The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge
The Court is in receipt of the notice of removal filed by Defendants Mylan Inc., Mylan Pharmaceuticals Inc., Mylan Technologi es Inc., and Mylan Institutional Inc. ("Mylan defendants"). Having carefully c onsidered the papers filed i n conjunction with the notice, however, the Court determines that it lacks subject matter jurisdiction over this case. Accordingly, the case is hereby REMANDED to Riverside County Superior Court.
Federal courts are courts of lim ited jurisdiction, having subject m atter jurisdiction only over matters authorized by the Constitution and Congress. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A suit filed in state court may be removed if the federal court would have had original jurisdiction over the suit.
28 U.S.C. § 1441(a). A rem oved action must be remanded to state court if the federal court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c).
The party seeking removal bears the burden of establishing federal jurisdiction. Durham v. Lockheed Martin Corp.,445 F.3d 1247, 1252 (9th Cir. 2006). H ere, Mylan claims the Court has subject m atter jurisdiction over this sui t under diversity jurisdiction because there is com plete diversity among the parties and the am ount in controversy exceeds $75,000. (Notice of Removal ¶¶ 16--23.) Though this m ay be correct, Mylan overlooked the temporal requirements for removal.
The removal statute states in relevant part: If the case stated by the initial plead ing is not removable, a notice of removal may be filed with in thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, m otion, order or other paper from which it may first be ascertained that the case is one which is or has becom e removable, except that a cas e may not be removed on the basis of j urisdiction conferred by section 1332 of thi s title more than 1 year after commencement of the action. 28 U.S.C. § 1446(b). The exception that a case may not be re moved on diversity jurisdiction more than 1 year after commencement applies solely to cases described in this paragraph-i.e., cas es that are not removable on the face of the origi nal complaint. Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1316 (9th Cir. 1998).
In this case, the initial com plaint was filed in Riverside County Superior Court on December 22, 2010. (Reef er Decl., Ex. UU, Shin Decl., Ex. C (Co mplaint).) At the onset, the case was not removable. No federal question was presented and there was no diversity of citizenship among the parties. (Id.) According to Mylan, "the last remaining non-diverse defendant was dism issed from this action within thirty (30) days of the filing of this Noti ce of Removal." (Notice of Rem oval ¶ 14.) Mylan's notice of removal was filed with the Court on February 9, 2012. But because the case as filed was not re movable, Mylan was re quired to rem ove within 1 year of the commencement of the action, i.e., Decembe r 22, 2010. 28 U.S.C. § 1446(b). Myl an exceeded this temporal boundary and therefore, removal is improper.
This case has one wrinkle t hat is worth noting but does not alter the analysis. Mylan was not named as a defendant nor served until October 24, 2011. (Reef er Decl., Ex. YYYY.) Mylan ma y argue that the 1 year lim itation should start from October 24, 2011 because they were not a pa rty in the action until then. The Court finds no authority standi ng for this proposition. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 69 (1996) ("No case, however, ma y be removed from state to federal court based on diversity of citizen ship more than 1 year after commencement of the action.").
Further, case l aw disregards the servic e of a defendant in the calculus of removal jurisdiction. In Vitek, a single, unserved, non-diverse defendant prevented removal by the ot her defendants that were otherwise diverse from the plaintiff. Clarence E. Morris, Inc. v. Vitek, 412 F.2d 1174, 1176 (9t h Cir. 1969). The Ninth Circuit reasoned that for removal jurisdiction based upon diversity, "the existence of diversity is determined from the fact of c itizenship of the parties named and not from the fact of service." Id. at 1175--76. The fact that the Vitek defendant was not served and made no appearance did not allow the othe r diverse defendants, that were served, to remove the case to federal court.
Following that reasoning, it is appropriate to require a diverse defendant, who was served after other non-diverse defendants, to adhere to t he same guideline. That is, the existence of diversity is determ ined from the fact of citizenship of the parties named in the original complaint. If the case cannot be removed on diversity grounds, as determined from the initial co mplaint, then the 1 year clock starts. It m atters not that later on, a diverse defendant appears in the case and desires to remove to federal court. The diverse defendant is bound by the original complaint and the other non-diverse defendants, even under the circumstances in the instant case where the Mylan defendants are now the only parties left in the case, at a ti me less than 1 year fro m when they were served, but greater than 1 year from when the case commenced.
Accordingly, the Court REMANDS the case to Riverside County Superior Court for lack of subject matter jurisdiction. The Clerk of Court shall close this case.