United States District Court, D. Nevada
ORDER MOTION TO DISMISS [ECF NO. 5]; MOTION FOR LEAVE
TO FILE AMENDED NOTICE OF REMOVAL [ECF NO. 21]
FERENBACH UNITED STATES MAGISTRATE JUDGE
the Court are: 1) defendant Michelle LaCour's motion to
dismiss complaint, or alternatively to quash service (ECF No.
5); and defendant's first motion for leave to file an
amended notice of removal (ECF No. 21). The motion to dismiss
or to quash service (ECF No. 5) is granted in part and the
motion for leave (ECF No. 21) is granted.
3, 2019, plaintiff Tsai-Lu Shen filed a complaint in the
Eighth Judicial District Court of the State of Nevada for
Clark County, No. A-19-797897-B (“State Court
Case”). (ECF No. 1 at 7). The complaint states that,
“[u]pon information and belief, Defendant Micelle [sic]
LaCour is, and was at all relevant times to this action, an
adult resident of the state of Washington.”
October 30, 2019, the Court conducted a hearing on
LaCour's motion to dismiss and the parties' joint
stipulated discovery plan and scheduling order. (ECF Nos. 5,
15, and 17). The Court found that diversity jurisdiction is
not facially evident from the complaint, which states that
the plaintiff is a resident of Taiwan. (ECF No. 18). Counsel
for plaintiff Shen represented on the record that plaintiff
Shen is both a resident of Taiwan and a citizen of Taiwan.
The Court ordered that plaintiff may file an amended
complaint by November 13, 2019. (ECF No. 18). Plaintiff did
not file an amended complaint. The Court ordered in the
alternative that defendant had until November 27, 2019 to
show cause in writing regarding why this case should not be
remanded for lack of subject matter jurisdiction.
(Id.) The Court ordered that defendant's motion
to dismiss or alternatively to quash service would be held in
abeyance. (Id.) Defendant filed her motion for leave
to file an amended notice of removal. (ECF No. 21). Defendant
also timely filed a response to the order to show cause. (ECF
No. 22). The plaintiff filed a response to the motion for
leave (ECF No. 28) and defendant filed a reply (ECF No. 30).
argues in her motion for leave that defects in form of a
removal petition are amendable at any time. (ECF No. 21 at
4). The defendant argues that her notice of removal was
defective only in form because it failed to specifically
state that Plaintiff was a citizen of Taiwan and that LaCour
was a citizen of Washington state. (Id.) Defendant
states in her response to the order to show cause that her
amended notice of removal specifically alleges diversity of
citizenship of the parties. (ECF No. 22 at 5).
argues in his response to the motion for leave to amend that
the defendant submitted to the jurisdiction of this Court
when she responded to the order to show cause. (ECF No. 28 at
5). Plaintiff also argues that her response to the order to
show cause is a waiver of service. (Id.) The
defendant argues in her reply that plaintiff has not provided
authority for his waiver claim. (ECF No. 30 at 5). The
defendant also argues that the plaintiff fails to recognize
the difference between the court's subject matter
jurisdiction and personal jurisdiction over LaCour, and that
removal does not waive a personal jurisdiction defense.
(Id. at 4).
Defendant's Motion for Leave to File Amended Notice of
courts are courts of limited jurisdiction, possessing only
those powers granted by the Constitution and by
statute.” Alessi & Koenig LLC v. Fannie
Mae, No. 2:15-cv-01946-GMN-GWF, 2017 U.S. Dist. LEXIS
94150, at 3 (D. Nev. June 18, 2017); citing to United
States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008).
Federal district courts have original jurisdiction where the
amount in controversy exceeds $75, 000.00, and the matter is
between, “citizens of a State and citizens or subjects
of a foreign state[.]” 28 USCS § 1332(a)(2).
Pursuant to Federal Rule of Civil Procedure 12(h)(3),
“[i]f the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action.” Pursuant to 28 U.S.C.S. § 1447(c),
“[i]f at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the
case shall be remanded.”
in form of a removal petition are amendable at any time, not
just within the original 30-day period for removal."
Kacludis v. GTE Sprint Communications Corp., 806
F.Supp. 866, 869 (N.D. Cal. 1992) (citing Barrow
Development Co. v. Fulton Ins. Co., 418 F.2d 316, 317
(9th Cir. 1969)); see also
Londonv.StandardOilofCal., Inc., 417 F.2d
820 (9th Cir. 1969). “For an action to be removable . .
. it must meet the statutory requirements as of the time the
removal petition is filed and as of the time of the
commencement of the action in state court.”
Kacludis, 806 F.Supp at 869 (internal citation
omitted). Federal Rules of Civil Procedure 12(h)(1) states
that a defendant waives any personal jurisdiction defense he
might otherwise have if he does not raise it in a responsive
pleading or in a motion to dismiss that precedes the
jurisdiction is not facially evident from the complaint,
which states that the plaintiff is a resident of Taiwan.
Diversity jurisdiction is also not evident from the
defendant's first notice of removal because it alleges
that plaintiff is a resident of Taiwan and plaintiff is a
resident of the state of Washington. (ECF 1 at 2). Defendant
does not seek to add a completely new jurisdictional basis
but rather seeks to correct a technical defect. Because the
defendant can correct a defect in form of a removal petition
at any time, the defendant's motion for leave to file an
amended notice of removal is granted. The plaintiff's
waiver argument is unavailing because the defendant
challenged personal jurisdiction in a motion to dismiss (ECF
No. 5). The Court ordered the defendant to respond to the
order to show cause (ECF No. 18), but the defendant had
already satisfied the minimum steps to preserve her defense
pursuant to Rule 12. The Court will consider defendant's
amended notice of removal (ECF No. 21-1) as the notice of
removal for this case.
Defendant's Motion to Dismiss or Alternatively to Quash
federal court does not have jurisdiction over a defendant
unless the defendant has been served properly under
Fed.R.Civ.P. 4.” Direct Mail Specialists, Inc. v.
Eclat Computerized Techs., Inc., 840 F.2d 685, 686 (9th
Cir. 1988). Although Rule 4 is flexible, “without
substantial compliance with rule 4 neither actual notice nor
simply naming the defendant in the complaint will provide
personal jurisdiction.” Id. “Once the
defendant has challenged the exercise of personal
jurisdiction, the plaintiff bears the ...