Lorraine v. Wallin et al

Filing 47

ORDER - The court hereby directs the Clerk to FILE the notice of removal (initially filed as ECF No. 44 in this action, 3:16-cv-00409-MMD-WGC), in a NEW ACTION, taking the 3:16-cv- 00409-MMD-WGC case number off and inserting the new case number for the filing in the new action. Plaintiff must either pay the filing fee or submit a new completed application to proceed in forma pauperis (IFP) for the new action. Therefore, the Clerk shall SEND Plaintiff the IFP ins truction packet and form. ( Mailed to P 3/2/2017 with instant Order. ) Plaintiff shall have TWENTY DAYS from the date of this Order to pay the filing fee or submit a completed IFP application in the new action. Signed by Magistrate Judge William G. Cobb on 3/1/2017. (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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CONSTANCE LORRAINE,
Plaintiff,

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Case No. 3:16-cv-00409-MMD-WGC
ORDER

v.
NORMAN L. WALLIN, et. al.
Defendants.

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Plaintiff previously filed in this case a motion to remove a state court action in which she
is sued by one of the defendants in this action. (Electronic Case Filing (ECF) No. 32.) At a
January 10, 2017 status conference, the court advised Plaintiff that a party seeking to remove a
state court case to federal court must file a notice of removal in a new action in federal court, and
not in a pending federal court case. (See Minutes of Jan. 10, 2017 status conference, ECF No. 43
at 2.) As such, the court denied Plaintiff’s motion to remove without prejudice, advising her that
she could still seek to remove the state court case to federal court but to do so she must submit
the notice of removal in a new action. (Id.) Defendant Santander Consumer USA Inc. dba
Chrysler Capital Santander) had filed a motion to remand (ECF No. 40), presumably in response
to Plaintiff’s motion for removal, which the court denied as moot in light of the denial of the
motion to remove. (Id.)
Then, on February 1, 2017, Plaintiff submitted a notice of removal attaching the state
court complaint and proposed summons. (ECF No. 44.) Plaintiff did not include the 3:16-cv00409-MMD-WGC case number on the notice of removal, but it was filed in that case. Because
the notice of removal should have been filed as a new action, it was stricken. Santander, who
presumably did not see the docket notation striking the document, filed a second motion to
remand. (ECF No. 45.)

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The court hereby directs the Clerk to FILE the notice of removal (initially filed as ECF
No. 44 in this action, 3:16-cv-00409-MMD-WGC), in a NEW ACTION, taking the 3:16-cv00409-MMD-WGC case number off and inserting the new case number for the filing in the new
action.

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Plaintiff must either pay the filing fee or submit a new completed application to proceed
in forma pauperis (IFP) for the new action. Therefore, the Clerk shall SEND Plaintiff the IFP
instruction packet and form. Plaintiff shall have TWENTY DAYS from the date of this Order to
pay the filing fee or submit a completed IFP application in the new action.

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If Plaintiff pays the filing fee, she must serve Santander. If she submits a completed IFP
application, and if the court approves the application, the court will direct the Clerk to issue a
summons for service by the U.S. Marshal.1

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Once service is complete, Santander may re-file its operative motion to remand in the
new action. At that time, the court will issue a briefing schedule for the response and reply
briefs.
IT IS SO ORDERED.
DATED: March 1, 2017.

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__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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Alternatively, Santander may opt to file a notice of acceptance of service in the new action.

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