United States District Court, D. Nevada
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).
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
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.
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.
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. (ECF No. 1-2).
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.
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).
March 3, 2017, Ventas filed the petition for removal. (ECF
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
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.).
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.
plaintiff requests that this court award plaintiff attorneys
fees and costs resulting from its pursuit of remand.
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).
Ventas posits that its removal was proper and that plaintiff
has failed to satisfy rule 11(c)(2)'s ...