United States District Court, D. Nevada
THE BRADLEY A. MALKIN FAMILY LIMITED PARTNERSHIP, et al., Plaintiff(s),
J. MARIO SANCHEZ, et al., Defendant(s).
before the court is receiver Diana Mullen's (the
“receiver”) motion to remand case to state court.
(ECF No. 11). The Bradley A. Malkin Family Limited
Partnership and Bradley A. Malkin (“plaintiffs”)
filed a response (ECF No. 15), to which the receiver replied
(ECF No. 20).
Sanchez (“Sanchez”) allegedly initiated,
executed, and maintained a complex Ponzi scheme that involved
several corporate entities, including I-8 & Thornton,
LLC; Laughlin River Parcel A, LLC; AZ 10, LLC; AZ 11, LLC;
and AZ 21, LLC. (ECF No. 15 at 2-3). Sanchez would solicit
investors-including plaintiffs-for money to purportedly form
and fund the corporate entities that would, in turn,
purchase, develop, and sell real property. Id. at 3.
Plaintiffs aver that, rather than putting these funds to
their proper purpose, “[t]hese funds were effectively
stolen and put to work in [Sanchez's] fraudulent
who invested over one million dollars with Sanchez, filed
suit in the Eighth Judicial District Court of Clark County,
Nevada, alleging securities fraud in violation of Nevada
Revised Statute (“NRS”) § 90.570, fraudulent
misrepresentation, breach of fiduciary duty, gross
negligence, conversion, accounting, constructive trust, and
tortious breach of the implied covenant of good faith and
fair dealing. (ECF No. 3-1). The complaint included a request
for the appointment of a receiver, who was appointed on
August 7, 2018. (ECF No. 11 at 2-3).
2, 2019, Sanchez filed for chapter 11 bankruptcy.
Id. at 3. Plaintiffs then removed the case to this
court and requested that the case be referred to the
bankruptcy court. (ECF Nos. 1, 4). The receiver then filed
the instant motion to remand. (ECF No. 11).
to 28 U.S.C. § 1441(a), “any civil action brought
in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the
United States for the district and division embracing the
place where such action is pending.” 28 U.S.C. §
1441(a). “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).
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 they've received a
paper that gives them enough information to remove.”
Id. at 1251.
“the ‘thirty day time period [for removal] . . .
starts to run from defendant's receipt of the initial
pleading only when that pleading affirmatively reveals on its
face' the facts necessary for federal court
jurisdiction.” Id. at 1250 (quoting Harris
v. Bankers Life & Casualty Co., 425 F.3d 689, 690-91
(9th Cir. 2005) (alterations in original)). “Otherwise,
the thirty-day clock doesn't begin ticking until a
defendant receives ‘a copy of an amended pleading,
motion, order or other paper' from which it can determine
that the case is removable. Id. (quoting 28 U.S.C.
plaintiff may challenge removal by timely filing a motion to
remand. 28 U.S.C. § 1447(c). On a motion to remand, the
removing defendant faces a strong presumption against
removal, and bears the burden of establishing that removal is
proper. Sanchez v. Monumental Life Ins.
Co., 102 F.3d 398, 403-04 (9th Cir. 1996); Gaus v.
Miles, Inc., 980 F.2d 564, 566-67 (9th Cir. 1992).
did not remove the instant action on the basis of 28 U.S.C.
§ 1441, and for good reason. The underlying claims are
all state law claims. Plaintiffs do not allege diversity of
citizenship, nor can they.
plaintiff removed this case pursuant to 28 U.S.C. §
1452. With a few exceptions not applicable here, 28 U.S.C.
§ 1452(a) provides that “[a] party may remove any
claim or cause of action in a civil action . . . to the
district court for the district where such civil action is
pending, if such district court has jurisdiction of such
claim or cause of action under section 1334 of this
title.” 28 U.S.C. § 1452(a). However, § 1334
states as follows:
Upon timely motion of a party in a proceeding based upon a
[s]tate law claim or [s]tate law cause of action, related to
a case under title 11 but not arising under title 11 or
arising in a case under title 11, with respect to which an
action could not have been commenced in a court of the United
States absent jurisdiction under this section, the district
court shall abstain from hearing such proceeding if an action
is commenced, and can be timely adjudicated, in a [s]tate
forum of appropriate jurisdiction.
28 U.S.C. § 1334(c)(2). Further, the language of §
1452 itself provides that “[t]he court to which such
claim or cause of action is removed may remand such claim or
cause of action on any equitable ground.” 28 U.S.C.
Plaintiffs' claims are related to Sanchez's