                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0341p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                      X
                                Plaintiff-Appellant, -
 FLOYD CURRY,
                                                       -
                                                       -
                                                       -
                                                           No. 05-4218
           v.
                                                       ,
                                                        >
 U.S. BULK TRANSPORT, INC. et al.,                     -
                             Defendants-Appellees. -
                                                      N
                       Appeal from the United States District Court
                      for the Northern District of Ohio at Cleveland.
                   No. 04-01375—Donald C. Nugent, District Judge.
                                           Argued: July 28, 2006
                                 Decided and Filed: September 5, 2006
         Before: MOORE and GIBBONS, Circuit Judges; ACKERMAN, District Judge.*
                                            _________________
                                                  COUNSEL
ARGUED: L. Christopher Coleman, STEUER, ESCOVAR, BERK & BROWN, Cleveland, Ohio,
for Appellant. John B. Stalzer, REMINGER & REMINGER, Cleveland, Ohio, for Appellees.
ON BRIEF: L. Christopher Coleman, STEUER, ESCOVAR, BERK & BROWN, Cleveland, Ohio,
for Appellant. John B. Stalzer, Brian D. Sullivan, Frank Leonetti III, REMINGER & REMINGER,
Cleveland, Ohio, for Appellees.
                                            _________________
                                                OPINION
                                            _________________
         KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Floyd Curry brought this
suit to recover damages resulting from injuries he sustained in an accident when a truck carrying
potassium sulfate overturned in the warehouse in which Curry worked. Curry alleges that
Defendants-Appellees U.S. Bulk Transport, Inc., David Priddy, and Eric Susman negligently
operated and covered the truck, thereby causing his injuries. The district court granted summary
judgment to defendants, finding that Curry had not provided any evidence that defendants were
negligent. Curry appeals, arguing that genuine issues of material fact preclude summary judgment.
During review of our jurisdiction to hear this appeal, it became apparent that complete diversity was
destroyed when Priddy and Susman were identified and substituted as nondiverse defendants, with

        *
          The Honorable Harold A. Ackerman, United States District Judge for the District of New Jersey, sitting by
designation.


                                                        1
No. 05-4218               Curry v. U.S. Bulk Transport, Inc. et al.                                           Page 2


the result that the district court lacked subject-matter jurisdiction over this suit. We therefore
REMAND Curry’s lawsuit to the district court with instructions to remand to the state court from
which removal was granted.
                                              I. BACKGROUND
        The following facts are undisputed. On April 3, 2002, Plaintiff-Appellant Curry was on the
job as a warehouse manager at American Metal Chemical Corporation in Medina, Ohio. Joint
Appendix (“J.A.”) at 36 (Fourth Amd. Compl. at 2); J.A. at 96 (Curry Dep. at 17). Curry was in
charge of inventory at the warehouse, and it was his job to direct incoming trucks making deliveries
and to show the drivers where in the warehouse incoming truck loads should be dumped. On that
morning, Defendant-Appellee Priddy arrived at the warehouse driving a Freightliner truck loaded
with potassium sulfate. Defendant-Appellee Susman owned the truck that Priddy was driving, and
Defendant-Appellee U.S. Bulk Transport was the lessee of the truck.
         When Priddy pulled the truck into the warehouse that day, Curry directed Priddy to dump
the potassium sulfate in the area of the warehouse designated for raw materials. While Priddy was
in the truck’s driver’s seat, Curry stood behind the truck and directed Priddy to raise the truck bed
and dump the material. Curry observed that after Priddy raised the truck bed, a significant quantity
of the potassium sulfate in the truck adhered to the truck’s bed instead of falling out of the truck.
When gravity failed to dislodge the adhering material, Curry moved to the side of the truck so that
he could approach Priddy to tell him that the material was stuck to the truck. Curry incorrectly
believed that the truck was equipped with a vibrator that could be used to shake a load loose, and
so Curry intended to tell Priddy to vibrate the truck bed so the material would fall out. While Curry
was beside the truck, he “heard metal under stress,” and looked up to see that the truck bed was
falling over towards him. J.A. at 97 (Curry Dep. at 18). Curry scrambled to get out of the way of
the falling bed, and ran towards the back of the truck. Curry escaped from the path of the falling
truck bed, but stumbled over some chunks of potassium sulfate that had fallen from the load and fell
on his knee and elbows, sustaining injuries that required surgery.
         Curry filed suit in the Court of Common Pleas for Cuyahoga County, Ohio, in April 2004,
naming U.S. Bulk Transport1 as well as four John Doe defendants (the truck driver, the truck driving
company, the truck owner, and the loading company, all of whose names were then unknown to
Curry) and alleging three counts of negligence. J.A. at 10-15 (Amd. Compl.). U.S. Bulk Transport
filed a notice of removal in the United States District Court for the Northern District of Ohio on July
20, 2004, invoking diversity jurisdiction. Diversity exists between Curry and U.S. Bulk Transport,
because Curry is a citizen of Ohio, and U.S. Bulk Transport is a Pennsylvania corporation with its
principal place of business in Pennsylvania. J.A. at 7 (Notice of Removal). In January 2005, the
district court granted Curry’s motion to file a third amended complaint, which identified and added
Priddy and Susman, both citizens of Ohio, as defendants in place of two previous John Doe
defendants. J.A. at 27-28 (Third Amd. Compl. at 2-3). Neither party filed a motion to remand to
state court for lack of complete diversity or took any other steps to notify the district court of the
potential problem of subject-matter jurisdiction.
        Defendants moved for summary judgment on May 20, 2005, but the following month the
parties filed a joint motion for an extension of the deadline for filing Curry’s brief in opposition to
summary judgment so that the parties could proceed with discovery. Curry filed his opposition to
defendants’ summary-judgment motion on August 1, 2005. Defendants filed a reply to Curry’s
opposition motion on August 5, 2005. On August 18, 2005, Curry filed a motion for leave to file

         1
         Curry had incorrectly identified U.S. Bulk Transport as “U.S. Bulk Transfer” in the caption of his initial
complaint, J.A. at 17-21, and so Curry filed his first amended complaint with this correction on June 15, 2004. J.A. at
10.
No. 05-4218               Curry v. U.S. Bulk Transport, Inc. et al.                                            Page 3


a fourth amended complaint, which the court granted on August 23, 2005. Dist. Ct. Docket at R.29.
Curry’s fourth amended complaint removed the remaining John Doe defendants and also eliminated
the third count of his complaint, leaving only Count 1 (negligent operation of the truck during
dumping) and Count 2 (negligent loading and tarping of the load). J.A. at 35 (Fourth Amd. Compl.).
On August 26, 2005, the district court granted summary judgment to the three defendants on both
counts, concluding that there was “absolutely no evidence whatsoever that any [of] the Defendants
were negligent in operating or maintaining the vehicle,” and that Curry had not produced any
evidence that Priddy’s use of a tarp to cover the potassium sulfate was negligent. J.A. at 47-48
(Dist. Ct. Mem. Op. at 9-10). Curry filed a timely notice of appeal.
                                                 II. ANALYSIS
        After U.S. Bulk Transport filed a notice of removal, the district court assumed diversity
jurisdiction over this case under 28 U.S.C. § 1332. At that time, the only defendant identified by
name in Curry’s first amended complaint was U.S. Bulk Transport. The remaining defendants were
merely identified as John Does, and their citizenship was unknown. Curry is a citizen of Ohio, and
U.S. Bulk Transport is a citizen of Pennsylvania, as it is a Pennsylvania corporation with its
principal place of business in Pennsylvania. J.A. at 7 (Notice of Removal). There is no question,
therefore, that at the moment of removal, complete diversity existed between the identified parties,
and the district court properly exercised diversity jurisdiction. See Jerome-Duncan, Inc. v. Auto-By-
Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999) (“In order for a defendant to remove a case to federal
court based upon diversity jurisdiction, there must be complete diversity of citizenship both at the
time that the case is commenced and at the time that the notice of removal is filed.”).
        In January 2005, however, the district court granted Curry’s motion to file a third amended
complaint. This amended complaint added Priddy and Susman as nondiverse defendants, as both
men, like Curry, are citizens of Ohio. J.A. at 27-29 (Third Amd. Compl. at 1-3). Curry explained
at oral argument that he did not learn the identities of Priddy and Susman until discovery, and
defendants agreed and conceded that there was no improper motive on Curry’s behalf regarding this
delay in identifying the parties. Yet upon the substitution of Priddy and Susman for two John Doe
defendants in the complaint and the realization that there were then Ohio citizens on both sides of
the lawsuit, neither party raised before the district court the issue of whether the district court’s
diversity jurisdiction remained valid, and the court failed to reconsider its subject-matter jurisdiction
sua sponte.2 See Owens v. Brock, 860 F.2d 1363, 1367 (6th Cir. 1988) (“[D]efects in subject matter
jurisdiction cannot be waived by the parties and may be addressed by a court on its own motion at
any stage of the proceedings.”). Upon review, we conclude that the district court should have
dismissed the case for lack of subject-matter jurisdiction upon granting Curry’s motion to amend
the complaint to include Priddy and Susman.
        “Diversity of citizenship, the basis for jurisdiction in the present case, exists only when no
plaintiff and no defendant are citizens of the same state.” Jerome-Duncan, Inc., 176 F.3d at 907.
The general rule is that diversity is determined at the time of the filing of a lawsuit. See Smith v.
Sperling, 354 U.S. 91, 93 & n.1 (1957). Notwithstanding this general rule, persuasive authority
counsels that in a situation such as this where an amended complaint is filed to include the identity
of a previous unidentified defendant, diversity must be determined at the time of the filing of the
amended complaint. As the leading civil procedure treatise explains:
         Although jurisdiction will not be ousted by a subsequent change in parties who are
         ancillary to the suit and whose presence . . . is not essential to an adjudication on the

         2
           Curry notes in his appellate brief that Priddy and Susman are citizens of Ohio, and that despite this amended
complaint, “the case was not remanded to State Court.” Appellant Br. at 1. Defendants remained entirely silent on the
jurisdiction issue and did not include a statement of jurisdiction in their appellate brief.
No. 05-4218                Curry v. U.S. Bulk Transport, Inc. et al.                                                Page 4


         merits, a change in parties that goes to the very essence of the district court’s ability
         to adjudicate the merits of the dispute effectively — most notably the addition of
         indispensable parties — may destroy it. The cases indicate that the court will take
         account of whether the plaintiff has been dilatory or is trying to destroy diversity,
         whether the plaintiff will be significantly disadvantaged if the amendment is not
         allowed, and whether remanding the action to the state court will prejudice the
         defendant.
14B CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND
PROCEDURE § 3723 (3d ed. 1998). See also Amer. Fiber & Finishing, Inc. v. Tyco Healthcare
Group, LP, 362 F.3d 136, 141-42 (1st Cir. 2004) (holding that the introduction of a nondiverse
defendant in place of a diverse    defendant in an amended complaint destroyed diversity and the
court’s jurisdictional basis)3; Casas Office Mach., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 674
(1st Cir. 1994) (“Congress has indicated that federal diversity jurisdiction is defeated so long as,
after removal, fictitious defendants are replaced with nondiverse, named defendants, regardless of
whether they happen to be dispensable or indispensable to the action.”); Fiedler v. Reliance Elec.
Co., 823 F.2d 269, 270-71 (8th Cir. 1987) (noting district court’s dismissal of case involving
destruction of diversity after determination that nondiverse defendant was a proper party to add to
the litigation); Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010-11 (3d. Cir.
1987) (“[W]hen a nondiverse party is added to a federal proceeding and that party’s presence is
indispensable to the furnishing of complete relief, remand is mandated where federal subject matter
jurisdiction depends on diversity jurisdiction, even though removal was originally proper.”); Duchon
v. Cajon Co., 791 F.2d 43, 47 n.2 (6th Cir. 1986) (stating that “the lack of complete diversity among
the parties under [the plaintiff’s] proposed amended complaint would not in itself be fatal” where
“there is an independent basis of federal jurisdiction over the non-diverse defendant”); cf. Cox v.
Mayer, 332 F.3d 422, 429-30 (6th Cir. 2003) (Moore, J., dissenting) (stating that the filing of a
supplemental pleading “becomes the relevant pleading for purposes of determining diversity”)
(citing Grady v. Irvine, 254 F.2d 224, 228 (4th Cir. 1958)).
       In Casas Office Machines, the First Circuit faced a nearly identical scenario to the instant
case, and concluded that the identification of nondiverse “John Doe” defendants after removal
destroyed subject-matter jurisdiction. Casas, the plaintiff in that suit, had originally filed suit in the
Superior Court of Puerto Rico against Mita and two “John Doe” defendants. Casas Office Mach.,
42 F.3d at 670. After Mita removed the case to the United States District Court for the District of
Puerto Rico, Casas filed an amended complaint identifying the two fictitious defendants which, like
Casas, were Puerto Rico corporations. Despite the destruction of complete diversity, the parties did
not move to remand to state court and the district court failed to dismiss sua sponte, but rather
proceeded to adjudicate the dispute on the merits. When appealing the district court’s unfavorable
judgment, Mita raised the lack of diversity jurisdiction for the first time before the First Circuit.
        Relying upon 28 U.S.C. § 1447(e), the First Circuit concluded that “diversity jurisdiction
was lost in the present case when the [district] court allowed Casas to identify the fictitious
[nondiverse] defendants,” and that the district court erred when it allowed Casas to “substitute the
nondiverse, named defendants for the fictitious defendants — thereby defeating federal diversity
jurisdiction — and then continue to deal with the merits of the dispute.” Id. at 675. Title 28 U.S.C.
§ 1447(e) provides, “If after removal the plaintiff seeks to join additional defendants whose joinder

         3
             The First Circuit’s reasoning in American Fiber & Finishing is particularly helpful here. In this instance, as
there, “it is nose-on-the-face plain that [Curry] could not originally have brought suit in federal court against [Priddy and
Susman], since citizens of [Ohio] would have been perched on both sides of the litigation. When it amended its
complaint to configure its suit in precisely that fashion, complete diversity was destroyed just as surely as if [Curry] had
sued [Priddy and Susman] in the first instance.” Amer. Fiber & Finishing, 362 F.3d at 141. “The extra step [of the
amended complaint] obfuscates, but does not alter, the jurisdictional calculus.” Id.
No. 05-4218           Curry v. U.S. Bulk Transport, Inc. et al.                               Page 5


would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand
the action to the State court.” The First Circuit reasoned that “[a]lthough this provision relates
expressly to joinder, the legislative history to the Judicial Improvements and Access to Justice Act
of 1988 indicates that § 1447(e) applies also to the identification of fictitious defendants after
removal.” Casas Office Mach., 42 F.3d at 674 (citing H.R. Rep. No. 100-889, at 73 (1988),
reprinted in 1988 U.S.C.C.A.N. 5982, 6033 (“Th[e] provision also helps to identify the
consequences that may follow removal of a case with unidentified fictitious defendants.”) (alteration
in original)). We find the First Circuit’s application of § 1447(e) to these circumstances to be
persuasive. Upon the order granting Curry’s motion to amend his complaint to identify Priddy and
Susman and add them as nondiverse defendants, complete diversity was destroyed, and so remand
to state court was required at that time. “If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c)
(emphasis added). The district court’s failure to remand and instead its decision to maintain Priddy
and Susman as nondiverse defendants deprived the district court of subject-matter jurisdiction to
enter its judgment below.
        Neither the parties nor the district court followed this proper course of action, however, and
instead the district court simply proceeded to adjudicate the summary-judgment motion on the
merits. We are now faced with Curry’s appeal from that summary-judgment motion, and we must
decide whether we may reach the merits of this appeal despite the fact that the district court lacked
subject-matter jurisdiction below. Acknowledging the lack of complete diversity at oral argument
after our prodding, U.S. Bulk Transport concedes the lack of subject-matter jurisdiction. In
response, U.S. Bulk Transport encourages us to dismiss Curry’s claims against Priddy and Susman
pursuant to Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989), so that we may retain
jurisdiction over this appeal and reach the merits of the district court’s grant of summary judgment
to U.S. Bulk Transport.
         In Newman-Green, plaintiff Newman-Green, Inc. initially filed suit in federal district court
alleging state-law contract claims against multiple defendants and invoking diversity jurisdiction
because all of the defendants were believed to be diverse from Newman-Green. When Newman-
Green appealed the district court’s partial grant of summary judgment to the Seventh Circuit, the
Court of Appeals drew the parties’ attention to the fact that one of the defendants in the suit, who
was domiciled in Venezuela but a U.S. citizen, had no domicile in the United States, rendering him
“stateless” for the purposes of § 1332(a)(3) and ineligible for § 1332(a)(2), and thereby destroying
complete diversity between the plaintiff and defendants. Id. at 828-29. When faced with the
possibility that its entire suit might be dismissed from the federal courts for lack of subject-matter
jurisdiction, Newman-Green filed a motion with the Seventh Circuit requesting to amend its
complaint to drop the single nondiverse defendant from the law suit so that the federal courts could
maintain subject-matter jurisdiction. Id. at 829. The original panel of the Seventh Circuit granted
Newman-Green’s motion and dismissed the nondiverse defendant with prejudice, but the en banc
court reversed, holding that the Court of Appeals could not cure the lack of subject-matter
jurisdiction retroactively by dismissing the nondiverse defendant. Newman-Green, Inc. v. Alfonzo-
Larrain, 832 F.2d 417 (7th Cir. 1987), rev’d en banc, 854 F.2d 916 (7th Cir. 1988). Upon review,
the Supreme Court reversed the en banc court, holding that federal “courts of appeals have the
authority to dismiss a dispensable nondiverse party” to cure a jurisdictional defect. Newman-Green,
490 U.S. at 837. The Supreme Court emphasized, however, “that such authority should be exercised
sparingly.” Id. Newman-Green counsels that “[i]n each case, the appellate court should carefully
consider whether the dismissal of a nondiverse party will prejudice any of the parties in the
litigation.” Id. at 837-38. The Supreme Court went on to conclude that granting Newman-Green’s
motion to dismiss the nondiverse defendant in that instance was appropriate because the dismissal
would not harm any of the parties. Id. at 838.
No. 05-4218               Curry v. U.S. Bulk Transport, Inc. et al.                                              Page 6


        U.S. Bulk Transport’s argument that we should exercise our authority under Newman-Green
in these circumstances is misplaced.4 Newman-Green is fundamentally different from the
circumstances of this case because Newman-Green did not involve removal, but was rather an
instance where the plaintiff originally filed suit in federal court and wished to resolve its dispute in
that forum. Importantly, in Newman-Green it was the plaintiff, who wished to be in federal court
all along, who sought to dismiss the nondiverse defendant that it had identified, when the problem
with complete diversity became apparent. In Casas Office Machines, the plaintiff Casas asked the
First Circuit to exercise its authority under Newman-Green to dismiss the nondiverse substituted
defendants without prejudice when the jurisdiction problem was perceived on appeal. Casas Office
Mach., 42 F.3d at 675. Thus, in both Newman-Green and Casas Office Machines, the triggering
factor for the appellate authority to dismiss the nondiverse defendants to cure the lack of jurisdiction
was the plaintiff’s motion to enable it to proceed with the case against diverse defendants in federal
court. This is a far cry from the circumstances in this case. Here Curry wished to bring this lawsuit
against all three defendants in state court. As the plaintiff, Curry is the master of his complaint, see
Loftis v. United Parcel Service, Inc., 342 F.3d 509, 514-15 (6th Cir. 2003), and he properly chose
to pursue his tort claims against the truck driver, the truck owner, and U.S. Bulk Transport in one
lawsuit in state court. Curry was then brought into federal court on U.S. Bulk Transport’s notice of
removal. There is no dispute that Curry subsequently engaged in a good-faith effort to identify
Priddy and Susman at the earliest possible time, but that he was unable to do so until the discovery
process was underway in the U.S. district court.
         In these circumstances, we conclude that curing the lack of subject-matter jurisdiction
against Curry’s wishes by dismissing Priddy and Susman would harm Curry, as it would force him
to be bound by a judgment that the district court lacked jurisdiction to issue. Dismissing Priddy and
Susman while retaining in federal court Curry’s action against U.S. Bulk Transport may also force
Curry to initiate a second lawsuit in state court in order to pursue his claims against Priddy and
Susman, requiring him to expend further resources than if he had been able to pursue his claims
against all defendants in his single state-court suit as he originally desired. In addition, a two-suit
resolution of Curry’s grievances would be an utter waste of judicial resources. We recognize the
seeming waste of judicial resources in our inability to reach the merits of this appeal, but this is due
to the failure of the parties and the district court to take the proper action — to remand the suit to
state court — when the nondiverse defendants were named. For these reasons, we conclude that this
case is not the proper instance in which to exercise our limited authority under Newman-Green. We
remand the action to the district court so that the district court can remand the action in its entirety
to the state court for lack of federal-court subject-matter jurisdiction, thereby permitting the plaintiff
to pursue resolution of this dispute in one lawsuit in state court.
                                               III. CONCLUSION
        Because complete diversity was destroyed when Priddy and Susman were identified as
nondiverse defendants, the district court lacked subject-matter jurisdiction. We REMAND the
action to the district court with instructions to remand the action to the state court from which this
action was removed.




         4
          It is not disputed that Priddy and Susman, as joint tortfeasors, are dispensable parties to this litigation. See
Casas Office Mach., 42 F.3d at 677 (stating that “[i]t is well-established that joint tortfeasors and co-conspirators are
generally not indispensable parties” because of joint and several liability).
