Adams v. Teva Parenteral Medicines, Inc. ( 2019 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 YVETTE ADAMS, et al., ) 4 ) Plaintiffs, ) Case No.: 2:18-cv-02305-GMN-BNW 5 vs. ) 6 ) ORDER TEVA PARENTERAL MEDICINES, INC., et ) 7 al., ) ) 8 Defendants. ) 9 ) 10 Pending before the Court is the Motion to Remand, (ECF No. 9),1 filed by Plaintiffs 11 Yvette Adams, Margaret Adymy, Thelma Anderson, John Andrews, Maria Artiga, Lupita 12 Avila-Medel, Henry Ayoub, Joyce Bakkedahl, Donald Becker, James Bedino, Edward 13 Benavente, Margarita Benavente, Susan Biegler, Kenneth Burt, Margaret Calavan, Marcelina 14 Castaneda, Vickie Cole-Campbell, Sherrill Coleman, Nancy Cook, and James Duarte 15 (collectively “Plaintiffs”). Defendants Teva Parenteral Medicines, Inc., Sicor, Inc., Baxter 16 Healthcare Corporation, and McKesson Medical Surgical, Inc. (collectively “Defendants”) filed 17 a Response, (ECF No. 14), and Plaintiffs filed a Reply, (ECF No. 15). 18 For the reasons that follow, the Court GRANTS Plaintiffs’ Motion to Remand. 19 I. BACKGROUND 20 Plaintiffs are adult individuals who underwent treatment at a medical center in Las 21 Vegas, Nevada (the “Clinic”) between 2004 and 2008 for endoscopy procedures. (See Compl. 22 ¶¶ 7–8, Ex. A to Pet. for Removal, ECF No. 1-1). Under the care of the Clinic’s health care 23 24 1 Prior to Plaintiffs filing the instant Motion, Defendants filed a Motion to Dismiss, (ECF No. 4). Subsequently, 25 the Court granted the parties’ stipulation to stay the briefing schedule on the Motion to Dismiss until the instant Motion to Remand is resolved, (ECF Nos. 8, 13). Because the Court remands this action in this Order, the Motion to Dismiss is DENIED as moot. 1 providers, Plaintiffs were injected with propofol, an anesthetic drug manufactured, marketed, 2 distributed, and sold by Defendants to the Clinic. (Id. ¶¶ 2–4, 7, 12). 3 On February 28, 2008, the Southern Nevada Health District sent a letter to 60,000 4 former Clinic patients, including Plaintiffs, stating they were at risk of exposure to bloodborne 5 pathogens. (Id. ¶ 15). The letter recommended that all persons who received an injection at the 6 [Clinic] between March of 2004 and January of 2008,” as well as their spouses, be tested for 7 Hepatitis B, Hepatitis C, and HIV. (Id. ¶ 11). Plaintiffs obtained the recommended testing and 8 ultimately learned they were infection-free. (Id. ¶ 13). In doing so, Plaintiffs incurred medical 9 bills and other out-of-pocket expenses, and endured emotional distress, anxiety, and fear during 10 the pendency of their respective test results. (Id. ¶ 17). According to the Complaint, at all 11 relevant times to this action, Defendants knew or should have known that the Clinic’s practices 12 “involved the re-use of injection syringes and anesthesia bottles,” creating a “foreseeable risk 13 of infection/cross-contamination between patients with whom said syringes and anesthesia 14 bottles were shared.” (Id. ¶ 9). 15 Plaintiffs filed this action in state court on July 26, 2018, bringing the following causes 16 of action against Defendants: (1) strict product liability; (2) breach of the implied warranty of 17 fitness for a particular purpose; (3) negligence; (4) violation of the Nevada Deceptive Trade 18 Practices Act; and (5) punitive damages. (Id. ¶¶ 19–60). On December 10, 2018, Defendants 19 removed the case here on the grounds of diversity and federal-question jurisdiction. (See Pet. 20 for Removal, ECF No. 1). Shortly thereafter, Plaintiffs filed the instant Motion requesting that 21 the Court remand this action back to state court. (See Mot. to Remand, ECF No. 9). 22 II. LEGAL STANDARD 23 Federal courts are courts of limited jurisdiction, possessing only those powers granted by 24 the Constitution and by statute. See United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008) 25 (citation omitted). For this reason, “[i]f at any time before final judgment it appears that the 1 district court lacks subject-matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 2 1447(c). District courts have subject-matter jurisdiction in two instances. First, district courts 3 have subject-matter jurisdiction over civil actions that arise under federal law. 28 U.S.C. § 4 1331. Second, district courts have subject-matter jurisdiction over civil actions where no 5 plaintiff is a citizen of the same state as a defendant and the amount in controversy exceeds 6 $75,000. 28 U.S.C. § 1332(a). 7 A defendant may remove an action to federal court only if the district court has original 8 jurisdiction over the matter. 28 U.S.C. § 1441(a). “Removal statutes are to be ‘strictly 9 construed’ against removal jurisdiction.” Nevada v. Bank of Am. Corp., 672 F.3d 661, 667 (9th 10 Cir. 2012) (quoting Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002)). “The ‘strong 11 presumption against removal jurisdiction means that the defendant always has the burden of 12 establishing that removal is proper,’ and that the court resolves all ambiguity in favor of 13 remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) 14 (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992) (per curiam)). 15 III. DISCUSSION 16 Plaintiffs move to remand this action on the basis that the Court is without subject- 17 matter jurisdiction. (See generally Mot. to Remand, ECF No. 9). Defendants oppose Plaintiffs’ 18 Motion, contending this Court enjoys both diversity jurisdiction, as well as federal-question 19 jurisdiction. (Defs.’ Resp. to Mot. to Remand (“Resp.”) 4:6–9:13, ECF No. 14). 20 The Court begins with diversity jurisdiction, followed by federal-question jurisdiction. 21 A. Diversity Jurisdiction 22 Federal courts have diversity jurisdiction over all civil actions in which the amount in 23 controversy: (1) exceeds the sum or value of $75,000; and (2) is between citizens of different 24 states. 28 U.S.C. § 1332(a). In the present case, it is undisputed that complete diversity of 25 citizenship exists because no Plaintiff is a citizen of the same state as any Defendant. (See Pet. 1 for Removal ¶¶ 8–11, ECF No. 1); (Compl. ¶¶ 1–4, ECF No. 1-1). Therefore, the question is 2 whether the amount in controversy exceeds $75,000. 3 1. Amount in Controversy 4 In determining the amount in controversy, the Court’s “starting point is whether it is 5 facially apparent from the complaint that the jurisdictional amount is in controversy.” 6 Lowdermilk v. United States Bank Nat’l Ass’n, 479 F.3d 994, 998 (9th Cir. 2007). “[W]hen a 7 complaint filed in state court alleges on its face an amount in controversy sufficient to meet the 8 federal jurisdictional threshold, such requirement is presumptively satisfied unless it appears to 9 a ‘legal certainty’ that the plaintiff cannot actually recover that amount.” Guglielmino v. McKee 10 Foods Corp., 506 F.3d 696, 699 (9th Cir. 2007) (quoting Sanchez v. Monumental Life Ins. Co., 11 102 F.3d 398, 402 (9th Cir. 1996)). “Where it is not facially evident from the complaint that 12 more than $75,000 is in controversy, the removing party must prove, by a preponderance of the 13 evidence, that the amount in controversy meets the jurisdictional threshold.” Matheson v. 14 Progressive Specialty Ins. Co., 319 F.3d 1089, 1090–91 (9th Cir. 2003) (per curiam). 15 Here, the amount in controversy is not facially evident from the Complaint. Plaintiffs’ 16 prayer for relief includes a request for general damages “in excess of $15,000,” and unspecified 17 sums for punitive damages, attorneys’ fees, and costs. (See Compl. 13:7–13). Though Plaintiffs 18 request special damages “in excess of $15,000,” within four of the Complaint’s substantive 19 claims, those requests employ identical language and expressly seek the same damages arising 20 from the same injury. (See id. ¶ 41) (“Plaintiffs have incurred special damages in the form of 21 medical expense as well as emotional distress, anxiety, and fear during the pendency of their 22 test results and for some time after . . . .”); (see also id. ¶¶ 48, 53, 56) (same). Given the 23 overlapping requested relief, the value of special damages on the face of the Complaint is 24 uncertain. See Singh v. Glenmark Phargenerics, Inc., No. 2:14-cv-154-GMN-CWH, 2014 WL 25 4231364, at *2 (D. Nev. Aug. 26, 2014) (“[T]hese causes of action seek recovery for the same 1 injuries. Therefore, it would be fallacious to mechanically add these values in determining the 2 total amount in controversy, as Plaintiffs cannot recover multiple times for the same harm.”) 3 (citing Elyousef v. O’Reilly & Ferrario, LLC, 443, 245 P.3d 547, 549 (Nev. 2010) (“[A] 4 plaintiff may not recover damages twice for the same injury simply because he or she has two 5 legal theories.”)). 6 Aside for the $15,000 Plaintiffs seek in general damages and the $15,000 requested in 7 special damages, the remaining categories of relief do not assign dollar amounts. Thus, 8 because the jurisdictional amount is not facially evident, Defendants must show, by a 9 preponderance of the evidence, that it is more likely than not that $75,000 is at stake. 10 Matheson, 319 F.3d at 1090–91. On this point, Defendants point to Plaintiffs’ prayer for 11 punitive damages and attorneys’ fees to satisfy the jurisdictional threshold. 12 a. Punitive Damages 13 Where punitive damages are recoverable under state law, such damages may be 14 considered in determining the amount in controversy. Gibson v. Chrysler Corp., 261 F.3d 927, 15 945 (9th Cir. 2001). Because Nevada permits recovery of punitive damages, NRS 42.005, 16 Plaintiffs’ prayer for the same may be considered in calculating the amount in controversy. In 17 situations where the value of punitive damages is unclear, “[t]he defendant bears the burden of 18 actually proving the facts to support jurisdiction.” Gaus, 980 F.2d at 567. To establish the 19 probable amount of punitive damages, a defendant must come forward with evidence, which 20 may include jury verdicts or settlements in substantially similar cases. See, e.g., Flores v. 21 Standard Ins. Co., No. 3:09-cv-00501-LRH-RAM, 2010 WL 185949, at *5 (D. Nev. Jan. 15, 22 2010); Campbell v. Hartford Life Ins. Co., 825 F. Supp. 2d 1005, 1008 (E.D. Cal. 2011). 23 Here, Defendants’ argument with respect to punitive damages is too speculative to be 24 credited. Defendants contend that the Complaint’s reference to NRS 42.005, which permits an 25 award of up to $300,000 when a plaintiff’s compensatory damages do not exceed $100,000, 1 establishes that more than $75,000 is in on controversy. (Resp. 6:9–17). Defendants, however, 2 neglect to support its argument with facts from this case or any analogous case to demonstrate 3 the likelihood of a punitive damages award. “Mere allusion, in the absence of supplementary 4 evidence, is insufficient for the Court to determine a probable punitive damages amount.” 5 Cayer v. Vons Cos., No. 2:16-cv-02387-GMN-NJK, 2017 WL 3115294, at *3 (D. Nev. July 21, 6 2017); see also Hannon v. State Farm Mut. Auto. Ins. Co., No. 2:14-cv-1623-GMN-NJK, 2014 7 WL 7146659, at *3 (D. Nev. Dec. 12, 2014) (excluding punitive damages in the amount in 8 controversy given the defendant’s “fail[ure] to identify any particular facts or allegations which 9 might warrant a large punitive damage award.”). Because Defendants have not met their 10 burden, the Court will not include punitive damages in determining the amount in controversy. 11 b. Attorneys’ Fees 12 “[W]here an underlying statute authorizes an award of attorneys’ fees, either with 13 mandatory or discretionary language, such fees may be included in the amount in controversy.” 14 Guglielmino, 506 F.3d at 700 (quoting Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th 15 Cir. 1998)). “This Court considers attorneys’ fees to be within the amount in controversy if the 16 removing party: (1) identifies ‘an applicable statute which could authorize an award of 17 attorneys’ fees and (2) provide[s] an estimate as to the time the case will require and opposing 18 counsel’s hourly billing rate.’” Cayer, 2017 WL 3115294, at *2 (quoting Hannon, 2014 WL 19 7146659, at *2). 20 Here, Defendants neither identify a statute nor provide an estimate of Plaintiffs’ 21 counsel’s billing rate. Instead, Defendants limit their argument to hypothesizing that because 22 the parties have been in settlement negotiations going back to April 2016, Plaintiffs’ attorneys’ 23 fees “as a practical matter” have likely surged. (Resp. 6:5–8). Such speculation is not enough 24 to warrant inclusion of attorneys’ fees in the amount in controversy. See, e.g., Surber v. 25 Reliance Nat. Indent. Co., 110 F. Supp. 2d 1227, 1232 (N.D. Cal. 2000) (declining to add 1 attorneys’ fees to the amount-in-controversy calculation where “Defendant has not estimated 2 the amount of time that the case will require, nor has it revealed plaintiff’s counsel’s hourly 3 billing rate.”); see also Wilson v. Union Sec. Life Ins. Co., 250 F. Supp. 2d 1260, 1264 (D. 4 Idaho 2003) (stating a defendant “must do more than merely point to [a plaintiff’s] request for 5 attorney’s fees; upon removal it must demonstrate the probable amount of attorney’s fees”). 6 To summarize, Defendants have not met their burden of showing, by a preponderance of 7 the evidence, that more than $75,000 is at stake in this case. Accordingly, the Court cannot 8 exercise diversity jurisdiction over this matter. 9 B. Federal-Question Jurisdiction 10 28 U.S.C. § 1331 vests federal district courts with original jurisdiction over “all civil 11 actions arising under the Constitution, laws, or treaties of the United States.” “To remove a case 12 as one falling within federal-question jurisdiction, the federal question ordinarily must appear 13 on the face of a properly pleaded complaint; an anticipated or actual federal defense generally 14 does not qualify a case for removal.” Jefferson Cty. v. Acker, 527 U.S. 423, 430–31 (1999); see 15 also Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (“The rule makes the plaintiff the 16 master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state 17 law.”). 18 Defendants do not contest that the Complaint, on its face, is solely comprised of state- 19 law claims. Rather, Defendants appear to advance two distinct theories to support federal- 20 question jurisdiction: (1) Plaintiffs’ claims are preempted because they rely on state-law duties 21 that conflict with those imposed by federal law; and (2) the Complaint necessarily raises a 22 substantial federal question because resolution of the claims requires examination of federal 23 issues that fall within the exclusive authority of the U.S. Food and Drug Administration 24 (“FDA”). (Resp. 6:19–9:13). The Court addresses each argument in turn. 25 1 1. Federal Preemption 2 According to Defendants, the Complaint necessarily raises a federal issue because the 3 Supremacy Clause preempts Plaintiffs’ state law claims. (Id. 7:18–23). Defendants explain that 4 the wrongful conduct alleged—Defendants’ improper packaging and distribution of propofol— 5 is governed exclusively by the FDA, which has promulgated regulations establishing baseline 6 manufacturing requirements for the preparation of drug products. (Id. 4:26–5:18) (citing 21 7 C.F.R. § 211). And because Plaintiffs’ claims rely upon state-law duties that go beyond what 8 the FDA requires, the issue of federal preemption is necessarily raised. (Id. 7:15–23, 8:11– 9 9:13). 10 To the extent Defendants invoke “defensive preemption,” the Court is unconvinced. It is 11 well settled that “a case may not be removed to federal court on the basis of a federal defense, 12 including the defense of pre-emption.” In re NOS Commc’ns, 1357, 495 F.3d 1052, 1057 (9th 13 Cir. 2007) (emphasis in original) (quoting Caterpillar, 482 U.S. at 392). This rule applies 14 “even if the defense is anticipated in the plaintiff’s complaint, and even if both parties concede 15 that the federal defense is the only question truly at issue.” Caterpillar, 482 U.S. at 392. 16 Insofar as Defendants advance a “complete preemption” argument, it necessarily fails. 17 The U.S. Supreme Court has recognized that the “preemptive force of some statutes is so strong 18 that they ‘completely preempt’ an area of state law.” Balcorta v. Twentieth Century-Fox Film 19 Corp., 208 F.3d 1102, 1107 (9th Cir. 2000) (citing Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 20 65 (1987)). “Once an area of state law has been completely pre-empted, any claim purportedly 21 based on that pre-empted state law is considered, from its inception, a federal claim, and 22 therefore arises under federal law.” Caterpillar, 482 U.S. at 393 (internal citation and quotation 23 marks omitted). Complete preemption is “rare” and has only been endorsed by the U.S. 24 Supreme Court with respect to three federal statutes: § 301 of the Labor Relations Act; §§ 85 25 and 86 of the National Bank Act; and § 502 of the Employee Retirement Income Security Act. 1 See Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 948 n.5 (9th 2 Cir. 2014). 3 In the present case, Defendants have not made any showing as to why the Federal Food, 4 Drug, and Cosmetic Act (“FDCA”) should be counted as a completely preemptive statutory 5 scheme. In any event, the Court is persuaded by the overwhelming weight of authority holding 6 that Congress’s endorsement of some state-law claims arising from FDCA regulations 7 conclusively defeats arguments in favor of complete preemption. See, e.g., Bridges v. Teva 8 Parenteral Medicines, Inc., No. 2:18-cv-02310-JCM-VCF, 2019 WL 1585109, at *4 (D. Nev. 9 Apr. 12, 2019) (collecting Ninth Circuit district court cases holding that “the FDCA does not 10 completely preempt state law”); see also Mihok v. Medtronic, Inc., 119 F. Supp. 3d 22, 32 (D. 11 Conn. 2015) (“Congress anticipated and approved of limited state court analysis and 12 application of the FDA regulations when it decided not to completely preempt parallel state law 13 claims.”) (citing Riegel v. Medtronic, Inc., 552 U.S. 312, 330 (2008) (holding that 21 U.S.C. § 14 360 of the FDCA does not “prevent a State from providing a damages remedy for claims 15 premised on a violation of FDA regulations; the state duties in such a case ‘parallel’ rather than 16 add to, federal requirements.”)). 17 Next, the Court turns to Defendants’ contention that Plaintiffs’ claims necessarily turn 18 on a question of federal law. 19 2. Jurisdiction Under Gunn-Grable 20 The U.S. Supreme Court has identified a “special and small category” of cases that arise 21 under federal-question jurisdiction notwithstanding a complaint’s sole reliance on state-law 22 claims. Gunn v. Minton, 568 U.S. 251, 258 (2013) (citation omitted). “Federal jurisdiction over 23 a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) 24 substantial, and (4) capable of resolution in federal court without disrupting the federal-state 25 balance approved by Congress.” Id. (citing Grable & Sons Metal Prod., Inc. v. Darue Eng’g & 1 Mfg., 545 U.S. 308, 313–14 (2005)). To support federal-question jurisdiction, all four Gunn- 2 Grable requirements must be satisfied. Id. 3 Defendants contend that the Complaint requires examination of the FDCA’s “duty of 4 sameness,” under 21 U.S.C. § 355 and 21 C.F.R. § 314, which requires that generic drug 5 manufactures label their products identically to the respective brand manufacturer’s label. 6 (Resp. 5:23–6:1). According to Defendants, this duty “applies to every portion of Plaintiffs’ 7 complained-of conduct, including labeling, warnings, route of administration, dosage form, and 8 strength.” (Id. 6:1–3). Therefore, because the duty of sameness required that Defendants’ 9 labeling conform to that of the brand-name product, the Complaint necessarily touches upon 10 Defendants’ compliance with federal law. (Id. 6:3–17). 11 The problem for Defendants is that the Complaint does not allege that Defendants 12 violated the FDCA’s duty of sameness, or any federal duty for that matter.2 Tellingly, 13 Defendants do not cite to any portion of the Complaint for this proposition. Even if Plaintiffs 14 raised the FDCA or the duty of sameness as an element of a claim, that would still not end the 15 federal-question inquiry. For one thing, it is axiomatic that “the mere presence of a federal 16 issue in a state cause of action does not automatically confer federal-question jurisdiction.” 17 Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 813 (1986). Furthermore, it is well 18 established that “[w]hen a claim can be supported by alternative and independent theories—one 19 of which is a state law theory and one of which is a federal law theory—federal question 20 jurisdiction does not attach because federal law is not a necessary element of the claim.” Bank 21 of Am. Corp., 672 F.3d at 675 (quoting Rains v. Criterion Sys., Inc., 80 F.3d 339, 346 (9th Cir. 22 23 2 On this basis, Defendants’ proffered supplemental authority is readily distinguishable. See Bowdrie v. Sun 24 Pharm. Indus. Ltd., 909 F. Supp. 2d 179, 183–84 (E.D.N.Y. 2012) (holding a federal issue was necessarily raised in the FDCA context where the complaint repeatedly and expressly alleged the “ongoing federal duty of 25 sameness,” as elements of the state-law claims). Additionally, Bowdrie concerned a generic manufacturer’s failure to update its labeling to be consistent with the brand-name manufacturer’s modified label. Id. at 181. In this case, by contrast, no such facts are alleged. 1 1996)). Indeed, each of Plaintiffs’ claims refer only to common law duties under Nevada law 2 and, consequently, do not appear to require federal analysis for their resolution. As Defendants 3 have not articulated how any specific claim necessitates resort to federal law, Defendants have 4 failed to meet their burden of showing otherwise. See Cruz v. Preferred Homecare, No. 2:14- 5 cv-00173-MMD-CWH, 2014 WL 4699531, at *3 (D. Nev. Sept. 22, 2014) (rejecting the 6 defendants’ reliance on FDA regulation to establish the first Gunn-Grable element as “wholly 7 insufficient, especially when contrasted with Grable and Gunn, in which the removing parties 8 demonstrated that plaintiffs’ specific claims hinged on a court’s adjudication of a federal 9 issue.”) (emphasis in original). 10 Thus, Defendants have failed to establish the first element of the Gunn-Grable test. As 11 the party asserting federal jurisdiction, Defendants bear the burden of showing removal is 12 proper. Gaus, 980 F.2d 566. This burden is of enhanced significance in this context, where the 13 weight of authority suggests no federal-question jurisdiction exists. See, e.g., Merrell Dow, 478 14 U.S. at 817 (holding that a complaint’s state-law claims against a drug manufacturer, premised 15 upon FDCA misbranding violations, do not support federal-question jurisdiction); Grable, 545 16 U.S. at 316–20 (discussing Merrell Dow’s holding and reiterating “if the federal labeling 17 standard without a federal cause of action could get a state claim into federal court, so could 18 any other federal standard without a federal cause of action.”); Burrell v. Bayer Corp., 918 F.3d 19 372, 381 (4th Cir. 2019) (concluding a plaintiff’s state-law claims regarding FDA-regulated 20 medical devices do not satisfy the third and fourth prongs of Gunn-Grable, and expressing 21 doubt as to whether such claims necessarily raise federal issues under the first prong); see also 22 Nunes v. Affinitylifestyles.com, Inc., No. 2:16-cv-02265-APG-NJK, 2017 WL 359178 (D. Nev. 23 Jan. 23, 2017); Brandle v. McKesson Corp., No. C 12-cv-05970 WHA, 2013 WL 1294630 24 (N.D. Cal. Mar. 28, 2013). Because Defendants have not put forth a thorough, meaningful case 25 1 for application of the Gunn-Grable exception, the strong presumption against removal 2 jurisdiction remains undisturbed. 3 In short, Defendants have not satisfied the Court that it may exercise diversity 4 jurisdiction or federal-question jurisdiction. Consequently, this action must be remanded back 5 to state court for want of subject-matter jurisdiction. Plaintiffs’ Motion to Remand is therefore 6 granted. 7 IV. CONCLUSION 8 IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand, (ECF No. 9), is 9 GRANTED. 10 IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss, (ECF No. 4), is 11 DENIED as moot. 12 IT IS FURTHER ORDERED that this matter is hereby REMANDED to the Eighth 13 Judicial District Court for the State of Nevada, County of Clark. 14 The Clerk of Court is instructed to close this case. 15 DATED this _2__6_ day of August, 2019. 16 17 ___________________________________ Gloria M. Navarro, Chief Judge 18 United States District Judge 19 20 21 22 23 24 25