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Dunlap v. Amato

United States District Court, D. Nevada

July 3, 2019

JOSEPH TODD DUNLAP, et al., Plaintiffs,
v.
DOMINIC AMATO, et al., Defendants.

          ORDER

         Presently before the court is plaintiffs Joseph Todd Dunlap and Mona Dunlap's (collectively “the Dunlaps”) motion to remand. (ECF No. 9). Defendants Track Marine Group; Tracker Marine LLC; and Tracker Marine Retail, LLC (collectively “Tracker”) filed a response (ECF No. 12), to which the Dunlaps replied (ECF No. 17).

         Also before the court is Tracker's motion for leave to file surreply. (ECF No. 25).

         I. Facts

         This action arises from an alleged boating injury that took place at Lake Mead in Clark County, Nevada. (ECF No. 1-2 at 11).

         In September 2016, Mr. Dunlap traveled from his home in Oregon to Nevada to participate in the three-day WON Bass Pro/Am fishing tournament (“Tournament”) held on September 12-14, 2016, at Lake Mead. Id. Mr. Dunlap and defendant Dominic Amato (“Amato”) competed together in the Tournament with a boat that Amato owned and operated. Id. Tracker and defendant White River Marine Group (“White River”) designed, manufactured, and distributed the boat. Id. at 12.

         On September 13, 2016, the winds at Lake Mead were approximately thirty-five to forty miles per hour (“mph”), with gusts up to fifty mph. Id. The high winds caused four to six-foot waves. Id. At approximately 2:45 p.m., Mr. Dunlap and Amato prepared to return to the dock to weigh their fish. Id. at 13. Amato became worried that the two would not meet the Tournament deadline to weigh their fish, so he began driving the boat at a high rate of speed. Id. Mr. Dunlap allegedly asked and then demanded Amato to slow down, but Amato refused. Id.

         Mr. Dunlap alleges that because of the weather conditions, the boat's high rate of speed, and the boat's allegedly flawed safety handles, he was thrown out of his seat, into the air, and back down onto his seat. Id. As a result, Mr. Dunlap suffered an anterior compression fracture located at L-2 vertebra of his spine. Id. at 15.

         The Dunlaps filed a complaint in state court alleging negligence, gross negligence, negligence per se, strict products liability, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium. Id. at 16-21. On February 1, 2019, Tracker removed the case to federal court based on both diversity jurisdiction and federal question jurisdiction. (ECF No. 1). Now, the Dunlaps move to remand and Tracker moves for leave to file surreply. (ECF Nos. 9, 25-1).

         II. Legal Standard

         a. Motion for leave to file surreply

         Local Rule LR 7-2 provides that surreplies “are not permitted without leave of court[.]” LR 7-2(b). “[M]otions for leave to file a surreply are discouraged.” Id. Courts in this district have held that the “[f]iling of surreplies is highly disfavored, as it typically constitutes a party's improper attempt to have the last word on an issue . . .” Smith v. United States, No. 2:13-cv-039-JAD-GWF, 2014 WL 1301357 at *5 (D. Nev. Mar. 28, 2014) (citing Avery v. Barsky, No. 3:12-cv-00652-MMD, 2013 WL 1663612 (D. Nev. Apr. 17, 2013)). Only the most exceptional or extraordinary circumstances warrant permitting a surreply to be filed. See Sims v. Paramount Gold & Silver Corp., No. CV 10-356-PHX-MHM, 2010 WL 5364783 at *8 (D. Ariz. 2010) (collecting cases).

         b. 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 ...


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