Novick v. CitiMortgage, Inc.

Filing 12

ORDER that the matter of Novick v. CitiMortgage, Inc., case number 2:17-cv- 02236-JCM-CWH, is REMANDED to Nevada state court. FURTHER ORDERED that CitiMortgage's motion to dismiss (ECF No. 4 ) is DENIED. Signed by Judge James C. Mahan on 9/12/17. (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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MICHAEL NOVICK,

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Case No. 2:17-CV-2236 JCM (CWH)
Plaintiff(s),

ORDER

v.
CITIMORTGAGE, INC.,

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Defendant(s).

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Presently before the court is the matter of Novick v. CitiMortgage, Inc., case number 2:17cv-02236-JCM-CWH.
On August 22, 2017 at 5:32pm, defendant CitiMortgage, Inc. removed this action to federal
court from the Eighth Judicial District Court of Clark County. (ECF No. 1).

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In its notice of removal, defendant claims that the procedural requirements for removal

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have been met as, it argues, removal of this case “will not result in any prejudice to [plaintiff]

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Novick as the matter is in the initial pleading stage and no discovery has occurred.” Id. at 4 ¶ 21.

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However, plaintiff had filed only a motion for a temporary restraining order (TRO) seeking

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to enjoin a foreclosure on August 1, 2017. Id. at 1; (ECF No. 1-8 at 2). Plaintiff requested from

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the state court “[t]emporary injunctive relief to enjoin the sale of my home until the court

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determines that Defendant has corrected and remedies the material violations giving rise to this

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action.” (ECF No. 1-8 at 4). To date, plaintiff has not filed a complaint.

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On August 2, 2017, the state district court granted the motion in full, enjoining the

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foreclosure, and set a hearing on the “continuation of motion for TRO” for August 23, 2017 at

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9:00am. Id. at 8.

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James C. Mahan
U.S. District Judge

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Thus, defendant CitiMortgage removed this action to federal court at 5:32pm the evening
before the 9:00am hearing on plaintiff’s TRO motion.

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Further, at the time the defendant removed this action, its counsel did not indicate to the

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court that there were outstanding matters requiring the court’s immediate attention. Although

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counsel mentioned the August 1 motion for a TRO that the district court had already granted, this

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court discovered the impending August 23, 2017 9:00am hearing only because court staff found

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the information on the last page of defendant’s attached exhibits to its notice of removal.

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By statute, “injunctions, orders, and other proceedings had in such [state] action prior to its

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removal shall remain in full force and effect until dissolved or modified by the district court.” 28

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U.S.C. § 1450. Interlocutory state court orders thus “are transformed by operation of 28 U.S.C. §

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1450 into orders of the federal district court to which the action is removed.” Louisiana v. Guidry,

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489 F.3d 692, 698 (7th Cir.2007) (citing Nissho–Iwai American Corp. v. Kline, 845 F.2d 1300,

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1304 (5th Cir.1988)); see also Munsey v. Testworth Laboratories, 227 F.2d 902, 903 (6th

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Cir.1955); Lechoslaw v. Bank of Am., N.A., 575 F. Supp. 2d 286, 292 (D. Mass. 2008).

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On August 28, 2017, this court held that it could not determine what matters remain

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outstanding, what interlocutory orders are still in effect, and whether any immediate action must

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be taken by the court on plaintiff’s motion for a TRO in state court. The court ordered the parties

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to file a status report within 5 days of the August 28 explaining, among other things, the status of

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the state court’s temporary restraining order and plaintiff’s motion, the status of the foreclosure

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sale, and the actions, if any, required by the court at this time. (ECF No. 3).

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On August 31, 2017, CitiMortgage filed a status report (ECF No. 6) which Novick joined

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(ECF 10). The status report indicated the following. On August 1, 2017, Michael J. Novick filed

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a motion for temporary restraining order and injunction in Eighth Judicial District Court Case No.

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A-17-759241-C. ECF No. 1-8, at 2–6. The Eighth Judicial District Court issued a temporary

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restraining order and set a hearing for August 23, 2017. ECF No. 1-8, at 7–8. Novick did not file

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a complaint with his motion. CitiMortgage removed this case to federal court on August 22, 2017.

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ECF No. 1. CitiMortgage emailed a filed-stamped copy of the petition for removal to Novick on

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August 22, 2017. CitiMortgage did not appear at the hearing on the motion for temporary

James C. Mahan
U.S. District Judge

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restraining order on August 23, 2017. CitiMortgage further indicated that its counsel’s staff

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contacted the state court judicial department on the afternoon of August 22, 2017—the day before

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the hearing on the TRO—to advise it that a petition for removal would be filed that day. Based

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upon the court's minutes, Novick represented to the court that he had not formally served

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CitiMortgage, and the case was continued in the state district court to October 25, 2017, for Novick

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to provide proper service.
The parties agree that “the court should issue a briefing schedule on Novick’s motion for

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injunctive relief and set the matter for hearing, if appropriate.

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foreclosure sale until the motion for injunctive relief is decided by the court. The court will also

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need to rule on CitiMortgage’s motion to dismiss once the motion is fully briefed.” (ECF No. 6 at

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2).

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CitiMortgage canceled the

On August 29, 2017, CitiMortgage filed in this court a motion to dismiss “Novick’s
complaint.” (ECF No. 4). But Novick has not filed a complaint, so this court cannot dismiss it.

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Novick has not filed a complaint, so the removal of this action to federal court was

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premature. See generall Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 529 U.S. 344 (1999)

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(“a named defendant’s time to remove is triggered by simultaneous service of the summons and

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complaint, or receipt of the complaint”). 28 U.S.C. § 1441(a) allows a defendant to remove “any

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civil action brought in a State court . . . .” In Nevada, “[a] civil action is commenced by filing a

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complaint with the court.” Nev. R. Civ. P. 3. Accordingly, before this time, there was not yet a

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“civil action” in Nevada state court to remove.

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Therefore, this court must remand this case to state court. This order does not prejudice

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CitiMortgage’s ability to remove this case upon the subsequent filing of a complaint in state court.

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Further, the outstanding motion to dismiss must be denied because there is no pleading to dismiss.

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See Fed. R. Civ. P. 12(b)(6) (allowing for a motion to dismiss claims in a pleading); Fed. R. Civ.

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P. 7(a) (explaining that the only pleadings allowed are the complaint, answer, and related

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documents, but not “motions”); Nev. R. Civ. P. 7(a) (same). Furthermore, this order makes no

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ruling on the outstanding motion for injunctive relief.

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James C. Mahan
U.S. District Judge

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Accordingly,

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IT IS HEREBY ORDERED that the matter of Novick v. CitiMortgage, Inc., case number

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2:17-cv-02236-JCM-CWH, is REMANDED to Nevada state court.
IT IS FURTHER ORDERED that CitiMortgage’s motion to dismiss (ECF No. 4) is
DENIED.
DATED September 12, 2017.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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