Julie Mathis v. Brew Pr LLC ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIE MATHIS, No. 20-55674
Plaintiff-Appellee, D.C. No.
2:20-cv-01921-JFW-PLA
v.
BREW PR LLC and FREUDS, MEMORANDUM*
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted May 6, 2021
Pasadena, California
Before: WARDLAW and GOULD, Circuit Judges, and DONATO,** District
Judge.
Defendants Brew PR LLC and Freuds appeal from the district court’s sua
sponte order striking a second notice of removal, which resulted in the case being
retransmitted to the California Superior Court for the County of Los Angeles. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
have jurisdiction under 28 U.S.C. § 1291. We vacate the district court’s order and
remand for further proceedings.
Defendants initially removed this case to federal court in March 2020 on the
basis of diversity of citizenship. Plaintiff did not oppose removal but the district
court sua sponte remanded the case on the ground that the complaint did not
establish diversity of citizenship. After subsequent discovery in the state court
action revealed new information pertaining to diversity of citizenship, defendants
filed a “notice of second removal” in the federal case. The district court summarily
struck the second notice on the ground that the case had previously been closed
and remanded to Los Angeles Superior Court. It retransmitted the case to the state
court, and denied a request to stay its order pending appeal.
We have jurisdiction under 28 U.S.C. § 1291 because the order to strike
conclusively resolved the litigation in the district court. See Cal. Dep’t of Water
Res. v. Powerex Corp., 533 F.3d 1087, 1096 (9th Cir. 2008). The order did not
refer to any of the grounds for a remand authorized by 28 U.S.C. § 1447(c), and so
28 U.S.C. § 1447(d) does not bar our review. See Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 711-12 (1996). Nor did the retransmittal of the case to state
court create a bar to review. Acad. of Country Music v. Cont’l Cas. Co., 991 F.3d
1059, 1065 (9th Cir. 2021). We review the district court’s order de novo. See
Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 938 (9th Cir. 2006).
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The second notice was based on defendants’ allegation of new information
gleaned from discovery. The district court was not barred from considering
whether the new information might be sufficient to establish subject matter
jurisdiction. See Reyes v. Dollar Tree Stores, Inc., 781 F.3d 1185, 1188 (9th Cir.
2015) (quoting Kirkbride v. Cont’l Cas. Co., 933 F.2d 729, 732 (9th Cir. 1991)).
The second notice did not impermissibly invite or require the district court to
revisit the prior remand order in any way. See Seedman v. U.S. Dist. Ct. for Cent.
Dist. of Cal., 837 F.2d 413, 414 (9th Cir. 1988) (per curiam); Country Music, 991
F.3d at 1064.
The district court failed to consider the second removal notice on its merits,
namely whether defendants could properly remove on the basis of new information
about citizenship. The order to strike is vacated, and the case is remanded for
further consideration of the second removal notice.
VACATED AND REMANDED.
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