                                                                               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                             NOT FOR PUBLICATION                                FEB 15 2013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).

                                           2
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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