Opinion · Court of Appeals for the Ninth Circuit

Daniel Miller v. William F. Grgurich and Southern Aviation Insurance Group, Inc.

763 F.2d 372

Type: Opinion
Court: Court of Appeals for the Ninth Circuit
Jurisdiction: Federal
Date: 1985-06-13
Topic: bankruptcy

paraphrasing Desert Empire Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 1374 (9th Cir.1980), involving plaintiff's amending complaint to add claims against non-diverse defendant | “When an action is removed on the basis of diversity, the requisite diversity must exist at the time the action is removed to federal court.” | “The diversity upon which removal is predicated must be complete, and should 15 generally be determined from the face of the complaint.” | “[W]hen an action is 18 removed on the basis of diversity, the requisite diversity must exist at the time the action 19 is removed to federal court.” | court should examine notice of removal and complaint

Citator

Cited by: 42 opinions

MILLER v. GRGURICH,763 F.2d 372(9th Cir. 1985)

DANIEL MILLER, PLAINTIFF-APPELLANT, v. WILLIAM F. GRGURICH AND SOUTHERN

AVIATION INSURANCE GROUP, INC., DEFENDANTS-APPELLEES.

No. 84-6188.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 1985.

Decided June 13, 1985.

Page 373

Francis C. Pizzulli, Santa Monica, Cal., for plaintiff-appellant.

Arthur Wasserman, Encino, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before KENNEDY, HUG, and FERGUSON, Circuit Judges.

KENNEDY, Circuit Judge:

[1] When an action is removed on the basis of diversity, the requisite diversity must exist at the time the action is removed to federal court. C. Wright,Law of Federal Courts§ 38, at 153 (3d ed. 1976); 14A C. Wright, A. Miller E. Cooper,FederalPractice and Procedure§ 3723, at 311 (2d ed. 1985);see DesertEmpire Bank v. Insurance Company of North America,623 F.2d 1371, 1374 (9th Cir. 1980) (the addition of a nondiverse party defendant after removal defeats federal jurisdiction and requires remand). The rule requiring diversity at the time removal is sought parallels the rule in federal question cases where a federal question must exist at the time the petition for removal is filed.Libhart v. Santa Monica Dairy Co.,592 F.2d 1062, 1065 (9th Cir. 1979).

[2] The diversity upon which removal is predicated must be complete,see Strawbridge v. Curtiss,7 U.S. (3 Cranch.) 267, 2 L.Ed. 435 (1806), and should generally be determined from the face of the complaint.Salveson v. Western States BankcardAss'n,731 F.2d 1423, 1426 (9th Cir. 1984);see also LouisvilleNashville R.R. v. Mottley,211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). The burden of establishing federal jurisdiction rests with the party seeking removal.Wilson v.Republic Iron Steel Co.,257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921);Carpenters Southern California AdministrativeCorp. v. Majestic Housing,743 F.2d 1341, 1343 (9th Cir. 1984).

[3] On the face of the pleadings in this case, there is a substantial question concerning the plaintiff's citizenship at the time of removal. Accordingly, the judgment of the district court is vacated and the case is remanded to the district court. The district court should determine whether diversity has been established under the principles we have set forth. If the requisite diversity is lacking, the district court should remand the action to state court. If diversity is established, the district court may reinstate its judgment. If a new notice of appeal is filed, the briefs and record in this case shall be transferred to the new appeal.

[4] REMANDED.Page 374