United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT COURT.
April 29, 2019, the Court issued an Order to Show Cause
requiring Plaintiff Las Vegas Metropolitan Police Department
(“Plaintiff”) to demonstrate why the Court should
not remand this action for improper removal and lack of
subject matter jurisdiction. (Minute Order, ECF No. 11). On
May 13, 2019, the parties filed their respective briefs
addressing this issue. (ECF Nos. 15, 16). Upon review, the
Court finds that Plaintiff has failed to demonstrate that the
Court has subject matter jurisdiction, and therefore the
Court remands this action to state court.
first filed this action in state court on December 18, 2018,
seeking the forfeiture of $873.00 and various pieces of
jewelry pursuant to N.R.S. 179.1156, et seq., N.R.S.
453.301(9), and N.R.S. 207.350, et seq. (Compl., Ex.
A to Pet. of Removal, ECF No. 1-1). On March 21, 2018, Shayan
Traders and Najam Ahmad (“Counterclaimants”)
filed an Answer claiming an interest in the seized property
and asserting a counterclaim for civil rights violations
under 42 U.S.C. § 1983. (Answer, Ex. D to Pet. of
Removal, ECF No. 1-4). Based on this counterclaim, Plaintiff
removed the action to this Court under 28 U.S.C. § 1331,
asserting federal question jurisdiction. (Pet. of Removal,
ECF No. 1).
courts are courts of limited jurisdiction, possessing only
those powers granted by the Constitution and by statute.
See United States v. Marks, 530 F.3d 799, 810 (9th
Cir. 2008). “If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C.
§ 1447(c). Removal statutes are strictly construed
against removal jurisdiction. Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir. 1992). “Federal
jurisdiction must be rejected if there is any doubt as to the
right of removal in the first instance.” Id.
(citing Libhart v. Santa Monica Dairy Co., 592 F.2d
1062, 1064 (9th Cir. 1979)). In evaluating jurisdiction, the
defendant has the burden of overcoming the “strong
presumption” against removal. Gaus, 980 F.2d
28 U.S.C. § 1331, a federal district court has original
jurisdiction over all civil actions arising under the laws of
the United States. See 28 U.S.C. § 1331.
“The presence or absence of federal-question
jurisdiction is governed by the ‘well-pleaded complaint
rule,' which provides that federal jurisdiction exists
only when a federal question is presented on the face of the
plaintiff's properly pleaded complaint.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987). “[A] case may not be removed to federal court
on the basis of a federal defense.” Id. at
Order to Show Cause, the Court raised two concerns regarding
the propriety of removal. First, the Court noted that a
counterclaim cannot serve as the basis for federal question
jurisdiction. See Holmes Grp., Inc. v. Vornado Air
Circulation Sys., Inc., 535 U.S. 826, 831 (2002).
Second, the Court noted that the plaintiff in an underlying
state action cannot serve as the removing party. See
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
107 (1941); In re Walker, 375 F.2d 678, 678 (9th
Cir. 1967) (“No right exists in favor of a person who,
as plaintiff, has filed an action in the state court, to
cause the removal of such action to a federal court.”).
Response, Plaintiff asserts that the Court nonetheless has
jurisdiction because the counterclaim constitutes an
independent cause of action from the state forfeiture
complaint and therefore was improperly raised as a
“counterclaim.” (Pl.'s Resp. 2:3-18, ECF No.
16). Specifically, Plaintiff asserts that “Nevada law
does not permit the claimant to assert a claim against the
government entity” in a civil forfeiture proceeding.
(Id. 3:13-16). Under this premise, Plaintiff argues
that the Court should construe the counterclaim as a separate
federal action and exercise supplemental jurisdiction over
the forfeiture proceeding. (Id. 5:5-22).
Alternatively, Plaintiff argues the Court should bifurcate
the action, remanding the forfeiture claim and retaining
jurisdiction over the counterclaim. (Id. 5:23-26).
raising these arguments, Plaintiff fails to provide any
authority showing that the Court has jurisdiction to evaluate
whether the counterclaim is properly raised in the underlying
forfeiture action. Moreover, even assuming arguendo
that the counterclaim is improperly raised, Plaintiff
provides no authority demonstrating that it is procedurally
permissible for Plaintiff to remove the case on this basis.
To the contrary, accepting Plaintiff's theory as true,
the recourse would be to dismiss the counterclaim, rather
than finding that it creates federal subject matter
jurisdiction. The Court therefore finds no reason to depart
from the well-settled principles regarding removal
jurisdiction. See Caterpillar Inc., 482 U.S. at 392
(1987). As Plaintiff has failed to overcome the “strong
presumption” against removal, the Court remands this
case. See Gaus, 980 F.2d at 566.
Request for Fees and Costs
request that the Court order fees and costs incurred due to
Plaintiffs improper removal. (Counterclaimants' Resp.
4:22-5:3, ECF No. 15). Under 28 U.S.C. § 1447(c),
“[a]n order remanding the case may require payment of
just costs and any actual expenses, including attorney fees,
incurred as a result of the removal.” In this case, the
Court raised the jurisdictional question sua sponte,