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Herrera v. Wood

United States District Court, D. Nevada

March 22, 2018

JANU HERRERA, Plaintiffs,
v.
BILLY WOOD, Defendants.

          ORDER

         Presently 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).

         I. Facts

         On or 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 vehicle. Id.

         On 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.

         On May 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.

         On 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.

         On 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.

         On 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).

         II. Legal Standard

         Pursuant 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. § 1441(a).

         For a 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).

         Procedurally, 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.

         Specifically, “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. § 1446(b)(3)).

         A 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. ...


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