Powell Litigation Group, P.C. v. Santana et al

Filing 19

ORDER Granting 16 Motion to Dismiss as to Kathleen Sebelius. IT IS FURTHER ORDERED that this case is REMANDED, and the Clerk shall close the case. Signed by Chief Judge Robert C. Jones on 10/15/13. (Copies have been distributed pursuant to the NEF - cc: 8th Judicial District Court - EDS)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
POWELL LITIGATION GROUP, P.C.,
9
Plaintiff,
10
vs.
11
CARMEN SANTANA et al.,
12
Defendants.
13
14

)
)
)
)
)
)
)
)
)
)

2:12-cv-01301-RCJ-VCF
ORDER

This is a removed state law interpleader action. Plaintiff law firm sued several

15

Defendants in state court, including Secretary of the U.S. Department of Health and Human

16

Services Kathleen Sebelius (the “Secretary”), in order to determine the parties’ rights to disputed

17

settlement funds held by Plaintiff pursuant to a settlement in a previous state court negligence

18

action. The Secretary removed pursuant to 28 U.S.C. § 1444 and has moved to dismiss pursuant

19

to Rule 12(b)(1). Specifically, the Secretary argues that the Court has no jurisdiction in

20

interpleader to determine Medicare’s right to disputed settlement proceeds because the United

21

States has not waived sovereign immunity in this regard. Section 1444 provides for removal only

22

where the United States has been sued under § 2410. But if the Secretary concedes that she has

23

been sued under § 2410, which permits a plaintiff to sue the United States in interpleader in state

24

court, see § 2410(a)(5), then her sovereign immunity argument would fail, as that section appears

25

to provide a waiver to sovereign immunity. Because Plaintiff has consented to dismissal of the

1

Secretary via its Notice of Non-Opposition , however, the Court need not sort out this issue.

2

The Secretary also argues, however, that once she has been dismissed, the Court should

3

dismiss the case in its entirety because it will lack subject matter jurisdiction over the remainder

4

of the case. As Plaintiff has properly requested in its Notice of Non-Opposition, however, the

5

proper disposition after dismissal of the Secretary is remand. It is true that there is no diversity

6

or federal question jurisdiction, and that the only basis of removal was the presence of a federal

7

defendant generally, see 28 U.S.C. § 1442(a)(1), or an interpleader action joining the United

8

States as a claimant in particular, see § 1444, but once it appears that there is no subject matter

9

jurisdiction after removal, a court has no discretion to dismiss; it must remand, see § 1447(c) (“If

10

at any time before final judgment it appears that the district court lacks subject matter

11

jurisdiction, the case shall be remanded.”); Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251,

12

1257–58 (9th Cir. 1997) (collecting cases) (“Section 1447(c) is mandatory, not discretionary. . . .

13

Upon determining that it lacked subject matter jurisdiction, the district court was required to

14

remand Bruns’ claims against the non-federal defendants to the state court.”). Except where a

15

statute provides otherwise, § 1447(c)’s mandatory remand rule applies to cases removed pursuant

16

to any statute. Fed. Sav. & Loan Ins. Corp. v. Frumenti Dev. Corp., 857 F.2d 665, 669–70 (9th

17

Cir. 1988) (citing United States v. Rice, 327 U.S. 742, 752 (1946)). Sections 1442, 1444, and

18

2410 indicate no exception to § 1447(c).

19

///

20

///

21

///

22

///

23

///

24

///

25

///

Page 2 of 3

1

CONCLUSION

2
3

IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 16) is GRANTED, and
Kathleen Sebelius is dismissed as a Defendant.

4
5
6
7

IT IS FURTHER ORDERED that the case is REMANDED, and the Clerk shall close the
case.
IT IS SO ORDERED.
Dated this 15th day of October, 2013.
Dated this 3rd day of September, 2013.

8
9

_____________________________________
ROBERT C. JONES
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Page 3 of 3