395 Lampe, LLC v. Desert Ranch, LLLP et al

Filing 36

ORDER DENYING 13 Motion to Remand. Signed by Judge Larry R. Hicks on 10/29/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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395 LAMPE, LLC,

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Plaintiff,

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v.

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DESERT RANCH, LLLP; et al.,

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Defendants.

3:12-cv-0358-LRH-WGC
ORDER

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Before the court is plaintiff 395 Lampe, LLC’s (“Lampe”) motion to remand. Doc. #13.1

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I.

Facts and Procedural History
Plaintiff Lampe is a Nevada company. In April 2008, defendant Blixseth, a Washington citizen,

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executed a promissory note for ten million dollars ($10,000,000.00) in favor of Lampe. Blixseth then

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defaulted on the promissory note.

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After default, Lampe, Blixseth and non-party Overlook Partners, LLC (“Overlook Partners”)

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entered into an agreement on May 5, 2008 (“the Note Agreement”). As part of the Note Agreement,

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Blixseth assigned a promissory note from Overlook Partners to Lampe and signed a continuing guaranty

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on that promissory note.

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Ultimately, Lampe did not receive the funds owed and filed the underlying action in state court.

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Refers to the court’s docket

entry number.

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Defendant Blixseth removed this action to federal court on the basis of diversity jurisdiction. Doc. #1.

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Thereafter, Lampe filed the present motion to remand. Doc. #13.

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II.

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Legal Standard
Under 28 U.S.C. § 1441, “any civil action brought in a State court of which the district courts of

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the United States have original jurisdiction, may be removed by the defendant or the defendants, to the

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district court of the United States for the district and division embracing the place where such action is

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pending." 28 U.S.C. § 1441(a).

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Removal of a case to a United States district court may be challenged by motion. 28 U.S.C. §

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1441(c). A federal court must remand a matter if there is a lack of jurisdiction. Id. Removal statutes are

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construed restrictively and in favor of remanding a case to state court. See Shamrock Oil & Gas Corp.

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v. Sheets, 313 U.S. 100, 108-09 (1941); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). On a

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motion to remand, the removing defendant faces a strong presumption against removal, and bears the

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burden of establishing that removal is proper. Gaus, 980 F.2d at 566-67; Sanchez v. Monumental Life

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Ins. Co., 102 F.3d 398, 403-04 (9th Cir. 1996).

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III.

Discussion

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A. Diversity Jurisdiction

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A district court has original jurisdiction over civil actions where the suit is between citizens of

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different states and the amount in controversy, exclusive of interest and costs, exceeds $75,000. 28

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U.S.C. § 1332(a).

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Here, Blixseth argues that there is complete diversity between the parties because plaintiff Lampe

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is a citizen of the State of Nevada while defendants are citizens of Oregon and Washington. See Doc.

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#27. The court agrees.

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Defendant Desert Ranch, LLLP, is a limited liability limited partnership. An unincorporated

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association, such as a partnership, is a citizen of all states where it has members. Johnson v. Columbia

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Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). The members of Desert Ranch are

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defendant Blixseth, and Desert Ranch Management, LLC (“DRM”), a Nevada limited liability company.

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“[L]ike a partnership, an LLC is a citizen of every state of which its owners are citizens.” Id. The owners

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of DRM are Blixseth; Beau M. B Blixseth, a citizen of Oregon; and two family trusts which are citizens of

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Oregon. Thus, there is complete diversity between the parties. Therefore, the court finds that the exercise

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of diversity jurisdiction is appropriate and shall deny Lampe’s motion to remand.

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B. Proper Venue

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Lampe argues, in the alternative, that even if there is complete diversity between the parties, this

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actions should still be remanded to state court because the venue provision in the agreement mandates a

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state court venue. See Doc. #13. Paragraph 14 of the Note Agreement specifically provides that “venue

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for any action or suit to interpret [or] enforce any provisions of this Agreement shall be in Douglas or

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Washoe County, Nevada.” Doc. #13, Exhibit 1, ¶14 (emphasis added). Lampe interprets this provision

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to require a state court in Douglas or Washoe County.

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The court has reviewed the documents and pleadings on file in this matter and disagrees. The use

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of the word in mandates that the action be physically brought in either Douglas or Washoe County,

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Nevada. See Alliance Health Grp., LLC v. Bridging Health Options, LLC, 553 F.3d 397, 399-400

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(5th Cir. 2008) (clause stating that “exclusive venue for any litigation related hereto shall occur in Harrison

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County, Mississippi” mandated venue “in Harrison County” but “in either federal or state court, because a

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federal courthouse is located in that county”). This court is located in Washoe County. Therefore, venue is

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proper in this court.

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Lampe’s interpretation, in contrast, would require the court to rewrite the Note Agreement to

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specify venue in a court of Douglas or Washoe County, a term which is specifically limited to state courts.

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See Doe 1 v. AOL LLC, 552 F.3d 1077, 1081-82 (9th Cir. 2009) (“We hold that the forum selection

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clause at issue here - designating the courts of Virginia - means the state courts of Virginia only; it does

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not also refer to federal courts in Virginia.”) (emphasis added). As contractual forum selection clauses are

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“prima facie valid” and enforceable, the court shall not rewrite the contractually agreed upon language.

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See M/S Bremen v. Zapata Offshore Co., 407 U.S. 1, 10 (1972). Accordingly, the court shall deny the

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motion to remand.

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IT IS THEREFORE ORDERED that plaintiff’s motion to remand (Doc. #13) is DENIED.

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IT IS SO ORDERED.

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DATED this 29th day of October, 2012.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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