Doris Russell, Plaintiff-appellant, v. Massachusetts Mutual Life Insurance Co., Celia Stevenson,defendants-appellees, 778 F.2d 542 (9th Cir. 1985)

This case was removed from state court pursuant to 28 U.S.C. § 1441. Summary judgment was entered by the district court without any party objecting to removal. As a result, we do not determine the propriety of removal, but need only determine "whether the federal district court would have had original jurisdiction of the case had it been filed in that court." Grubbs v. General Electric Credit Corp., 405 U.S. 699, 702, 92 S. Ct. 1344, 1347, 31 L. Ed. 2d 612 (1972).¹  The Supreme Court has ruled that appellant's complaint does not state a federal cause of action, --- U.S. ----, 105 S. Ct. 3085, 87 L. Ed. 2d 96, and appellee has conceded that complete diversity does not exist. Thus, the federal district court would not have had original jurisdiction over the case had it been filed in that court.

Accordingly, we vacate our prior judgment and opinion, 722 F.2d 482, and remand this case to the district court with instructions to vacate its prior judgment and remand the case to the state court from which it was removed.