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Marteney v. Eastman Outdoors, Inc.

United States District Court, D. Nevada

August 26, 2014

REBECCA MARTENEY, Plaintiff(s),
v.
EASTMAN OUTDOORS, INC., et al., Defendant(s).

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is plaintiff Rebecca Marteney's motion to remand to state court. (Doc. # 39). Defendants Eastman Outdoors, Bass Pro Shops, and Kyle Munoz filed a response in opposition (doc. # 41), and plaintiff replied (doc. # 42).

Also before the court is defendant Kyle Munoz's motion to dismiss. (Doc. # 40). Plaintiff filed a response in opposition (doc. # 44), and defendant Munoz filed a reply (doc. # 46).

I. Background

This case arose from the use of a crossbow purchased by plaintiff at a Bass Pro Shops retail store. ( See doc. # 41). Plaintiff alleges she was injured while using the Carbon Express X-Force Crossbow at a firing range. ( See id. )

Plaintiff, a Nevada resident, filed the initial complaint on or about January 16, 2014, in the Eighth Judicial District Court for the District of Nevada. ( See doc. # 39). The complaint named three defendants: (1) Eastman Outdoors - a Michigan corporation; (2) Bass Pro Shops - a Missouri corporation; and (3) Kyle Munoz - a citizen of Nevada.[1] Plaintiff alleges defendant Munoz's last name was unknown at the time of filing, because Bass Pro Shops, his employer, would not release his information.

Plaintiff properly served defendants Eastman Outdoors and Bass Pro Shops on February 14, 2014, and February 18, 2014, respectively. ( See id. ). Because plaintiff could not identify defendant Munoz, she did not serve him. ( See id. ). On March 6, 2014, defendants Eastman Outdoors and Bass Pro Shops filed for removal based on diversity jurisdiction. ( See id. ). Plaintiff contends that she did not object to removal because removal was procedurally proper at the time, since all served defendants were diverse from the plaintiff. ( See doc. # 39; 28 U.S.C. § 1441(b)(2)).

On May 12, 2014, plaintiff served defendant Munoz, more than three months after the case had been removed to federal court.

II. Legal Standard

A defendant may remove an action to federal court if the plaintiff could have initially filed the complaint in federal court, i.e., if the federal court has original jurisdiction. 28 U.S.C. § 1441(a). A federal district court has original jurisdiction of all civil actions where (1) the matter in controversy exceeds the sum or value of $75, 000 and (2) the parties are citizens of different states. 28 U.S.C. § 1332(a).[1]

"The removal statute is strictly construed against removal jurisdiction." Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). "The defendant bears the burden of establishing that removal is proper." Id.

III. Discussion

Before considering defendant Munoz's motion to dismiss, this court must determine whether it has jurisdiction.

Plaintiff contends that this court no longer has proper jurisdiction and the case should be remanded to state court. Defendants argue that federal jurisdiction is proper. ...


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