Ben v. Union Pacific Railroad Company et al

Filing 15

ORDER that the Order to Show Cause (Doc. 7 ) is discharged. See order for details. Signed by Judge Neil V. Wake on 2/18/16. (NKS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-15-02123-PHX-NVW

Marshall Ben,
Plaintiff,
v.

ORDER DISCHARGING PREVIOUS
ORDER TO SHOW CAUSE

Union Pacific Railroad Company; Limon
Hospitality, LLC; Bruce Rahmani; et al.,
Defendants.

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On October 21, 2015, Defendants Limon Hospitality, LLC and Bruce Rahmani
filed a Notice of Removal claiming that this Court has original jurisdiction over this
action pursuant to 28 U.S.C. § 1332 and that the action is therefore removable pursuant to
28 U.S.C. § 1441(a). (Doc. 1 at 3.)
On October 29, the Court issued an Order to Show Cause why the action should
not be remanded in light of the Notice of Removal’s failure to allege subject matter and
removal jurisdiction. (Doc. 7.) Regarding subject matter jurisdiction, the Court noted
that the Notice of Removal (i) did not allege the principal place of business of Defendant
Union Pacific Railroad Company and (ii) did not allege the citizenship of every member
of Limon Hospitality, LLC. (Id. at 1.) Regarding removal jurisdiction, the Court noted
that (i) the Notice of Removal did not allege Union Pacific Railroad Company’s consent
to removal, (ii) such consent would now seem untimely, and (iii) in any event the action
appears nonremovable pursuant to 28 U.S.C. § 1445(a). (Id. at 1-2.)

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On November 4, Limon Hospitality, LLC and Bruce Rahmani filed a Response
addressing the Court’s concerns. (Doc. 7.) Regarding subject matter jurisdiction, the
Response (i) contends that the Notice of Removal’s identification of Union Pacific
Railroad Company’s Nebraska headquarters suffices to allege its principal place of
business, and (ii) identifies a Colorado corporation headquartered in Colorado as the sole
member of Limon Hospitality, LLC. (Id. at 1-2.) These responses satisfy the Court’s
subject matter jurisdiction concerns.
Regarding removal jurisdiction, the Response points out that the potential defects
identified in the Court’s order—lack of unanimous consent to removal, untimeliness of
such consent, and nonremovability under 28 U.S.C. § 1445(a)—are procedural rather
than jurisdictional. See Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir.
1988) (lack of unanimous consent); Smith v. Mylan, Inc., 761 F.3d 1042, 1045 (9th Cir.
2014) (untimeliness); Feichko v. Denver & Rio Grande W. R. Co., 213 F.3d 586, 591
(10th Cir. 2000) (nonremovability under 28 U.S.C. § 1445(a)); accord Vasquez v. N. Cty.
Transit Dist., 292 F.3d 1049, 1062 (9th Cir. 2002) (nonremovability under 28 U.S.C.
§ 1445(c)). As a result, the Court may remand for these defects only upon a motion to
remand made within thirty days after the filing of the Notice of Removal. 28 U.S.C.
§ 1447(c); see also Smith, 761 F.3d at 1044. No such motion has been made, and the
thirty-day window has long passed. Plaintiff is deemed to have waived these objections
to removal.
IT IS THEREFORE ORDERED that the Order to Show Cause (Doc. 7) is
discharged.
Dated this 18th day of February, 2016.

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Neil V. Wake
United States District Judge

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