Trilogy Group F&B, LLC v. Entler

Opinion

1 DISTRICT OF NEVADA 3 4 Trilogy Group F&B, LLC, Case No. 2:23-cv-01686-CDS-EJY

5 Plaintiff Order Granting Plaintiff’s Motion to 6 v. Remand to State Court and Closing Case

7 Robert Entler, et al., [ECF Nos. 7, 8, 14, 21]

8 Defendants

9 10 This contract dispute was removed to federal court by defendant Bighorn Capital 11 Mexico, Inc., a Delaware corporation, based on diversity of citizenship under 28 U.S.C. §§ 1332, 12 1441(a) and (b), and 1446. Removal Pet., ECF No. 1. Plaintiff Trilogy Group F&B, LLC (Trilogy) 13 moves to remand this action back to state court, arguing that there is not complete diversity 14 amongst the parties—Trilogy and defendant Robert Entler are both citizens of Nevada. ECF No. 15 14. Bighorn filed a notice of non-opposition to the motion to remand. ECF No. 20. As there is no 16 valid basis for removal or for diversity jurisdiction, this matter must be remanded to state court. 17 I. Legal standard 18 “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power 19 authorized by Constitution and statute.’” See U.S. Const. art. III, § 2, cl. 1; Gunn v. Minton, 568 U.S. 20 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). When 21 initiating a case, “[a] plaintiff is the master of [their] complaint, and has the choice of pleading 22 claims for relief under state or federal law (or both).” Hansen v. Grp. Health Coop., 902 F.3d 1051, 23 1056 (9th Cir. 2018) (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 389–99 (1987)). Generally, 24 plaintiffs are entitled to deference in their choice of forum. Ayco Farms, Inc. v. Ochoa, 862 F.3d 945, 25 949–50 (9th Cir. 2017). 26 1 However, Congress has enacted statutes that permit parties to remove cases originally 2 filed in state court to federal court. 28 U.S.C. § 1441. The general removal statute permits “the 3 defendant or the defendants” in a state-court action over which the federal courts would have 4 original jurisdiction to remove that action to federal court. Home Depot U.S.A., Inc. v. Jackson, 139 S. 5 Ct. 1743, 1746 (2019). “To remove under [§ 1441(a)], a party must meet the requirements for 6 removal detailed in other provisions.” Id. When federal jurisdiction is based solely on diversity 7 jurisdiction, the case “shall be removable only if none of the parties in interest properly joined 8 and served as defendants is a citizen of the State in which such action is brought,” 28 U.S.C. § 9 1441(b)(2). Home Depot U.S.A., Inc., 139 S. Ct. at 1746; see also Lively v. Wild Oaks Markets., Inc., 456 F.3d 10 933, 939 (9th Cir. 2006) (describing the “forum defendant rule”). A defendant “always has the 11 burden of establishing that removal is proper” and must overcome a “strong presumption against 12 removal jurisdiction.” Geographic Expeditions, Inc. v. Est. of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107 13 (9th Cir. 2010) (internal quotation marks and citation omitted). Federal courts construe the 14 removal statute against removal. Id.; see also Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 15 (9th Cir. 2009) (“[A]ny doubt about the right of removal requires resolution in favor of 16 remand.”). 17 II. Discussion 18 In its petition for removal, Bighorn asserted “upon information and belief, [that Entler] is 19 a citizen of Oregon.” ECF No. 1 at 5. It further asserted, based on this belief, that no defendant is 20 a citizen of Nevada and thus diversity of the parties is satisfied. Id. As a threshold matter, 21 petitions alleging citizenship “upon information and belief” are insufficient to establish 22 diversity. 5AIF Juniper 2, LLC v. White, 2023 WL 2634404, at *3 (D. Nev. Mar. 23, 2023) (quoting K. 23 Durant Enterprises, LLC v. Swanson Travel Profs., Inc., 2014 545843, at *2 (C.D. Cal. Feb. 10, 2014)) 24 (citation omitted); see also Clear Blue Ins. Co. v. B & G Realty, LLC, 2022 WL 18228181, at *2 (C.D. 25 Cal. Oct. 20, 2022) (“Jurisdictional allegations based on information and belief are insufficient to 26 confer jurisdiction.”). Moreover, as plaintiff’s motion to remand points out, it appears that Entler is actually a citizen of Nevada, not Oregon, vitiating complete diversity between the parties. ECF No. 14 at 6. Following its “review of the facts and arguments contained in [plaintiff's] motion,” 3|| Bighorn filed a statement of non-opposition to the motion to remand and informed the court 4|| that it does not oppose remand of this case to state court. ECF No. 20. For those reasons, I grant 5}| plaintiff's motion to remand. Conclusion 7 IT IS THEREFORE ORDERED that plaintiff's motion to remand [ECF No. 14] is GRANTED. 9 IT IS FURTHER ORDERED that defendant’s motion to set aside [ECF No. 7]; motion 10] for leave to file [ECF No. 8]; and motion to extend time to file [ECF No. 21] are DENIED as moot. 12 The Clerk of Court is kindly directed to REMAND this case to the Eighth Judicial 13} District Court for the State of Nevada, Case No. A-23-877657-B, Department 13, and to close this 14|| case. ) 15 DATED: December 6, 2023 /, / 16 . LZ

8 ye States District Judge 19 20 21 22 23 24 25 26