United States District Court, D. Nevada
before the court is defendant State of Nevada's
(“Nevada”) motion to remand this case to state
court. (ECF No. 26). Defendant Bank of New York Mellon Trust
Company (“BNYM”) filed a response (ECF No. 29),
and Nevada filed a reply (ECF No. 34).
argues that this court should remand the case for violation
of the rule of unanimity because-upon request-it informed
BNYM prior to that party's filing of the notice of
removal that it did not consent to removal of the present
action. (ECF No. 26). Indeed, BNYM's response supports
that assertion (ECF No. 29), as does the notice of removal
(ECF No. 1).
BNYM argues that “[a]ll motions to remand, except those
based on subject matter jurisdiction, must be brought within
30 days after a Notice of Removal is filed, ” pursuant
to 28 U.S.C. § 1447(c). (ECF No. 29 at 5). Thus, BNYM
posits, Nevada has waived the ability to pursue its
purportedly non-jurisdictional challenge. (Id.).
28 U.S.C. § 1441(a), “any civil action brought in
a [s]tate court of which the district courts of the United
States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the
United States for the district and division embracing the
place where such action is pending.”
28 U.S.C. § 1446(b)(2)(A) provides that “[w]hen a
civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join
in or consent to the removal of the action.” This
requirement is often referred to as the “rule of
unanimity.” Proctor v. Vishay Intertechnology
Inc., 584 F.3d 1208, 1225 (9th Cir. 2009).
statutes are construed restrictively and in favor of
remanding a case to state court. See Shamrock Oil &
Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941);
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
1992). “On a motion to remand, the removing defendant
faces a strong presumption against removal, and bears the
burden of establishing that removal was proper by a
preponderance of evidence.” Knutson v.
Allis-Chalmers Corp., 358 F.Supp.2d 983, 988 (D. Nev.
2005) (citing Sanchez v. Monumental Life Ins. Co.,
102 F.3d 398, 403-04 (9th Cir. 1996); Gaus, 980 F.2d
BNYM argues that the Ninth Circuit has joined “[t]he
vast majority” of circuits that “have held that
removal defects are not jurisdictional, and therefore
objections based thereon are waived if not brought within the
first 30 days of filing a Petition for Removal.” (ECF
No. 29 at 5). In support of this assertion, BNYM cites a
variety of cases from a corresponding variety of circuits.
BNYM refers to only one Ninth Circuit case: Lively v.
Wild Oats Mkts., Inc., 456 F.3d 933, 939-40 (9th Cir.
2006). In that case, the Ninth Circuit analyzed the
application of § 1447(c) to 28 U.S.C. §
1441(b)'s “forum defendant rule” to hold that
requirement was procedural, and § 1447(c)'s 30-day
deadline therefore applied to that rule. Id. at 942.
§ 1441(b)'s forum defendant rule is not at issue
here; rather, § 1446(b)'s rule of unanimity is
presently under scrutiny. See (ECF No. 26).
Furthermore, the Ninth Circuit's analysis in
Lively is not clearly applicable to the instant case
because, for example, the Ninth Circuit specifically
considered “the policy rationale of §
1441(b)” to reach its conclusion. Lively, 456
F.3d at 942.
this court will fall back upon its own precedent, as offered
by Nevada. (ECF No. 26). In Hones v. Young,
this court held that the failure to provide, in a notice of
removal, a statement that the removing party's
co-defendants had consented to the removal would violate the
rule of unanimity and warrant remand. See No.
2:12-cv-1951-JCM-PAL, 2013 WL 593401, at *3 (D. Nev. Feb. 13,
2013) (citing Proctor, 584 F.3d at 1225).
BNYM failed to provide such a statement in its notice of
removal. (ECF No. 1) (“Defendant State of Nevada
indicated preliminarily its preference to remain in state
court while actively considering the issue [of
this court finds that BNYM's removal violated the rule of
unanimity and that remand is appropriate.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Nevada's
motion to remand the case (ECF No. 26) ...