United States District Court, D. Nevada
before the court is plaintiff Janu Herrera's motion to
remand to state court. (ECF No. 5). Defendant Billy Wood
filed a response (ECF No. 11), to which plaintiff replied
(ECF No. 15).
around April 23, 2015, plaintiff was driving on U.S. 95 in
Las Vegas, Nevada. (ECF No. 1) At that time, defendant was
driving behind plaintiff. Id. Plaintiff's
complaint alleges that she slowed for traffic and defendant
struck the rear of plaintiff's vehicle. Id.
Plaintiff asserts that defendant failed to use due care,
failed to maintain a safe distance, and failed to stop his
vehicle, causing it to crash into the rear of plaintiff's
January 27, 2016, plaintiff filed suit in the Eighth Judicial
District Court, Clark County, Nevada against defendant.
Id. Plaintiff's complaint alleges negligence,
and specifically states that she sustained bodily trauma,
which may be permanent and disabling in nature. Id.
Plaintiff requests compensatory damages in an amount in
excess of $10, 000.00, and requested leave of the court to
include all damages for medical expenses stemming from the
accident not yet incurred. Id.
24, 2016, defendant was served via the Nevada Department of
Motor Vehicles. (ECF Nos. 5 & 11). On November 23, 2016,
defendant filed a response to the complaint. Id.
December 13, 2016, plaintiff filed a request for exemption
from arbitration, asserting a “probable jury award in
excess of $50, 000.00, exclusive of interest of cost, ”
and providing a computation of then-incurred damages of over
$26, 834. (ECF No. 11). On June 16, 2017, plaintiff filed her
first supplemental disclosure of witnesses and production to
documents pursuant to NRCP 16.1, demonstrating incurred
damages for medical costs of $36, 326, and lost wages of $2,
400. Id. This document also stated that for
settlement purposes only, her damages, including future
medical expenses, future lost wages and earning capacity, are
estimated to exceed $100, 000. Id.
December 12, 2017, plaintiff filed her second supplemental
disclosure of witnesses and production to documents pursuant
to NRCP 16.1, providing a computation of damages totaling
$44, 541. Id. This document provided that plaintiff
requires a L5-S1 fusion in the future, and that the estimated
cost of the surgery is $250, 000.00. Id.
January 10, 2018, defendant filed a petition for removal to
United States District Court, District of Nevada. (ECF No.
1). On January 30, 2018, plaintiff filed a motion to remand
to state court. (ECF No. 5).
to 28 U.S.C. § 1441(a), “any civil action brought
in a State 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. §
United States district court to have diversity jurisdiction
under 28 U.S.C. § 1332, the parties must be completely
diverse and the amount in controversy must exceed $75,
000.00, exclusive of interest and costs. See 28
U.S.C. § 1332(a); Matheson v. Progressive Specialty
Ins. Co., 319 F.3d 1098 (9th Cir. 2003). A removing
defendant has the burden to prove by a preponderance of the
evidence that the jurisdictional amount is met. See
Sanchez v. Monumental Life Ins. Co., 102 F.3d 398,
403-04 (9th Cir. 1996).
a defendant has thirty (30) days upon notice of removability
to remove a case to federal court. Durham v. Lockheed
Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 2006)
(citing 28 U.S.C. § 1446(b)(2)). Defendants are not
charged with notice of removability “until they've
received a paper that gives them enough information to
remove.” Id. at 1251.
“the ‘thirty day time period [for removal] . . .
starts to run from defendant's receipt of the initial
pleading only when that pleading affirmatively reveals on its
face' the facts necessary for federal court
jurisdiction.” Id. at 1250 (quoting Harris
v. Bankers Life & Casualty Co., 425 F.3d 689, 690-91
(9th Cir. 2005) (alterations in original)). “Otherwise,
the thirty-day clock doesn't begin ticking until a
defendant receives ‘a copy of an amended pleading,
motion, order or other paper' from which it can determine
that the case is removable. Id. (quoting 28 U.S.C.
plaintiff may challenge removal by timely filing a motion to
remand. 28 U.S.C. § 1447(c). Remand to state court is
proper if the district court lacks jurisdiction. Id.
On a motion to remand, the removing defendant faces a strong
presumption against removal, and bears the burden of
establishing that removal is proper. Sanchez v.
Monumental Life Ins. ...