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Gurian v. Atria Management Co., LLC

United States District Court, D. Nevada

May 22, 2017

JACK GURIAN, Plaintiffs,
v.
ATRIA MANAGEMENT COMPANY, LLC,, Defendants.

          ORDER

         Presently before the court is plaintiff Jack Gurian's motion to remand this case to state court. (ECF No. 8). Defendant Ventas, Inc. (“Ventas”) filed a response (ECF No. 16), to which defendant Atria Management Company, LLC (“Atria”) joined after the response deadline had elapsed (ECF No. 20). Plaintiff filed a reply. (ECF No. 27). Magistrate Judge Hoffman granted Ventas's motion for leave to file a surreply (ECF No. 30), and Ventas has submitted that document (ECF No. 32).

         The court is aware that after most of the briefing for the present motion had been submitted, plaintiff voluntarily dismissed Ventas from the present case. See (ECF No. 26). Yet the Ninth Circuit has “long held that post-removal amendments to the pleadings cannot affect whether a case is removable, because the propriety of removal is determined solely on the basis of the pleadings filed in state court.” Williams v. Costco Wholesale Corp., 471 F.3d 975, 976 (9th Cir. 2006) (emphasis added).

         Furthermore, Ventas-the removing defendant-had not filed a motion for summary judgment before removing the case, so plaintiff's reference to the holding in Russell v. Security Credit Services in support of its argument for remand after voluntary dismissal of the removing defendant is unpersuasive. No. CV-12-0514-JLQ, 2012 WL 5463213, at *3 (E.D. Wash. Nov. 8, 2012) (acknowledging that “[m]erely voluntarily dismissing the removing defendant would not, in most circumstances, justify remand to state court.”); see also (ECF No. 33). Thus, plaintiff's voluntary dismissal of Ventas does not automatically resolve the present issue.

         Moreover, the court is similarly cognizant that plaintiff filed a notice containing an exhibit including a second amended complaint that retained only Atria as a named defendant. (ECF No. 26). However, plaintiff was explicit that the second amended complaint was filed in state court only. (Id.). Therefore, the first amended complaint remains the operative complaint in this case.

         I. Introduction

         In 2014, the removed case began in state court against Atria. (ECF No. 1). The original complaint filed in state court involves state law claims that Atria breached its duty to protect plaintiff from an individual, Khang Dang, who unlawfully took over $250, 000 of plaintiff's money after the Las Vegas Metropolitan Police Department expressed its concern about Dang to Atria's management.[1] (ECF No. 1-2).

         On January 23, 2017, plaintiff filed his first amended complaint in state court. The amended complaint included Ventas as a defendant and added a negligence per se claim against both defendants for violation of Nevada Revised Statute (“NRS”) § 41.1395, which involves conduct towards elderly individuals. (ECF No. 1-4). Ventas was served with this complaint on February 7, 2017. (ECF No. 1).

         On February 27, 2017, Ventas filed a motion to dismiss plaintiff's complaint for lack of personal jurisdiction in state court. (ECF No. 1-9). On February 28, 2017, that defendant also filed a motion to continue the state trial, which was set for March 20, 2017. (ECF Nos. 8, 16).

         On March 3, 2017, Ventas filed the petition for removal. (ECF No. 1).

         On March 6, 2017, plaintiff filed the instant motion to remand. (ECF No. 8). First, plaintiff argues that the notice of removal is untimely because it was filed over a year after the case's inception and that Ventas knew it would be joined in the litigation over two months before it filed notice. (Id.).

         Next, plaintiff contests that Ventas waived its right of removal both when it failed to challenge personal jurisdiction in its answer and filed a motion in state court to continue trial that informed the state court that Ventas needed months to prepare for trial. (Id.).

         Finally, plaintiff argues that the notice of removal violates Federal Rule of Civil Procedure 11 and Nevada ethical rules because the notice is frivolous and Ventas's counsel failed to provide the court with relevant information regarding the case. (Id.). Specifically, plaintiff contends that Ventas's counsel did not disclose that trial in state court was set for March 20, 2017, and that a hearing was scheduled for March 9, 2017, regarding possible sanctions against Ventas for failure to comply with a previous order. (Id.).

         Consequently, plaintiff requests that this court award plaintiff attorneys fees and costs resulting from its pursuit of remand. (Id.).

         Ventas responded by arguing that plaintiff's first argument is incorrect both because the removal was timely through its “later-served defendant” status as provided by 28 U.S.C. § 1446(b)(2)(C) and because its actions in state court were defensive and did not address the merits of the case. (ECF No. 16). Indeed, Ventas suggests these defensive filings were necessary because it had been added to “years-long pending litigation 41 days before trial.” (Id. at 3).

         Furthermore, Ventas posits that its removal was proper and that plaintiff has failed to satisfy rule 11(c)(2)'s ...


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