United States District Court, D. Nevada
GERALDINE A. TRICE, Plaintiff,
LIBERTY MUTUAL INSURANCE COMPANY, Defendant.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Motion to Remand (ECF No. 5),
Defendant's Motion for Partial Summary Judgment on
Plaintiff's Bad Faith and Punitive Damages Claim (ECF No.
17), and Defendant's Motion for Summary Judgment (ECF No.
29). For the reasons stated below, the Court grants
Plaintiff's Motion to Remand and closes this case.
courts are courts of limited jurisdiction. In re
Hunter, 66 F.3d 1002, 1005 (9th Cir. 1995). A defendant
may remove a case initially filed in state court to federal
court if the federal court would have had original
jurisdiction. 28 U.S.C. § 1441(a). “Removal and
subject matter jurisdiction statutes are strictly construed,
and a defendant seeking removal has the burden to establish
that removal is proper and any doubt is resolved against
removability.” Hawaii ex rel. Louie v. HSBC Bank
Nev., N.A., 761 F.3d 1027, 1034 (9th Cir. 2014)
(citation and quotation marks omitted). A federal court
should remand a case to state court if any doubt exists as to
the right to removal. Matheson v. Progressive Specialty
Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (footnote
omitted). Federal courts have original jurisdiction over
actions where the matter in controversy is greater than $75,
000 if there is complete diversity between the plaintiff and
each defendant. 28 U.S.C. § 1332(a).
filed a Complaint against Defendant in the Eighth Judicial
District Court, Clark County, Nevada, Case Number
A-13-689026-C on September 20, 2013. ECF No. 1. Though the
parties dispute when service was effectuated, Defendant
concedes it voluntarily appeared in the action on September
11, 2017. Id. Defendant sought removal on September
10, 2018 on the basis of diversity jurisdiction. Id.
Plaintiff filed the instant Motion to Remand on October 9,
2018. ECF No. 5. Defendants filed a Response on October 22,
2018. ECF No. 9. Plaintiff did not file a Reply.
argues that Defendant filed its Notice of Removal too late
pursuant to statutory requirements. Pursuant to 28 U.S.C.
Section 1446(b), a notice of removal generally shall be filed
within 30 days after receipt by the defendant of the initial
pleading. However, “if the case stated by the initial
pleading is not removable, a notice of removal may be filed
within thirty days after receipt by the defendant, through
service or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may first be
ascertained that the case is one which is or has become
removable.” 28 U.S.C. § 1446(b)(3); see also
Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250
(9th Cir. 2006) (“After a defendant learns that an
action is removable, he has thirty days to remove the case to
federal court.”) If more than a year has passed since
commencement of the action, the case may only be removed
under Section 1446(b)(3) if the plaintiff has acted in bad
faith in order to prevent a defendant from removing the
action. 28 U.S.C. § 1446(c)(1). If a court finds that
the plaintiff “deliberately failed to disclose the
actual amount in controversy to prevent removal, that finding
shall be deemed bad faith under paragraph (1).” 28
U.S.C. § 1446(c)(3)(B).
Court finds that Defendant's Notice of Removal is not
timely. Plaintiff's Third Amended Complaint, filed in
state court on April 23, 2018, facially alleges damages in
excess of one million dollars. ECF No. 1-7. Defendant was
therefore on notice, based on the face of the complaint, that
the amount in controversy could exceed $75, 000. Cf.
Urbino v. Orkin Servs. of California, Inc., 726 F.3d
1118, 1121-2 (9th Cir. 2013) (noting the standard of proof
applicable only when “it is unclear or ambiguous from
the face of a state-court complaint whether the requisite
amount in controversy is pled”). Defendant's
petition for removal was filed over four months after
Plaintiff facially pled damages in excess of $75, 000 and is
untimely pursuant to Section 1446(b)(3).
the Court does not find that Plaintiff
“deliberately” acted “to prevent
removal” pursuant to 28 U.S.C. § 1446(c)(3)(B).
Plaintiff is pro se and appears to believe, based on her
instant filing, that her case cannot be heard in federal
court as it presents no federal question. ECF No. 5.
Plaintiff is not an attorney and, reasonably, is unfamiliar
with jurisdictional law. The Court does not find any evidence
that she acted in bad faith in any representation to
Defendant with regard to the amount in controversy.
argues that bad faith can be inferred from the fact that the
case was assigned to the state court's mandatory
arbitration. But the state arbitration program does not cap
damages to less than $50, 000, it simply permits matters with
a probable award in excess of $50, 000 to opt out of the
program. See Nevada Arbitration Rule 3(A). It was
not misleading or deceitful for Plaintiff to decline to opt
out of the arbitration program.
further alleges that bad faith can be inferred from
Plaintiff's failure to effectuate proper service. The
Court notes that the state court has already determined that
Plaintiff successfully effectuated service. See ECF
No. 1-5. Moreover, the Court finds that to the extent
Plaintiff struggled to effectuate service on Defendant, there
is no evidence that Plaintiff deliberately delayed service
with the purpose of preventing Defendant from removing the
action to federal court.
the Court finds that Defendant could have ascertained that
the case was removeable as of April 23, 2018, and because the
Court finds that Plaintiff did not demonstrate any bad faith
effort to prevent Defendant from removing the action, the
Court concludes that the matter was not timely removed and
grants Plaintiff's Motion to Remand.
IT IS ORDERED that Plaintiff's Motion to
Remand (ECF No. 5) is GRANTED.
IS FURTHER ORDERED that the hearing set for June 20,
2019 is VACATED.
IS FURTHER ORDERED that this case is remanded to
state court and back to the Eighth Judicial District Court,
Clark County, Nevada, Case Number A-13-689026-C. ...