Energy Enhancement System, LLC v. Shurka

• Court: District Court, D. Nevada
• Decided: April 17, 2025
• Docket: 2:25-cv-00633
• Status: Unknown

Opinion

1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 Energy Enhancement System, LLC, et al., Case No. 2:25-cv-00633-CDS-NJK

5 Plaintiffs Order Granting Emergency Motion to Remand 6 v.

7 Jason Shurka, et al., [ECF No. 7] 8 Defendants

9 10 Pending before the court is plaintiffs Energy Enhancement System, LLC (EES), Michael 11 Bertolacini, and Dr. Sandra Rose Michael’s emergency motion to remand to the Eighth Judicial 12 District Court for Clark County, Nevada. Emergency mot. to remand, ECF No. 7. Because I find 13 that defendants’ removal was untimely, I grant plaintiffs’ emergency motion to remand.1 14 “The notice of removal of a civil action or proceeding shall be filed within 30 days after 15 the receipt by the defendant, through service or otherwise, of a copy of the initial pleading 16 setting forth the claim for relief upon which such action or proceeding is based . . . .” 28 U.S.C. 17 § 1446(b)(1); see also HSBC Bank USA Nat’l Ass’n v. Manguin, 2017 WL 955179, at *1 (D. Nev. Mar. 10, 18 2017) (“Removal was untimely because [defendants] were required to remove the case within 30 19 days of service of the summons and complaint.”). However, “if the case stated by the initial 20 pleading is not removable, a notice of removal may be filed within 30 days after receipt by the 21 defendant, through service or otherwise, a copy of an amended pleading, motion, order or other 22 paper from which it may first be ascertained that the case is one which is or has become 23 removable.” 28 U.S.C. § 1446(b)(3). Once an action is removed to federal court, a plaintiff may 24 challenge removal by filing a motion to remand. 28 U.S.C. § 1447(c). To protect the jurisdiction 25 26

1 I also find that plaintiffs’ emergency motion complies with Local Rule 7-4. 1 of state courts, the removal statute should be construed narrowly, against removal jurisdiction 2 and in favor of remand. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09 (1941). 3 Under the federal removal statute, a case that implicates federal question or diversity 4 jurisdiction is removable within thirty days after formal service of process of the initial pleading, 5 and the thirty-day window does not begin until the plaintiff has effectuated formal service of 6 process. 28 U.S.C. § 1446(b)(1); Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999). 7 According to plaintiffs’ affidavit of service, defendants were served on February 10, 2025. 8 See Aff. of serv., Pl.’s Ex. 4, ECF No. 8-4 at 2. Therefore, for removal to be proper, defendants 9 needed to remove the case no later than March 12, 2025. A review of the docket demonstrates 10 that defendants did not remove the case until April 8, 2025. See Pet. for removal, ECF No. 1. 11 Additionally, it appears that this is the defendants’ second attempt to remove this action. In 12 their petition, defendants state that they had originally removed this case to the Southern 13 District of Florida, which “errantly” determined it did not have jurisdiction and promptly 14 remanded the case back to the Eighth Judicial District Court. ECF No. 1 at 2. Because of this 15 purported “error,” the defendants surmise—without citing to any caselaw—that “tolling for this 16 removal is timely.” Id.2 Defendants point to no evidence indicating that the case, although not 17 initially removable, has become removeable in accordance with § 1446(b)(3). Therefore, it 18 appears that defendants yet again improperly removed this action. See Seedman v. U.S. Dist. Ct. for 19 Cent. Dist. Of Calif., 837 F.2d 413, 414 (9th Cir. 1988) (holding a district court lacks jurisdiction 20 where a defendant’s second petition for removal is based on the same grounds as the prior 21 removal); Homestead Ins. Co. v. Casden, 234 F. App’x 434, 435 (9th Cir. 2007) (stating that the 22 district court erred in denying a motion to remand when it was defendant’s second petition to 23 24

25 2 Defendants elected to improperly remove the case to the wrong district. “Any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by 26 the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). remove the case to federal court). Because this removal is untimely and improper, plaintiffs’ emergency motion to remand is granted. 3 Plaintiffs’ request for attorneys’ costs and fees associated with removal is also granted. 4] “An order remanding [a] case may require payment of just costs and any actual expenses, 5|| including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). The Supreme 6|| Court has made clear that attorneys’ fees should not be awarded as long as the removing party 7|| has an “objectively reasonable basis for removal.” Martin v. Franklin Cap. Corp., 546 U.S. 132, 136 (2005). In applying Martin, the Ninth Circuit looks at whether “the relevant case law clearly foreclosed the defendant’s basis of removal.” Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1066 10]] (9th Cir. 2008). Here, the untimely removal and the improper second removal are both incorrect 1]|| as a matter of law. Therefore, an award of “just costs and any actual expenses, including attorney 12|| fees, incurred as a result of the removal” is warranted here. 28 U.S.C. § 1447(c). B Conclusion 14 IT IS THEREFORE ORDERED that plaintiffs’ motion to remand [ECF No. 7] is GRANTED. The Clerk of Court is kindly instructed to remand this action to the Eighth Judicial 16]| District Court, Department 16, Case No. A-25-910216-B, and to close this case. 17 IT IS FURTHER ORDERED that this court retains jurisdiction after the remand to 18]| entertain plaintiffs’ request for attorney’s fees.* Plaintiffs must file a motion for fees and actual 19]| costs incurred as a result of the removal in accordance with Local Rule 54-14 and Fed. R. Civ. P. no later than May 1, 2025. ) 21 Dated: April 17, 2025 /, / 22 . LZ LA4—<— 44 Unis States District Judge 25 ——______ > Moore v, Permanente Med. Grp, Inc., 981 F.2d 443, 445 (9th Cir. 1992).