United States District Court, D. Nevada
RICHLAND HOLDINGS, INC., d/b/a Acctcorp of Southern Nevada, a Nevada Corporation, Plaintiff,
MARLO A DALBY, Defendant.
J. Dawson, United States District Judge.
before the Court is Plaintiff's Motion to Remand (#6).
Defendant filed a response in opposition (#8) to which
Plaintiff replied (#9).
Holdings (“Richland”) alleges that the defendant,
Marlo Dalby (“Dalby”), entered into a contract
with Bernard Ong MD on August 2, 2013, for medical services.
Notice of Removal 9, ECF No. 1. Nearly five years later,
Bernard Ong MD sold the account and debt to Richland.
Id. On January 4, 2019, Richland filed suit against
Dalby in Las Vegas Justice Court (“LVJC”) for
breach of contract and monies due and owing. Id. at
8. Dalby then moved the LVJC to dismiss the claim because of
lack of subject matter jurisdiction, lack of personal
jurisdiction, failure to state a claim upon which relief may
be granted, standing, and fraud. Id. at 13-15. The
LVJC denied the motion to dismiss. Id. at 20-21. On
April 12, 2019, Dalby filed Notice of Removal. Richland then
filed the present Motion to Remand.
court is obligated to hold a pro se litigant to a different
standard than a party who is represented by counsel.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). The
pleadings of a pro se litigant are “to be liberally
construed” and “however inartfully pled, must be
held to less stringent standards than formal pleadings
drafted by lawyers.” Id. (quoting Estelle
v. Gamble, 429 U.S. 97 (1976)). However, the pro se
litigant “should not be treated more favorably”
than the party who is represented by counsel. Jacobsen v.
Filler, 790 F.2d 1362, 1364 (9th Cir. 1986).
motion to remand is timely if made within 30 days of the
notice of removal. 28 U.S.C. § 1447(c) (2011). In
considering the motion to remand, the district court must
remand the case if it lacks subject matter jurisdiction.
Id. Furthermore, there is a strong presumption
against removal which means that the defendant has the burden
of establishing that removal is proper. Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
must show that this Court has subject matter jurisdiction
over the case by demonstrating that it has original
jurisdiction over the claims that are in the complaint. See
28 U.S.C. §1441(a); Caterpillar, Inc. v.
Williams, 482 U.S. 386, 393 (1987) (“[authorizing]
removal only where original federal jurisdiction
exists”). In effect, a party seeking removal must show
that plaintiff has either alleged: 1) a federal claim; 2) a
state claim that requires resolution of a substantial issue
of federal law; or 3) a state claim completely pre-empted by
federal statute. See Am. Well Works Co. v. Layne &
Bowler Co., 241 U.S. 257, 260 (1916); Franchise Tax
Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9
(1983); Metro. Life Ins. Co. v. Taylor, 481 U.S. 58,
the defendant may not remove an action by raising a federal
question as a defense. Caterpillar, Inc., 482 U.S.
at 393. The absence or presence 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, 482 U.S. at 392. The plaintiff is the
“master of the claim” and may avoid federal
jurisdiction by exclusive reliance on state law. Id.
the complaint alleges two state law causes of action: 1)
breach of contract and 2) monies due and owing. In the notice
of removal, Dalby alleges that Richland is violating the Fair
Debt Collection Practices Act (“FDCPA”). However,
Dalby cannot remove the case to this Court by raising a
federal question as a defense to a complaint. Therefore, the
Court finds that it lacks subject matter jurisdiction over
the claims in Richland's complaint and the action must be
even if this Court did not lack subject matter jurisdiction,
removal of this case was untimely. The party must file a
notice of removal within thirty days once a court document
affirmatively reveals ground for removal. Harris v.
Bankers Life & Cas. Co., 425 F.3d 689, 697 (9th Cir.
2005). When the initial pleading is unclear about whether
federal jurisdiction exists, it is not the defendant's
duty to look outside that pleading, nor rely on any
additional subjective knowledge he or she may have.
Id This rule protects defendants from the burden of