FILED
NOT FOR PUBLICATION FEB 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GAVEN HILL, No. 11-16552
Plaintiff - Appellant, D.C. No. 2:09-cv-02713-KJM-DAD
v.
MEMORANDUM *
KRISTAN HILL-LOVE,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted February 11, 2013 **
San Francisco, California
Before: SCHROEDER, HAWKINS, and MURGUIA, Circuit Judges.
Plaintiff Gaven Hill (“Hill”) originally filed this suit against his sister Kristan
Hill-Love (“Hill-Love”) in state court, alleging damages exceeding $100,000 for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
conversion, intentional interference with prospective economic advantage, unjust
enrichment, intentional infliction of emotional distress, and exemplary (punitive)
damages. Hill-Love removed this action to federal court based on diversity.1 The
district court eventually granted summary judgment to Hill-Love because Hill failed
to meet any of the federal court’s discovery deadlines or deadlines for disclosure of
witnesses and thus had no evidence that could be presented at trial to support his
claims. We affirm.
There was no error in denying Hill’s motion to remand to state court. The
district court properly ignored Hill’s belated attempt to avoid federal jurisdiction and
adhered to this circuit’s longstanding rule that the “propriety of removal is determined
solely on the basis of the pleadings filed in state court,” Williams v. Costco Wholesale
Corp., 471 F.3d 975, 976 (9th Cir. 2006), as Hill explicitly sought damages in excess
of $75,000 in his state court complaint. See also Singer v. State Farm Mut. Auto. Ins.
Co., 116 F.3d 373, 375 (9th Cir. 1997) (“Events occurring subsequent to the
institution of suit which reduce the amount recoverable below the statutory limit do
1
Hill-Love, a citizen of California, violated the forum defendant rule by
removing to district court in California. 28 U.S.C. § 1441(b)(2). However, Hill
waived the procedural defect by failing to raise an objection within thirty days
following removal. See 28 U.S.C. § 1447(c); Lively v. Wild Oats Markets, Inc., 456
F.3d 933, 935-36 (9th Cir. 2006) (violation of § 1441(b) is procedural and a waivable
defect).
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not oust jurisdiction.”) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.
283, 288-90 (1938)).
Nor was there any error in granting Hill-Love’s motion for summary judgment.
Hill utterly failed to comply with pretrial scheduling orders regarding discovery and
disclosure of witnesses, and he did not bear his burden of establishing that such failure
was “substantially justified” or “harmless.” Fed. R. Civ. P. 37(c)(1). Hill thus had no
admissible evidence to create an issue of material fact for trial. See Hoffman v.
Constr. Protective Servs., 541 F.3d 1175, 1180 (9th Cir. 2008) (explaining that Rule
37 sanctions are appropriate even if a litigant’s entire cause of action falls). Hill has
also failed to meet his burden of establishing that res judicata or collateral estoppel
would apply to any of the issues or claims presented in this action. See Lucido v.
Super. Ct., 795 P.2d 1223, 1225 (Cal. 1990); Mycogen Corp. v. Monsanto Co., 51
P.3d 297, 299 (Cal. 2002)..
AFFIRMED.
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