Sharla Tipton v. Zimmer, Inc. ( 2018 )

FILED
NOT FOR PUBLICATION
MAR 22 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHARLA TIPTON, No. 16-56609
Plaintiff-Appellant, D.C. No. 2:15-cv-04171-BRO-JC
v.
MEMORANDUM*
ZIMMER, INC., a Business Entity; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Beverly Reid O’Connell, District Judge, Presiding
Argued and Submitted March 6, 2018
Pasadena, California
Before: GRABER, W. FLETCHER, and OWENS, Circuit Judges.
Plaintiff-Appellant Sharla Tipton appeals from several district court orders
ruling that “Mike (Last Name Unknown)” was a fraudulently joined defendant and
entering judgment in favor of Defendants-Appellees Zimmer Inc., Zimmer Biomet
Holdings, Inc. and Zimmer Surgical, Inc. (collectively, “Zimmer”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
jurisdiction under 28 U.S.C. § 1291 and we affirm the district court. “We . . .
review issues of subject matter jurisdiction and denials of motions to remand
removed cases de novo.” Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1315 (9th
Cir. 1998).
1. Tipton argues that Zimmer waived any argument that “Mike” was a
fraudulently joined defendant by failing to raise that argument in its notice of
removal. A motion to remand that is based on a procedural defect in removal must
be made within 30 days after the filing of a notice of removal. 28 U.S.C. § 1447(c).
Zimmer filed the notice of removal on June 3, 2015. Tipton filed her motion to
remand on May 18, 2016, well after the 30-day deadline.
2. The district court correctly determined that “Mike,” the only non-diverse
defendant, was fraudulently joined to defeat diversity jurisdiction. See Morris v.
Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (“Joinder of a non-
diverse defendant is deemed fraudulent . . . if the plaintiff fails to state a cause of
action against a resident defendant, and the failure is obvious according to the
settled rules of the state.”) (alteration and internal quotation marks omitted).
Because a district court may ignore the citizenship of a fraudulently joined
defendant in determining whether diversity jurisdiction is present, see Hunter v.
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Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009), the court did not err by
denying Tipton’s motion to remand the case to state court.
3. Tipton also challenges the district court’s grant of summary judgment in
Zimmer’s favor and its denial of her motion for a new trial. Tipton’s motion was
premised on the argument that “Mike” was not fraudulently joined and that the
district court therefore lacked subject matter jurisdiction and could not enter
judgment in Zimmer’s favor. The additional information submitted by Tipton in
support of her motion for a new trial, which the district court considered, did not
establish that “Mike” was properly joined to her suit. The district court did not err
by denying Tipton’s motion.
AFFIRMED.
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