Kephart et al v. Rotech Healthcare Inc. et al

Filing 33

ORDER that 32 Motion to Reconsider Order Remanding Case to State Court is DENIED. Signed by Judge Jennifer A. Dorsey on 12/21/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOHN KEPHART, an individual; THELMA
LOUISE KEPHART, an individual,

Case No.:2:15-cv-00859-JAD-NJK

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Order Denying Motion to Reconsider
Remand Order

Plaintiffs
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v.

[ECF 32]

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ROTECH HEALTHCARE, INC., a foreign
corporation; VITAL CARE, INC., a foreign
corporation,

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Defendants
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On December 7, 2015, I found that the defendants had failed to meet their burden of

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establishing that this court has jurisdiction over the subject matter of this case, and I remanded this

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case back to the Eighth Judicial District Court, Clark County, Nevada.1 Defendants now ask me to

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reconsider that remand order, arguing that I have authority to do so under either FRCP 59(e) or

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60(b).2 Defendants are mistaken. Remand orders based on a lack of subject-matter jurisdiction are

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not reviewable on appeal or otherwise. Defendants’ motion for reconsideration is thus procedurally

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improper and is denied.

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Discussion

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Section 1447(c) of title 28 of the United States Code contemplates remand based on a lack of

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subject-matter jurisdiction or a defect in the removal procedure.3 When a federal court relies on a

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ground enumerated in 28 U.S.C. § 1447(c) to remand an action back to the state court whence it was

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removed, 28 U.S.C. § 1447(d) plainly provides that the remand order is “not reviewable on appeal or

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ECF 31.

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ECF 32.

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See Augon-Schulte v. Guam Election Commn., 469 F.3d 1236, 1240 (9th Cir. 2006).

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otherwise.”4 The state court can, in fact, proceed with the case once the remand order is entered and

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a certified copy of that order is mailed to the state court by the clerk of this court.5

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I remanded this case back to state court because I found that subject-matter jurisdiction was

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lacking—defendants had not met their burden to establish that the amount in controversy exceeds

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$75,000.6 Jurisdiction over this action revested in the state court when, on December 7, 2015, the

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remand order was entered on the docket in this case and the clerk of this court mailed a copy of that

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order to the state court. I simply do not have the authority to reconsider that remand order.7

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Defendants’ motion for reconsideration is thus procedurally defective and must be denied.

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In remanding this case, I essentially concluded that this case was not removable at the time

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that defendants filed their petition for removal. When a case is not immediately removable but the

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defendant later receives a document that puts it on notice “that the case is one which is or has

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become removable,” the proper procedure is to file “a notice of removal . . . within 30 days after

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receipt” of the document establishing that the case is or has become removable.8 If defendants

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believe they received a document establishing that the state-court case is or has become

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removable, they must follow the procedure outlined in 28 U.S.C. § 1446(b)(3) and be mindful that

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this case has been closed.

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Atlantic Nat. Trust LLC v. Mt. Hawley Ins. Co., 621 F.3d 931, 934 (9th Cir. 2010) (quoting 28
U.S.C. § 1447(d)).
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28 U.S.C. § 1447(c).

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ECF 31 at 5–6.

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See 28 U.S.C. § 1447(d).

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See 28 U.S.C. § 1446(b)(3).

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Conclusion
ACCORDINGLY, IT IS HEREBY ORDERED that defendants’ motion to reconsider the
order remanding case to state court [ECF 32] is DENIED.
DATED this 21st day of December, 2015

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_________________________________
_______________________
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Jennifer A. Dorsey
nifer Dorsey
r Do
United States District Judge
ted States
t te
Judge
dg

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