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Saticoy Bay LLC Series 6800 v. Howard

United States District Court, D. Nevada

May 18, 2018

SATICOY BAY LLC SERIES 6800 E. LAKE MEAD, Plaintiffs,
v.
SHANAN L. HOWARD, et al., Defendants.

          ORDER

         Presently before the court is plaintiff Saticoy Bay LLC Series 6800 E. Lake Mead's (“Saticoy Bay”) motion to remand. (ECF No. 9). No. defendant has filed a response, and the time for doing so has since passed.

         I. Facts

         The present case concerns a dispute over real property located at 6800 E. Lake Mead Blvd., Unit 1025, Las Vegas, Nevada, 89156 (“the property”). (ECF No. 4).

         On February 22, 2018, plaintiff filed a complaint in state court against Shanan Howard, Mountainside Unit Owners Association (“the HOA”), Mid America Mortgage (“MAM”), LoanCare, LLC (“LoanCare”), and Quality Loan Service Corporation (“QLSC”). (ECF No. 4-2). Plaintiff's complaint asserts claims for declaratory relief, quiet title, unjust enrichment, and injunctive relief. Id.

         On March 29, 2018, defendants MAM and LoanCare (“defendants”) filed a petition for removal in this court. (ECF No. 4). Notably, MAM and LoanCare did not obtain consent from the HOA or QLSC prior to filing the petition for removal. (ECF No. 9).

         II. Legal Standard

         Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). 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).

         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. “A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). Thus, federal subject matter jurisdiction must exist at the time an action is commenced. Mallard Auto. Grp., Ltd. v. United States, 343 F.Supp.2d 949, 952 (D. Nev. 2004) (citing Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir.1988)).

         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. Co., 102 F.3d 398, 403-04 (9th Cir. 1996); Gaus v. Miles, Inc., 980 F.2d 564, 566-67 (9th Cir. 1992).

         III. Discussion

         As an initial matter, the court notes that defendant's failure to respond constitutes a consent to the granting of plaintiff's motion to remand. See Local Rule 7-2(d) (“The failure of an opposing party to file points and authorities in response to any motion, except a motion under Fed.R.Civ.P. 56 or a motion for attorney's fees, constitutes a consent to the granting of the motion.”). Additionally, plaintiff's motion to remand demonstrates that this court lacks jurisdiction to hear this action, and that plaintiff's timely-filed motion merits the requested relief.

         A federal court must possess jurisdiction over an action to hear the dispute. Weeping Hollow Avenue Trust v. Spencer, 831 F.3d 1110, 1112. If a court determines at any time that it lacks subject matter over an action, it must dismiss or remand the case as appropriate. See Id. at 1114 (reversing and remanding with instructions to remand ...


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