1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 SUSANNA MANUKYAN, individually Case No. 2:23-cv-01736-JCM-BNW and as assignee of Albertson’s LLC and 5 T&M Imports, LLC., ORDER 6 Plaintiffs,
7 v.
8 COLAVITA USA, LLC,
9 Defendant.
10 11 Presently before the court is plaintiff Susanna Manukyan’s second motion to remand the case 12 to state court. (ECF No. 43). No response was filed. 13 Also before the court is defendant Colavita USA, LLC’s motion to reopen the case. (ECF 14 No. 40). Plaintiff filed a response. (ECF No. 42). 15 I. Background 16 Plaintiff filed this negligence action on August 24, 2023, in the Eighth Judicial District Court 17 of Clark County, Nevada against defendants Albertson’s LLC, T&M Imports, LLC, and Colavita 18 USA, LLC. (ECF No. 1). Defendant Albertson’s LLC removed to federal court for diversity 19 jurisdiction, (id.), and plaintiff thereafter moved to remand the case to state court on the basis that 20 the amount in controversy requirement was not met. (ECF No. 15). 21 On May 24, 2024, the court granted plaintiff’s motion to remand, finding that defendant 22 Albertson’s had not met its burden to show that the amount in controversy is greater than $75,000. 23 (ECF No. 38). The court remanded the case to state court, and the clerk closed this case. 24 Now, more than two years later, the state court case has progressed to its final stages. 25 Plaintiff has settled with Albertson’s and T&M imports, and Colavita is the remaining defendant in 26 this case. (ECF No. 40 at 2). Plaintiff has filed a motion for partial summary judgment on past 27 medical expenses and a motion for summary judgment on assigned indemnity claims. (Id.). 1 However, defendant Colavita filed a motion in this case on June 3, 2026, requesting that the 2 district court reopen this case because plaintiff disclosed additional damages in a supplemental 3 NRCP 16.1(a) disclosure statement that defendant believes pushes the amount in controversy past 4 the $75,000 threshold. (ECF No. 40) (motion); (ECF No. 41) (statement regarding removal). 5 Plaintiff filed a response and a motion to remand, which went unopposed. 6 II. Legal Standard 7 “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized 8 by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. 9 Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)). Pursuant to 28 U.S.C. § 1441(a), 10 “any civil action brought in a State court of which the district courts of the United States have original 11 jurisdiction, may be removed by the defendant or the defendants, to the district court of the United 12 States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 13 1441(a). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary 14 affirmatively appears.” Stock West, Inc. v. Confederated Tribes of Colville Reservation, 873 F.2d 15 1221, 1225 (9th Cir. 1989). 16 For diversity jurisdiction under 28 U.S.C. § 1332, the parties must be completely diverse and 17 the amount in controversy must exceed $75,000.00, exclusive of interest and costs. See 28 U.S.C. § 18 1332(a); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1098 (9th Cir. 2003). The amount in 19 controversy is the “maximum recovery the plaintiff could reasonably recover” and is determined at 20 the time of removal. Arias v. Residence Inn by Mariott, 936 F.3d 920, 927 (9th Cir. 2019); McCaa 21 v. Mass. Mutual Life Ins. Co., 330 F.Supp.2d 1143, 1147 (D. Nev. 2004) (citing Certain 22 Underwriters of Lloyd’s London v. Argonaut Ins. Co., 264 F.Supp.2d 926, 932 (N.D. Cal. 2003); 23 Meritcare, Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 217–18 (3d Cir. 1999)). 24 To remove a case from state to federal court, a defendant must file a notice of removal in the 25 appropriate district court and give notice to the adverse parties and state court. 28 U.S.C. § 1441(a), 26 (d). The notice shall contain “a short and plain statement of the grounds for removal” and a “copy 27 of all process, pleadings, and orders served upon such defendant or defendants in such action.” Id. 1 at § 1441(a). Filing of a copy of the notice of removal in state court “effect[s] the removal and the 2 State court shall proceed no further unless and until the case is remanded.” Id. § 1441(d). 3 III. Discussion 4 The court may grant plaintiff’s motion to remand simply because defendant failed to oppose 5 it. See LR 7-2(d) (“The failure of an opposing party to file points and authorities in response to any 6 motion ... constitutes a consent to the granting of the motion.”). Additionally, defendant’s failure to 7 provide authorities in support of its motion to reopen constitutes consent to denial of the motion. 8 See id. (“The failure of moving party to file points and authorities in support of the motion 9 constitutes a consent to a denial of the motion.”) (emphasis added). There is also grounds to rule in 10 plaintiff’s favor on both motions because the motion to reopen is procedurally improper and any 11 attempt to properly file a notice of removal would be untimely. 12 Defendant’s motion to reopen the case is procedurally improper. The case was remanded 13 under § 1447(c) and closed on May 24, 2024. (ECF No. 37 at 2, 4). 14 In the motion, defendant contends that the amount in controversy is met because plaintiff 15 disclosed supplemental damages in the amount of $89,050.59. (ECF No. 40 at 2). The relief sought 16 by the motion—to remove the remainder of the action to this court—is appropriately brought through 17 a notice of removal. Removals—even successive removals—require opening a new federal civil 18 case. See D. L. v. Vassilev, 858 F.3d 1242, 1246 (9th Cir. 2017) (noting that the second removal 19 was not a continuation of the first and “actually constituted a new federal case, with a new case 20 number and a new docket in the federal district court.”); Adakai v. Wal-Mart Stores, Inc., No. 2:11- 21 cv-749, 2011 U.S. Dist. LEXIS 69780, at *3 (D. Nev. June 29, 2011) (explaining that after remand, 22 defendant filed a second petition for removal);1 Sercu v. Laboratory Corporation of America, No. 23 3:09-cv-00619-LRH-WGC (ECF No. 1) (docketing notice that second petition for removal was 24 erroneously filed in 3:09-cv-044-RCJ, and “[f]ilings received after the closing of [that] case should 25 be contained in a new civil action”); see generally §§ 1441(a),(b), 1446. Accordingly, to obtain the 26 relief that the motion seeks, the appropriate course of action would have been for defendant to open 27 a new case and file an appropriate notice of removal therein. 1 Although the court has the power to instruct the clerk to create a new docket for this case and 2 permit the defendant to refile the motion as a notice of removal, thereby amending its error, doing 3 so would be futile.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 SUSANNA MANUKYAN, individually Case No. 2:23-cv-01736-JCM-BNW and as assignee of Albertson’s LLC and 5 T&M Imports, LLC., ORDER 6 Plaintiffs,
7 v.
8 COLAVITA USA, LLC,
9 Defendant.
10 11 Presently before the court is plaintiff Susanna Manukyan’s second motion to remand the case 12 to state court. (ECF No. 43). No response was filed. 13 Also before the court is defendant Colavita USA, LLC’s motion to reopen the case. (ECF 14 No. 40). Plaintiff filed a response. (ECF No. 42). 15 I. Background 16 Plaintiff filed this negligence action on August 24, 2023, in the Eighth Judicial District Court 17 of Clark County, Nevada against defendants Albertson’s LLC, T&M Imports, LLC, and Colavita 18 USA, LLC. (ECF No. 1). Defendant Albertson’s LLC removed to federal court for diversity 19 jurisdiction, (id.), and plaintiff thereafter moved to remand the case to state court on the basis that 20 the amount in controversy requirement was not met. (ECF No. 15). 21 On May 24, 2024, the court granted plaintiff’s motion to remand, finding that defendant 22 Albertson’s had not met its burden to show that the amount in controversy is greater than $75,000. 23 (ECF No. 38). The court remanded the case to state court, and the clerk closed this case. 24 Now, more than two years later, the state court case has progressed to its final stages. 25 Plaintiff has settled with Albertson’s and T&M imports, and Colavita is the remaining defendant in 26 this case. (ECF No. 40 at 2). Plaintiff has filed a motion for partial summary judgment on past 27 medical expenses and a motion for summary judgment on assigned indemnity claims. (Id.). 1 However, defendant Colavita filed a motion in this case on June 3, 2026, requesting that the 2 district court reopen this case because plaintiff disclosed additional damages in a supplemental 3 NRCP 16.1(a) disclosure statement that defendant believes pushes the amount in controversy past 4 the $75,000 threshold. (ECF No. 40) (motion); (ECF No. 41) (statement regarding removal). 5 Plaintiff filed a response and a motion to remand, which went unopposed. 6 II. Legal Standard 7 “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized 8 by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. 9 Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)). Pursuant to 28 U.S.C. § 1441(a), 10 “any civil action brought in a State court of which the district courts of the United States have original 11 jurisdiction, may be removed by the defendant or the defendants, to the district court of the United 12 States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 13 1441(a). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary 14 affirmatively appears.” Stock West, Inc. v. Confederated Tribes of Colville Reservation, 873 F.2d 15 1221, 1225 (9th Cir. 1989). 16 For diversity jurisdiction under 28 U.S.C. § 1332, the parties must be completely diverse and 17 the amount in controversy must exceed $75,000.00, exclusive of interest and costs. See 28 U.S.C. § 18 1332(a); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1098 (9th Cir. 2003). The amount in 19 controversy is the “maximum recovery the plaintiff could reasonably recover” and is determined at 20 the time of removal. Arias v. Residence Inn by Mariott, 936 F.3d 920, 927 (9th Cir. 2019); McCaa 21 v. Mass. Mutual Life Ins. Co., 330 F.Supp.2d 1143, 1147 (D. Nev. 2004) (citing Certain 22 Underwriters of Lloyd’s London v. Argonaut Ins. Co., 264 F.Supp.2d 926, 932 (N.D. Cal. 2003); 23 Meritcare, Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 217–18 (3d Cir. 1999)). 24 To remove a case from state to federal court, a defendant must file a notice of removal in the 25 appropriate district court and give notice to the adverse parties and state court. 28 U.S.C. § 1441(a), 26 (d). The notice shall contain “a short and plain statement of the grounds for removal” and a “copy 27 of all process, pleadings, and orders served upon such defendant or defendants in such action.” Id. 1 at § 1441(a). Filing of a copy of the notice of removal in state court “effect[s] the removal and the 2 State court shall proceed no further unless and until the case is remanded.” Id. § 1441(d). 3 III. Discussion 4 The court may grant plaintiff’s motion to remand simply because defendant failed to oppose 5 it. See LR 7-2(d) (“The failure of an opposing party to file points and authorities in response to any 6 motion ... constitutes a consent to the granting of the motion.”). Additionally, defendant’s failure to 7 provide authorities in support of its motion to reopen constitutes consent to denial of the motion. 8 See id. (“The failure of moving party to file points and authorities in support of the motion 9 constitutes a consent to a denial of the motion.”) (emphasis added). There is also grounds to rule in 10 plaintiff’s favor on both motions because the motion to reopen is procedurally improper and any 11 attempt to properly file a notice of removal would be untimely. 12 Defendant’s motion to reopen the case is procedurally improper. The case was remanded 13 under § 1447(c) and closed on May 24, 2024. (ECF No. 37 at 2, 4). 14 In the motion, defendant contends that the amount in controversy is met because plaintiff 15 disclosed supplemental damages in the amount of $89,050.59. (ECF No. 40 at 2). The relief sought 16 by the motion—to remove the remainder of the action to this court—is appropriately brought through 17 a notice of removal. Removals—even successive removals—require opening a new federal civil 18 case. See D. L. v. Vassilev, 858 F.3d 1242, 1246 (9th Cir. 2017) (noting that the second removal 19 was not a continuation of the first and “actually constituted a new federal case, with a new case 20 number and a new docket in the federal district court.”); Adakai v. Wal-Mart Stores, Inc., No. 2:11- 21 cv-749, 2011 U.S. Dist. LEXIS 69780, at *3 (D. Nev. June 29, 2011) (explaining that after remand, 22 defendant filed a second petition for removal);1 Sercu v. Laboratory Corporation of America, No. 23 3:09-cv-00619-LRH-WGC (ECF No. 1) (docketing notice that second petition for removal was 24 erroneously filed in 3:09-cv-044-RCJ, and “[f]ilings received after the closing of [that] case should 25 be contained in a new civil action”); see generally §§ 1441(a),(b), 1446. Accordingly, to obtain the 26 relief that the motion seeks, the appropriate course of action would have been for defendant to open 27 a new case and file an appropriate notice of removal therein. 1 Although the court has the power to instruct the clerk to create a new docket for this case and 2 permit the defendant to refile the motion as a notice of removal, thereby amending its error, doing 3 so would be futile. An immovable hurdle stands in defendant’s way of success: timeliness. 4 Defendant contends that removal is timely because plaintiff disclosed additional damages on 5 May 4, 2026, and it filed the motion to reopen on June 30, 2026. (ECF No. 40 at 2). When a case 6 is not initially removable, a notice of removal is timely when filed 30 days after the defendant 7 receives “other paper from which it may be ascertained that the case is one which is or has become 8 removable.” 28 U.S.C. § 1446(b)(3). But defendant did not file a notice of removal—it filed a 9 motion to reopen the case. 10 Even if the court were to overlook this error and accept the motion or reopen or the statement 11 regarding removal as satisfying § 1446(b)(3), removal is still untimely under § 1446(c)(1). Under § 12 1446(c)(1),
13 A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, 14 unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action. 15 16 § 1446(c)(1) (emphasis added). 17 It has been more than two years since commencement of this action, (ECF No. 1), and 18 defendant does not argue that plaintiff has acted in bad faith. Therefore, removal was not 19 procedurally effected and would not be proper even if it was.2 20 IV. Conclusion 21 Accordingly, IT IS HEREBY ORDERED that defendant Colavita’s motion to reopen case 22 (ECF No. 40) be, and the same hereby is, DENIED. 23 To some degree, granting plaintiff Susanna Manukyan’s motion to remand would conflict 24 with the court’s ruling that the case has not procedurally been removed and cannot timely be
25 2 Plaintiff also directs the court’s attention to case law concerning the general rule that “[a]fter a remand, a defendant may not remove a case a second time.” The court notes that it was Albertson’s, not Colavita, that filed the 26 removal petition. See Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 789 (2018) (citing Reyes v. Dollar Tree Stores, Inc., 781 F.3d 1185, 1188 (9th Cir. 2015); Kirkbride v. Cont’l Cas. Co., 933 F.2d 729, 732 (9th Cir. 1991). The 27 court need not decide whether Colavita is barred from removing the case unless there are “new and different grounds 1 removed. See 28 U.S.C. § 1446(a) and (b)(3). However, out of an abundance of caution, the court 2 finds it necessary to GRANT the motion to remand (ECF No. 43) to the limited extent that it clarifies 3 to the parties and the Eighth Judicial District Court of Clark County that the state court action may 4 proceed without delay. 5 IT IS FURTHER ORDERED that plaintiff’s motion for summary judgment is DENIED AS 6 MOOT. (ECF No. 45). This denial shall have no prejudicial effect on plaintiff’s summary judgment 7 motions, if any, in state court. 8 Plaintiff may file a separate motion for attorney’s fees and costs within 21 days of this order, 9 pertaining only to the motions addressed therein. 10 Dated this 2nd day of July, 2026. 11
12 JAMES C. MAHAN 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27