Bryan v. Fireman's Fund Insurance

35 F. App'x 591

Opinion

MEMORANDUM

*

This case returns to us after remand to the district court. In our prior decision, we held that the district court erred in applying state procedural rules to a removed case. Bryan v. Fireman’s Fund Ins. Cos., 162 F.3d 1167, 1998 WL 746051 (9th Cir.1998). In reversing, we explained that once a case has been removed to federal court, federal procedural rules govern the proceeding. Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 437, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974). Upon remand, the district court dismissed the action pursuant to Fed.R.Civ.P. 12(b)(5) on the basis that the diversity action was time-barred under state law prior to removal to federal court.

“As a general matter, state procedural rules govern state lawsuits until they are removed to federal court.” Prazak v. Local 1 Int’l Union of Bricklayers & Allied Crafts, 233 F.3d 1149, 1152 (9th Cir.2000). In Prazak, we held that if the time in which an action may be filed is extended by operation of state law prior to removal, then the action would not time-barred by application of federal law after removal. Id. at 1153-54. This appeal presents the converse situation: a diversity action that was time-barred by application of state law prior to removal. Thus, applying Prazak to the instant case, the act of removing a time-barred state diversity action cannot revive a suit that is already time-barred. Thus, the district court properly dismissed the action pursuant to Fed.R.Civ.P. 12(b)(5).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.