                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 12-1213


LENA HARDAWAY,

                 Plaintiff – Appellant,

          v.

CHECKERS   DRIVE-IN   RESTAURANTS,   INC.;   CHECKERS/RALLY
RESTAURANT; ADVENTURES THREE INC.; DOUGLAS S. GORDON
INSURANCE SERVICES; JOHN DOE INSURANCE COMPANY; IMOGENE F.
HOLMES; DOES 1-25,

                 Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Roger W. Titus, District Judge.
(8:11-cv-01575-RWT)


Submitted:   June 14, 2012                 Decided:   June 20, 2012


Before KING, WYNN, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Lena Hardaway, Appellant Pro Se.  Richard E. Schimel, BUDOW &
NOBLE, PC, Bethesda, Maryland, for Appellee Checkers Drive-In
Restaurants, Inc.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Lena Hardaway appeals from the district court’s order

dismissing her civil suit for lack of diversity jurisdiction.

On appeal, Hardaway contends that the district court erred by

failing to permit her to file an amended complaint “correcting”

her own domicile allegations and dropping nondiverse defendants.

We   vacate     the   district    court’s      order    and     remand      for      further

consideration.

              District courts have original jurisdiction over civil

actions in which the amount in controversy exceeds $75,000 and

when the dispute is between citizens of different states.                                 28

U.S.C.    §     1332(a)(1)      (2006).         A     party     seeking         to    invoke

diversity       jurisdiction     has     the    burden        of     showing         complete

diversity of citizenship.            See Krasnov v. Dinan, 465 F.2d 1298,

1301 (3d Cir. 1972).             The presence of a defendant who is a

citizen of the same state as the plaintiff destroys complete

diversity     and,      therefore,   federal        jurisdiction.           Owen      Equip.

&    Erection     Co.     v.   Kroger,    437       U.S.      365,       373-74      (1978);

Caperton v.      Beatrice      Pocahontas      Coal    Co.,        585   F.2d     683,   691

(4th Cir. 1978).

              Here, the district court found that Hardaway’s attempt

to amend her complaint was not permitted given the general rule

that     complete       diversity      between        the     plaintiffs          and    the

defendants must exist at the time the complaint is filed.                                See

                                          2
Grupo Dataflux v. Atlas Global Group, 541 U.S. 567, 570 (2004).

However, Fed. R. Civ. P. 21 provides that “[o]n motion or on its

own, the court may at any time, on just terms, add or drop a

party.”    Rule   21     invests    a     district    court    “with   authority     to

allow a dispensable nondiverse party to be dropped at any time.”

Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 (1989)

(former    version     of    Rule    21).        In   fact,     if   the   nondiverse

defendants are severable and their dismissal will not prejudice

the remaining defendants, the jurisdiction of the court should

be   retained,     and      the    suit    dismissed     as    to    the   nondiverse

defendants.       Id. at 835; see also Koehler v. Dodwell, 152 F.3d

304, 308 (4th Cir. 1998) (recognizing the well-settled rule that

“a [dispensable] party . . . whose presence deprives the court

of jurisdiction may be dropped or severed from the action” to

preserve jurisdiction); Caperton, 585 F.2d at 691-92 (same).

            Accordingly, we find that the district court erred by

determining that the “time of filing rule” was applicable and

without exception.           Instead, the court should have determined

whether the defendants sought to be dropped were dispensable

parties,    whether       dropping       these   defendants      would     result   in

diversity    jurisdiction,         and     whether    the     remaining    defendants

would be prejudiced by their dismissal.                 Because the record does

not contain full argument on this issue or on the issue of

whether    Hardaway      should     be     permitted    to     “correct”     her    own

                                            3
domicile allegations, * we vacate the district court’s order and

remand for further proceedings.       We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                VACATED AND REMANDED




     *
       “An averment of residence is not the equivalent of an
averment of citizenship, for the purposes of jurisdiction . . .
Allegations of jurisdiction which are defective should be
discovered and corrected in the District Court.”   Texaco-Cities
Serv. Pipe Line Co. v. Aetna Cas., 283 F.2d 144, 145 (8th Cir.
1960).



                                  4
