United States District Court, D. Nevada
before the court is plaintiff Wayne Solee's motion to
remand. (ECF No. 23). Defendants GMRI, Inc.
(“GMRI”) and BRE/HC Las Vegas Property Holdings,
LLC (“BRE”) filed a response. (ECF Nos. 26, 29).
Solee did not file a reply and the time to do so has passed.
before the court is GMRI's motion to dismiss. (ECF No.
3). Solee filed a response. (ECF No. 11). GMRI did not file a
reply and the time to do so has passed.
action arises from a trip and fall that occurred in a parking
lot adjacent to a Bahama Breeze restaurant located at 375
Hughes Center Drive, Las Vegas, Nevada 89109. (ECF No. 3-2).
The amended complaint contains the following allegations:
28, 2016, Solee was returning to his vehicle in the parking
lot adjacent to Bahama Breeze. (ECF No. 1-1). Solee
inadvertently stepped into a sinkhole, fell, and hit his head
on a cement curb. Id. At the time of the incident,
BRE owned the parking lot and leased the premises to GMRI.
Id. Neither defendants displayed warning signs of
the parking lot's dangerous condition. Id.
August 8, 2017, Solee initiated this personal injury action
in Nevada state court against BRE. (ECF No. 3-2). On August
29, 2018, in response to Solee's request for production
of documents, BRE disclosed contracts showing that GMRI was
the lessee of the parking lot. (ECF No. 11-4). On October 30,
2018, Solee filed a motion for leave to amend pursuant to
Nevada Rule of Civil Procedure (“NRCP”) 15(a).
(ECF No. 11-6). Three weeks later, the state court granted
the motion, holding that Solee had shown good cause. (ECF No.
December 11, 2018, GMRI removed this action to federal court.
(ECF No. 1). Now, Solee moves to remand this case to state
court. (ECF No. 3). GMRI also moves to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). (ECF No. 3).
courts are courts of limited jurisdiction. Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
“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.
notice of removability, a defendant has thirty days to remove
a case to federal court once he knows or should have known
that the case was removable. 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). 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).