Anne Kakarala v. Wells Fargo Bank

FILED
NOT FOR PUBLICATION
AUG 31 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNE MERCY KAKARALA, No. 13-16176
Plaintiff - Appellee, D.C. No. 4:10 cv-00208- FRZ
v.
MEMORANDUM*
WELLS FARGO BANK, NA,
Defendant - Appellant,
And
ROBIN’S NEST PROPERTIES LLC,
Defendant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Submitted August 13, 2015**
San Francisco, California
Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
Defendant Wells Fargo Bank, NA (“Wells Fargo”) appeals from the district
court’s order remanding Plaintiff Anne Kakarala’s state law claims to Arizona state
court. The matter was originally removed to federal court on the basis of federal
question jurisdiction. The district court initially dismissed all of Kakarala’s claims,
but, on a motion for reconsideration, dismissed only Kakarala’s federal law claims
and remanded her state law claims to state court. We have jurisdiction under 28
U.S.C. § 1291, and we conclude that the district court erred in remanding
Kakarala’s state law claims because it possessed diversity jurisdiction. We
therefore reverse the district court’s remand order.
1. Kakarala contends that we lack appellate jurisdiction to review the
district court’s remand order. 28 U.S.C. § 1447(d) only bars appellate review of
remand orders where the remand is based on a lack of subject matter jurisdiction.
Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 638-39 (2009). Thus, “if a
district court remands a case to state court for any reason other than lack of subject
matter jurisdiction, its remand order is appealable under 28 U.S.C. § 1291.”
Harmston v. City & Cty. of S.F., 627 F.3d 1273, 1277 (9th Cir. 2010). Here, the
district court’s remand order was based on a discretionary decision not to exercise
supplemental jurisdiction over state law claims. Thus, the remand order is subject
to appellate review. See id.
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2. Kakarala contends that Wells Fargo’s removal of this case from state
court was untimely. Under 28 U.S.C. § 1447(c), a plaintiff must move to remand a
case “on the basis of any defect other than lack of subject matter jurisdiction”
within 30 days of the filing of a notice of removal. “[U]ntimely removal is a
procedural rather than a jurisdictional defect,” Maniar v. FDIC, 979 F.2d 782, 785
(9th Cir. 1992), and an objection to untimely removal “can be waived,” Kelton
Arms Condo. Owners Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th
Cir. 2003). To avoid waiver, the party seeking remand must raise the alleged
defect in a motion filed within the 30-day window created by § 1447(c); merely
filing some timely motion to remand will not preserve objections not explicitly
raised. N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69
F.3d 1034, 1038 (9th Cir. 1995). Although Kakarala filed a document titled
“Opposing Removal” which could be construed as a motion to remand, she never
raised untimeliness as a basis for remand until this appeal, well beyond § 1447(c)’s
30-day window. The issue of the timeliness of Wells Fargo’s notice of removal is
therefore waived.
3. Wells Fargo contends that the district court erred in remanding
Kakarala’s state law claims to state court. When a case is properly removed to
federal court, the district court may exercise jurisdiction on all bases apparent from
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the complaint, not merely the basis raised in the removal notice. Williams v.
Costco Wholesale Corp., 471 F.3d 975, 976 (9th Cir. 2006) (per curiam).
Moreover, if a court has diversity jurisdiction over a case, its “virtually unflagging
obligation to exercise the jurisdiction conferred upon [it] by the coordinate
branches of government and duly invoked by litigants,” precludes it from
remanding state law claims. Id. at 977 (quoting United States v. Rubenstein, 971
F.2d 288, 293 (9th Cir.1992) (alteration in original) (internal quotation marks
omitted)). The fact that a non-diverse party was once joined in a case does not
prevent a court from exercising diversity jurisdiction after the non-diverse party’s
dismissal. Caterpillar Inc. v. Lewis, 519 U.S. 61, 64 (1996).
At the time the district court issued its remand order, all the requirements for
diversity jurisdiction were met. The only parties, Kakarala and Wells Fargo, were
citizens of different states and the amount in controversy exceeded $75,000. Thus,
the district court had diversity jurisdiction. See 28 U.S.C. § 1332(a)(1). That a
non-diverse defendant – Robins Nest Properties, LLP – was present at an earlier
point in the litigation is irrelevant. See Caterpillar, 519 U.S. at 64. Given that
diversity jurisdiction existed over Kakarala’s state law claims at the time of the
district court’s remand order, “[t]he district court had no discretion to remand these
claims to state court.” Williams, 471 F.3d at 977.
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• ! •
Because the district court had diversity jurisdiction, it erred in remanding
Kakarala’s state law claims to state court. The district court’s order remanding
Kakarala’s state law claims to state court is reversed and the case is remanded for
further proceedings consistent with this disposition.
REVERSED and REMANDED.
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