Hill v. Tekle

• Court: District Court, D. Nevada
• Decided: April 23, 2021
• Docket: 2:21-cv-00371
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 TANISE HILL, Case No. 2:21-CV-371 JCM (EJY)

8 Plaintiff(s), ORDER

9 v.

10 LEUL ABRAHAM TEKLE, et al.,

11 Defendant(s).

12 13 Presently before the court is plaintiff Tanise Hill’s motion to remand. (ECF No. 6). 14 Defendants Leul Tekle and Meron Enterprises, Inc. filed a response (ECF No. 8), to which 15 plaintiff replied, (ECF No. 10). 16 I. Background 17 The instant action arises from a car accident. (ECF No. 1). Plaintiff filed her complaint 18 in the Eighth Judicial District Court of Clark County, alleging negligence, and negligent hiring, 19 training, supervision and retention. (Id.). On March 4, 2021, defendant removed this action to 20 this court based on diversity jurisdiction. (Id.). 21 On March 26, 2021, plaintiff filed the instant motion, arguing that defendant failed to 22 timely remove. (ECF No. 6). 23 II. Legal Standard 24 “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power 25 authorized by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting 26 Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)). Pursuant to 28 27 U.S.C. § 1441(a), “any civil action brought in a State court of which the district courts of the 28 United States have original jurisdiction, may be removed by the defendant or the defendants, to 1 the district court of the United States for the district and division embracing the place where such 2 action is pending.” 28 U.S.C. § 1441(a). 3 Because the court’s jurisdiction is limited by the constitution and 28 U.S.C. §§ 1331, 4 1332, “[t]he threshold requirement for removal under 28 U.S.C. § 1441 is a finding that the 5 complaint contains a cause of action that is within the original jurisdiction of the district 6 court.” Ansley v. Ameriquest Mortg. Co., 340 F.3d 858, 861 (9th Cir. 2003) (quoting Toumajian 7 v. Frailey, 135 F.3d 648, 653 (9th Cir. 1998)). Thus, “it is to be presumed that a cause lies 8 outside the limited jurisdiction of the federal courts and the burden of establishing the contrary 9 rests upon the party asserting jurisdiction.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 10 (9th Cir. 2009). 11 Upon notice of removability, a defendant has thirty days to remove a case to federal court 12 once he knows or should have known that the case was removable. Durham v. Lockheed Martin 13 Corp., 445 F.3d 1247, 1250 (9th Cir. 2006) (citing 28 U.S.C. § 1446(b)(2)). Defendants are not 14 charged with notice of removability “until they’ve received a paper that gives them enough 15 information to remove.” Id. at 1251. 16 Specifically, “the ‘thirty day time period [for removal] . . . starts to run from defendant’s 17 receipt of the initial pleading only when that pleading affirmatively reveals on its face’ the facts 18 necessary for federal court jurisdiction.” Id. at 1250 (quoting Harris v. Bankers Life & Casualty 19 Co., 425 F.3d 689, 690–91 (9th Cir. 2005) (alterations in original)). “Otherwise, the thirty-day 20 clock doesn’t begin ticking until a defendant receives ‘a copy of an amended pleading, motion, 21 order or other paper’ from which it can determine that the case is removable.” Id. (quoting 28 22 U.S.C. § 1446(b)(3)). 23 A plaintiff may challenge removal by timely filing a motion to remand. 28 U.S.C. 24 § 1447(c). On a motion to remand, the removing defendant must overcome the “strong 25 presumption against removal jurisdiction” and establish that removal is proper. Hunter, 582 F.3d 26 at 1042 (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992) (per curiam)). Due to this 27 strong presumption against removal jurisdiction, the court resolves all ambiguity in favor of 28 remand to state court. Id. 1 III. Discussion 2 Plaintiff moves to remand due to defendants’ failure to remove this matter within thirty 3 days of service. (ECF No. 6); see 28 U.S.C. § 1446(b); Harris v. Bankers Life and Cas. Co., 425 4 F.3d 689, 694 (9th Cir. 2005). 5 “[N]otice of removability under § 1446(b) is determined through examination of the 6 four corners of the applicable pleadings, not through subjective knowledge or a duty to make 7 further inquiry.” Harris, 425 F.3d at 694. “Removal and subject matter jurisdiction statutes are 8 strictly construed, and a defendant seeking removal has the burden to establish that removal is 9 proper and any doubt is resolved against removability.” Hawaii ex rel. Louie v. HSBC Bank 10 Nev., N.A., 761 F.3d 1027, 1034 (9th Cir. 2014). NRS § 14.070 permits substitute service to a 11 statutory agent employed by the state when a defendant happens to be a non-resident of that 12 state. NRS §14.070. 13 Here, both defendants filed notice of removal long after service was effectuated. (ECF 14 No. 1). Without authority, defendants invoke the notion that the “retention [of] defense counsel” 15 was “the actual event causing 28 USCS §1446(b) 30-day removal period to begin to run, if any.” 16 (Id.). As to their other points, defendants cite a slew of caselaw from other jurisdictions to argue 17 that service was not effectuated. (ECF No. 8). 18 However, these citations are contradicted by established Nevada law: plaintiff need not 19 produce evidence of actual receipt of service; “risk of nondelivery must fall upon the 20 defendant.” Mitchell v. Second Jud. Dist. Ct., 418 P.2d 994, 997 (Nev. 1966). 21 This court finds that defendants failed to timely remove this matter. Thus, remand is 22 appropriate. (ECF No. 6). 23 . . . 24 . . . 25 . . . 26 . . . 27 . . . 28 . . . 1] IV. Conclusion 2 Accordingly, 3 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff's motion to remand (ECF No. 6) be, and the same hereby is, GRANTED. 5 DATED April 23, 2021. 6 J a Lit ©. Aallan 7 UNITED)STATES DISTRICT JUDGE = 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

es C. Mahan District Judge _4-