Jackson v. Nevada Speedway, LLC

D. Nevada

Jackson v. Nevada Speedway, LLC

DecidedMay 26, 2023

Docket2:22-cv-00958

StatusUnknown

This text of Jackson v. Nevada Speedway, LLC (Jackson v. Nevada Speedway, LLC) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jackson v. Nevada Speedway, LLC, (D. Nev. 2023).

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

7 JAMI JACKSON, Case No. 2:22-CV-958 JCM (DJA)

8 Plaintiff(s), ORDER

9 v.

10 NEVADA SPEEDWAY, LLC, et al.,

11 Defendant(s).

12 13 Presently before the court is plaintiff Jami Jackson (“plaintiff”)’s motion to remand. (ECF 14 No. 29). Defendant Nevada Speedway, LLC (“Nevada Speedway”), responded. (ECF No. 30). 15 Plaintiff replied. (ECF No. 31). 16 I. BACKGROUND 17 The instant action was initiated on May 11, 2022, when plaintiff filed a complaint in state 18 court alleging that he was physically assaulted by employees of Nevada Speedway. (ECF No. 3- 19 1). Plaintiff filed an amended complaint on June 1, 2022, and Nevada Speedway timely removed 20 the matter to this court on June 16, 2022. (ECF No. 1). Seven defendants are named in plaintiff’s 21 complaint; only one—defendant Sega Mamoe (“Mamoe”)—is a resident of Nevada. 22 At the time of removal, Nevada Speedway had been served, but Mamoe had not. Thus, 23 Nevada Speedway’s removal is considered a “snap removal,” when a defendant removes the 24 matter to federal court before a forum defendant has been served. The parties dispute whether this 25 was proper, and plaintiff moves to remand this matter back to state court because Mamoe is a 26 forum defendant, and removal thus violates the forum defendant rule. 27 . . . 28 . . . 1 II. LEGAL STANDARD 2 A defendant can remove any civil action over which the district court has original 3 jurisdiction. 28 U.S.C. § 1441(a). Yet federal courts are courts of limited jurisdiction. Owen 4 Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). That is why there is a strong 5 presumption against removal jurisdiction. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th 6 Cir. 2009). The “burden of establishing federal jurisdiction is on the party seeking removal, and 7 the removal statute is strictly construed against removal jurisdiction.” Prize Frize, Inc. v. Matrix 8 Inc., 167 F.3d 1261, 1265 (9th Cir. 1999). 9 A plaintiff can challenge removal with a motion to remand. 28 U.S.C. § 1447(c). To avoid 10 remand, the removing defendant must show by a preponderance of the evidence that there is 11 complete diversity and that the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). The 12 court will resolve all ambiguities in favor of remand. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th 13 Cir. 1992); Hunter, 582 F.3d at 1042. 14 But even if the diversity jurisdiction requirements are met, a diversity case nonetheless 15 cannot be removed if “any of the parties in interest properly joined and served as defendants is a 16 citizen of the [s]tate in which such action is brought.” 28 U.S.C. § 1441(b)(2) (emphasis added). 17 This is the forum defendant rule, a waivable procedural rule yet still one of the “more substantive 18 removal defects.” Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 936 (9th Cir. 2006). 19 III. DISCUSSION 20 Because Mamoe is a properly joined forum defendant, the forum defendant rule in section 21 1441(b)(2) applies. The court must now consider if Nevada Speedway’s snap removal was proper. 22 Snap removal is the tactic of removing a diversity case before a forum defendant has been 23 served. The Second, Third, Fifth, and Sixth circuits endorse the tactic,1 but the Ninth has not 24 squarely addressed it. Snap removal is performed against the backdrop of the forum defendant 25 rule, which “is a procedural, or non-jurisdictional, rule.” Lively v. Wild Oats Mkts., Inc., 456 F.3d 26 933, 936. Unlike jurisdictional rules, procedural rules may not be addressed sua sponte by the

27 1 See Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 701 (2d Cir. 2019); Encompass 28 Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147 (3d Cir. 2018); Texas Brine Co., L.L.C. v. Am. Arb. Ass’n, Inc., 955 F.3d 482 (5th Cir. 2020); and McCall v. Scott, 239 F.3d 808 (6th Cir. 2001). 1 court. Skranak v. Castenada, 425 F.3d 1213, 1216 (9th Cir. 2005). The forum defendant rule’s 2 characterization as a procedural—rather than jurisdictional—rule has led to this new form of 3 jurisdictional gamesmanship in litigation.2 4 Nevada Speedway relies primarily on a plain reading of § 1441(b), asserting that its snap 5 removal was proper because no forum defendant had been served at the time of removal. (ECF 6 No. 30). Plaintiff argues that this district has almost exclusively held that snap removal is improper 7 if there is any named forum defendant—regardless of whether they have been served. (ECF No. 8 31 (collecting cases)); see Bank of Am., N.A. v. Fidelity Nat’l Title Grp., Inc., 594 F.Supp.3d 1234, 9 1241 (D. Nev. 2022). 10 The court follows its own precedent. Snap removal contravenes the removal statute’s 11 purpose of preserving a plaintiff’s choice of a state court forum when suing a proper forum 12 defendant. Some appellate courts have determined that the “properly joined and served” language 13 in § 1441(b)(2) renders the statute clear and unambiguous, allowing snap removal before any 14 defendant is served. However, not all courts agree. Many judges in the district reason that the 15 word “any” in “any of the parties in interest properly joined and served” necessarily means that 16 the statute assumes one party has been served. 28 U.S.C. § 1441(b)(2); see Wells Fargo Bank, 17 N.A. v. Old Republic Title Ins. Grp., Inc., No. 2:20-cv-00461-JCM-NJK, 2020 WL 5898779, at *2 18 (D. Nev. Oct. 5, 2020). 19 The fact that reasonable jurists differ on the statute's language evidences its ambiguity. To 20 the extent there is ambiguity here—including uncertainty and unsettled law in the Ninth Circuit— 21 the court resolves the ambiguity in favor of remand. Hunter v. Philip Morris USA, 582 F.3d 1039 22 (9th Cir. 2009); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 23 Accordingly, because Mamoe is a forum defendant, remand is appropriate. 24 . . . 25 . . .

26 2 The ubiquity of electronic docketing has also contributed to the rise in snap removals. 27 See, e.g., Perez v. Forest Labs., Inc., 902 F. Supp. 2d 1238, 1243 (E.D. Mo.

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

7 JAMI JACKSON, Case No. 2:22-CV-958 JCM (DJA)

8 Plaintiff(s), ORDER

9 v.

10 NEVADA SPEEDWAY, LLC, et al.,

11 Defendant(s).

12 13 Presently before the court is plaintiff Jami Jackson (“plaintiff”)’s motion to remand. (ECF 14 No. 29). Defendant Nevada Speedway, LLC (“Nevada Speedway”), responded. (ECF No. 30). 15 Plaintiff replied. (ECF No. 31). 16 I. BACKGROUND 17 The instant action was initiated on May 11, 2022, when plaintiff filed a complaint in state 18 court alleging that he was physically assaulted by employees of Nevada Speedway. (ECF No. 3- 19 1). Plaintiff filed an amended complaint on June 1, 2022, and Nevada Speedway timely removed 20 the matter to this court on June 16, 2022. (ECF No. 1). Seven defendants are named in plaintiff’s 21 complaint; only one—defendant Sega Mamoe (“Mamoe”)—is a resident of Nevada. 22 At the time of removal, Nevada Speedway had been served, but Mamoe had not. Thus, 23 Nevada Speedway’s removal is considered a “snap removal,” when a defendant removes the 24 matter to federal court before a forum defendant has been served. The parties dispute whether this 25 was proper, and plaintiff moves to remand this matter back to state court because Mamoe is a 26 forum defendant, and removal thus violates the forum defendant rule. 27 . . . 28 . . . 1 II. LEGAL STANDARD 2 A defendant can remove any civil action over which the district court has original 3 jurisdiction. 28 U.S.C. § 1441(a). Yet federal courts are courts of limited jurisdiction. Owen 4 Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). That is why there is a strong 5 presumption against removal jurisdiction. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th 6 Cir. 2009). The “burden of establishing federal jurisdiction is on the party seeking removal, and 7 the removal statute is strictly construed against removal jurisdiction.” Prize Frize, Inc. v. Matrix 8 Inc., 167 F.3d 1261, 1265 (9th Cir. 1999). 9 A plaintiff can challenge removal with a motion to remand. 28 U.S.C. § 1447(c). To avoid 10 remand, the removing defendant must show by a preponderance of the evidence that there is 11 complete diversity and that the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). The 12 court will resolve all ambiguities in favor of remand. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th 13 Cir. 1992); Hunter, 582 F.3d at 1042. 14 But even if the diversity jurisdiction requirements are met, a diversity case nonetheless 15 cannot be removed if “any of the parties in interest properly joined and served as defendants is a 16 citizen of the [s]tate in which such action is brought.” 28 U.S.C. § 1441(b)(2) (emphasis added). 17 This is the forum defendant rule, a waivable procedural rule yet still one of the “more substantive 18 removal defects.” Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 936 (9th Cir. 2006). 19 III. DISCUSSION 20 Because Mamoe is a properly joined forum defendant, the forum defendant rule in section 21 1441(b)(2) applies. The court must now consider if Nevada Speedway’s snap removal was proper. 22 Snap removal is the tactic of removing a diversity case before a forum defendant has been 23 served. The Second, Third, Fifth, and Sixth circuits endorse the tactic,1 but the Ninth has not 24 squarely addressed it. Snap removal is performed against the backdrop of the forum defendant 25 rule, which “is a procedural, or non-jurisdictional, rule.” Lively v. Wild Oats Mkts., Inc., 456 F.3d 26 933, 936. Unlike jurisdictional rules, procedural rules may not be addressed sua sponte by the

27 1 See Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 701 (2d Cir. 2019); Encompass 28 Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147 (3d Cir. 2018); Texas Brine Co., L.L.C. v. Am. Arb. Ass’n, Inc., 955 F.3d 482 (5th Cir. 2020); and McCall v. Scott, 239 F.3d 808 (6th Cir. 2001). 1 court. Skranak v. Castenada, 425 F.3d 1213, 1216 (9th Cir. 2005). The forum defendant rule’s 2 characterization as a procedural—rather than jurisdictional—rule has led to this new form of 3 jurisdictional gamesmanship in litigation.2 4 Nevada Speedway relies primarily on a plain reading of § 1441(b), asserting that its snap 5 removal was proper because no forum defendant had been served at the time of removal. (ECF 6 No. 30). Plaintiff argues that this district has almost exclusively held that snap removal is improper 7 if there is any named forum defendant—regardless of whether they have been served. (ECF No. 8 31 (collecting cases)); see Bank of Am., N.A. v. Fidelity Nat’l Title Grp., Inc., 594 F.Supp.3d 1234, 9 1241 (D. Nev. 2022). 10 The court follows its own precedent. Snap removal contravenes the removal statute’s 11 purpose of preserving a plaintiff’s choice of a state court forum when suing a proper forum 12 defendant. Some appellate courts have determined that the “properly joined and served” language 13 in § 1441(b)(2) renders the statute clear and unambiguous, allowing snap removal before any 14 defendant is served. However, not all courts agree. Many judges in the district reason that the 15 word “any” in “any of the parties in interest properly joined and served” necessarily means that 16 the statute assumes one party has been served. 28 U.S.C. § 1441(b)(2); see Wells Fargo Bank, 17 N.A. v. Old Republic Title Ins. Grp., Inc., No. 2:20-cv-00461-JCM-NJK, 2020 WL 5898779, at *2 18 (D. Nev. Oct. 5, 2020). 19 The fact that reasonable jurists differ on the statute's language evidences its ambiguity. To 20 the extent there is ambiguity here—including uncertainty and unsettled law in the Ninth Circuit— 21 the court resolves the ambiguity in favor of remand. Hunter v. Philip Morris USA, 582 F.3d 1039 22 (9th Cir. 2009); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 23 Accordingly, because Mamoe is a forum defendant, remand is appropriate. 24 . . . 25 . . .

26 2 The ubiquity of electronic docketing has also contributed to the rise in snap removals. 27 See, e.g., Perez v. Forest Labs., Inc., 902 F. Supp. 2d 1238, 1243 (E.D. Mo. 2012) (“Pre-service removal by means of monitoring the electronic docket smacks more of forum shopping by a 28 defendant, than it does of protecting the defendant from the improper joinder of a forum defendant that plaintiff has no intention of serving.” (emphasis added). 1| IV. CONCLUSION 2 Accordingly, 3 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that U.S. Bank Trustee’s 4] motion to remand (ECF No. 29) be, and the same hereby is, GRANTED. 5 IT IS FURTHER ORDERED that the clerk shall REMAND this case back to the Eighth 6| Judicial District Court for Clark County, Nevada, Case No. A-22-852460-C, and CLOSE this case. 8 DATED May 26, 2023. 9 tts Atala 10 UNITED,STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

es C. Mahan District Judge _4-

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