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Solee v. BRE/HC Las Vegas Property Holdings, LLC

United States District Court, D. Nevada

May 16, 2019

WAYNE SOLEE, Plaintiffs,
v.
BRE/HC LAS VEGAS PROPERTY HOLDINGS, LLC, et al., Defendants.

          ORDER

         Presently 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.

         Also 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.

         I. Facts

         This 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:

         On June 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.

         On 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. 11-8).

         On 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).

         II. Legal Standard

         a. Remand

         Federal 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. 1989).

         Upon 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.

         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). 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).

         b. Failure ...


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