FILED
NOT FOR PUBLICATION
NOV 01 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZYZZX 2, No. 16-15681
Plaintiff-Appellant, D.C. No. 2:13-cv-01307-JCM-PAL
v.
MEMORANDUM*
WELLS FARGO BANK, N.A.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted October 18, 2017
San Francisco, California
Before: HAWKINS, W. FLETCHER, and TALLMAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Zyzzx 2 appeals the district court’s denial of its motion to remand. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm. We review the district
court’s denial of a motion to remand a removed case de novo. Ritchey v.Upjohn
Drug Co., 139 F.3d 1313, 1315 (9th Cir. 1998).
Zyzzx 2 purchased real property at a foreclosure sale and filed an action in
Nevada state court to quiet title. Wells Fargo removed the case to federal court on
the basis of diversity jurisdiction. The district court found that removal was proper
because Arlene Dizon, the property’s former owner and the sole non-diverse
defendant, had been fraudulently joined. A district court may disregard the
citizenship of a fraudulently joined defendant in determining whether diversity
jurisdiction is present. Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir.
2009) (citing Morris v. Princess Cruises Inc., 236 F.3d 1061, 1067 (9th Cir.
2001)).
The district court erred in finding that Dizon was fraudulently joined.
In Weeping Hollow Avenue Trust v. Spencer, 831 F.3d 1110 (9th Cir. 2016), we
held under analogous circumstances that a former homeowner was not fraudulently
joined to a quiet title action following a foreclosure sale. Id. at 1113–14. As in
Weeping Hollow, Dizon retained the ability to challenge the foreclosure sale in
2
equity at the time of the quiet title action. See id. Therefore, as a potential claimant
to the property, she was properly joined to Zyzzx 2’s suit. Id. at 1114.
However, a district court’s failure to remand a case that is improperly
removed is not fatal if the jurisdictional defect is cured by the time that judgment is
entered. Caterpillar Inc. v. Lewis, 519 U.S. 61, 64 (1994). In this case, Zyzzx 2
failed to serve Dizon with process within 120 days, even after the district court
directed it to do so or face dismissal pursuant to Rule 4(m) of the Federal Rules of
Civil Procedure.1 Nor did Zyzzx 2 attempt to demonstrate good cause for the
failure. Because complete diversity existed at the time the district court’s judgment
was entered, we affirm the district court.
AFFIRM.
1
Rule 4(m) was amended in 2015 to require service within 90 days. Fed. R.
Civ. P. 4(m) (2015).
3