Wesco Insurance Company v. Smart Industries Corporation
ORDER that plaintiffs' motion to remand to state court (ECF No. 3 in member case 2:16-cv-02378-JCM-CWH) is DENIED. FURTHER ORDERED that defendant Boulevard Ventures, LLC's motion to strike punitive damages (ECF No. 12 in member case 2:1 6-cv-02378-JCM-CWH) be, and the same hereby is, DENIED as moot in light of the order (ECF No. 28 in member case 2:16-cv-02378-JCM-CWH) granting the parties stipulation to dismiss plaintiffs' punitive damages allegations (ECF No. 27 in member case 2:16-cv-02378-JCM-CWH). Signed by Judge James C. Mahan on 8/8/17. (Copies have been distributed pursuant to the NEF - MMM)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
WESCO INSURANCE COMPANY,
Case No. 2:16-CV-1206 JCM (CWH)
SMART INDUSTRIES CORPORATION,
Presently before the court is a motion to remand to state court filed by plaintiffs Jennifer
Wyman and Vivian Soof, as joint special administrators of the Estate of Charles Wyman, Jennifer
Wyman, individually, and Bear Wyman, a minor by and through his natural parent Jennifer
Wyman. (ECF No. 3).1 Defendant Smart Industries Corporation (“SIC”) filed a response (ECF
No. 5), to which plaintiffs replied (ECF No. 8).
This is a wrongful death action arising from an arcade vending machine maintenance
accident. Plaintiffs filed the original complaint in state court on October 10, 2016, alleging eleven
causes of action against defendants SIC, Hi-Tech Security Inc., William Roseberry, Boulevard
Ventures, LLC, and Sansone Companies, LLC.2 (ECF No. 1). On October 12, 2016, SIC removed
the action to federal court based on diversity jurisdiction before plaintiffs had served any
defendants. (ECF Nos. 1, 4).
In the instant motion, plaintiffs move to remand the action to state court based on 28 U.S.C.
§ 1441(b)(2)’s forum defendant rule. (ECF No. 3). Specifically, plaintiffs argue that removal was
All citations to the docket reference case number 2:16-cv-02378-JCM-CWH.
All defendants are Nevada citizens except SIC, which is an Iowa citizen. (ECF No. 1).
James C. Mahan
U.S. District Judge
improper because SIC removed the action to federal court before plaintiffs served the forum state
defendants. (ECF No. 3 at 5). The court disagrees.
Subsection (b)(2) of § 1441 provides as follows:
A civil action otherwise removable solely on the basis of the jurisdiction under
section 1332(a) of this title may not be removed if any of the parties in interest
properly joined and served as defendants is a citizen of the State in which such
action is brought.
28 U.S.C. § 1441(b)(2) (emphasis added). Because SIC is a citizen of Iowa, and because plaintiffs
had yet to serve the remaining Nevada defendants, removal did not violate § 1441(b)(2)’s forum
state defendant rule. Further, plaintiffs fail to cite to any relevant, binding authority that would
warrant a departure from the statute’s plain language. Therefore, plaintiffs’ motion to remand is
denied because removal was proper.
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiffs’ motion to
remand to state court (ECF No. 3) be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that defendant Boulevard Ventures, LLC’s motion to strike
punitive damages (ECF No. 12) be, and the same hereby is, DENIED as moot in light of the order
(ECF No. 28) granting the parties’ stipulation to dismiss plaintiffs’ punitive damages allegations
(ECF No. 27).
DATED August 8, 2017.
UNITED STATES DISTRICT JUDGE
James C. Mahan
U.S. District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?