United States District Court, D. Nevada
M. Navarro, Chief Judg'e United States District Judge
before the Court is the Motion to Remand, (ECF No. 8), filed
by Third-Party Plaintiff Fantastic Indoor Swap Meet, Inc.
(“Fantastic”). Third-Party Defendant Nationwide
Mutual Insurance Company (“Nationwide”) filed a
Response, (ECF No. 16), and Fantastic filed a Reply, (ECF No.
21). For the reasons set forth herein, Fantastic's Motion
to Remand is GRANTED.
9, 2012, a fire sprinkler leaked inside the property located
at 1717 S. Decatur Boulevard, Las Vegas, NV 89102, causing
water damage to the property. (Nationwide's Resp.
3:13-16, ECF No. 16). As a lessee of the property, Fantastic
was responsible for repairing and maintaining the land and
building. (Mot. to Remand 4:2-6, ECF No. 8).
February 27, 2014, Nieves Electric, LLC
(“Nieves”)-a subcontractor who had performed
repairs on the property following the incident-filed an
action in state court against the general contractor
(“Desert Valley”) and the property owners
(“Mortimers”), asserting that the parties failed
to fully compensate Nieves for the repair work. (See
State Court Compl., Ex. 1 to Nationwide's Resp., ECF No.
17-1). On July 29, 2016, Desert Valley filed a similar
third-party complaint against Fantastic, alleging that
Fantastic failed to fully compensate Desert Valley for its
portion of the repair work. (See Desert Valley
Compl, Ex. 10 to Nationwide's Resp., ECF No. 17-10).
Fantastic filed the instant Third-Party Complaint against
Nationwide, asserting multiple claims related to the
parties' insurance agreement and Nationwide's
purported failure to pay for repairs under the policy.
(See Third-Party Compl., Ex. A to Pet. of Removal,
ECF No. 1). On September 29, 2016, Nationwide removed
Fantastic's Third-Party Complaint to federal court based
on 28 U.S.C. § 1441(b) and 28 U.S.C. § 1332. (Pet.
courts are courts of limited jurisdiction, possessing only
those powers granted by the Constitution and by statute.
See United States v. Marks, 530 F.3d 799, 810 (9th
Cir. 2008). “If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C.
§ 1447(c). Removal statutes are strictly construed
against removal jurisdiction. Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir. 1992). “Federal
jurisdiction must be rejected if there is any doubt as to the
right of removal in the first instance.” Id.
(citing Libhart v. Santa Monica Dairy Co., 592 F.2d
1062, 1064 (9th Cir. 1979)). In evaluating diversity
jurisdiction, the defendant has the burden of overcoming the
“strong presumption” against removal.
Gaus, 980 F.2d at 566.
to 28 U.S.C. § 1332, a federal district court has
original jurisdiction over all civil actions between citizens
of different states where the amount in controversy exceeds
$75, 000. See 28 U.S.C. § 1332(a)(1).
“Where it is not facially evident from the complaint
that more than $75, 000 is in controversy, the removing party
must prove, by a preponderance of the evidence, that the
amount in controversy meets the jurisdictional
threshold.” Matheson v. Progressive Specialty Ins.
Co., 319 F.3d 1089, 1090 (9th Cir. 2003). Section 1332
requires complete diversity among the parties; each of the
plaintiffs must be a citizen of a different state than each
of the defendants. Morris v. Princess Cruises, Inc.,
236 F.3d 1061, 1067 (9th Cir. 2001).
primary issue before the Court is whether Nationwide, as a
third-party defendant, has the right to remove this matter in
the first place. An action filed in state court may be
removed to federal court if the federal court would have had
original subject matter jurisdiction over the action.
See 28 U.S.C. § 1441(a). Here, Nationwide
removed only Fantastic's Third-Party Complaint from the
underlying state court action, rather than the action as a
whole. (See Pet. of Removal). Since Nationwide did
not remove the actual “action” from state court,
the Court finds that Nationwide has failed to demonstrate
proper removal in accordance with § 1441(a). See
Yuki v. Chevron Corp., No. 2:12-cv-01428-GEB, 2012 WL
3000643, at *1 (E.D. Cal. July 23, 2012).
Nationwide had removed the entire action, the Court still
finds that Nationwide did not have the authority to perfect
such removal. Only “true” defendants-as opposed
to cross-defendants, counter-defendants, or third-party
defendants-have the right to remove an action from state to
federal court. See Fed. Nat'l Mortg. Ass'n v.
Barbuti, No. 2:12-cv-101, 2012 WL 1378648, at *2 (D.
Nev. Apr. 20, 2012) (citing Shamrock Oil & Gas Corp.
v. Sheets, 313 U.S. 100, 104-05 (1941)); see also
Westwood Apex v. Contreras, 644 F.3d 799, 805 (9th Cir.
2011) (citing “the longstanding rule that a party who
is joined to such an action as a defendant to a counterclaim
or as a third-party defendant may not remove the case to
federal court.”); First Nat'l Bank of Pulaski
v. Curry, 301 F.3d 456, 461 (6th Cir. 2002) (“The
majority view is that third-party defendants are not
‘defendants' for purposes of §
Nationwide is not a “true” defendant in the
underlying case, the Court finds that § 1441(a) does not
furnish a basis for Nationwide to have removed this action.