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