Sontoski v. Associated Hotels LLC

• Court: District Court, D. Nevada
• Decided: April 3, 2020
• Docket: 2:20-cv-00271
• Status: Unknown

Opinion

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

7 KARLA SONTOSKI, et al., Case No. 2:20-CV-271 JCM (EJY)

8 Plaintiff(s), ORDER

9 v.

10 ASSOCIATED HOTELS LLC, et al.,

11 Defendant(s).

12 13 Presently before the court is Karla and Mark Sontoski’s (collectively “plaintiffs”) motion 14 to remand. (ECF No. 6). Associated Hotels LLC, HLV Holdings LLC, and Trinity Hotel Asset 15 Management LLC d/b/a Hooters Casino Hotel (collectively “defendants”) filed a response (ECF 16 No. 10), to which plaintiffs replied (ECF No. 12). 17 I. Background 18 The instant action arises from plaintiff’s claims of premises liability. (ECF No. 1-1). 19 Plaintiffs were gambling in the Hooters Casino Hotel when an employee pushed Karla Sontoski 20 to the ground. Id. She suffered damages as a result, and the instant action followed. Id. 21 The parties initially intended to mediate their dispute. (ECF No. 6 at 3). To that end, the 22 parties stipulated to extend the time defendants had to file a responsive pleading. Id. A 23 discovery dispute arose between the parties, cooperation broke down, and plaintiffs abandoned 24 the prospect of mediation until the discovery dispute was resolved. Id. at 3–4. 25 Plaintiffs filed this action on September 19, 2019. (ECF No. 1-1). Defendants removed 26 this action on February 7, 2020, after the parties’ cooperative relationship deteriorated. (ECF 27 No. 1). Plaintiffs now move to remand. (ECF No. 6). 28 1 II. Legal Standard 2 Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the 3 district courts of the United States have original jurisdiction, may be removed by the defendant 4 or the defendants, to the district court of the United States for the district and division embracing 5 the place where such action is pending.” 28 U.S.C. § 1441(a). “A federal court is presumed to 6 lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. 7 v. Confederated Tribes of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). 8 Upon notice of removability, a defendant has thirty days to remove a case to federal court 9 once he knows or should have known that the case was removable. Durham v. Lockheed Martin 10 Corp., 445 F.3d 1247, 1250 (9th Cir. 2006) (citing 28 U.S.C. § 1446(b)(2)). Defendants are not 11 charged with notice of removability “until they’ve received a paper that gives them enough 12 information to remove.” Id. at 1251. 13 Specifically, “the ‘thirty day time period [for removal] . . . starts to run from defendant’s 14 receipt of the initial pleading only when that pleading affirmatively reveals on its face’ the facts 15 necessary for federal court jurisdiction.” Id. at 1250 (quoting Harris v. Bankers Life & Casualty 16 Co., 425 F.3d 689, 690–91 (9th Cir. 2005) (alterations in original)). “Otherwise, the thirty-day 17 clock doesn’t begin ticking until a defendant receives ‘a copy of an amended pleading, motion, 18 order or other paper’ from which it can determine that the case is removable. Id. (quoting 28 19 U.S.C. § 1446(b)(3)). 20 A plaintiff may challenge removal by timely filing a motion to remand. 28 U.S.C. § 21 1447(c). On a motion to remand, the removing defendant faces a strong presumption against 22 removal, and bears the burden of establishing that removal is proper. Sanchez v. Monumental 23 Life Ins. Co., 102 F.3d 398, 403–04 (9th Cir. 1996); Gaus v. Miles, Inc., 980 F.2d 564, 566–67 24 (9th Cir. 1992). 25 III. Discussion 26 Here, the parties do not dispute that the amount in controversy is met or that complete 27 diversity exists. (ECF Nos. 6; 10). The only point of contention is whether defendants’ removal 28 was timely. Id. 1 As an initial matter, the court finds that defendants received notice of removability when 2 they were served. Indeed, plaintiffs argued as much in their motion to remand. (ECF No. 6 at 5– 3 6). Defendants do not dispute this point. (See generally ECF No. 10). “The failure of an 4 opposing party to file points and authorities in response to any motion, except a motion under 5 Fed. R. Civ. P. 56 or a motion for attorney’s fees, constitutes a consent to the granting of the 6 motion.” LR 7-2(d). Moreover, this court has held this rule applies in cases such as here when a 7 party fails to address a portion of the moving party’s motion. Moore v. Ditech Fin., LLC, No. 8 2:16-CV-1602-APG-GWF, 2017 WL 2464437, at *2 (D. Nev. June 7, 2017), aff’d, 710 F. App’x 9 312 (9th Cir. 2018) (holding that the plaintiff “conceded to dismissal” of a claim “by failing to 10 oppose the defendants’ arguments on this point in their motion to dismiss” (emphasis added)). 11 Thus, defendants conclusively concedes notice of removability. 12 Defendants’ only argument in support of removal is the notion that the parties’ agreement 13 to postpone responsive pleadings in light of mediation also tolled the statutory removal deadline. 14 (ECF No. 10 at 8–10). Defendant relies almost exclusively on the one-year removal period 15 provided by 28 U.S.C. § 1446, subsections (b)(3) and (c)(1). This argument is unavailing, 16 because, as discussed above, the initial pleading was removable. 17 The only other legal authority defendant presents to suggest that the 30-day period in 28 18 U.S.C. § 1446(b)(1) can be tolled is an unpublished case from the Northern District of Texas: 19 Mays v. RPC, Inc., 2005 U.S. Dist. LEXIS 4968 at *4–5 (N.D. Tex. March 28, 2005). Mays is 20 wholly inapposite to the instant action, however, because the case in Mays was dismissed and 21 then reinstated; the 30-day period was tolled only because there was no case to remove during 22 that time period. Id. 23 Although defendant highlights the importance of mediation, they do not present any other 24 cogent argument to support its untimely removal. Because this action was filed in September 25 2019, defendants’ removal was untimely in February 2020. Accordingly, plaintiffs’ motion to 26 remand is granted. 27 . . . 28 . . . 1] IV. Conclusion 2 Accordingly, 3 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiffs’ motion to remand (ECF No. 6) be, and the same hereby is, GRANTED. 5 IT IS FURTHER ORDERED that the matter of Sontoski v. Associated Hotels LLC et al., 6 | case number 2:20-cv-00271-JCM-EJY, be, and the same hereby is, REMANDED to the Eighth 7 Judicial District Court, Clark County, Nevada. 8 The clerk is instructed to close the case accordingly. 9 DATED April 3, 2020. 10 Atta ©. Atalian ul UNiTED ‘STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

es C. Mahan District Judge _4-