Vignola v. Gilman ( 2014 )

 removal of the first action divested the state court of subject matter
jurisdiction over the second action because the cases are virtually
identical, and that state and federal courts cannot exercise concurrent
jurisdiction because the second court's exercise of jurisdiction interferes
with the first court's jurisdiction over the case.
With regard to whether the removal of the initial action
divests Nevada courts of jurisdiction over the second matter, respondent's
effort to refute appellants' argument that dismissal on this basis was
improper rises and falls with his admission that the underlying case "has
not technically been removed." While a state court lacks jurisdiction over
an action removed to federal court, the removal statute does not
encompass a civil action filed separately from the one removed to federal
court, see generally 28 U.S.C. § 1441 (2012) (addressing the removal of
civil actions to federal court), even if the two actions are virtually
identical. See Scimone v. Carnival Corp., 720 F.3d 876, 882 (11th Cir.
2013) (noting that the right to remove is strictly construed); Ladson v.
Kibble, 307 F. Supp. 11, 15 (S.D.N.Y. 1969) (refusing to remand an action
for consolidation in state court with another similar state court action); see
generally Stark-Romero v. Nat'l R.R. Passenger Co., 763 F. Supp. 2d 1231(D. N.M. 2011) (discussing the meaning of the phrase civil action).
Accordingly, this argument lacks merit.
Turning to respondent's assertion that dismissal was proper
because the second action would defeat or impair the federal court's
jurisdiction, this argument is similarly without merit. Notably, where an
action is in rem, the first court to exercise jurisdiction over the res has
jurisdiction, while courts in which subsequent actions regarding the res
are filed lack jurisdiction over such actions because their exercise of
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jurisdiction would impair the jurisdiction of the first court. Kline v. Burke
Const. Co., 260 U.S. 226, 229 (1922). But this rule has no bearing here, as
the underlying personal injury action is not an in rem action. Indeed,
where, as here, an action asserting a personal liability cause of action
seeks a personal judgment, a second, concurrent action in another
jurisdiction involving the same cause of action is not precluded and does
not impair or defeat the jurisdiction of the first court. Id. at 230; accord
Rutledge v. Ariz. Bd. of Regents, 859 F.2d 732, 736 (9th Cir. 1988); Karl v.
Quality Loan Serv. Corp., 759 F. Supp. 2d 1240, 1245 (D. Nev. 2010), aff'd,
553 F. App'x 733 (9th Cir. 2014).
Accordingly, we conclude that the district court erred when it
dismissed this action, and we therefore
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
J.
Hardesty
71Dsafq
3 , J.
Douglas
cc: Hon. Rob Bare, District Judge
Israel Kunin, Settlement Judge
Christensen Law Offices, LLC
Alverson Taylor Mortensen & Sanders
Eighth District Court Clerk
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