Ingham v. Broberg, Jr. ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 DENISE INGHAM, ) 4 ) Plaintiff, ) Case No.: 2:24-cv-00227-GMN-BNW 5 vs. ) ) ORDER GRANTING MOTION 6 KENNETH DALE BROBERG, et al., ) TO REMAND 7 ) Defendants. ) 8 ) 9 Pending before the Court is the Motion to Remand, (ECF No. 11), filed by Plaintiff 10 Denise Ingham. Defendants Kenneth Dale Broberg, Jr. and Waymore Transportation, Inc. filed 11 a Response, (ECF No. 12). Because this case was not timely removed, the Court GRANTS 12 Plaintiff’s Motion to Remand. 13 I. BACKGROUND 14 This case arises from a motor vehicle/pedestrian collision on October 6, 2021. (See 15 generally Compl., Ex. A to Pet. Removal, ECF No. 1-1). Plaintiff’s vehicle broke down on I- 16 80, forcing her to exit her vehicle and walk along the side of the highway. (Id. ¶ 13). While she 17 was walking on the shoulder of the highway, Plaintiff was struck by a vehicle driven by 18 Defendant Broberg, who was operating the vehicle within the course and scope of his 19 employment with Defendant Waymore. (Id. ¶¶ 8–15). 20 Plaintiff filed her Complaint in state court on April 28, 2023. (See id. at 7). Defendant 21 Broberg was served on May 9, 2023, and Defendant Waymore was served on June 5, 2023. 22 (Aff. of Service, Exs. C & D, ECF Nos. 1-3, 1-4). On August 18, 2023, and August 25, 2023, 23 respectively, the state court clerk entered defaults against Defendants. (State Court Order 24 Setting Aside Entry of Default 3:2–5, Ex. A to Resp., ECF No. 12-1). The state court set aside 25 the defaults on January 17, 2024, because Plaintiff failed to inquire into Defendants’ intent to 1 proceed before requesting a default, as required by Nevada law. (See generally id.). 2 Defendants removed this action to federal court on February 1, 2024. Plaintiff now moves to 3 remand. (Mot. Remand, ECF No. 11). 4 II. LEGAL STANDARD 5 “Federal courts are courts of limited jurisdiction,” and “possess only that power 6 authorized by Constitution and statute, which is not to be expanded by judicial decree.” 7 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations 8 omitted). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden 9 of establishing the contrary rests upon the party asserting jurisdiction.” Id. (internal citations 10 omitted). “If at any time before final judgment it appears that the district court lacks subject 11 matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). 12 The federal removal statute provides that a defendant may remove an action to federal 13 court based on federal question jurisdiction or diversity jurisdiction. 28 U.S.C. § 1441. To 14 remove a state law civil action to federal court based on diversity jurisdiction, a removing 15 defendant must show that the parties are completely diverse and that the matter in controversy 16 exceeds the sum or value of $75,000.00. 28 U.S.C. § 1332(a). Removing defendants must file a 17 notice of removal within “30 days after the receipt by the defendant, through service or 18 otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such 19 action or proceeding is based.” Id. § 1446(b). Courts “strictly construe the removal statute 20 against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 21 /// 22 /// 23 /// 24 /// 25 /// 1 III. DISCUSSION 2 As a preliminary matter, neither the amount in controversy nor complete diversity of 3 citizenship is in dispute.1 (See generally Mot. Remand). At issue in Plaintiff’s Motion is 4 whether removal was timely. Plaintiff argues that Defendants’ Notice of Removal was filed 5 211 days late because the deadline to remove the action under 28 U.S.C. § 1446 was July 5, 6 2023, 30 days after Defendant Waymore was served. (Mot. Remand 2:25–26). Strictly 7 construing the removal statute, as the Court must, Plaintiff is correct that the deadline to 8 remove this action was July 5, 2023. 9 Defendants nonetheless argue that they timely removed the action on February 1, 2024, 10 because the deadline to remove the action was extended to 30 days after the state court set aside 11 the clerk’s defaults on January 17, 2024. (Resp. 7:5–8, ECF No. 12). But Defendants do not 12 contest that they were served on May 9, 2023, and June 5, 2023, respectively, nor was the 13 clerk’s entry of default set aside for reasons of insufficient service. Rather, the state court set 14 aside the clerk’s entry of default because Plaintiff failed to inquire into Defendants’ intent to 15 proceed before requesting a default, as required by Nevada law. (State Court Order Setting 16 Aside Entry of Default 3:17–19 (citing Landreth v. Malik, 251 P.3d 163, 172 (Nev. 2011)). 17 Defendants do not provide any legal basis for extending the removal deadline beyond 18 vague notions of “estoppel and fairness.” (Resp. 7:18–20). Moreover, the timeline in this case 19 belies Defendants’ argument. The deadline to remove this action under 28 U.S.C. § 1446 was 20 July 5, 2023, well over a month before the clerk’s entry of default in state court. Defendants 21 contend that the setting aside of the default restarted the clock, but the clock ran out before 22 default was entered in the first place. This cannot be so. Defendants had 30 days from the date 23 24 25 1 Plaintiff is a citizen of California, Defendant Broberg is a citizen of Minnesota, and Defendant Waymore is a citizen of Minnesota. (Pet. Removal ¶¶ 6–8). The amount in controversy exceeds $75,000 on the face of the complaint. (See generally Compl.). 1 || of service to remove this action, but Defendants did not file their notice of removal until 2 || February 1, 2024. Accordingly, removal was untimely, and the Court must remand this case to 3 || state court. 4 || V. CONCLUSION 5 IT IS HEREBY ORDERED that Plaintiff's Motion to Remand, (ECF No. 11), is 6 || GRANTED. 7 IT IS FURTHER ORDERED that this case is hereby remanded to the Eighth Judicial g || District Court for Clark County, Nevada, for all further proceedings. 9 DATED this 29 day of May, 2024. 10 11 iM er Gloria avarro, District Judge UNITE ATES DISTRICT COURT 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 4 of 4