Urban Elevation LLC v. Alexander

Filing 4

ORDER REMANDING CASE. IT IS THEREFORE ORDERED that the Magistrate Judge's 3 Report and Recommendation is ADOPTED in its entirety. This case is REMANDED back to the Justice Court, Township of Las Vegas, Clark County, Nevada, Case No. 24CO256 54, Department 4, for lack of subject-matter jurisdiction; the 1 application to proceed in forma pauperis is DENIED; and the Clerk of Court is directed to CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 1/7/2025. (Copies have been distributed pursuant to the NEF - Certified Docket Sheet/Order mailed to LV JC - ALZ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Case No. 2:24-cv-02262-JAD-NJK

URBAN ELEVATION LLC,
Plaintiff

ORDER ADOPTING REPORT AND
RECOMMENDATION AND
REMANDING CASE

v.
NICHOLAS ALEXANDER,

ECF Nos. 1, 3

Defendant

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On December 13, 2024, the magistrate judge entered the following report and

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recommendation [ECF No. 3]:

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I.

Magistrate Judge Authority
The Court first evaluates its authority to address the matter.

The authority of the

15 undersigned magistrate judge is derived from 28 U.S.C. § 636, which generally provides
16 magistrate judges with the authority to “hear and determine” non-dispositive matters. See 28
17 U.S.C. § 636(b)(1)(A); see also S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1259 (9th Cir.
18 2013). By contrast, dispositive matters are sometimes referred to magistrate judges, but in those
19 circumstances a magistrate judge submits a recommendation to the assigned district judge that is
20 subject to the district judge’s de novo review. See 28 U.S.C. § 636(b)(1)(B); see also CMKM
21 Diamonds, 729 F.3d at 1259-60. Section 636 specifically enumerates eight different types of
22 matters to be treated as “dispositive.” See 28 U.S.C. § 636(b)(1)(A)-(B). When a matter falls
23 outside of those expressly enumerated as dispositive, courts look to the nature and effect of the
24 issued ruling to determine whether the underlying matter should be considered dispositive or non25 dispositive. See, e.g., Maisonville v. F2 America, Inc., 902 F.2d 746, 748 (9th Cir. 1990).
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Given the Court’s separate duty to ensure that it has subject matter jurisdiction over the
dispute before it, the Court need not address whether Defendant qualifies to proceed in forma
28 pauperis.
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The Ninth Circuit has held that remanding a case to state court, while not case-dispositive,

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2 is dispositive of proceedings in federal court and is therefore beyond the authority of magistrate
3 judges. Flam v. Flam, 788 F.3d 1043, 1047 (9th Cir. 2015). As such, the undersigned will issue
4 a report and recommendation to the assigned district judge. See id.
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II.

Standards
Cases may be removed from state court to federal court based on the existence of federal

7 subject matter jurisdiction. 28 U.S.C. § 1441. The Court has a duty to ensure that it has subject
8 matter jurisdiction over the dispute before it, an issue it may raise at any time during the
9 proceedings. See, e.g., Fed. R. Civ. P. 12(h)(3). “Federal courts are courts of limited jurisdiction,”
10 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377(1994), and there is a strong
11 presumption against removal jurisdiction, Gaus v. Miles, 980 F.2d. 564, 566 (9th Cir. 1992).
12 “[F]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first
13 instance.” Id. Removing defendants bear the burden of establishing that removal is proper. Id.
14 “A federal court is presumed to lack jurisdiction in a particular case unless the contrary
15 affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873
16 F.2d 1221, 1225 (9th Cir. 1989).
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a. Federal Question Jurisdiction
“Removal based on federal-question jurisdiction is reviewed under the longstanding well-

19 pleaded complaint rule.” Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018). The
20 “well-pleaded complaint rule provides that federal jurisdiction exists only when a federal question
21 is presented on the face of the plaintiff’s properly pleaded complaint.” California ex rel. v. Locyer
22 v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2003) (internal citations omitted). The federal issue
23 “must be disclosed upon the face of the complaint, unaided by the answer or by the petition for
24 removal.” Id. (internal citations omitted). Moreover, defenses and counterclaims cannot be used
25 to establish federal question jurisdiction. Vaden v. Discover Bank, 556 U.S. 49, 60 (2009).
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Here, there is no apparent federal question as Defendant seeks to remove an unlawful

27 detainer action and his notice indicates that the underlying claim involves his eviction. Docket
28 Nos. 1-2, 1-1 at 3. Defendant submits that federal question jurisdiction exists because Plaintiff
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1 “violate[d] several federal statutes” such as 15 U.S.C 1692 and the Fair Credit Reporting Act. Id.
2 at 1. Defendant’s defense alleging violations of federal law cannot be used as a basis for federal
3 question jurisdiction.
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b. Timeliness

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28 U.S.C. § 1446 provides:

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The notice of removal of a civil action or proceeding shall be filed
within 30 days after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based, or within 30
days after the service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to be served
on the defendant, whichever period is shorter.
Here, proof of service for the underlying state complaint was filed on September 23, 2024.

11 See Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (federal courts may take judicial notice
12 of state court records). Defendant filed his answer on October 4, 2024, Docket No. 1-2 at 4, and
13 removed the case to this Court on December 6, 2024. See Docket No. 1. Thus, Defendant’s notice
14 of removal is untimely.
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Accordingly, the undersigned RECOMMENDS that this case be REMANDED to state

16 court for lack of subject matter jurisdiction. In light of this recommendation, the Court DENIES
17 Defendant’s application to proceed in forma pauperis. Docket No. 1.
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Dated: December 13, 2024
______________________________
Nancy J. Koppe
United States Magistrate Judge

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Order Adopting Report and Recommendation
The deadline for any party to object to this recommendation was December 27, 2024, and

24 no party filed anything or asked to extend the deadline to do so. “[N]o review is required of a
25 magistrate judge’s report and recommendation unless objections are filed.” United States v.
26 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

Having reviewed the report

27 and recommendation, I find good cause to adopt it, and I do. IT IS THEREFORE ORDERED
28 that the Magistrate Judge’s Report and Recommendation [ECF No. 3] is ADOPTED in its
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1 entirety. This case is REMANDED back to the Justice Court, Township of Las Vegas,
2 Clark County, Nevada, Case No. 24CO25654, Department 4, for lack of subject-matter
3 jurisdiction; the application to proceed in forma pauperis [ECF No. 1] is DENIED; and the
4 Clerk of Court is directed to CLOSE THIS CASE.
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_________________________________
U.S. District Judge Jennifer A. Dorsey
Dated: January 7, 2025

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