United States District Court, D. Nevada
before the court is defendant Bank of New York Mellon’s
(“BNYM”) motion to reconsider. (ECF No. 36).
Defendant State of Nevada (ex rel. its Department of
Taxation, hereinafter “Nevada”) filed a response
(ECF No. 38), to which BNYM replied (ECF No. 39).
March 28, 2017, plaintiff 1st One Hundred Investment Pool,
LLC filed a complaint in state court. On May 2, 2017,
defendant BNYM filed a petition for removal. (ECF No. 1 at
23). On May 26, 2017, plaintiff filed a motion to remand to
state court. (ECF No. 6). On June 21, 2017, defendant Nevada
filed a motion to remand to state court. (ECF No. 26). On
July 13, 2017, this court granted Nevada’s motion to
remand. (ECF No. 35). BNYM timely filed a motion, pursuant to
Federal Rule of Civil Procedure 60, for this court to
reconsider its remand order. (ECF No. 36).
motion for reconsideration “should not be granted,
absent highly unusual circumstances.” Kona Enters.,
Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
2000). “Reconsideration is appropriate if the district
court (1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.” School Dist. No. 1J v. ACandS,
Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see
Fed. R. Civ. P. 60(b).
59(e) “permits a district court to reconsider and amend
a previous order,” however “the rule offers an
extraordinary remedy, to be used sparingly in the interests
of finality and conservation of judicial resources.”
Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.
2003) (internal quotations omitted).
BNYM’s motion asks the court to reconsider its order
remanding the instant case to state court. BNYM asserts that
the order on remand was improper, as defendant Nevada filed
its motion to remand more than thirty days after BNYM filed
its petition for removal. According to BNYM, its failure to
obtain unanimity was a non-jurisdictional defect, and thus
the court lacked authority to grant Nevada’s motion to
remand as it was filed more than thirty days after BNYM filed
its petition for removal. BNYM primarily cites Lively v.
Wild Oats Mkts., Inc., 456 F.3d 933 (9th Cir. 2006),
Aguon-Schulte v. Guam Election Commission, 469 F.3d
1236, 1240 (9th Cir. 2006), and N. Cal. Dist. Council of
Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034
(9th Cir. 1995), to support its position.
Nevada responded to BNYM’s motion to reconsider with
four arguments. First, federal statutes and case law impose
strict limits on reconsideration of remand orders that bar
the court from reviewing its remand order in this case.
Second, BNYM did not properly remove the case, thereby
creating a jurisdictional defect. Third, the thirty-day
deadline for filing a motion to remand is not jurisdictional,
and thus the court could consider the remand order even if it
was not timely. Fourth, because plaintiffs filed a timely
motion for remand, the court “had authority to issue a
remand order based on any jurisdictional or procedural
defect.” (ECF No. 38).
28 U.S.C. 1447(d), “[a]n order remanding a case to
state court is not reviewable on appeal or otherwise.
“This language . . . preclude[s] not only appellate
review but also reconsideration by the district court.”
Seedman v. U.S. Dist. Ct. for the Cent. Dist. of
Cal., 837 F.2d 413, 414 (9th Cir. 1988).
“review bar” of § 1447(d) applies only to
remands based on grounds enumerated in § 1447(c).
Thermtron Prods., Inc. v. Hermansforder, 423 U.S.
336, 345–46 (1976); Aguon-Schulte v. Guam Election
Commission, 469 F.3d 1236, 1240 (9th Cir. 2006). In
Aguon-Schulte, one defendant removed a case without
obtaining consent from the other defendants. Id. at
1237. The court held that it lacked jurisdiction to consider
the remand order. Id. at 1240. As the remand order
fell within the scope of § 1447(c), “review [was]
unavailable no matter how plain the legal error in ordering
the remand.” Id. at 1240 n.5 (citations and
quotations omitted); see Atl. Nat. Tr. LLC v. Mt. Hawley
Ins. Co., 621 F.3d 931, 934 (9th Cir. 2010)
(“Mt. Hawley”) (citing Briscoe v.
Bell, 432 U.S. 404, 413 N.13 (1977)).
of remand orders is limited in scope due to
“Congress’ intent to avoid interruption of the
litigation of the merits of a removed case by prolonged
litigation of procedural questions.” Powerex Corp.
v. Reliant Energy Servs., Inc., 551 U.S. 224, 238 (2007)
(quotations omitted). In Thermtron, the Court held
that a district court’s reliance on grounds not
enumerated in 1447(c) exceeded its statutory power and was
thus reviewable on appeal. Id. at 351. However,
“[t]o prevent delay in the trial of remanded cases . .
. Congress immunized from all forms of appellate review any
remand order issued on the grounds specified in §
1447(c), whether or not that order might be deemed erroneous
by an appellate court.” Id. (internal
citations omitted). In reviewing a remand order, a court is
to consider the order “only to determine whether the
ground [for remand] was ‘colorable.’”
Mt. Hawley, 621 F.3d at 938.
the court’s remand order was based on a ground
enumerated in § 1447(c), which limits review of the
order. See Mt. Hawley, 621 F.3d at 938;
Seedman, 837 F.2d at 414. As this court stated in
its order remanding the case to state court, unanimity is a
requirement under 28 U.S.C. § 1446(b)(2)(A). Nevada
asserts that lack of unanimity qualifies as a jurisdictional
defect, whereas BNYM asserts it is a procedural defect. Both
characterizations would place the court’s remand order
within the scope of § 1447(c). Thus, the court cannot
review its order even in the face of clear legal error.
Cf. Thermtron, 423 U.S. at 351 (remand order based
on grounds not enumerated in § 1447(c) was reviewable on
appeal). The court is limited in reconsideration of its own
order to a determination of whether the ground for remand was
colorable. See Mt. Hawley, 621 F.3d at 938;
Seedman, 837 F.2d at 414.
states that, pursuant to Aguon-Schulte, lack of
unanimity is a defect in removal procedure that cannot serve
as grounds for remand when the moving party files its motion
outside of § 1447(c)’s thirty-day window. (ECF No.