1 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 2 3 Amos Davis, Case No. 2:25-cv-00802-CDS-EJY
4 Plaintiff Order Granting Plaintiff’s Motion to Remand 5 v.
6 Allo Communications LLC, et al., [ECF No. 6] 7 Defendants
8 9 This negligence action arises out of an underlying motor vehicle accident originally filed 10 in the Eighth Judicial District Court of Clark County, Nevada, on March 20, 2025. Defendants 11 Ricardo Contreras and Allo Communications LLC filed a notice of removal on May 7, 2025. 12 Notice, ECF No. 1. Davis now moves for remand because the defendants removed more than 13 thirty days after they were served with the complaint. Mot., ECF No. 6. Because the defendants 14 fail to show by a preponderance of the evidence that removal was proper, the motion to remand 15 is granted. 16 I. Legal standard 17 A defendant may remove a civil action from state to federal court if jurisdiction originally 18 would lie in federal court. 28 U.S.C. § 1441(a). Notice of removal must be filed within 30 days. See 19 28 U.S.C. § 1446(b). The removing party bears the burden of proving that removal is proper. 20 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). If removal is based on diversity jurisdiction, 21 28 U.S.C. § 1441(b), the removing defendant must demonstrate complete diversity of citizenship 22 among the parties and that the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). 23 There is a “strong presumption” against removal jurisdiction, which requires remand “if there is 24 any doubt as to the right of removal in the first instance.” Gaus, 980 F.2d at 566–67. The Ninth 25 Circuit has adopted the “practice of considering facts presented in the removal petition as well 26 as any ‘summary-judgment-type evidence relevant to the amount in controversy at the time of 1 removal.’” Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (quoting 2 Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)). Conclusory allegations are 3 insufficient. Matheson, 319 F.3d at 1090 (citation omitted). Removal is proper “‘if the district 4 court finds, by a preponderance of the evidence, that the amount in controversy exceeds’ the 5 jurisdictional threshold.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 88 (2014). 6 II. Discussion 7 Davis filed her complaint in state court on March 20, 2025, and served Contreras on 8 April 3, 2025, and Allo on April 4, 2025. Pl.’s Ex. 2, ECF No. 6-2 at 4; ECF No. 6-3 at 4. 9 Defendants removed the case on May 7, 2025. ECF No. 1. Neither party disputes that this case 10 meets the requirements for diversity jurisdiction. Instead, Davis moves to remand on the basis 11 that the defendants’ removal was untimely. ECF No. 6. 12 Defendants were admittedly served on April 3, 2025, and April 4, 2025. ECF No. 1 at ¶ 2. 13 In their notice of removal, the defendants explained that diversity was complete because Davis is 14 a citizen of Nevada, Allo is a corporation with its principal place of business in Nebraska, and 15 Contreras is a citizen of Arizona. Id. at ¶ 4. Defendants also assert that the sum of the damages 16 alleged by Davis exceed $75,000 because she prays for the recovery of general damages in excess 17 of $15,000, and for unspecified special damages, damages for lost wages and loss of earnings 18 capacity, attorney’s fees, and more. Id. at ¶ 6. Defendants relied on “various medical records” 19 provided by Davis “[p]rior to the filing of the Complaint.” Id. at ¶ 8. Defendants stated that 20 “removal was not filed timely” because “counsel was not able to confirm Defendants’ respective 21 citizenships until May 7, 2025.” Id. at 10.1 22 Davis’s remand motion emphasizes that the defendants admit removal was untimely. Id. 23 at 5 (citing ECF No. 1). Davis argues that the face of the complaint clearly alleges complete 24 diversity between the parties. Id. Davis also states that the defendants admitted knowledge 25 1 Defendants are charged with knowledge of their own citizenship. Serra v. Huckins, 2022 U.S. Dist. LEXIS 26 192774, *6 n.2 (C.D. Cal. Oct. 21, 2022) (citing Leon v. Gordon Trucking, Inc., 76 F. Supp. 3d 1055, 1064 (C.D. Cal. 2014) (“[A] corporate defendant, like any other, is presumed to know its own citizenship.”). 1 regarding the value of Davis’s claim means the time for filing the notice of removal started to run 2 upon service of the complaint. Id. 3 In their opposition, the defendants do not attempt to defend or explain the statement in 4 their removal notice that removal was untimely. Instead, they allege that removal was timely 5 because the face of the complaint does not indicate the amount in controversy exceeds $75,000. 6 ECF No. 10 at 3. The defendants argue that Davis’s suggestion that “they knew Plaintiff’s claim 7 ‘far exceeded $75,000’ due to various medical records produced prior to litigation” is contrary to 8 law. Id. They rely on Carvalho v. Equifax Info. Servs., LLC to assert that “any document received prior 9 to receipt of the initial pleading cannot trigger the thirty-day removal period.” Id. at 4 (citing 10 Carvalho, 629 F.3d 876, 886 (9th Cir. 2010)). The defendants’ assertion is true. Carvalho rejected 11 the notion that a “pre-complaint document containing a jurisdictional clue can operate in 12 tandem with an indeterminate initial pleading to trigger some kind of hybrid of the first and 13 second removal periods.” 629 F.3d at 886. However, this hybrid trigger period is exactly what 14 the defendants attempt to create here. Defendants cannot have their cake (first use prelitigation 15 documents to assert the amount in controversy is met) and eat it too (later argue that 16 prelitigation documents did not trigger removal). 17 Defendants removed the case on May 7, 2025—thirty-two days after the effective date of 18 service.2 They argue that Davis has not identified an amended pleading, motion, order or other 19 paper which would trigger the second clock for removal. ECF No. 10 at 4. However, in a case 20 that has been removed from state court based on diversity jurisdiction, the defendant bears the 21 burden of showing by a preponderance of the evidence that removal is proper. Gaus, 980 F.2d at 22 566–67. Once Davis raised the issue of the timeliness of the defendants’ removal, it was 23 incumbent on them to provide “summary judgment type evidence” to establish by a 24 2 Defendants notice of removal was due on or before May 5, 2025. When computing any time period 25 stated in days, “include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal 26 holiday.” Fed. R. Civ. P. 6(a)(1)(c). Here, May 3rd and 4th fell on a Saturday and Sunday making the deadline the end of the next day, May 5, 2025. preponderance of the evidence that removal was proper. See, e.g, Garcia v.
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1 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 2 3 Amos Davis, Case No. 2:25-cv-00802-CDS-EJY
4 Plaintiff Order Granting Plaintiff’s Motion to Remand 5 v.
6 Allo Communications LLC, et al., [ECF No. 6] 7 Defendants
8 9 This negligence action arises out of an underlying motor vehicle accident originally filed 10 in the Eighth Judicial District Court of Clark County, Nevada, on March 20, 2025. Defendants 11 Ricardo Contreras and Allo Communications LLC filed a notice of removal on May 7, 2025. 12 Notice, ECF No. 1. Davis now moves for remand because the defendants removed more than 13 thirty days after they were served with the complaint. Mot., ECF No. 6. Because the defendants 14 fail to show by a preponderance of the evidence that removal was proper, the motion to remand 15 is granted. 16 I. Legal standard 17 A defendant may remove a civil action from state to federal court if jurisdiction originally 18 would lie in federal court. 28 U.S.C. § 1441(a). Notice of removal must be filed within 30 days. See 19 28 U.S.C. § 1446(b). The removing party bears the burden of proving that removal is proper. 20 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). If removal is based on diversity jurisdiction, 21 28 U.S.C. § 1441(b), the removing defendant must demonstrate complete diversity of citizenship 22 among the parties and that the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). 23 There is a “strong presumption” against removal jurisdiction, which requires remand “if there is 24 any doubt as to the right of removal in the first instance.” Gaus, 980 F.2d at 566–67. The Ninth 25 Circuit has adopted the “practice of considering facts presented in the removal petition as well 26 as any ‘summary-judgment-type evidence relevant to the amount in controversy at the time of 1 removal.’” Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (quoting 2 Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)). Conclusory allegations are 3 insufficient. Matheson, 319 F.3d at 1090 (citation omitted). Removal is proper “‘if the district 4 court finds, by a preponderance of the evidence, that the amount in controversy exceeds’ the 5 jurisdictional threshold.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 88 (2014). 6 II. Discussion 7 Davis filed her complaint in state court on March 20, 2025, and served Contreras on 8 April 3, 2025, and Allo on April 4, 2025. Pl.’s Ex. 2, ECF No. 6-2 at 4; ECF No. 6-3 at 4. 9 Defendants removed the case on May 7, 2025. ECF No. 1. Neither party disputes that this case 10 meets the requirements for diversity jurisdiction. Instead, Davis moves to remand on the basis 11 that the defendants’ removal was untimely. ECF No. 6. 12 Defendants were admittedly served on April 3, 2025, and April 4, 2025. ECF No. 1 at ¶ 2. 13 In their notice of removal, the defendants explained that diversity was complete because Davis is 14 a citizen of Nevada, Allo is a corporation with its principal place of business in Nebraska, and 15 Contreras is a citizen of Arizona. Id. at ¶ 4. Defendants also assert that the sum of the damages 16 alleged by Davis exceed $75,000 because she prays for the recovery of general damages in excess 17 of $15,000, and for unspecified special damages, damages for lost wages and loss of earnings 18 capacity, attorney’s fees, and more. Id. at ¶ 6. Defendants relied on “various medical records” 19 provided by Davis “[p]rior to the filing of the Complaint.” Id. at ¶ 8. Defendants stated that 20 “removal was not filed timely” because “counsel was not able to confirm Defendants’ respective 21 citizenships until May 7, 2025.” Id. at 10.1 22 Davis’s remand motion emphasizes that the defendants admit removal was untimely. Id. 23 at 5 (citing ECF No. 1). Davis argues that the face of the complaint clearly alleges complete 24 diversity between the parties. Id. Davis also states that the defendants admitted knowledge 25 1 Defendants are charged with knowledge of their own citizenship. Serra v. Huckins, 2022 U.S. Dist. LEXIS 26 192774, *6 n.2 (C.D. Cal. Oct. 21, 2022) (citing Leon v. Gordon Trucking, Inc., 76 F. Supp. 3d 1055, 1064 (C.D. Cal. 2014) (“[A] corporate defendant, like any other, is presumed to know its own citizenship.”). 1 regarding the value of Davis’s claim means the time for filing the notice of removal started to run 2 upon service of the complaint. Id. 3 In their opposition, the defendants do not attempt to defend or explain the statement in 4 their removal notice that removal was untimely. Instead, they allege that removal was timely 5 because the face of the complaint does not indicate the amount in controversy exceeds $75,000. 6 ECF No. 10 at 3. The defendants argue that Davis’s suggestion that “they knew Plaintiff’s claim 7 ‘far exceeded $75,000’ due to various medical records produced prior to litigation” is contrary to 8 law. Id. They rely on Carvalho v. Equifax Info. Servs., LLC to assert that “any document received prior 9 to receipt of the initial pleading cannot trigger the thirty-day removal period.” Id. at 4 (citing 10 Carvalho, 629 F.3d 876, 886 (9th Cir. 2010)). The defendants’ assertion is true. Carvalho rejected 11 the notion that a “pre-complaint document containing a jurisdictional clue can operate in 12 tandem with an indeterminate initial pleading to trigger some kind of hybrid of the first and 13 second removal periods.” 629 F.3d at 886. However, this hybrid trigger period is exactly what 14 the defendants attempt to create here. Defendants cannot have their cake (first use prelitigation 15 documents to assert the amount in controversy is met) and eat it too (later argue that 16 prelitigation documents did not trigger removal). 17 Defendants removed the case on May 7, 2025—thirty-two days after the effective date of 18 service.2 They argue that Davis has not identified an amended pleading, motion, order or other 19 paper which would trigger the second clock for removal. ECF No. 10 at 4. However, in a case 20 that has been removed from state court based on diversity jurisdiction, the defendant bears the 21 burden of showing by a preponderance of the evidence that removal is proper. Gaus, 980 F.2d at 22 566–67. Once Davis raised the issue of the timeliness of the defendants’ removal, it was 23 incumbent on them to provide “summary judgment type evidence” to establish by a 24 2 Defendants notice of removal was due on or before May 5, 2025. When computing any time period 25 stated in days, “include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal 26 holiday.” Fed. R. Civ. P. 6(a)(1)(c). Here, May 3rd and 4th fell on a Saturday and Sunday making the deadline the end of the next day, May 5, 2025. preponderance of the evidence that removal was proper. See, e.g, Garcia v. Wal-Mart Stores Inc., 207 F. Supp. 3d 1114, 1121 (C.D. Cal. 2016) (noting that defendant is required to put forward “summary-judgment type evidence” to meet its burden on removal). Yet the defendants provide 4] no chain of reasoning and certainly provide no real evidence to support their contention that the 5|| case became removable on May 7. Although I agree that removability is not apparent on the face 6]| of the complaint, the defendants do not identify any other document or clarify any timeline they 7|| are relying on to demonstrate when removal was “unequivocally clear and certain.” Dietrich v. Boeing Co., 14 F.4th 1089, 1090 (9th Cir. 2021). In short, the defendants have not satisfied the 9|| burden of establishing that removal was proper and timely. I therefore follow the Ninth Circuit’s 10]| guidance on the presumption against removal jurisdiction and remand this matter to state court. Conclusion 12 IT IS THEREFORE ORDERED that plaintiff's motion to remand [ECF No. 6] is 13|| GRANTED. The Clerk of Court is kindly instructed to remand, Case No. A-25-915082-C, to the 14|| Eighth Judicial District Court, Department 20, and to close is case. 15 Dated: September 22, 2025 16 Liha — Cristi . Silva Iv cnet District Judge 18
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