United States District Court, D. Nevada
JULIA A. YATES, et al., Plaintiffs,
HANS G. FRANKE, et al., Defendants.
C. JONES UNITED STATES DISTRICT JUDGE
case arose by the Plaintiffs bringing breach of contract and
unjust enrichment claims against the Defendants in Nevada
state court. A few months after the Plaintiffs commenced the
case, the Defendants filed another case based on the same
dispute in Hawaii federal court. Then, the Defendants removed
the Nevada state court case to this Court based on diversity
jurisdiction. In an attempt to have all matters resolved in
Hawaii, the Defendants filed a motion to transfer venue to
Hawaii. Moving for remand, the Plaintiffs contend that the
removal was improper. The only thing on which the parties
agree is that they should not be here.
DEFENDANTS' MOTION FOR RELIEF FROM LATE FILING
Defendants filed their opposition to the Plaintiffs'
Motion for Remand four days late. By filing late, the
Defendants violated rule LR 7-2(b), so the Plaintiffs argue
that the Court should not consider the brief. However, the
Court finds that the late filing was exempted under LR
6-1(a), which allows for late filings on a showing of
Ninth Circuit has provided four factors to consider for
finding excusable neglect: “the danger of prejudice to
the debtor, the length of the delay and its potential impact
on judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant,
and whether the movant acted in good faith.” Iopa
v. Saltchuk-Young Bros., Ltd., 916 F.3d 1298, 1301 (9th
Cir. 2019) (quoting Pioneer Investment Services Co. v.
Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395
(1993)). Cumulatively, these factors support consideration of
of the four factors favor the Defendants. Turning to the
first factor, the Court does not see any prejudice to the
Plaintiffs by the Defendants' four-day delay. Likewise,
the second factor favors excusable neglect; the four-day
delay is short and did not have any impact on the judicial
proceedings. Skipping to the fourth factor, the Defendants
acted in good faith. The Defendants are represented by
out-of-state attorneys who were relying on a software program
to manage their deadlines and the program did not incorporate
this Court's rules. Accordingly, the program indicated
that the deadline was four days later than it was. Relying on
this indication, the Defendants filed their brief four days
late. These three factors favor leniency for the Defendants.
the third factor cuts against the Defendants position. The
Defendants should have known that the opposition was due both
from the publication of the Court's rules and the
confirmation email provided to them, so it was within the
Defendants' control. Nonetheless, the factors on a whole
largely favor finding excusable neglect. Thus, the Court
declines to strike the Defendants' response against the
Plaintiffs' Motion for Remand.
PLAINTIFFS' MOTION FOR REMAND
preliminary issue, the Defendants argue that the Plaintiffs
have waived their right to object to the removal since they
engaged in discovery by filing a motion to compel a
deposition. However, this contention is frivolous.
Defendants rely on cases to say that whenever a plaintiff
manifests assent to a court's jurisdiction after removal,
then they waive their right to challenge removal. However,
the cited cases do not stand for such a broad proposition.
For example, the Defendants quote the following:
To constitute a waiver or consent to the federal court's
assumption of jurisdiction, however, there must be
affirmative conduct or unequivocal assent of a sort which
would render it offensive to fundamental principles of
fairness to remand, as where the party seeking remand has
been unsuccessful in litigation of a substantial issue, such
as the right to a jury trial or the right to take depositions
or has filed an amended complaint seeking further or
different relief from the federal court.
Maybruck v. Haim, 290 F.Supp. 721, 723-24 (S.D.N.Y.
1968). However, even the Defendants' quote does not
support their position. There, that court required that the
plaintiff lose on a substantial issue. Here, the Court has
not even ruled on the Plaintiffs' discovery motion but
dismissed it without prejudice to be refiled if the Court
does not remand.
Court finds that the Plaintiffs have in no way waived their
rights. Nothing that they did manifested an
“unequivocal assent of a sort which would render it
offensive to fundamental principles of fairness to
remand.” In fact, the first filing in the docket from
the Plaintiffs is the Motion to Remand, filed only nine days
after the removal when they are allowed thirty. See
28 U.S.C. § 1447(c) (“A motion to remand the case
. . . must be made within 30 days after the filing of the
notice of removal . . . .”). Accordingly, the
Defendants' argument is without merit.
to the substance of the Plaintiffs' motion, the Court
finds that the Defendants' removal was frivolous. The
Defendants are citizens of Nevada asserting diversity
jurisdiction; therefore, the removal was barred by the forum
defendant rule. The rule states, “A civil action
otherwise removable solely on the basis of the jurisdiction
under section 1332(a) of this title may not be removed if any
of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is
brought.” 28 U.S.C. § 1441(b)(2); Lincoln
Prop. Co. v. Roche, 546 U.S. 81, 84 (2005)
(“Defendants may remove an action on the basis of
diversity of citizenship if there is complete diversity
between all named plaintiffs and all named defendants, and no
defendant is a citizen of the forum State.”). The
Defendants do not ...