   circuits       have    considered    the       precise   issue

here: whether a failure to establish a party’s citizenship at

the time of removal is a procedural or jurisdictional defect.

All    three     circuits      determined        that     such     a     failure    is

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“procedural, rather than jurisdictional.”               In re Allstate Ins.

Co., 8 F.3d 219, 221 (5th Cir. 1993); see also Artjen, 561 F.3d

at 1296; Harmon v. OKI Sys., 115 F.3d 477, 479 (7th Cir. 1997).

In Allstate, the Fifth Circuit held that a procedural defect

within the meaning of § 1447(c) refers to “any defect that does

not go to the question of whether the case originally could have

been   brought     in   federal   district      court.”     8    F.3d   at   221

(citation and quotation marks omitted).               The court determined

that     the    defendant’s   failure      to    allege    the     plaintiff’s

citizenship in its notice of removal was merely a procedural

error because “although [the defendant] failed conclusively to

demonstrate diversity, the record discloses no dispute that it

in fact existed.”         Id. (emphasis in original).             Because the

failure to allege citizenship was a procedural defect, the Fifth

Circuit determined that it had jurisdiction to review the remand

order.    Id. at 223-24.      The Eleventh Circuit relied on Allstate

in reaching the same conclusion.          Artjen, 561 F.3d at 1297.

       Our decision in Ellenburg is also instructive.              There, the

complaint filed in state court stated no dollar amount for the

value of the damages claimed.         Ellenburg, 519 F.3d at 194.            The

notice of removal, which was based on diversity jurisdiction,

stated that the amount in controversy exceeded $75,000.                 Id. at

194–95.        The district court sua sponte considered whether to

remand the case to state court.           Id. at 197.     First, it “recited

                                      7
the well-established principles” of subject matter jurisdiction.

Id.    The court then determined that the defendants’ allegation

of    diversity     jurisdiction           was       “‘inadequate’         and    that     their

Notice    of    Removal        failed      ‘to       establish    that      the    amount    in

controversy exceeds the jurisdictional amount.’”                                 Id. (quoting

district       court).         The     district        court     concluded        that     “‘the

removing party ha[d] not presented a sufficient factual basis

for the Court to make an informed decision’ as to the amount in

controversy.”            Id.        (emphasis        by     Fourth    Circuit)       (quoting

district court).          Within days, the defendants filed a Rule 59(e)

motion with facts supporting their allegation of the amount in

controversy.       Id. at 198.          The district court denied the motion,

relying    on    its     earlier      ruling         that   defendants      had    failed    to

include the factual basis in the removal notice itself.                              Id.

      On appeal, we determined that § 1447(d) did not bar our

review because the district court’s remand order was not based

on finding a lack of subject matter jurisdiction, but rather on

the procedural insufficiency of the removal notice.                               Id. at 198.

We noted that even when the defendants presented the district

court with evidence (in their Rule 59(e) motion) that it may

indeed    have    subject       matter      jurisdiction,            the    district       court

nonetheless      relied        on    its   procedural          ruling      and    denied     the

motion.    Id.



                                                 8
                                             C.

       The district court here proceeded in much the same way as

the district court in Ellenburg.                      In its order remanding the

case    to    state     court,   the    court      recited      the   well-established

principles of subject matter jurisdiction.                       It then determined

that “federal diversity jurisdiction has not been established”

because “neither party has alleged Defendant ResCare’s principal

place    of     business.”        J.A.       54–55.        Accordingly,        the   court

remanded the case to West Virginia state court.                        The court later

denied Blair’s Rule 59(e) motion despite the fact that Blair

provided evidence of Res-Care’s principal place of business.

       The    district     court’s      remand      order    does     differ    from    the

order    at    issue     in   Ellenburg       in    one     respect.      Whereas       the

district court in Ellenburg “never reached the conclusion that

it lacked subject matter jurisdiction,” 519 F.3d at 197, the

district court here stated at the end of its order that it

“lacks jurisdiction.”            J.A. 56.          We must, however, look at the

“substantive reasoning behind the order.”                       Blackwater, 460 F.3d

at 584.        Here, it is clear to us that the court based its

decision on the fact that the removal notice did not present a

factual       basis     sufficient      to    permit      the   court    to    determine

whether       subject    matter    jurisdiction           existed.       The    district

court, in the first line of its opinion, observed that “federal

diversity      jurisdiction       has    not      been    established.”          J.A.   54

                                              9
(emphasis added).          And the court’s conclusion that it lacked

jurisdiction was based on the inadequacy of the removal notice:

“Absent     some   assertion    from    either     party    as   to     ResCare’s

principal    place   of    business,    this    Court   lacks    jurisdiction.”

J.A. 56.     As was the case in Allstate, however, “although [Res-

Care] failed conclusively to demonstrate diversity, the record

discloses no dispute that it in fact existed.”                   8 F.3d at 221

(emphasis in original).

     We conclude that the district court’s remand order was not

based on a lack of subject matter jurisdiction, but rather on

the procedural insufficiency of the removal notice.                   See Artjen,

561 F.3d at 1296-97 (finding that “a perceived lack of subject

matter jurisdiction” based on a failure to establish citizenship

did not prevent appellate review of the remand order).                    Because

no party filed a motion raising this procedural deficiency, the

order falls outside the scope of § 1447(c) and, therefore, our

review is not barred by § 1447(d).



                                       III.

     As     in     Ellenburg,    “[o]ur        conclusion    that       we   have

jurisdiction to review the district court’s remand order also

tends to forecast our ruling on the outcome of that review.”

519 F.3d at 198.          In other words, the fact that we can review

the district court’s remand order because it fell outside the

                                        10
scope of § 1447(c) leads to the conclusion that the order fell

outside the district court’s authority to order remand.                                Id.

“Section      1447(c)         effectively       assigns     to    the      parties     the

responsibility           of      policing        non-jurisdictional            questions

regarding the propriety of removal, permitting them to assert a

procedural     defect     or     to    waive    the   defect     if   they    choose    to

remain   in    the   federal          forum.”     Id.     (emphasis     in    original).

Therefore, a district court exceeds its statutory authority when

it remands a case sua sponte based on a procedural defect absent

a motion from a party.            Id. (collecting cases).

     Because       the    district       court    here    exceeded      its    statutory

authority     by   remanding       this    case    sua    sponte,     we     reverse   the

court’s remand order and remand this case to district court for

further proceedings.             Additionally, we grant Res-Care’s motion

to amend its removal notice pursuant to 28 U.S.C. § 1653, which

provides that “[d]efective allegations of jurisdiction may be

amended, upon terms, in the trial or appellate courts.”



                                                             REVERSED AND REMANDED




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