1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 KATE KOELLER, et al., Case No. 25-cv-04549-VKD
9 Plaintiffs, ORDER DENYING MOTION TO 10 v. REMAND
11 NIXPLAY, INC., et al., Re: Dkt. No. 21 Defendants. 12
13 14 On May 29, 2025, defendants Nixplay, Inc. and Creedon Technologies USA, LLC 15 removed this action from the Superior Court for the County of Santa Clara, invoking the Court’s 16 diversity jurisdiction, 28 U.S.C. § 1332. See Dkt. No. 1. On July 28, 2025, plaintiffs Kate 17 Koeller, Jeff Koeller, Matt Davidson, and Amy Boleski filed a first amended complaint. Dkt. No. 18 16. On August 11, 2025, defendants filed an amended notice of removal. Dkt. No. 19. On 19 August 18, 2025, plaintiffs moved to remand this action back to state court. Dkt. No. 21. 20 Defendants opposed the motion. Dkt. No. 29. On September 23, 2025, the Court heard oral 21 argument on the motion. Dkt. No. 38. Thereafter, as permitted by the Court, the parties engaged 22 in limited jurisdictional discovery and filed supplemental briefs. See Dkt. Nos. 39, 59, 60. 23 Upon consideration of the moving and responding papers, supplemental briefs, and oral 24 arguments presented, the Court denies plaintiffs’ motion to remand.1 25 I. BACKGROUND 26 On April 22, 2025, plaintiffs Ms. Koeller, Mr. Koeller, and Mr. Davidson filed this action 27 1 in the Superior Court for the County of Santa Clara, asserting state law claims for breach of 2 contract and for violations of the California Consumer Legal Remedies Act, California’s False 3 Advertising Law, and California’s Unfair Competition Law. See Dkt. No. 1-1 ¶ 2, Ex. A. On 4 May 29, 2025, defendants removed the action to this Court, asserting diversity jurisdiction 5 pursuant to 28 U.S.C. § 1332. Dkt. No. 1 ¶ 1. The May 29, 2025 notice of removal states that Ms. 6 Koeller and Mr. Koeller are citizens of Illinois, and that Mr. Davidson is a citizen of California. 7 Id. ¶¶ 1-2. The notice also states that Nixplay, Inc. is a citizen of Delaware, its place of 8 incorporation, and Colorado, its principal place of business, and that Creedon Technologies USA, 9 LLC is a Minnesota LLC with offices in Minnesota and Colorado. Id. ¶¶ 4, 5. 10 On July 28, 2025, plaintiffs filed a first amended complaint, joining Ms. Boleski as a 11 plaintiff and adding state law claims for negligent misrepresentation and intentional 12 misrepresentation. Dkt. No. 16. The amended complaint alleges that Ms. Koeller and Mr. Koeller 13 are citizens of Illinois, Mr. Davidson is a citizen of California, and Ms. Boleski is a citizen of 14 Colorado. Id. ¶¶ 5-8. 15 On August 11, 2025, defendants filed an amended notice of removal. Dkt. No. 19. The 16 amended notice states that Nixplay, Inc. is a citizen of Delaware, where it is incorporated. Id. ¶ 5. 17 It further states that Creedon Technologies USA, LLC is a citizen of Minnesota. Id. ¶ 6. 18 However, the amended notice asserts that neither defendant has a principal place of business or an 19 office in Colorado. See id. ¶¶ 5, 6. 20 On August 18, 2025, plaintiffs moved pursuant to 28 U.S.C. § 1447(c) to remand this case 21 to state court, arguing that complete diversity is lacking because defendants “are judicially 22 estopped from changing their citizenship for the purposes of diversity, as they specifically 23 removed this action from state court on the basis of being citizens of Colorado.” Dkt. No. 21 at 3. 24 Thereafter, the Court directed all parties to file statements disclosing their citizenship pursuant to 25 Rule 7.1 of the Federal Rules of Civil Procedure. Dkt. No. 33. The Court noted that Creedon 26 Technologies USA, LLC had not identified all of its members and the citizenship of those 27 members, and Nixplay, Inc. had not identified its principal place of business, as required for 1 All parties filed Rule 7.1 statements identifying their citizenship. Dkt. Nos. 35, 36. 2 Plaintiffs’ statement restates that Ms. Koeller and Mr. Koeller are citizens of Illinois, Mr. 3 Davidson is a citizen of California, and Ms. Boleski is a citizen of Colorado. Dkt. No. 35. 4 Defendants’ statement indicates that Nixplay, Inc. is a citizen of Delaware, its place of 5 incorporation, and the United Kingdom, its principal place of business. Dkt. No. 36 at 2. 6 Defendants’ statement also discloses that Creedon Technologies USA, LLC has only one member, 7 Creedon Technologies HK Limited. Id. at 1. Defendants claim that Creedon Technologies HK 8 Limited is a citizen of Hong Kong, and therefore, Creedon Technologies USA, LLC is a citizen of 9 Hong Kong. Id. 10 The Court held a hearing on plaintiffs’ motion to remand on September 23, 2025. Dkt. No. 11 38. Following discussion at the September 23, 2025 hearing, the Court granted plaintiffs’ request 12 for expedited jurisdictional discovery limited to the citizenship of defendants. Dkt. No. 39. After 13 undertaking jurisdictional discovery and with the Court’s leave, the parties submitted 14 supplemental briefs. Dkt. Nos. 59, 60. 15 II. LEGAL STANDARD 16 A. Removal Jurisdiction 17 Removal of a state court action to federal district court is proper where the federal court 18 would have original subject matter jurisdiction over the complaint. 28 U.S.C. § 1441. Federal 19 district courts have diversity jurisdiction over civil actions in which the matter in controversy 20 exceeds the sum or value of $75,000 (exclusive of interest and costs) and is between citizens of 21 different states. 28 U.S.C. § 1332. “[Diversity] is determined (and must exist) as of the time the 22 complaint is filed and removal is effected.” Strotek Corp. v. Air Transp. Ass’n. of Am., 300 F.3d 23 1129, 1131 (9th Cir. 2002). Courts must look at the “actual state of things” or “the facts on the 24 ground” when evaluating a party’s citizenship in a diversity case. See Royal Canin U. S. A., Inc. v. 25 Wullschleger, 604 U.S. 22, 36 n.5 (2025) (internal quotation and citation omitted); see also 26 Strotek, 300 F.3d at 1132 (“[J]urisdictional facts, not fiction even if truly believed, are dispositive. 27 . . . actual citizenship controls[.]”). “Once jurisdiction attaches, a party cannot thereafter, by its 1 The removal statutes are strictly construed against removal and place the burden on the 2 defendant to demonstrate that removal is proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 3 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). An 4 action must be remanded to the state court if it appears at any time before final judgment that the 5 court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). 6 B. Amendment of Removal Notice 7 Like a complaint, a notice of removal is subject to the standards of Rule 8. See Dart 8 Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 87 (2014) (“By design, § 1446(a) 9 tracks the general pleading requirement stated in Rule 8(a) of the Federal Rules of Civil 10 Procedures.”); Fed. R. Civ. P. 8. Congress intended to “simplify the ‘pleading’ requirements for 11 removal” and to clarify that courts should “apply the same liberal rules [to removal allegations] 12 that are applied to other matters of pleading.” Dart Cherokee, 573 U.S. at 87 (citing H.R. Rep. 13 No. 100-889, at 71 (1988)). Generally, courts will allow removing parties to clarify “merely 14 defective” allegations in support of removal jurisdiction. See, e.g., Barrow Dev. Co. v. Fulton Ins. 15 Co., 418 F.2d 316, 317 (9th Cir. 1969); Doe v. Deutsche Lufthansa Aktiengesellschaft, No. 23-cv- 16 04413-SI, 2025 WL 2578241, at *1 (N.D. Cal. Sept. 5, 2025) (“After the 30 day period [for filing 17 a notice of removal], removal petitions cannot be amended to add allegations of substance, but 18 only to clarify defective allegations of jurisdiction.”) (citing Barrow, 418 F.2d at 317-18). 19 C. Plaintiffs’ Request for Judicial Notice 20 Plaintiffs request that the Court take judicial notice of two documents that Nixplay, Inc. 21 filed with the SEC: (1) a letter dated November 17, 2022 regarding “Offering Statement on Form 22 1-A Filed September 30, 2022”; and (2) a document dated March 20, 2023 titled “Offering 23 Circular.” Dkt. No. 37. Defendants do not oppose the request for judicial notice. 24 A court may take notice of public records, but not of disputed facts stated in public 25 records. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (citing Lee v. 26 City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001)). Documents filed with the SEC are 27 properly subject to judicial notice. See, e.g., Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 1 publicly available financial documents and SEC filings). However, because statements of fact 2 contained in the documents may be subject to reasonable dispute, the Court takes judicial notice of 3 the existence of statements in the filings, but not the truth of those statements. See City of Pontiac 4 Gen. Emps.’ Ret. Sys. v. Bush, No. 20-cv-06651-JST, 2022 WL 1467773, at *2 (N.D. Cal. Mar. 1, 5 2022). For the reasons explained below, these records are not material to the disposition of this 6 motion. 7 III. DISCUSSION 8 The parties do not dispute the amount in controversy or plaintiffs’ citizenship. They 9 disagree only about defendants’ citizenship. 10 Plaintiffs challenge diversity of citizenship on two grounds. First, plaintiffs argue that 11 because defendants’ original notice of removal stated that defendants are citizens of Colorado, 12 they are judicially estopped from “changing their citizenship,” and because plaintiff Ms. Boleski is 13 also a citizen of Colorado, the parties are not diverse. Dkt. No. 21 at 3. Second, plaintiffs contend 14 that the citizenship of Nixplay Cayman, a non-party subsidiary of defendant Nixplay, Inc., should 15 be imputed to Nixplay, Inc., making Nixplay, Inc. a citizen of California, and because Mr. 16 Davidson is also a citizen of California, the parties are not diverse. Dkt. No. 60 at 1. 17 Defendants respond that they are not judicially estopped from amending their removal 18 notice to cure defective jurisdictional allegations. Dkt. No. 29 at 7, 9-10. In addition, defendants 19 argue that the citizenship of Nixplay Cayman is irrelevant to analyzing defendants’ citizenship. 20 Dkt. No. 59 at 8-9. Defendants separately contend that plaintiffs improperly joined plaintiff Ms. 21 Boleski to destroy diversity jurisdiction. Dkt. No. 29 at 1, 10-11. 22 The Court first considers what the record presented establishes regarding the citizenship of 23 defendants Nixplay, Inc. and Creedon Technologies USA, LLC—i.e., the “actual state of 24 things”—at all times relevant to the question of removal jurisdiction. Then, the Court addresses 25 the parties’ remaining disputes regarding defendants’ allegations in the amended notice of removal 26 and plaintiffs’ addition of Ms. Boleski as a plaintiff in the amended complaint. 27 A. Defendants’ Citizenship 1 filed in state court) and May 29, 2025 (date of removal to federal district court) for purposes of 2 analyzing diversity jurisdiction. See Dkt. Nos. 1, 1-2; see Strotek, 300 F.3d at 1131. 3 1. Nixplay, Inc.’s citizenship 4 For purposes of diversity jurisdiction, “a corporation shall be deemed to be a citizen of 5 every State and foreign state by which it has been incorporated and of the State or foreign state 6 where it has its principal place of business.” 28 U.S.C. § 1332(c)(1). 7 Defendants currently assert that Nixplay, Inc.’s state of incorporation is Delaware, and that 8 at all relevant times, its principal place of business is and was in the United Kingdom. Dkt. No. 36 9 at 2; Dkt. No. 59 at 6. Plaintiffs do not dispute that Nixplay, Inc. is incorporated in Delaware. See 10 Dkt. No. 21 at 3. Nor do plaintiffs continue to assert, as they did in their motion to remand, that 11 Nixplay, Inc.’s principal place of business is in Colorado. Compare Dkt. No. 21 at 3, 8 with Dkt. 12 No. 60 at 1. Rather, plaintiffs now contend that Nixplay, Inc. is merely a “shell corporation” with 13 no physical offices and no employees, which operates through a number of related entities, 14 including its subsidiary Nixplay Cayman. Dkt. No. 60 at 1-2. Plaintiffs argue that Nixplay 15 Cayman is the alter ego of defendant Nixplay, Inc., and that Nixplay Cayman’s citizenship— 16 which plaintiffs say is California—should be attributed to Nixplay, Inc. for purposes of 17 determining diversity. Id. at 3-5. Defendants respond that the citizenship of Nixplay Cayman is 18 not relevant to assessing Nixplay, Inc.’s citizenship. Dkt. No. 59 at 8-9. Defendants also argue 19 that, in any event, Nixplay Cayman is a Cayman Islands exempt company, which is considered a 20 corporation for diversity purposes and is therefore a citizen of the Cayman Islands. Id. 21 For purposes of diversity jurisdiction, a corporation’s principal place of business is the 22 location where its officers “direct, control, and coordinate the corporation’s activities,” typically 23 its headquarters. Hertz Corp. v. Friend, 559 U.S. 77, 80-81 (2010). Where a corporation has few, 24 if any, activities, such as a holding company, its principal place of business is the place where it 25 holds its board meetings, unless evidence shows that the corporation is directed from another 26 location. 3123 SMB LLC v. Horn, 880 F.3d 461, 468, 470 (9th Cir. 2018). The principal place of 27 business is not merely the location where its principal officers reside. Id. at 469. 1 inactive. Rather, it appears to be undisputed that Nixplay, Inc. is the “top [company]” in a 2 corporate structure that includes several other related entities. See Dkt. No. 60 at 1; Dkt. No. 60-1 3 ¶ 3, Ex. B (organizational chart). With respect to Nixplay, Inc., the evidence presented shows that 4 at all times since at least April 22, 2025: (1) Mark Palfreeman was the CEO of Nixplay, Inc., its 5 only officer, and its only director; (2) Nixplay, Inc. had no physical corporate headquarters;2 (3) 6 Nixplay, Inc. had no employees; (4) Mr. Palfreeman has directed Nixplay, Inc.’s operations and 7 activities from an office in the United Kingdom; (5) reports for “group consolidated accounts” are 8 provided on an annual basis for Nixplay, Inc. and include results for all companies within the 9 Nixplay group of companies; (6) any person or entity that owns shares in Nixplay, Inc. receives a 10 “shareholders report”; (7) although Nixplay, Inc. does not have board meetings, Mr. Palfreeman 11 and other senior managers with responsibility for related Nixplay entities hold virtual meetings 12 “once every other week.” See Dkt. No. 29-6 ¶¶ 3, 4, 6; Dkt. No. 59 at 6-7; Dkt. No. 59-1 ¶ 23, Ex. 13 W at 49:15-50:2; Dkt. No. 60 at 2; Dkt. No. 60-1 ¶ 2, Ex. A at 9:20-10:6, 13:10-12, 14:11-13, 14 17:22-18:16, 33:8-25; see also Dkt. No. 43 at 10:20-23 (defendants’ counsel stating at the hearing 15 that defendants had no employees in the U.S. as of 2025). Nothing in the record presented 16 following jurisdictional discovery supports plaintiffs’ original contention that Nixplay, Inc. had a 17 principal place of business in Colorado at any time relevant to the determination of diversity. See 18 Dkt. No. 21 at 3. To the contrary, the record supports defendants’ amended contention that 19 Nixplay, Inc.’s principal place of business is in the United Kingdom. Dkt. No. 36 at 2; Dkt. No. 20 59 at 6-7. Thus, absent evidence of “jurisdictional manipulation” or “an alter ego relationship” 21 between Nixplay, Inc. and a non-diverse entity, Nixplay, Inc. does not share citizenship with any 22 plaintiff. See 3123 SMB, 880 F.3d at 471; Co-Efficient Energy Sys. v. CSL Indus., Inc., 812 F.2d 23 556, 557-58 (9th Cir. 1987) (concluding that a corporation’s principal place of business was where 24 the “sole shareholder and director” “made business decisions”). 25 Plaintiffs do not contend that Nixplay, Inc. has engaged in manipulation of its corporate 26 form or location in order to create a basis for federal jurisdiction, but they do argue that Nixplay, 27 1 Inc. has an alter ego relationship with its subsidiary Nixplay Cayman, and that Nixplay Cayman’s 2 citizenship should be attributed to Nixplay, Inc. Dkt. No. 60 at 3-5. 3 “[T]he citizenship of a parent is distinct from its subsidiary where . . . there is no evidence 4 of an alter ego relationship.” Danjaq, S.A. v. Pathe Commc’ns Corp., 979 F.2d 772, 775 (9th Cir. 5 1992). To establish the existence of an alter ego relationship, plaintiffs “must make out a prima 6 facie case (1) that there is such unity of interest and ownership that the separate personalities of 7 the two entities no longer exist and (2) that failure to disregard their separate identities would 8 result in fraud or injustice.” Ranza v. Nike, Inc., 793 F.3d 1059, 1073 (9th Cir. 2015) (internal 9 quotation marks, alterations, and citation omitted). “Total ownership and shared management 10 personnel are alone insufficient to establish the requisite level of control.” Id. Instead, the 11 companies must be so intertwined as “to negate the entities’ separate personalities.” Id. at 1074. 12 Plaintiffs have shown neither a unity of interest between Nixplay, Inc. and Nixplay 13 Cayman nor that failure to disregard Nixplay, Inc.’s separate identity would result in injustice in 14 this action. While Nixplay Cayman is a subsidiary of Nixplay, Inc., it is not wholly owned by its 15 parent company. See Dkt. No. 60-1 ¶ 3, Ex. B. Mr. Palfreeman is a director of both Nixplay, Inc. 16 and Nixplay Cayman, but he is not the sole director of Nixplay Cayman. Dkt. No. 60 at 2. Mr. 17 Palfreeman performs work for all Nixplay entities from one office space, Dkt. No. 60-1 ¶ 2, Ex. A 18 at 46:1-47:8, but “‘superficial indicia of interrelatedness’ such as shared office space . . . are ‘not 19 dispositive of the alter-ego question,’” Pac. Gulf Shipping Co. v. Vigorous Shipping & Trading 20 S.A., 992 F.3d 893, 898-899 (9th Cir. 2021) (alteration omitted) (quoting Coastal States Trading, 21 Inc. v. Zenith Navigation, S.A., 446 F. Supp. 330, 334 (S.D.N.Y. 1977)) (in action to collect 22 arbitration award from alleged alter ego entities, holding that shared office space is insufficient to 23 establish alter ego). The Court finds no support for plaintiffs’ conclusory assertion that “Nixplay, 24 Inc. is merely a shell used to conduct the affairs of Nixplay Cayman.” See Dkt. No. 60 at 4. 25 Rather, the evidence presented suggests that Nixplay, Inc. has multiple related entities, including 26 Nixplay Cayman, organized to do business in different countries. See Dkt. No. 60-1 ¶ 2, Ex. A at 27 8:25-9:19, 50:18-21; Dkt. No. 60-1 ¶ 3, Ex. B. Moreover, there is no indication that Nixplay 1 and related services that are at issue in this action, or that plaintiffs are suing Nixplay, Inc. based 2 on the acts of its subsidiary Nixplay Cayman as opposed to the acts of Nixplay, Inc. alone 3 (together with co-defendant Creedon Technologies USA, LLC). In short, plaintiffs do not offer 4 any persuasive explanation for why the Court should attribute Nixplay Cayman’s citizenship to 5 Nixplay, Inc. Plaintiffs did not name Nixplay Cayman as a defendant in their original complaint, 6 it was not a defendant at the time of removal, and its citizenship is not relevant to the diversity 7 analysis.3 8 2. Creedon Technologies USA, LLC’s citizenship 9 For purposes of diversity jurisdiction, a limited liability company, or LLC, “is a citizen of 10 every state of which its owners/members are citizens.” Johnson v. Columbia Props. Anchorage, 11 LP, 437 F.3d 894, 899 (9th Cir. 2006). “And because a member of a limited liability company 12 may itself have multiple members—and thus may itself have multiple citizenships—the federal 13 court needs to know the citizenship of each ‘sub-member’ as well.” McKay v. Fay Servicing, 14 LLC, No. 23-cv-03731-EMC, 2023 WL 4848855, at *1 (N.D. Cal. July 28, 2023) (citation 15 omitted). 16 Defendants currently assert that Creedon Technologies USA, LLC (“Creedon USA”) is a 17 limited liability company whose sole member is Creedon Technologies HK Limited (“Creedon 18 HK”). Dkt. No. 36 at 1; Dkt. No. 59 at 7. They further assert that Creedon HK is a limited 19 company created under Hong Kong law that is considered the equivalent of a U.S. corporation. 20 Dkt. No. 36 at 1-2; Dkt. No. 59 at 7-8. As such, defendants argue that Creedon HK is a citizen of 21 Hong Kong, where it is registered. Dkt. No. 59 at 7-8; Dkt. No. 59-1 ¶¶ 7, 9, Exs. G, I . It is not 22 3 Even if Nixplay Cayman’s citizenship were attributed to Nixplay, Inc., the Court is not 23 persuaded that Nixplay Cayman can properly be considered an LLC; rather, the relevant authority supports defendants’ argument that Nixplay Cayman should be considered a corporation for 24 purposes of diversity. See, e.g., Rosenblatt v. Ernst & Young Int’l, Ltd., 28 F. App’x 731, 733 (2002) (treating Cayman Islands corporation as a U.S. corporation because “[s]ection 1332 draws 25 no distinction between corporations incorporated within the United States and those incorporated in a foreign state”); Roosevelt REO PR, Corp. v. Silva-Navarro, No. 16-cv-1036 (ADC), 2020 WL 26 1493904, at *3 (D.P.R. Mar. 25, 2020) (holding that exempt companies organized under the laws of the Cayman Islands are corporations for purposes of diversity jurisdiction), aff’d, No. 20-1442, 27 2022 WL 10480837 (1st Cir. May 6, 2022). As such, it appears that Nixplay Cayman is a Cayman 1 entirely clear where Creedon HK has its principal place of business. Defendants contend that its 2 operations are directed from the United Kingdom and thus, the United Kingdom is its principal 3 place of business. Dkt. No. 36 at 1-2; Dkt. No. 59 at 8. Thus, according to defendants, Creedon 4 USA is a citizen of Hong Kong and the United Kingdom. 5 Initially, plaintiffs argued that Creedon USA was at all relevant times a citizen of 6 Minnesota and Colorado.4 See Dkt. No. 21 at 3-4. However, following jurisdictional discovery, 7 plaintiffs appear to have abandoned this argument, as their supplemental brief does not address 8 Creedon USA’s citizenship or dispute the assertions in defendants’ Rule 7.1 disclosure statement. 9 See generally Dkt. No. 60. In any event, plaintiffs do not contend that Creedon HK, Creedon 10 USA’s sole member, is a citizen of Illinois, California, or Colorado such that Creedon USA would 11 share citizenship with any of the plaintiffs. 12 As defendants observe, other courts have treated Hong Kong limited liability companies as 13 analogous to U.S. corporations and therefore citizens of their place of incorporation and principal 14 place of business. See Jet Midwest Int’l Co., Ltd. v. Jet Midwest Grp., 932 F.3d 1102, 1105 (8th 15 Cir. 2019) (“[A] Hong Kong limited company is equivalent to a U.S. corporation under § 1332.”); 16 Zhu Zhai Holdings Ltd. v. Ivankovich, No. 21-3038, 2022 WL 1439396, at *1 (7th Cir. May 6, 17 2022) (affirming district court had subject matter jurisdiction because a Hong Kong limited 18 liability company “is treated as a corporation for purposes of American law”); Flextronics Int’l 19 USA, Inc. v. Sparkling Drink Sys. Innovation Ctr. Ltd, 186 F. Supp. 3d 852, 859-61 (N.D. Ill. 20 2016) (holding defendants that were Hong Kong limited companies should be treated as U.S. 21 corporations and were citizens of Hong Kong). Plaintiffs do not address this authority. 22 Accordingly, the Court concludes that Creedon USA is a citizen of Hong Kong and the 23 United Kingdom for diversity purposes. 24 *** 25 4 Plaintiffs originally argued that Creedon USA is a citizen of Colorado because it has an office in 26 Colorado. Dkt. No. 21 at 3-4. As noted above, an LLC’s office location is not relevant to determining the citizenship of the LLC. See Johnson, 437 F.3d at 899. Moreover, the record is 27 now undisputed that defendants had no offices in the United States as of April 2025. See 1 Having analyzed the citizenship of defendants Nixplay, Inc. and Creedon Technologies 2 USA, LLC as of April 22, 2025 (date the complaint was filed in state court) and May 29, 2025 3 (date of removal to federal district court), the Court concludes that no defendant is a citizen of the 4 same state as any plaintiff. 5 B. Amendments to the Complaint and Notice of Removal 6 The parties dispute the propriety of amendments to the complaint and to the notice of 7 removal. Plaintiffs contend that defendants are bound by their original notice of removal stating 8 that Nixplay, Inc. is a citizen of Colorado and that Creedon Technologies USA, LLC has offices in 9 Colorado. Dkt. No. 21 at 3. Plaintiffs argue that judicial estoppel applies to bar defendants’ 10 amended notice which omits any reference to defendants’ citizenship in Colorado. Id. 11 Meanwhile, defendants oppose plaintiffs’ joinder of Ms. Boleski, on the grounds that she lacks 12 standing and was added to the complaint “solely to defeat diversity jurisdiction.” Dkt. No. 29 at 13 10-11. 14 The Court addresses defendants’ argument regarding plaintiffs’ joinder of Ms. Boleski 15 first, then addresses plaintiffs’ judicial estoppel argument. 16 1. Joinder of Ms. Boleski 17 Defendants argue that plaintiffs improperly joined Ms. Boleski as a plaintiff because her 18 claims do not “aris[e] out of the same transaction, occurrence, or series of transactions or 19 occurrences” as the other plaintiffs. Dkt. No. 29 at 3, 10-11. Specifically, defendants argue that 20 joinder is improper because Ms. Boleski “bought a different digital frame, from a different vendor, 21 in a different state tha[n] the other plaintiffs.” Id. at 3.5 Plaintiffs respond that joinder is proper 22 because each plaintiff claims reliance on the same alleged misrepresentation—i.e., “that Nixplay’s 23 digital photo frames included 10 GB of free cloud storage with no additional subscription 24 required.” Dkt. No. 31 at 5. 25 Rule 20 of the Federal Rules of Civil Procedure permits plaintiffs to join their claims in 26 5 Defendants separately move to dismiss Ms. Boleski’s claims on this and other grounds. Dkt. No. 27 18. The Court addresses those arguments in a separate order. However, the Court notes that in 1 one action if (1) “they assert any right to relief jointly, severally, or in the alternative with respect 2 to or arising out of the same transaction, occurrence, or series of transactions or occurrences”; and 3 (2) “any question of law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 4 20(a)(1)(A)-(B); see Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296 (9th Cir. 2000). While 5 several of plaintiffs’ claims appear to rely on different factual allegations and/or different 6 questions of law, the Court agrees with plaintiffs that, on the present record, joinder is proper 7 because each plaintiff, including Ms. Boleski, asserts claims grounded in common allegations 8 regarding defendants’ purported misrepresentation about the digital photo frames. See McAfee v. 9 Francis, No. 11-cv-00821-LHK, 2012 WL 762118, at *4 (N.D. Cal. Mar. 6, 2012) (“[E]ven when 10 the underlying contract claims are predicated on different transactions and occurrences, allegations 11 of fraud and misrepresentation may constitute a transaction or series of transactions under Rule 12 20(a) when they are part of a common scheme.”); see also League to Save Lake Tahoe v. Tahoe 13 Reg’l Plan. Agency, 558 F.2d 914, 917 (9th Cir. 1977) (noting that Rule 20 “is to be construed 14 liberally in order to promote trial convenience and to expedite the final determination of disputes, 15 thereby preventing multiple lawsuits”). 16 Second, defendants contend that joinder is improper because Ms. Boleski’s “inclusion in 17 the FAC appears to be solely to defeat diversity jurisdiction, a purpose which should not be 18 countenanced by this Court.” Dkt. No. 29 at 11. Even if plaintiffs joined Ms. Boleski solely to 19 destroy diversity, such a purpose does not make the joinder improper. As the Supreme Court has 20 observed, “[w]hen a plaintiff amends her complaint following her suit’s removal, a federal court’s 21 jurisdiction depends on what the new complaint says.” Royal Canin, 604 U.S. at 30. The plaintiff 22 is “the master of the complaint,” and can choose to destroy diversity of citizenship. Id. at 35. 23 Therefore, the Court does not find plaintiffs’ amendment adding Ms. Boleski improper simply 24 because the amendment was intended in whole or in part to defeat diversity jurisdiction. As it 25 happens, the fact that Ms. Boleski is a citizen of Colorado is immaterial to the question of 26 diversity jurisdiction in this case. 27 2. Amendment of Notice of Removal 1 of their removal notice, and that defendants should be bound by their initial assertions that they are 2 citizens of Colorado. Dkt. No. 21 at 6. Plaintiffs contend that defendants’ change in citizenship 3 constitutes “gamesmanship . . . given the Court’s implicit acceptance and reliance on Defendants’ 4 prior inconsistent position regarding their offices in Colorado and Colorado citizenship.” Id. 5 Defendants respond that judicial estoppel does not apply because the Court did not rely upon or 6 accept defendants’ previous statements regarding citizenship. Dkt. No. 29 at 7. Defendants also 7 contend that judicial estoppel is inapplicable because their earlier statements about their presence 8 in Colorado reflect mistakes of fact. Id. at 10. 9 Judicial estoppel is an equitable doctrine that prevents a party from benefiting by taking 10 one position but then later seeking to benefit by taking a clearly inconsistent position. Hamilton v. 11 State Farm Fire & Cas. Ins. Co., 270 F.3d 778, 782 (9th Cir. 2001). Judicial estoppel may be 12 invoked by the court at its discretion. Morris v. California, 966 F.2d 448, 453 (9th Cir. 1991). It 13 is intended to protect the integrity of the judicial process by preventing a litigant from “playing 14 fast and loose with the courts.” Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990) (internal 15 quotation and citation omitted). 16 Several factors may be considered in determining whether judicial estoppel applies. New 17 Hampshire v. Maine, 532 U.S. 742, 750-51 (2001). First, a party’s later position must be “clearly 18 inconsistent” with its earlier position. Id. at 750. Second, the party must have “succeeded in 19 persuading a court to accept that party’s earlier position.” Id. Third, “the party seeking to assert 20 an inconsistent position would derive an unfair advantage or impose an unfair detriment on the 21 opposing party if not estopped.” Id. at 751. These factors are not “inflexible prerequisites or an 22 exhaustive formula” because “[a]dditional considerations may inform the doctrine’s application in 23 specific factual contexts.” Id. A court may also consider whether the party to be estopped acted 24 inadvertently or with an intent to defraud the court. Id. at 753 (“[I]t may be appropriate to resist 25 application of judicial estoppel ‘when a party’s prior position was based on inadvertence or 26 mistake.’”) (internal citation omitted); Johnson v. State, Oregon Dep’t of Hum. Res., Rehab. Div., 27 141 F.3d 1361, 1369 (9th Cir. 1998) (“If incompatible positions are based not on chicanery, but a. The Court did not rely on defendants’ earlier statements about 1 presence or citizenship in Colorado. 2 First, the Court agrees with defendants that judicial estoppel does not apply because the 3 Court did not rely upon or accept defendants’ earlier statements that they are citizens of Colorado. 4 See Dkt. No. 29 at 9-10. Indeed, the Court directed all parties to file Rule 7.1 statements regarding 5 their citizenship, in part, because it found that defendants’ earlier filings had not properly 6 disclosed their citizenship in accordance with the rules for evaluating the citizenship of 7 corporations and LLCs. See Dkt. No. 33. 8 Moreover, defendants’ original removal notice did not disclose Creedon Technologies 9 USA, LLC’s citizenship. See Dkt. No. 1. It merely stated, “Defendant Creedon Technologies 10 USA, LLC is a Minnesota Limited Liability Company with offices in Minnesota and Colorado. 11 Creedon Technologies USA, LLC is owned by Creedon Technologies HK Limited, a company 12 incorporated in Hong Kong, and has no members or owners who are citizens of California or 13 Illinois.” Id. ¶ 5. That is, Creedon Technologies USA, LLC identified states in which it is not a 14 citizen, but did not affirmatively allege where it is a citizen. The amended notice of removal 15 stated (incorrectly) that Creedon Technologies USA, LLC is a citizen of Minnesota. As explained 16 above, because Creedon Technologies USA, LLC is a limited liability company, its citizenship is 17 determined by the citizenship of its members. The amended notice failed to identify all of 18 Creedon Technologies USA, LLC’s members and the citizenship of those members. See Dkt. No. 19 19 ¶ 6. As before, the amended notice merely stated where Creedon Technologies USA, LLC is 20 not a citizen. Since Creedon Technologies USA, LLC’s members and the citizenship of those 21 members were not disclosed in the original notice or in the amended notice, the Court did not rely 22 upon or accept defendants’ earlier statements about their citizenship. 23 b. Judicial estoppel is improper where earlier statements were based on inadvertence or mistake. 24 In support of their claim that defendants fraudulently assert diversity jurisdiction, plaintiffs 25 point to emails sent by Nixplay, Inc. in April 2025 and August 2025 that identify Denver, 26 Colorado as the location of Creedon Technologies USA, LLC in the footer section. See Dkt. No. 27 21 at 6, 9; Dkt. No. 21-1 ¶¶ 7, 10, Exs. 7, 11. Plaintiffs also note that on August 6, 2025, after 1 plaintiffs informed defendants of their intent to move to remand this case, Creedon Technologies 2 USA, LLC filed an annual renewal with the Minnesota Secretary of State changing its principal 3 executive office address from a Colorado address to a Minnesota address.6 Dkt. No. 21 at 8; Dkt. 4 No. 21-1 ¶ 4, Exs. 1, 2. 5 Nevertheless, judicial estoppel does not apply because the Court finds that defendants’ 6 prior assertions were based on “inadvertence or mistake,” rather than an “intent to mislead the 7 Court,” as plaintiffs allege. According to defendants’ supplemental brief,7 jurisdictional discovery 8 confirmed that neither Nixplay, Inc. nor Creedon Technologies USA, LLC had a principal place of 9 business in Colorado at any relevant time. Dkt. No. 59 at 1. Nixplay, Inc.’s office and workspace 10 leases in Colorado ended by August 2024; its CEO, Mark Palfreeman, has directed Nixplay, Inc.’s 11 operations from a location in the United Kingdom since 2022; Nixplay, Inc.’s Denver-based COO 12 resigned from the company in January 2024; and Nixplay, Inc. terminated its U.S. professional 13 services provider later in the same year because it no longer had any employees in the U.S. Id. 14 Defendants acknowledge that their initial representations about Nixplay, Inc’s presence in 15 Colorado were mistaken. Id. at 2, 6-7; Dkt. No. 59-1. As for Creedon Technologies USA, LLC, 16 its citizenship is determined by the citizenship of its members, not by the location of its office or 17 its state of creation. As noted above, plaintiffs do not dispute the Hong Kong citizenship of 18 Creedon Technologies USA, LLC’s sole member Creedon Technologies HK Limited, nor do they 19 still contend that Creedon Technologies USA, LLC is a citizen of Colorado. 20 Plaintiffs have not shown that defendants changed anything about the structure or location 21 6 Plaintiffs also reference documents dated April 2, 2024, April 29, 2024, and May 21, 2024 that 22 purportedly demonstrate defendants’ presence in Colorado. Dkt. No. 21 at 8. The Court does not consider those documents as they predate the date of filing in state court (April 22, 2025) and the 23 date of removal (May 29, 2025).
24 7 “[I]t is proper to treat the removal petition as if it had been amended to include the relevant information contained in the later-filed affidavits.” Willingham v. Morgan, 395 U.S. 402, 407 n.3 25 (1969); see also Wang v. Asset Acceptance, LLC, 680 F. Supp. 2d 1122, 1125 (N.D. Cal. 2010) (“The evidence offered in opposition to a motion to remand can be construed as an amendment to 26 the notice of removal.”); Atkinson v. Urb. Land Pres., LLC, No. 15-cv-03689-YGR, 2015 WL 13036667, at *1 n.1 (N.D. Cal. Nov. 4, 2015) (denying plaintiff’s request to dismiss the removal 27 notice as defective for failing to include citizenship of LLC defendant’s members because 1 of their operations after the filing of this action in April 2025 in order to manufacture diversity of 2 citizenship, and there is no other evidence of “gamesmanship.” Cf Spekulation Orphan Relief Tr. 3 v. NewRez, LLC, No. 23-3484, 2025 WL 2028306, at *2 (9th Cir. July 21, 2025) (affirming district 4 || court’s finding that plaintiff had attempted to destroy diversity by obtaining Delaware citizenship 5 after filing initial state-court complaint but before filing amended complaint). Rather, 6 || investigation by defendants revealed defective allegations in their original notice of removal which 7 defendants subsequently corrected. Such amendments are permissible. See Barrow, 418 F.2d at 8 || 317-18 (permitting amendment of removal notice where the notice failed to disclose corporation’s 9 state of incorporation and principal place of business); Emeryville Redevelopment Agency v. Clear 10 || Channel Outdoor, No. 06-cv-01279 WHA, 2006 WL 1390561, at *3 (N.D. Cal. May 22, 2006) 11 (permitting amendment of removal notice that did not include any information about corporation 12 || defendant’s citizenship because such amendment is a “technical amendment” rather than a 5 13 “substantive amendment”). 14 Accordingly, the Court finds that judicial estoppel does not apply. The “facts on the 15 || ground” establish that the parties are completely diverse as plaintiffs are citizens of Illinois, 16 California, and Colorado, and defendants are citizens of Delaware, the United Kingdom, and Hong 3 17 Kong. 1g |liv. CONCLUSION 19 For the reasons explained above, the Court denies plaintiffs’ motion to remand this action 20 to state court. 21 IT IS SO ORDERED. 22 Dated: January 8, 2026 23 , ee □ 24 Vnrawin®, QeMarche: Virginia K. DeMarchi United States Magistrate Judge 26 27 28