Markowitz v. Teva Pharmaceuticals USA, Inc.
- Proceeding
- district
- Area
- civil
- Panel
- Myron James Lorenz (author)
Analysis
Defendants moved for leave to amend their notice of removal to allege additional facts supporting fraudulent joinder after the case was remanded for lack of diversity jurisdiction. The court granted the motion, allowing Defendants to file an amended notice of removal by December 6, 2019.
| What the court decided | The model |
|---|---|
Defendants' motion for leave to amend notice of removal is granted.“Pursuant to 28 U.S.C. §1653, Defendants' motion is granted.” | agree with court The court correctly applies 28 U.S.C. § 1653, which allows a district court to permit a party to amend a pleading or notice of removal to cure defects in jurisdictional allegations. The cited authorities (Willingham, Cohn, Rockwell) support the proposition that a court may allow an amendment to a notice of removal to address jurisdictional deficiencies. The court also correctly distinguishes Seedman, which deals with successive notices of removal rather than amendments under § 1653. |
The order itself: sound — The order is procedurally sound. It correctly identifies the legal basis for the motion (28 U.S.C. § 1653), cites appropriate Supreme Court and Ninth Circuit authority supporting the power to amend a notice of removal to cure jurisdictional defects, and distinguishes the contrary authority cited by the plaintiff. The court explicitly reserves judgment on the sufficiency of the amended notice, which is appropriate at this stage.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CANDICE MARKOWITZ, Case No.: 19cv655-L-LL 12 Plaintiff, ORDER GRANTING DEFENDANTS' 13 v. MOTION FOR LEAVE TO AMEND NOTICE OF REMOVAL 14 TEVA PHARMACEUTICALS USA, INC. ET AL., 15 Defendants. 16 18 Defendants Teva Pharmaceuticals USA, Inc., CooperSurgical, Inc. and The Cooper 19 Companies, Inc. removed this personal injury action from State court pursuant to 28 20 U.S.C. §§1332 and 1441. The action was remanded for failure to sufficiently allege 21 diversity jurisdiction based on fraudulent joinder. (See doc. no. 6.) Pending before the 22 Court is Defendants' motion for leave to amend notice of removal to allege additional 23 facts in support of fraudulent joinder. (Doc. no. 7.) Plaintiff filed an opposition and 24 Defendants replied. 25 Pursuant to 28 U.S.C. §1653, Defendants' motion is granted. See Willingham v. 26 Morgan, 395 U.S. 402, 407 n.3 (1969); Cohn v. Petsmart, 281 F.3d 837, 840 n.1 (9th Cir. 27 2002); Rockwell Int'l Credit Corp. v. U.S. Aircraft Ins. Group, 823 F.2d 302, 304 (9th Cir. 28 1987). Seedman v. U.S. Dist. Ct. (Empire of Am.), 837 F.2d 413, 414 (9th Cir. 1988), 1 upon which Plaintiff relies, 1s distinguishable, because it addresses successive notices of 2 ||removal rather than amendment under 28 U.S.C. §1653 to amend defective allegations of 3 || jurisdiction. 4 Accordingly, no later than December 6, 2019, Defendants shall file their amended 5 notice of removal, if any. The Court expresses no opinion regarding the sufficiency of 6 || the proposed amended notice of removal filed with Defendants’ motion. (Doc. no. 7 at 7 8 IT IS SO ORDERED. 9 || Dated: November 27, 2019 pee ep? 11 H . James Lorenz, 1D United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page numbers are assigned by the Electronic Case Filing System.