Nimtz v. Cepin, M.D. et al

Filing 57

ORDER DISMISSING CASE and Remanding to State Court. Signed by Judge M. James Lorenz on 7/25/2011. (Certified copy sent to Superior Court of California, County of San Diego) (All non-registered users served via U.S. Mail Service)(mtb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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11 FREDERICK B. NIMTZ,
Plaintiff,

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13 v.

14 DANIEL CEPIN, M.D., et al.,
Defendants.

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Civil No. 08cv1294 L(MDD)
ORDER REMANDING THIS
ACTION TO THE STATE COURT

This action was removed from the Superior Court for the State of California, County of

18 San Diego, on July 18, 2008, by defendant Guidant Corporation. Guidant based the removal on
19 the Court’s diversity jurisdiction arguing that defendant Daniel Cepin, M.D. was improperly
20 joined to destroy diversity of citizenship. Therefore, Guidant argued Cepin’s citizenship should
21 be disregarded, and the medical malpractice claim against him should be severed and remanded
22 to state court.
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The Court dismissed with prejudice defendant Guidant on June 1, 2011. As a result, the

24 sole remaining defendant is Dr. Cepin, who is a citizen and resident of California, as is plaintiff,
25 and the claim against Dr. Cepin is based entirely on state law.
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The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. of N.Y.,

27 790 F.2d 769, 774 (9th Cir. 1986). It possesses only that power authorized by the Constitution
28 or a statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). It is
08cv1294

1 constitutionally required to raise issues related to federal subject matter jurisdiction, and may do
2 so sua sponte. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-94 (1998); see Indus.
3 Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990).
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Because plaintiff’s sole remaining claim is for medical malpractice under state law and

5 the parties are both citizens of the state of California, the Court lacks subject matter jurisdiction
6 over this action. Accordingly, IT IS ORDERED remanding this action, Case No. 37-20087 00071342-CU-MM-SC, to the Superior Court for the State of California, County of San Diego,.
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IT IS SO ORDERED.

9 DATED: July 25, 2011
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M. James Lorenz
United States District Court Judge

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13 HON. MITCHELL D. DEMBIN
UNITED STATES MAGISTRATE JUDGE
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08cv1294