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).

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

GAVEN HILL,

 Plaintiff - Appellant,

 v.

KRISTAN HILL-LOVE,

 Defendant - Appellee.

No. 11-16552

D.C. No. 2:09-cv-02713-KJM-DAD

MEMORANDUM*

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

FILED

FEB 15 2013

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 Hill-Love, a citizen of California, violated the forum defendant rule by 1

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). 

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. The 1

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
3

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.