Andrew Smith et al v. Riverside Community Hospital et al
Filing
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REMAND ORDER by Judge Otis D Wright, II remanding case to Riverside County Superior Court. cc: order, docket, remand letter to Riverside County Superior Court,No. RIC 10024647. Case Terminated. Made JS-6 (Attachments: # 1 remand letter) (lc)
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cc: order, docket, remand letter to
Riverside County Superior Court, No. RIC 10024647
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ANDREW SMITH, et al.,
v.
Plaintiffs,
Case No. 5:12-cv-216-ODW(SPx)
REMAND ORDER
RIVERSIDE COMMUNITY HOSPITAL,
et al.,
Defendants.
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The Court is in receipt of the notice of removal filed by Defendants Mylan Inc.,
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Mylan Pharmaceuticals Inc., Mylan Technologi es Inc., and Mylan Institutional Inc.
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(“Mylan defendants”). Having carefully c onsidered the papers filed i n conjunction
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with the notice, however, the Court determines that it lacks subject matter jurisdiction
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over this case. Accordingly, the case is hereby REMANDED to Riverside County
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Superior Court.
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Federal courts are courts of lim
ited jurisdiction, having subject m atter
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jurisdiction only over matters authorized by the Constitution and Congress. Kokkonen
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v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A suit filed in state court
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may be removed if the federal court would have had original jurisdiction over the suit.
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28 U.S.C. § 1441(a). A rem oved action must be remanded to state court if the federal
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court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c).
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The party seeking removal bears the burden of establishing federal jurisdiction.
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Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006). H ere,
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Mylan claims the Court has subject m atter jurisdiction over this sui t under diversity
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jurisdiction because there is com plete diversity among the parties and the am ount in
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controversy exceeds $75,000. (Notice of Removal ¶¶ 16–23.) Though this m ay be
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correct, Mylan overlooked the temporal requirements for removal.
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The removal statute states in relevant part:
If the case stated by the initial plead ing is not removable, a notice of
removal may be filed with in thirty days after receipt by the defendant,
through service or otherwise, of a copy of an amended pleading, m otion,
order or other paper from which it may first be ascertained that the case is
one which is or has becom e removable, except that a cas e may not be
removed on the basis of j urisdiction conferred by section 1332 of thi s
title more than 1 year after commencement of the action.
28 U.S.C. § 1446(b). The exception that a case may not be re moved on diversity
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jurisdiction more than 1 year after co mmencement applies solely to cases described in
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this paragraph—i.e., cas es that are not
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complaint. Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1316 (9th Cir. 1998).
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removable on the face of the origi
nal
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In this case, the initial com plaint was filed in Riverside County Superior Court
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on December 22, 2010. (Reef er Decl., Ex. UU, Shin Decl., Ex. C (Co mplaint).) At
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the onset, the case was not removable. No federal question was presented and there
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was no diversity of citizenship among the parties. (Id.) According to Mylan, “the last
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remaining non-diverse defendant was dism issed from this action within thirty (30)
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days of the filing of this Noti ce of Rem oval.” (Notice of Rem oval ¶ 14.) Mylan’s
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notice of removal was filed with the Court on February 9, 2012. But because the case
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as filed was not re movable, Mylan was re quired to rem ove within 1 year of the
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commencement of the action, i.e., Decembe r 22, 2010. 28 U.S.C. § 1446(b). Myl an
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exceeded this temporal boundary and therefore, removal is improper.
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This case has one wrinkle t hat is worth noting but does not alter the analysis.
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Mylan was not named as a defendant nor
served until October 24, 2011. (Reef er
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Decl., Ex. YYYY.) Mylan ma y argue that the 1 year lim itation should start from
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October 24, 2011 because they were not a pa rty in the action until then. The Court
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finds no authority standi ng for this proposition.
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U.S. 61, 69 (1996) (“No case, however, ma y be removed from state to federal court
See Caterpillar Inc. v. Lewis, 519
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based on diversity of citizen ship more than 1 year
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action.”).
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after commencement of the
Further, case l aw disregards the servic e of a defendant in the calculus of
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removal jurisdiction. In Vitek, a single, unserved, non-diverse defendant prevented
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removal by the ot her defendants that were otherwise diverse from the plaintiff.
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Clarence E. Morris, Inc. v. Vitek, 412 F.2d 1174, 1176 (9t h Cir. 1969). The Ninth
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Circuit reasoned that for removal jurisdiction based upon diversity, “the existence of
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diversity is determined from the fact of c itizenship of the parties named and not from
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the fact of service.” Id. at 1175–76. The fact that the Vitek defendant was not served
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and made no appearance did not allow the othe r diverse defendants, that were served,
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to remove the case to federal court.
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Following that reasoning, it is appropriate to require a diverse defendant, who
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was served after other non-diverse defendants, to adhere to t he same guideline. That
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is, the existence of diversity is determ ined from the fact of citizenship of the parties
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named in the original complaint. If the case cannot be removed on diversity grounds,
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as determined from the initial co mplaint, then the 1 year clock starts. It m atters not
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that later on, a diverse defendant appears in the case and desires to remove to federal
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court. The diverse defendant is bound by the original complaint and t he other non-
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diverse defendants, even under the circumstances in the instant case where the Mylan
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defendants are now the only parties left in
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when they were served, but greater than 1 year from when the case commenced.
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the case, at a ti me less than 1 year fro m
Accordingly, the Court REMANDS the case to Riverside County Superior
Court for lack of subject matter jurisdiction. The Clerk of Court shall close this case.
IT IS SO ORDERED.
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May 3, 2012
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_____________________________________
HON. OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE
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