Harlan Kerman, Plaintiff-appellant, v. H & L Realty & Management Company; Lb Real Propertiescorporation; Merle Thompson; Nancy Bloomgarden;prime Properties; Mark Stone,defendants-appellees, 41 F.3d 1513 (9th Cir. 1994)

MEMORANDUM^* 

The district court correctly concluded that Freeport-McMoRan, Inc. v. KN Energy, Inc., 498 U.S. 426 (1991) (per curiam), did not overturn Owen Equipment & Erection Company v. Kroger, 437 U.S. 365 (1978). Freeport at 428-29. For the plaintiff to add nondiverse defendants to a diversity action still destroys diversity. See Owen at 374. Mr. Hirsh therefore wrongly relied on Freeport as authority for his addition of Mark Stone and Prime Properties, Inc. as defendants.

The district court erred, however, in imposing Rule 11 sanctions against Hirsh without first giving the required notice. Tom Growney Equip., Inc. v. Shelley Irrigation Dev., 834 F.2d 833, 836-37 (9th Cir. 1987). The entertainment of Hirsh's subsequent motion to vacate the order imposing sanctions did not cure the court's error because Hirsh, as movant, carried the burden of overturning a decision already reached. Id. at 837.

We vacate the order imposing sanctions and remand to the district court with instructions to provide Hirsh with notice of the court's intent to impose sanctions and a hearing prior to the imposition of any sanction.

VACATED AND REMANDED.