IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA DAVID G. FAULK, et al.,
Plaintiffs, v. Case No. 3:22-cv-00171-SLG
JELD-WEN, Inc., d/b/a Pozzi Window
Company, et al.,
Defendants.
ORDER REMANDING ACTION This order resolves the following two pending motions: 1. At Docket 106 is Defendants JELD-WEN, Inc. d/b/a Pozzi Window Company and Pozzi Window Company and Roderick C. Wendt’s, JELD-WEN’s owner, officer, and director, (collectively “JELD-WEN”) Motion in Response to Court Order [Dkt. 104] Regarding Subject Matter Jurisdiction, which is joined by Defendant Spenard Builders Supply, LLC (“SBS” or “Spenard”) at Docket 109.1 Plaintiffs David G. Faulk and Bonnie J. Faulk (collectively “Plaintiffs”) responded in opposition at Docket 114, to which JELD-WEN replied at Docket 117; and 2. At Docket 113 is SBS’s Motion in Response to Court Order re Subject Matter Jurisdiction, which is joined by JELD-WEN at Docket 116. Plaintiffs
1 JELD-WEN also filed a Memorandum of Points and Authorities in support of their Motion in Response to Court Order [Dkt. 104] Re: Subject Matter Jurisdiction at Docket 107. responded in opposition at Docket 119, to which SBS replied at Docket 127, which reply is joined by JELD-WEN at Docket 130. Oral argument on both motions was heard on February 25, 2026 in
Anchorage, Alaska.2 The Court presumes familiarity with the facts and procedural history of this case but provides a brief background relating to the pending motions. BACKGROUND On June 13, 2022, Plaintiffs initiated this case in the state Superior Court as a putative class action against all three named Defendants: (1) JELD-WEN; (2)
Roderick C. Wendt; and (3) SBS.3 It appears undisputed that Plaintiffs are citizens of Alaska.4 Defendant JELD-WEN is a citizen of both Delaware (state of incorporation) and North Carolina (principal place of business) and Defendant Wendt is a citizen of Oregon.5 The parties do not dispute that Defendant SBS is a citizen of Alaska.6
On July 21, 2022, JELD-WEN removed this action to federal court.7 Defendants’ Notice of Removal stated that this Court had jurisdiction pursuant to 28 U.S.C. § 1332(d)(1) and (2), federal question jurisdiction, and 28 U.S.C. § 1453,
2 Docket 131. 3 Docket 1 at ¶ 1. 4 Docket 61 at ¶ 10. 5 Docket 1-3 (Affidavit of Andrew M. Rink in Support of Notice of Removal) at ¶¶ 4–5. 6 See Docket 15-1 at 6. 7 Docket 1 at 3–6. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. the Class Action Fairness Act (“CAFA”).8 On August 15, 2022, Plaintiffs filed a Notice of Plaintiffs’ Objection to Federal Jurisdiction, a motion to remand, and a motion to stay.9 In their motion to remand,
Plaintiffs asserted that the local controversy exception to CAFA applied, requiring that this Court to remand the case back to state court.10 Defendants opposed Plaintiffs’ motion to remand, asserting that the local controversy exception did not apply because Plaintiffs’ Complaint did not allege that “significant relief” was sought from SBS, the sole Alaska defendant.11 Neither Defendant argued SBS
had been fraudulently joined so as to destroy diversity jurisdiction.12 On January 12, 2023, this Court found that the local controversy exception to CAFA did not apply and denied Plaintiffs’ motion to remand but granted Plaintiffs’ leave to file an amended complaint.13 The order stated “that the allegations regarding Spenard in the Complaint are vague and there is a possibility
that, with some clarification of Spenard’s role, the local controversy analysis may
8 Docket 1 at ¶ 3. 9 Docket 14; Docket 15; Docket 16. 10 Docket 14 at 1–2; Docket 15-1 at 1–7. 11 Docket 20 at 8–12; Docket 23 at 6. 12 See e.g., Docket 20 at 10–11 (“Plaintiffs’ only apparent basis for including Spenard as a Defendant is that they purchased the purportedly defective JELD-WEN windows from Spenard.”); see also Docket 114 at 24 (“Defendants removed solely on CAFA grounds and did not assert fraudulent joinder in their Notice of Removal, their oppositions to either Motion to Remand, or at the November 9, 2022 hearing.”). 13 Docket 29 (Ord. Denying Plaintiffs’ Motion to Remand) at 13–14. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. be altered.”14 Observing that “Spenard is named in several counts, but the relationship between Plaintiffs and Spenard and between JELD-WEN and Spenard is unclear,” the Court granted Plaintiffs “leave to amend their Complaint
solely for the purpose of adding allegations that clarify Spenard’s role in the counts alleged against Spenard.”15 On February 16, 2023, Plaintiffs filed their First Amended Class Action Complaint (“FAC”).16 On March 13, 2023, JELD-WEN moved to strike Plaintiffs’ FAC, arguing that the amendments exceeded the scope of the Court’s order
granting leave to amend.17 On March 20, 2023, Plaintiffs filed a renewed motion to remand, asserting that based on the allegations in their FAC, the local controversy exception to CAFA applied.18 Again, Defendants opposed Plaintiffs’ motion to remand, but did not assert that SBS had been fraudulently joined.19
On June 2, 2023, Plaintiffs filed a motion for leave to file a Second Amended
14 Docket 29 at 13. 15 Docket 29 at 14. The order also stated that “Plaintiffs’ leave to amend is narrow, and any amendment falling outside the parameters set in this Order will be stricken.” Docket 29 at 14– 15. 16 Docket 32 (First Am. Class Action Compl.) at ¶¶ 28-29. 17 Docket 37 at 2–3; Docket 38 at 4–6. SBS joined JELD-WEN’s motion to strike. Docket 39. 18 Docket 40 at 1; Docket 41 at 3–7. 19 See Docket 45 at 5-19. SBS joined JELD-WEN’s opposition to Plaintiffs’ renewed motion to remand. Docket 46 at 1. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. Complaint (“SAC”).20 The proposed SAC removed all the class action allegations, but retained all three of the originally named Defendants, including SBS, as Defendants.21
On November 7, 2023, this Court granted Defendants’ motion to strike the FAC and denied Plaintiffs’ motion to remand.22 The Court found that Plaintiffs’ multiple amendments in the FAC improperly and “greatly expand[ed] the counts alleged against Spenard in an attempt to defeat CAFA jurisdiction.”23 Because the FAC was stricken, the Court reaffirmed its earlier ruling that remand of the action
was “inappropriate under the original complaint.”24 In the November 7, 2023 order, the Court also granted Plaintiffs’ motion for leave to file the SAC.25 On November 20, 2023, Plaintiffs filed their SAC, which, as noted above, removed the class action claim in its entirety and contained only state law claims.26
20 Docket 48 at 3. 21 Docket 48-1 (Second Am. Compl.) at 1–16. 22 Docket 59 at 8. 23 Docket 59 at 5. 24 Docket 59 at 5 (citing Docket 29) (Order Denying Motion to Remand). The Court applied then controlling Ninth Circuit law—that “post-removal amendments to narrow (or eliminate) a class does not destroy” federal jurisdiction—which is determined at time of removal. Docket 59 at 6(citing Broadway Grill, Inc. v. Visa Inc., 856 F.3d 1274, 1279 (9th Cir. 2017)). See also Docket 59 at 3–6 (first citing Benko v. Quality Loan Serv. Corp., 789 F.3d 1111, 1117 (9th Cir. 2015); and then citing Broadway Grill, Inc. v. Visa Inc., 856 F.3d 1274, 1279 (9th Cir. 2017)). 25 Docket 59 at 6 (“Although Plaintiffs’ proposed amendments will not divest this Court of CAFA jurisdiction, the Court finds granting leave to amend to eliminate the class allegations proper. If Plaintiffs no longer wish to bring a class action, they should not be forced to.”). 26 Docket 61. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. On December 4, 2023, JELD-WEN filed a motion to dismiss the SAC, which was joined by SBS.27 On May 24, 2024, this Court granted JELD-WEN’s motion to dismiss the SAC with prejudice and without leave to amend, finding that all of
Plaintiffs’ claims in the SAC were barred by the statute of limitations and therefore failed to state a claim against all three Defendants.28 Plaintiffs timely appealed.29 While the appeal was pending, the Supreme Court decided Royal Canin U.S.A., Inc. v. Wullschleger, which altered the jurisdictional analysis applicable to cases removed to federal court after amendment of a plaintiff’s complaint.30 In
Royal Canin, the plaintiff brought a putative class action in state court asserting both federal and state law claims arising out of the same facts.31 The defendant removed the case to federal court on the basis of federal question jurisdiction.32 In response, the plaintiff amended her complaint to “delete all the federal-law claims, leaving nothing but state-law claims behind,” and then moved to remand.33 The
Supreme Court held that “[w]hen a plaintiff, after removal, cuts out all her federal- law claims, federal-question jurisdiction dissolves. And with any federal anchor
27 Docket 65; Docket 68. 28 Docket 82 at 16–27. 29 Docket 91. 30 604 U.S. 22 (2025). 31 Id. at 28. 32 Id. 33 Id. at 25, 29. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. gone, supplemental jurisdiction over the residual state claims disappears as well.”34 “The operative pleading no longer supports federal jurisdiction, and the federal court must remand the case to the state court where it started.”35
The Ninth Circuit applied this new jurisdictional rule in Walker v. State.36 Although Walker’s two holdings primarily concerned Rule 15 and supplemental jurisdiction, which are not at issue here, Walker “recognized that Royal Canin overruled our prior precedent holding that post-removal amendments do not undermine federal jurisdiction.”37
On November 14, 2025, the Ninth Circuit issued its opinion in this case and held that under Royal Canin, the district court lacked subject matter jurisdiction; “[b]ecause the Faulks, an Alaska couple, also sued Spenard, an Alaska corporation, complete diversity is lacking. See [28 U.S.C.] § 1332(a)(1). With no diversity or federal question jurisdiction, no ‘original jurisdiction’ remains. Without
another basis for federal jurisdiction, ‘[t]he case must therefore return to state court.’ Royal Canin, 604 U.S. at 26[.]”38
34 Id. at 39. 35 Id. 36 158 F.4th 971 (9th Cir. 2025). 37 Faulk v. JELD-WEN, Inc., 159 F.4th 618, 620 (9th Cir. 2025) (citing Walker v. State, 158 F.4th 971 (9th Cir. 2025)); see Walker, 158 F.4th at 970 (“Royal Canin undid Sparta Surgical Corp. v. National Ass'n of Securities Dealers, Inc., our circuit precedent holding to the contrary—namely, that the availability of supplemental jurisdiction depended on the allegations in the complaint at the time of removal, and that subsequent amendments did not eliminate the district court's ability to exercise supplemental jurisdiction.”). 38 Faulk, 159 F.4th at 625 (footnote omitted); see also id. at 624 (“Broadway Grill's holding that Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. The Ninth Circuit vacated this Court’s order dismissing the SAC and remanded with instructions for this Court “to remand to state court, unless Defendants establish another basis for federal subject matter jurisdiction.”39 The
Ninth Circuit “le[ft] it to the discretion of the district court to determine whether it is appropriate to entertain Spenard’s fraudulent joinder claim, raised for the first time at oral argument” before the Circuit.40 After the Ninth Circuit issued its mandate, on December 9, 2025, this Court issued an order stating that the case would be remanded to the state court unless
Defendants identified another basis for federal subject matter jurisdiction.41 JELD-WEN and SBS now claim that SBS was fraudulently joined.42 Defendants assert that the Court should find that it has subject matter jurisdiction because if SBS is dismissed or its citizenship disregarded, there is complete diversity as between Plaintiffs and JELD-WEN.43
LEGAL STANDARD “Federal courts ‘are all of limited jurisdiction, and their proceedings are
the complaint at the time of removal ‘remained the only one which should have been considered for determining the existence of minimal diversity,’ 856 F.3d at 1279, conflicts directly with Royal Canin.”). 39 Docket 102; Faulk, 159 F.4th at 625. 40 Faulk, 159 F.4th at 625. 41 Docket 104 at 1. 42 See e.g., Docket 113 at 1–2, Docket 107 at 14–15. 43 Docket 113 at 12; Docket 117 at 6–7. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. erroneous, if the jurisdiction be not shown upon them.’”44 Pursuant to 28 U.S.C. § 1441(a), a defendant may remove a civil action from state court to the appropriate federal district court when that district court has
original jurisdiction. Original jurisdiction in civil cases generally arises from diversity jurisdiction pursuant to 28 U.S.C. § 1332 or federal question jurisdiction pursuant to 28 U.S.C. § 1331. Pursuant to 28 U.S.C. § 1446, a defendant seeking removal must file “a short and plain statement of the grounds for removal” within 30 days after receipt
or service. “The Notice of Removal ‘cannot be amended to add a separate basis for removal jurisdiction after the thirty day period.’”45 The removal statute is “strictly construed” against removal and a “federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.”46 “The presumption against removal means that ‘the
defendant always has the burden of establishing that removal is proper.’”47 Pursuant to 28 U.S.C. § 1447(c), “[i]f at any time before final judgment it appears
44 Hain Celestial Group, Inc. v. Palmquist, 607 U.S. 421, 428 (2026) (quoting Kempe's Lessee v. Kennedy, 9 U.S. (5 Cranch) 173, 185 (1809) (Marshall, C.J.)). 45 ARCO Environmental Remediation v. Dep't of Health & Env't Quality of Mont., 213 F.3d 1108, 1117 (9th Cir. 2000) (quoting O'Halloran v. Univ. of Wash., 856 F.2d 1375, 1381 (9th Cir. 1988)). 46 Lake v. Ohana Mil. Cmtys., LLC, 14 F.4th 993, 1000 (9th Cir. 2021) (internal quotation marks omitted) (first quoting Hawaii ex rel. Louie v. HSBC Bank Nev., N.A., 761 F.3d 1027, 1034 (9th Cir. 2014); and then quoting Stock W., Inc. v. Confederated Tribes of the Colville Rsrv., 873 F.2d 1221, 1225 (9th Cir. 1989)). 47 Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. that the district court lacks subject matter jurisdiction, the case shall be remanded” to state court. DISCUSSION
In their respective motions, JELD-WEN and SBS maintain that Plaintiffs have no viable claim against SBS, such that SBS was fraudulently joined, its citizenship should be disregarded, and this Court has diversity jurisdiction over Plaintiffs’ claims against JELD-WEN.48 Plaintiffs respond that as masters of their complaint, they “have declined to
establish federal subject matter jurisdiction, as is their right,” which should end the jurisdictional inquiry.49 Further, Plaintiffs assert that “because fraudulent joinder was not raised in the notice of removal or by [Defendants] previously [in their oppositions to Plaintiffs’ motions to remand], it cannot be relied on now.”50 Responding to Plaintiffs’ waiver argument, JELD-WEN and SBS both assert
that fraudulent joinder is a jurisdictional inquiry that is now properly before the
48 Docket 113 at 1–2; Docket 106 at 2. 49 Docket 119 at 13–14. 50 Docket 119 at 14; see also Docket 114 at 10 (“[JELD-WEN] is precluded from raising a new basis for jurisdiction that was not stated in its Notice of Removal.”). JELD-WEN and SBS both also assert that Plaintiffs have failed to allege a viable claim against SBS. Docket 113 at 3; Docket 107 at 7–14. Because the Court finds that the assertion of fraudulent joinder is untimely, the Court declines to reach the parties’ arguments concerning the statute of limitations defense and the promissory estoppel and equitable estoppel arguments. See infra Section IV. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. Court.51 JELD-WEN contends that “the Ninth Circuit expressly invited its consideration” of fraudulent joinder as a basis for federal jurisdiction in its opinion.52 And while SBS acknowledges that the Ninth Circuit “left to this Court’s discretion
whether to entertain Spenard’s fraudulent joinder argument,” SBS similarly maintains that the Ninth Circuit’s “directive would be meaningless if fraudulent joinder were categorically waived by its omission from the notice of removal.”53 I. Scope of Remand In determining the scope of remand, a lower court “must first apply the rule
of mandate.”54 The rule provides that a “district court that has received the mandate of an appellate court cannot vary or examine that mandate for any purpose other than executing it.”55 However, a lower court’s decision after remand may not be “counter to the spirit of the circuit court’s decision.”56 In this case, the mandate simply made the Circuit Court’s judgment effective;57 accordingly, the
Court consults the Ninth Circuit’s opinion “to ascertain what was intended by its mandate.”58
51 Docket 117 at 2; Docket 127 at 2. 52 Docket 117 at 3. 53 Docket 127 at 3. 54 United States v. Kellington, 217 F.3d 1084, 1092 (9th Cir. 2000). 55 Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012) (citation omitted). 56 Kellington, 217 F.3d at 1093 (citation omitted). 57 Docket 103 (USCA Mandate). 58 Kellington, 217 F.3d at 1093 (quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 256 Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. The Ninth Circuit’s opinion contains two directives on remand. First, the final sentence of the opinion states: “Accordingly, we vacate and remand with instructions for the district court to remand to state court, unless Defendants
establish another basis for federal subject matter jurisdiction.”59 Second, the final sentence of the penultimate paragraph states: “We leave it to the district court to determine whether it is appropriate to entertain Spenard's fraudulent joinder claim, raised for the first time at oral argument.”60 The Court finds that JELD-WEN’s characterization of the mandate—that this
Court, “at the direction of the Ninth Circuit, has the obligation to evaluate fraudulent joinder, regardless of whether it appeared in the original Notice of Removal”—is inconsistent with the mandate.61 The directive “to determine whether it is appropriate to entertain” does not use mandatory language that requires this Court to address SBS's fraudulent joinder claim on remand.62 Accordingly, the Court will
consider Plaintiffs’ waiver argument. II. The Operative Complaint Plaintiffs emphasize that “[t]he plaintiff is ‘the master of the complaint,’ and therefore controls much about her suit,” and that here, Plaintiffs “have declined to
(1895)). 59 Faulk, 159 F.4th at 625. 60 Id. 61 Docket 117 at 3. 62 Faulk, 159 F.4th at 625; Docket 117 at 3. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. establish federal subject matter jurisdiction, as is their right.”63 The Court agrees with Plaintiffs on this point. “When a plaintiff amends her complaint following her suit's removal, a federal court's jurisdiction depends on what the new complaint
says.”64 Here, the SAC, the operative complaint, alleges only state law claims and includes a non-diverse defendant.65 III. Waiver a. Notice of Removal Plaintiffs assert that Defendants cannot maintain that SBS was fraudulently
joined at this time because they did not raise the issue in their Notice of Removal.66 It is undisputed that the Notice of Removal did not assert that SBS’s Alaskan citizenship should be disregarded because it was fraudulently joined as a defendant. Nor did the Notice of Removal cite to the complete diversity jurisdiction statute, 28 U.S.C. § 1332(a), as a jurisdictional basis.67 Rather, the Notice of
Removal asserted CAFA as the sole basis for federal jurisdiction pursuant to 28
63 Docket 119 at 13; Royal Canin, 604 U.S. at 35 (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 398–399 (1987)). 64 Faulk, 159 F.4th at 620 (quoting Royal Canin, 604 U.S. at 30). 65 Docket 61 (Second Am. Compl.); see Royal Canin, 604 U.S. at 36 (holding that when a plaintiff originally “files a suit in federal court based on federal claims and later scraps those claims, the federal court cannot go forward with a now all-state-claim suit”). 66 Docket 119 at 14–16. 67 See Docket 1 at 3 (“The Required Minimal Diversity [under CAFA] Exists Between the Parties”); Docket 1 at ¶ 4 (citing 28 U.S.C. § 1332(d)(2)(A)); see also Docket 14 at 1 (“Complete diversity does not exist as Defendant Spenard Builders Supply, LLC is an Alaska domestic limited liability company.”); 28 U.S.C. § 1332(d)(4). Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. U.S.C. § 1332(d)(1) and (2), and 28 U.S.C. § 1453.68 Despite years of significant motions practice, neither JELD-WEN nor SBS asserted SBS’s fraudulent joinder until oral argument before the Ninth Circuit on August 15, 2025.
JELD-WEN and SBS assert that the Notice of Removal did not need to raise fraudulent joinder because: (1) a defendant is “not required to plead all alternative jurisdictional doctrines, especially not those that were legally unnecessary under the jurisdictional case law at the time”;69 and (2) “Plaintiffs’ waiver theory also ignores the intervening change in controlling law.”70
Plaintiffs cite to City of Oakland v. BP PLC for the proposition that a jurisdictional basis that is not asserted in the notice of removal is waived and cannot be later asserted.71 As explained by the Circuit Court: The [defendants] identified six alternate bases for subject-matter jurisdiction in their notices of removal . . . On appeal, the [defendants] identified admiralty jurisdiction, 28 U.S.C. § 1333, as a seventh alternate basis for jurisdiction. As the [plaintiffs] point out, however, the [defendants] waived any argument related to admiralty jurisdiction by not invoking it in their notices of removal. See 28 U.S.C. § 1446(a)
68 Docket 1 at ¶ 3; see also Docket 114 at 24 (“Defendants removed solely on CAFA grounds and did not assert fraudulent joinder in their Notice of Removal, their oppositions to either Motion to Remand, or at the November 9, 2022 hearing.”). 69 Docket 127 at 2. SBS does not cite to any legal authority in support of this proposition. SBS also maintains that because the Notice of Removal asserted there was minimum diversity under CAFA, the question of diversity jurisdiction has always been before the Court. Docket 132 at 6– 7. 70 Docket 127 at 3 (“Only after Royal Canin did the jurisdictional framework shift in a manner that required consideration of alternative bases for federal jurisdiction.”). 71 Docket 119 at 15–16 (first citing City of Oakland v. BP PLC, 960 F.3d 570, 576 (9th Cir. 2020), opinion amended and superseded on denial of reh’g, 969 F.3d 895 (9th Cir. 2020); and then citing City of Oakland, 969 F.3d at 901 n.12). This order will cite only to the Ninth Circuit’s amended opinion. Defendants did not address City of Oakland in their respective reply briefs. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. (notice of removal must “contain[ ] a short and plain statement of the grounds for removal”); [ARCO Environmental Remediation], 213 F.3d at 1117 (notice of removal “cannot be amended to add a separate basis for removal jurisdiction after the thirty day period” (citation omitted)); O'Halloran, 856 F.2d at 1381 (same). Because the deadline for amending the notices of removal has passed, the [defendants] may not rely on admiralty jurisdiction as a basis for removal on remand.72
Having determined that the defendants waived any argument for removal based on admiralty jurisdiction, the Ninth Circuit “remand[ed] these cases to the district court to determine whether there was an alternative basis for jurisdiction” in any of the six bases that were asserted in the defendants’ notices of removal.73 Plaintiffs also cite to three district court cases for the proposition that district courts “consistently find waiver when fraudulent joinder is not timely raised in the original notice of removal.”74 In Suckoll v. Walmart, Inc., the plaintiff, a citizen of Hawaii, brought three state law employment claims against her diverse employer, Walmart, and her non-diverse immediate supervisor.75 After service of the complaint solely on Walmart, Walmart removed the action to federal court on the basis of diversity jurisdiction; it argued there was diversity jurisdiction because the other defendant, a citizen of Hawaii, had not yet been served. The plaintiff moved
72 City of Oakland, 969 F.3d at 911 n.12 (internal citation omitted). 73 Id. at 911. 74 Docket 119 at 16–18 (first citing Suckoll v. Walmart, Inc., Case No. 21-CV-00385-DKW-KJM, 2021 WL 5217622 (D. Haw. Nov. 9, 2021); then citing Prado v. Dart Container Corp. of California, 373 F. Supp. 3d 1281 (N.D. Cal. 2019); and then citing Graybill-Bundgard v. Standard Ins. Co., 793 F. Supp. 2d 1117 (N.D. Cal. 2011)). 75 Suckoll, 2021 WL 5217622, at *1–2. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. to remand to state court for lack of complete diversity. Then, “57 days after service of the Complaint and well beyond Section 1446's 30-day cut-off,” Walmart first argued that the non-diverse supervisor defendant had been fraudulently joined.76
The District of Hawaii remanded the case to Hawaii state court. On the fraudulent joinder issue, the district court found that “Walmart waived its claim of fraudulent joinder by failing to timely present that basis for removal.”77 The district court noted that “[i]n its Notice of Removal, Walmart never mentioned fraudulent joinder; it premised removal on non-service [of the non-diverse defendant]
alone.”78 The court added, “[m]any other district courts have held likewise” that “[f]raudulent joinder is an entirely new basis for removal based on diversity that is waived if not timely raised.”79 In Graybill-Bundgard v. Standard Insurance Co., a California plaintiff sued a Minnesota-domiciled corporate defendant and a California state Commissioner.80
76 Id. at *2–3. 77 Id. at *3. 78 Id. 79 Id. (first citing Dasilva v. Germany, 514 F. Supp. 3d 393, 399 (D. Mass. 2021); then citing Ramirez v. McMoRan Expl. Co., 2011 WL 3324320 at *3 (W.D. Tex. 2011) (holding defendant could not raise fraudulent joinder anew “in response to a well-crafted motion to remand” and compiling seven other district court cases holding the same); then citing Sullivan v. BNSF Ry. Co., 447 F. Supp. 2d 1092, 1099 (D. Ariz. 2006) (“It would be a substantial injustice to allow Defendants to remove a case on one ground and then, when faced with a serious challenge to that ground, attempt to justify removal on an entirely different, and untimely, ground.”) (citation omitted); and then citing Castle v. Laurel Creek Co., Inc., 848 F. Supp. 62, 66 (S.D.W. Va. 1994)). 80 793 F. Supp. 2d 1117, 1119 (N.D. Cal. 2011). Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. After the non-diverse California defendant was dismissed without leave to amend in the state court, the Minnesota corporate defendant filed a notice of removal, asserting there was federal jurisdiction because there was now complete diversity
and the removal notice was not untimely because the California Commissioner had been fraudulently joined.81 In granting the plaintiff's motion to remand, the district court found that “Defendant's fraudulent joinder argument is flawed procedurally because its removal is untimely and substantively because Plaintiff had a possible cause of
action against the Commissioner.”82 On the procedural issue, the district court noted that the defendant “was able to determine that the Commissioner was fraudulently joined when it was served with the complaint on October 28, 2010,” but “[s]ince Defendant filed its notice of removal three and one-half months after service, its assertion of fraudulent joinder is untimely.”83
Plaintiffs also cite to Prado v. Dart Container Corp. of California.84 In Prado, the plaintiff, a California citizen, filed a putative class action in state court against a California corporation.85 The defendant filed a notice of removal with the federal
81 Id. 82 Id. at 1119–1120. 83 Id. at 1120 (citing Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 n.4 (7th Cir. 1992)). 84 Docket 119 at 16 (citing Prado v. Dart Container Corp. of California, 373 F. Supp. 3d 1281, 1284 (N.D. Cal. 2019)). 85 Prado, 373 F. Supp. 3d at 1284. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. court pursuant to CAFA. The plaintiff moved to remand on the grounds that the defendant’s notice of removal was untimely because it had not been filed until 31 days after the plaintiff had served the defendant with the complaint.86
The district court first found that the defendant’s notice of removal was untimely because it was not filed within the requisite 30 days after service.87 The district court also denied the defendant’s motion for leave to file an amended notice of removal that attempted to assert that the original complaint was “indeterminate” and hence the action was not removable until an amended complaint was filed.88
In rejecting that argument, the district court reasoned that if it were to rule otherwise, “a defendant could state one timeliness ground in its notice of removal and then, once challenged, later attempt to rely on an entirely different basis for removal.”89 At the February 25, 2026 oral argument in this case, Plaintiffs also cited to
Coastal Construction Company, Inc. for the same proposition—that fraudulent joinder is waived if not initially raised in the notice of removal.90 There, the diverse
86 Id. at 1285. 87 Id. 88 Id. at 1286 (citing Roth v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1125 (9th Cir. 2013)). 89 Id. at 1287 (citing O'Halloran, 856 F.2d at 1381. 90 Docket 132 at 28–29; Coastal Const. Co., Inc. v. N. Am. Specialty Ins. Co., Case No. CIV. 11- 00115 HG-BMK, 2011 WL 1637467, at *3 (D. Haw. Apr. 29, 2011), report and recommendation adopted sub nom. Costal Const. Co., Inc. v. N. Am. Specialty Ins. Co., Case No. CIV. 11-00115 HG-BMK, 2011 WL 2037602 (D. Haw. May 24, 2011)). Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. defendant filed a notice of removal and then an amended notice of removal, which both stated that the non-diverse defendant’s citizenship should be disregarded because that defendant should be dismissed under Federal Rules of Civil
Procedure 19 and 21 as a non-indispensable party. The plaintiff moved to remand; in its opposition, the defendant asserted for the first time that the non-diverse defendant had been fraudulently joined. In granting the motion to remand, the District of Hawaii rejected the defendant’s fraudulent joinder argument on timeliness grounds since “neither Notice [of removal] mentions fraudulent
joinder.”91 “[C]ourts have permitted defendants to amend notices of removal premised on diversity jurisdiction to correct technical defects in the facts related to diversity.”92 However, Defendants do not assert that they are attempting to correct technical defects that might warrant the retention of federal jurisdiction.93 Rather,
Defendants appear to assert that they should be able to raise their fraudulent joinder argument now because they could not have reasonably predicted that the
91 Id. at *5. 92 Prado, 373 F. Supp. 3d at 1287–88 (citing Barrow Dev. Co. v. Fulton Ins. Co., 418 F.2d 316, 317 (9th Cir. 1969); Kacludis v. GTE Sprint Commc’ns Corp., 806 F. Supp. 866, 869 (N.D. Cal. 1992) (granting motion to correct notice of removal that stated only one defendant's state of citizenship at the time of filing, but not at the time of removal, as is required)). 93 Soliman v. Philip Morris Inc., 311 F.3d 966, 970 (9th Cir. 2002) (“[A] procedural defect existing at the time of removal but cured prior to entry of judgment does not warrant reversal and remand of the matter to state court.”) (alteration in original and internal quotation marks omitted); Barrow, 418 F.2d at 317 (“[T]he removal petition cannot be thereafter amended to add allegations of substance but solely to clarify ‘defective’ allegations of jurisdiction previously made.”). Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. Supreme Court would decide Royal Canin the way it did so as to destroy this Court’s subject matter jurisdiction when Plaintiffs abandoned their class action claims.
Yet City of Oakland, Suckoll, Prado, Graybill-Bundgard, and Coastal Construction all mandate strict adherence to 28 U.S.C. § 1446(b)’s requirements in the notice of removal. The instant case is much like City of Oakland: The admiralty law basis for jurisdiction asserted there on appeal was not one of the original six timely asserted bases for removal jurisdiction, and as a result, the Ninth
Circuit held that “[b]ecause the deadline for amending the notices of removal has passed, the [defendants] may not rely on admiralty jurisdiction as a basis for removal on remand.”94 Here, SBS first raised its fraudulent joinder argument on August 15, 2025, during oral argument before the Ninth Circuit—more than three years after the Notice of Removal was filed in this Court in July 2022.95
In Graybill-Bundgard, the district court found that fraudulent joinder was untimely under 28 U.S.C. § 1446(b) when it was raised three and one half months after service.96 Even a notice of removal that was filed one day late was considered untimely in Prado. Like the defendant in Prado, who sought “to amend
94 City of Oakland, 969 F.3d at 911 n.12; see Docket 119 at 16. 95 At oral argument before the Ninth Circuit, only SBS, not JELD-WEN, raised the fraudulent joinder issue. Oral Argument at 23:15-27:54, 32:31-33:12, Faulk v. Jeld-Wen, Inc., Case No. 24- 4078 (9th Cir. Aug. 15, 2025); see also Faulk, 159 F.4th at 625. 96 793 F.Supp.2d at 1120. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. its notice of removal to rely on an entirely different timeliness ground not stated in the original notice of removal,”97 here, neither JELD-WEN nor SBS can proceed on an entirely new basis for this Court to exercise subject matter jurisdiction at this
time. SBS is correct that CAFA’s minimal diversity requirement, which “does not depend on disregarding the citizenship of any defendant,” “supplied an independent basis for federal jurisdiction” when the Notice of Removal was filed in 2022.98 SBS is similarly correct that “[a]t the time of removal and throughout the
early stages of this case, jurisdiction rested on Class Action Fairness Act principles that were later abrogated by the Supreme Court’s decision in [Royal Canin].”99 The Court acknowledges that the jurisdictional impact of Royal Canin on this case was likely unforeseeable in July 2022. Although the minimal diversity requirement under CAFA established subject matter jurisdiction when the original
Complaint was filed, so too could JELD-WEN have asserted in its Notice of Removal that SBS had been fraudulently joined as a separate basis for removal jurisdiction based on complete diversity. This new jurisdictional basis cannot be
97 Prado, 373 F. Supp. 3d at 1288 (citing Bicek v. C & S Wholesale Grocers, Inc., Case No. 2:13-CV-00411-MCE-KJN, 2013 WL 4009239, at *4 (E.D. Cal. Aug. 5, 2013) (denying motion to amend notice of removal where a defendant wished to “assert totally new grounds for removal”)). 98 Docket 127 at 2. 99 Docket 127 at 3. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. added years after the 30-day window elapsed in July 2022.100 Recently, the Supreme Court strictly applied the removal statute. On April 22, 2026, in Enbridge Energy, LP v. Nessel, the Supreme Court held that the 30-
day time limit for removal under 28 U.S.C. § 1446(b), while not jurisdictional, is mandatory, and, as a result, not subject to equitable tolling.101 Although Enbridge considered a different question, the decision stresses that the 30-day deadline in the removal statute must be strictly applied because the “provision speaks in strict, mandatory terms.”102 Further, the Court reasoned that the failure to abide by “§
1446(b)(1)’s deadline would undermine Congress's manifest interest in resolving threshold removal questions early and conclusively.”103 SBS asserts that “there was no need, and no procedural occasion, to invoke fraudulent joinder at removal.”104 Defendants may well have decided there was no need to raise the fraudulent joinder issue in the Notice of Removal given the class
action allegations and CAFA’s limited diversity requirement. Nonetheless, the Notice of Removal was the procedural occasion to raise fraudulent joinder as an
100 O'Halloran, 856 F.2d at 1381 (A notice of removal “cannot be amended to add a separate basis for removal jurisdiction after the thirty day period.”). 101 608 U.S. ––––, 146 S.Ct. 1074, 1079 (2026) (“Because § 1446(b)(1)’s text, structure, and context are inconsistent with equitable tolling, Enbridge's removal was untimely and remand to the Michigan state court is required.”). 102 Id. at 1082. 103 Id. at 1084. 104 Docket 127 at 2. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. alternative basis for federal jurisdiction, which Defendants failed to do.105 b. Jurisdictional Inquiry SBS contends that “the application of the fraudulent joinder doctrine has not
been waived by the timing of its presentation” because “[s]ubject matter jurisdiction cannot be created, or destroyed, by waiver, consent, or forfeiture, and a federal court has an independent obligation to assess its jurisdiction at every stage of the proceedings.”106 JELD-WEN similarly maintains that “[f]raudulent joinder is a jurisdictional inquiry that may be raised at any time and is not subject to waiver.”107
The Court disagrees. A federal court must dismiss or remand a matter to state court at any time if it determines it lacks jurisdiction.108 Defendants are attempting to stand that principle on its head by seeking to apply it to establish subject matter jurisdiction on a new basis years after Plaintiffs initiated this case in the state court.
JELD-WEN cites to Hampton-Stein v. Aviation Financial Group, an
105 See Barrow Dev. Co., 418 F.2d at 317; see also Graybill–Bundgard, 793 F. Supp. 2d at 1120 (finding defendant's “fraudulent joinder argument [to be] flawed procedurally because its removal [was] untimely” where alleged fraudulent joinder could have been recognized from the complaint). 106 Docket 113 at 11; Docket 127 at 3 (citing Fed. R. Civ. P. 12(b)(1)). 107 Docket 117 at 2 (emphasis in original) (citing GranCare, LLC v. Thrower, 889 F.3d 543, 549 (9th Cir. 2018) (“contrasting the legal standard for fraudulent joinder, ‘a jurisdictional inquiry,’ with the legal standard for Rule 12(b)(6))”)). 108 See Royal Canin, 604 U.S. at 39 (“The operative pleading no longer supports federal jurisdiction, and the federal court must remand the case to the state court where it started.”); 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”); see also Royal Canin, 604 U.S. at 32 (“[C]ourts look to the amended complaint to determine jurisdiction.”). Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. unpublished district court order, for the proposition that “[c]ourts in the Ninth Circuit may sua sponte dismiss a nondiverse party post-removal by finding that the party was fraudulently joined.”109 But in Hampton-Stein, unlike here, the defendant
asserted that the non-diverse defendant was a “‘sham’ defendant” in its timely notice of removal.110 Hampton-Stein also relied on Sams v. Beech Aircraft Corp.111 Yet Beech Aircraft Corp. is inapplicable because that case concerned Rule 21, not fraudulent joinder.112 Next, JELD-WEN cites Charlin v. Allstate Insurance Co. for the proposition
that “[w]here a defendant raises fraudulent joinder, federal courts may look beyond the pleadings to determine whether the challenged joinder was in fact a sham or fraudulent device to prevent removal.”113 But in Charlin, as in Hampton-Stein, the issue of fraudulent joinder was raised at the very outset of the case.114 The time for SBS and JELD-WEN to have asked this Court to look beyond the pleadings to
109 Docket 117 at 2 & n.3 (first citing Hampton-Stein v. Aviation Fin. Grp., Case No. 10-CV- 03897-RGK-PJWX, 2010 WL 11601046, at *3 (C.D. Cal. July 30, 2010); and then citing Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)). 110 Hampton-Stein, 2010 WL 11601046, at *3 (quoting Ritchey, 139 F.3d at 1318-19). 111 See Hampton-Stein, 2010 WL 11601046, at *2 (quoting Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980)). 112 Beech Aircraft Corp., 625 F.2d at 277 (“Rule 21 grants a federal district or appellate court the discretionary power to perfect its diversity jurisdiction by dropping a nondiverse party provided the nondiverse party is not indispensable to the action under Rule 19.”)); see Fed. R. Civ. P. 21 (“[T]he court may at any time, on just terms, add or drop a party.”). 113 Docket 117 at 2–3 (citing Charlin v. Allstate Ins. Co., 19 F. Supp. 2d 1137, 1140 (C.D. Cal. 1998)). 114 Charlin, 19 F. Supp. 2d at 1139. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. determine if SBS was fraudulently joined was in 2022, not on remand from the Ninth Circuit. Here, the Ninth Circuit directed this Court to remand to the state court
“unless Defendants establish another basis for federal subject matter jurisdiction.”115 While Defendants are correct that “[s]ubject-matter jurisdiction can never be waived or forfeited,” that rule applies when a party is asserting that the federal court lacks subject matter jurisdiction—not, as Defendants argue here, to establish a new basis of federal subject matter jurisdiction.116
c. Hain Celestial Group, Inc. v. Palmquist At oral argument, SBS asserted that Hain Celestial Group, Inc. v. Palmquist, issued by the Supreme Court just the day before, had persuasive effect in favor of this Court retaining jurisdiction.117 Hain held that “a district court's erroneous dismissal of a nondiverse party before final judgment can[not] cure a jurisdictional
defect that existed when the case was removed to federal court.”118 SBS emphasized the following portion of the decision: If the court of appeals concludes that the district court lacked jurisdiction over the case when it was filed in or removed to federal court, then the court of appeals typically must vacate any judgment
115 Faulk, 159 F.4th at 625. 116 Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented. . . . The objections may be resurrected at any point in the litigation, and a valid objection may lead a court midway through briefing to dismiss a complaint in its entirety.”). 117 607 U.S. 421, 428 (2026); Docket 132 (Oral Arg. Transcript) at 18, 22. 118 Hain, 607 U.S. at 424. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. on the merits. See Williams v. Zbaraz, 448 U.S. 358, 368 (1980); American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17–18 (1951).
There is, however, one exception to the general rule relevant to this case. If a district court “cures” a jurisdictional defect prior to final judgment, then the court of appeals is not required to vacate that judgment even if, at some earlier point in the case, the district court lacked jurisdiction.119
SBS maintains that in Hain, the Supreme Court is directing district courts to fix jurisdictional defects whenever feasible.120 In Hain, the diverse defendant removed a case to federal court even though there was not complete diversity at the time of removal. Again, unlike the case here, the defendant in Hain timely asserted that the non-diverse defendant had been improperly joined in its notice of removal.121 The district court agreed with the defendant and dismissed the non-diverse defendant and denied the plaintiffs’ motion to remand. The case then proceeded to trial against the diverse defendant. On appeal, the plaintiff prevailed on its argument that the district court had erred in dismissing the non-diverse defendant. The Supreme Court held that the district court's erroneous dismissal of the non-diverse defendant did not “cure” the lack of
119 Docket 132 (Oral Arg. Transcript) at 17–18 (citing Hain, 607 U.S. at 428) (“I think [these two sentences in subsection (a) of the opinion are a] pretty strong indication that the U.S. Supreme Court is directing us here to fix jurisdiction first before we dismiss a defendant from this case.”); see also Docket 132 (Oral Arg. Transcript) at 23 (“Especially in light of Hain Celestial Group, I think this particular case, strongly suggests -- not only suggests, it mandates that the Court maintain jurisdiction, and you can dismiss defendants and still maintain jurisdiction.”).. 120 Docket 132 (Oral Arg. Transcript) at 17–18. 121 Hain, 607 U.S. at 426. The Supreme Court in Hain did not evaluate whether the district court's improper joinder decision was correct. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. diversity of citizenship that existed at the time of removal and thus affirmed the Circuit Court’s decision vacating the judgment in favor of the diverse defendant.122 Here, the Court is not persuaded that the exception to the general rule
recognized in Hain should apply. Under that exception, a jurisdictional defect is potentially curable before entry of final judgment. But the Hain court itself did not apply that exception, reasoning that a district court cannot “create jurisdiction through its own mistakes.”123 When the Fifth Circuit held that the district court’s dismissal of the non-diverse defendant was erroneous, that interlocutory order
merged into the final judgment: “When the Fifth Circuit reversed the District Court’s error, it restored [the non-diverse defendant] to the case and correctly held that the jurisdictional defect had not been cured.”124 On review by the Supreme Court, neither party in Hain contested the Fifth Circuit’s reversal of the district court’s dismissal of the non-diverse defendant. The
case presupposed that the dismissal of the non-diverse defendant was improper, such that there was no federal diversity jurisdiction.125 Hain reasoned that a district court cannot enter judgment if it “lacked jurisdiction over the case when it was filed in or removed to federal court[.]”126 If anything, the Court finds the opinion
122 Id. at 434. 123 Id. at 431. 124 Id. at 431. 125 Id. at 427–28. 126 Id. at 428. Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. persuasive in favor of Plaintiffs. Hain emphasized and reiterated that it is the plaintiffs who have the right to choose whether their case is litigated in federal or state court.127 And although Hain states that under the “one exception to the
general rule,” a court may “cure” a jurisdictional defect, that argument must be properly presented to that court, which here, would mean Defendants raising the fraudulent joinder argument in their July 2022 Notice of Removal in accordance with 28 U.S.C. § 1446(a). Based on the foregoing reasons, the Court finds that Defendants’ assertion
that SBS was fraudulently joined in this action was not timely raised in JELD- WEN’s July 2022 Notice of Removal and is therefore waived. IV. Remaining Arguments Because JELD-WEN and SBS waived their right to raise fraudulent joinder as a basis to establish federal subject matter jurisdiction, the Court does not
address the merits of Defendants’ fraudulent joinder claim. There being no other basis asserted for subject matter jurisdiction at this time, remand to the state court is required.128
127 Id. at 433 (internal quotations omitted) (quoting Royal Canin, 604 U.S. at 35) (“The plaintiff is the master of the complaint, and generally has the right to choose whether to proceed in federal or state court.”). 128 See Walker, 158 F.4th at 983 (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”) (quoting 28 U.S.C. § 1447(c))). Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al. CONCLUSION For the foregoing reasons, Defendants JELD-WEN, Inc. d/b/a Pozzi Window Company and Pozzi Window Company and Roderick C. Wendt’s Motion in
Response to Court Order [Dkt. 104] Regarding Subject Matter Jurisdiction at Docket 106 and SBS’s Motion in Response to Court Order re Subject Matter Jurisdiction at Docket 113 are both DENIED. This case is REMANDED to the Superior Court for the State of Alaska, Third Judicial District at Anchorage. The Clerk of Court shall enter a final judgment accordingly.
DATED this 30th day of July, 2026, at Anchorage, Alaska. /s/ Sharon L. Gleason UNITED STATES DISTRICT JUDGE
Case No. 3:22-cv-00171-SLG, Faulk, et al. v. JELD-WEN, Inc., et al.