DeMartini, et al. v. DeMartini, et al.

Filing 26

ORDER granting 12 Motion to Change Venue; denying 7 Motion to Remand; granting 5 Motion to Extend Time; denying as moot 13 Motion to Shorten Time; granting 10 Motion to Substitute Attorney. The Clerk shall transfer the case to the Eastern District of CA. Signed by Judge Robert C. Jones on 11/19/2014. (Copies have been distributed pursuant to the NEF - KR) [Transferred from nvd on 11/20/2014.]

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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 1 2 3 4 TIMOTHY P. DEMARTINI et al., Plaintiffs, 5 6 7 8 vs. MICHAEL J. DEMARTINI et al., Defendants. 9 ) ) ) ) ) ) ) ) ) ) ) ) ) 3:14-cv-00478-RCJ-WGC ORDER 10 11 12 13 Plaintiffs sued Defendants in the Superior Court of Nevada County, California on six causes of action, including the partition of real property and quiet title. Defendants removed to this Court. Plaintiffs moved to remand for improper removal, correctly noting that a case may 14 only be removed “to the district court of the United States for the district and division embracing 15 16 the place where such action is pending,” 28 U.S.C. § 1441(a), and that district in the present case 17 is the Eastern District of California. 18 Defendants now concede that removal to this District was improper but have asked the 19 Court to transfer to the Eastern District of California under § 1406(a) rather than remand. There 20 21 is a split of authority in the district courts of this Circuit whether transfer or remand is 22 appropriate under the these circumstances, and there is no Ninth Circuit or Supreme Court 23 authority on the question, but the Fifth Circuit has approved transfer under § 1406(a). See S.W.S. 24 Erectors, Inc. v. Infax, Inc., 72 F.3d 498 n.3 (5th Cir. 1996) (citing Kreimerman v. Casa 25 Veerkamp, S.A. de C.V., 22 F.3d 634, 644–45 (5th Cir.), cert. denied, 513 U.S. 1016 (1994); RTC 26 27 v. Sonny’s Old Land Corp., 937 F.2d 128, 130 (5th Cir. 1991)). Plaintiffs argue that the Court 28 should determine the motion to remand first, and then, if remand would be proper, remand 1 1 without considering the countermotion to transfer venue under § 1406(a). If the motion to 2 remand were based on a lack of subject matter jurisdiction, the Court would agree. That is, if the 3 district court lacked subject matter jurisdiction over the case, then so would another federal 4 district court. Transfer of a case from one district to another where subject matter jurisdiction in 5 the federal courts is entirely lacking would be not only pointless but itself an unauthorized 6 7 exercise of jurisdiction over the case. On the other hand, if the motion to remand were based 8 purely on removal to the wrong district, the Court would disagree. As the Fifth Circuit has 9 stated, “Error in the venue of a removed action does not deprive the district court of subject 10 matter jurisdiction requiring remand of the case. When a case is removed to the wrong district, 11 the mistake does not require remand and the interest of justice requires that the action be 12 13 transferred to the district court of proper venue.” Id. (citations omitted). The present motion to 14 remand does not appear to challenge subject matter jurisdiction, but only removal to the wrong 15 district. The Court will therefore transfer to the Eastern District of California. 16 /// 17 18 /// 19 /// 20 /// 21 /// 22 /// 23 24 /// 25 /// 26 /// 27 /// 28 2 CONCLUSION 1 2 3 4 IT IS HEREBY ORDERED that the Motion to Change Venue (ECF No. 12) is GRANTED and the Clerk shall TRANSFER the case to the Eastern District of California. IT IS FURTHER ORDERED that the Motion to Remand (ECF No. 7) is DENIED. 5 IT IS FURTHER ORDERED that the Motion to Extend Time (ECF No. 5) is 6 7 8 9 10 GRANTED. IT IS FURTHER ORDERED that the Motion to Shorten Time (ECF No. 13) is DENIED as moot. IT IS FURTHER ORDERED that the Motion to Substitute Attorney (ECF No. 10) is 11 GRANTED. 12 13 14 IT IS SO ORDERED. Dated this 19th day November, 2014. Dated this 10th day of of November, 2014. 15 16 17 _____________________________________ ROBERT C. JONES United States District Judge 18 19 20 21 22 23 24 25 26 27 28 3

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