Melgarejo v. Allstate Insurance Company

Opinion

3 BLANCA ESQUERRE MELGAREJO, Case No.: 2:22-cv-00427-APG-VCF

4 Plaintiff Order Denying Motion to Remand

5 v. [ECF Nos. 7, 17]

INSURANCE COMPANY, 7 Defendants 8

9 Blanca Esquerre Melgarejo filed this lawsuit in state court. She later agreed to allow 10 Allstate Insurance Company to intervene in the case. Allstate then removed the case to this 11 federal court. Melgarejo now moves to remand the case to state court, arguing that Allstate is 12 not a defendant and thus cannot remove the case.1 ECF No. 7. She is incorrect. 0 13 A defendant may remove an appropriate case to federal court under 28 U.S.C. 1446(a). 14 An intervenor may remove a case if it is properly situated as a defendant. See, e.g., Bank of New 15 York Mellon v. Walnut Place LLC, 819 F. Supp. 2d 354, 361 (S.D.N.Y. 2011) (“[I]t is well 16 settled that intervenors . . . may remove under certain circumstances.”); 14C Wright, Miller, et 17 al., Federal Practice & Procedure § 3730 (Rev. 4th ed.) (“Intervenors may file notices of removal 18 if they are properly aligned as defendants, but the intervention must precede the removal.”). 19 “In Nevada, an insurance company is bound by the result of an action between its insured 20 and an uninsured motorist when the carrier has notice of the action but elects not to intervene.” 21 LoMastro v American Family, 195 P.3d 339, 344 (Nev. 2008). Allstate, as Melgarejo’s insurer, 22

1 Melgarejo’s ten-page reply brief is a nearly identical copy of her motion, save for one new 23 paragraph. I advise counsel that, if they have nothing new to say in a reply, do not file one. 1} thus intervened while this case was in state court to protect its interests. ECF No. 1-5. Nevada recognizes that an insurance company that intervenes like this is treated as a defendant. /d. 3 (“American Family intervened to defend Leach and became a codefendant to the action, 4 permitted to raise all defenses ....”). Federal law would similarly recognize that Allstate is aligned with the defendant here. See 14C Wright, Miller, et al., Federal Practice & Procedure § 3730 (“[F]ederal law determines who is a plaintiff and who is a defendant for purposes of 7\| applying the removal statute ....”). Because Allstate became a defendant upon intervention in the state case, it was authorized to remove this case to federal court. 9 Melgarejo also argues that Allstate waived its right to remove by consenting to the jurisdiction of the state court when it intervened. But Allstate could not remove the case unless it 11] first intervened. 12 I THEREFORE ORDER that the plaintiff's motion remand (ECF Nos. 7, 17) is DENIED. 14 DATED this 29th day of June, 2022. 15 GA 16 ANDREW P. GORDON 7 UNITED STATES DISTRICT JUDGE

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