United States District Court, D. Nevada
before the court is the matter of Novick v. CitiMortgage,
Inc., case number 2:17-cv-02236-JCM-CWH.
August 22, 2017 at 5:32pm, defendant CitiMortgage, Inc.
removed this action to federal court from the Eighth Judicial
District Court of Clark County. (ECF No. 1).
notice of removal, defendant claims that the procedural
requirements for removal have been met as, it argues, removal
of this case “will not result in any prejudice to
[plaintiff] Novick as the matter is in the initial pleading
stage and no discovery has occurred.” Id. at 4
plaintiff had filed only a motion for a temporary restraining
order (TRO) seeking to enjoin a foreclosure on August 1,
2017. Id. at 1; (ECF No. 1-8 at 2). Plaintiff
requested from the state court “[t]emporary injunctive
relief to enjoin the sale of my home until the court
determines that Defendant has corrected and remedies the
material violations giving rise to this action.” (ECF
No. 1-8 at 4). To date, plaintiff has not filed a complaint.
August 2, 2017, the state district court granted the motion
in full, enjoining the foreclosure, and set a hearing on the
“continuation of motion for TRO” for August 23,
2017 at 9:00am. Id. at 8.
defendant CitiMortgage removed this action to federal court
at 5:32pm the evening before the 9:00am hearing on
plaintiff's TRO motion.
at the time the defendant removed this action, its counsel
did not indicate to the court that there were outstanding
matters requiring the court's immediate attention.
Although counsel mentioned the August 1 motion for a TRO that
the district court had already granted, this court discovered
the impending August 23, 2017 9:00am hearing only because
court staff found the information on the last page of
defendant's attached exhibits to its notice of removal.
statute, “injunctions, orders, and other proceedings
had in such [state] action prior to its removal shall remain
in full force and effect until dissolved or modified by the
district court.” 28 U.S.C. § 1450. Interlocutory
state court orders thus “are transformed by operation
of 28 U.S.C. § 1450 into orders of the federal district
court to which the action is removed.” Louisiana v.
Guidry, 489 F.3d 692, 698 (7th Cir.2007) (citing
Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1304
(5th Cir.1988)); see also Munsey v. Testworth
Laboratories, 227 F.2d 902, 903 (6th Cir.1955);
Lechoslaw v. Bank of Am., N.A., 575 F.Supp.2d 286,
292 (D. Mass. 2008).
August 28, 2017, this court held that it could not determine
what matters remain outstanding, what interlocutory orders
are still in effect, and whether any immediate action must be
taken by the court on plaintiff's motion for a TRO in
state court. The court ordered the parties to file a status
report within 5 days of the August 28 explaining, among other
things, the status of the state court's temporary
restraining order and plaintiff's motion, the status of
the foreclosure sale, and the actions, if any, required by
the court at this time. (ECF No. 3).
August 31, 2017, CitiMortgage filed a status report (ECF No.
6) which Novick joined (ECF 10). The status report indicated
the following. On August 1, 2017, Michael J. Novick filed a
motion for temporary restraining order and injunction in
Eighth Judicial District Court Case No. A-17-759241-C. ECF
No. 1-8, at 2-6. The Eighth Judicial District Court issued a
temporary restraining order and set a hearing for August 23,
2017. ECF No. 1-8, at 7-8. Novick did not file a complaint
with his motion. CitiMortgage removed this case to federal
court on August 22, 2017. ECF No. 1. CitiMortgage emailed a
filed-stamped copy of the petition for removal to Novick on
August 22, 2017. CitiMortgage did not appear at the hearing
on the motion for temporary restraining order on August 23,
2017. CitiMortgage further indicated that its counsel's
staff contacted the state court judicial department on the
afternoon of August 22, 2017-the day before the hearing on
the TRO-to advise it that a petition for removal would be
filed that day. Based upon the court's minutes, Novick
represented to the court that he had not formally served
CitiMortgage, and the case was continued in the state
district court to October 25, 2017, for Novick to provide
parties agree that “the court should issue a briefing
schedule on Novick's motion for injunctive relief and set
the matter for hearing, if appropriate. CitiMortgage canceled
the foreclosure sale until the motion for injunctive relief
is decided by the court. The court will also need to rule on
CitiMortgage's motion to dismiss once the motion is fully
briefed.” (ECF No. 6 at 2).
August 29, 2017, CitiMortgage filed in this court a motion to
dismiss “Novick's complaint.” (ECF No. 4).
But Novick has not filed a complaint, so this court cannot
has not filed a complaint, so the removal of this action to
federal court was premature. See generall Murphy Bros.,
Inc. v. Michetti Pipe Stringing, Inc., 529 U.S. 344
(1999) (“a named defendant's time to remove is
triggered by simultaneous service of the summons and
complaint, or receipt of the complaint”). 28 U.S.C.
§ 1441(a) allows a defendant to remove “any civil
action brought in a State court . . . .” In Nevada,
“[a] civil action is commenced by filing a complaint
with the court.” Nev. R. Civ. P. 3. Accordingly, before
this time, there was not yet a “civil action” in
Nevada state court to remove.
this court must remand this case to state court. This order
does not prejudice CitiMortgage's ability to remove this
case upon the subsequent filing of a complaint in state
court. Further, the outstanding motion to dismiss must be
denied because there is no pleading to dismiss. See
Fed. R. Civ. P. 12(b)(6) (allowing for a motion to dismiss
claims in a pleading); Fed.R.Civ.P. 7(a) (explaining
that the only pleadings allowed are the complaint, answer,
and related documents, but not ...