Yahn et al v. Kentucky Western Co. et al

Filing 27

ORDER - It is ordered that Plaintiffs' motion to remand (ECF No. 10 ) is granted. Plaintiffs' request for attorney's fees, costs, and actual expenses is denied. (ECF No. 10 at 8-9.) It is further ordered that this ca se is remanded to the Eighth Judicial District Court of Clark County. The Clerk of Court is directed to close this case. Signed by Chief Judge Miranda M. Du on 10/25/2021. Case terminated. (Copies have been distributed pursuant to the NEF - SMR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LORI JEAN YAHN, et al.,

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v.

Plaintiffs,

ORDER

KENTUCKY WESTERN CO., et al.,
Defendants.

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Case No. 3:21-cv-00227-MMD-WGC

I.

SUMMARY

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Plaintiffs 1 sued Defendants after Timothy J. Yahn (“Decedent”) was killed and his

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son, Kyle James Yahn (“Kyle”), was injured in a car accident involving a vehicle operated

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by Defendant Martin Douglas Wilson and owned by Defendant Kentucky Western

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Company (“Kentucky Western”). (ECF No. 17-1 at 5-6.) Before the Court is Plaintiffs’

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motion to remand (ECF No. 10 (“Motion”)), arguing the amount in controversy does not

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exceed the $75,000 jurisdictional threshold. 2 As further explained below, the Court finds

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that Defendants have failed to establish the amount in controversy surpasses the $75,000

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jurisdictional minimum. The Court will therefore grant Plaintiffs’ Motion.

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1Plaintiffs

Lori Jean Yahn (individually and as Co-Special Administrator of the
Estate of Timothy J. Yahn), Kyle James Yahn, Zachary Lee Yahn, Alexander Scott Yahn,
and Janice Gonzalez (as Co-Special Administrator of the Estate of Timothy J. Yahn)
brought this case against Defendants Kentucky Western Company, Martin Douglas
Wilson, Roe Entities, Doe Defendants, and ABC Limited Liability Companies. (ECF No.
10 at 1-2.)
2Defendants

also filed a statement concerning removal (ECF No. 11), a response
to the Motion (ECF No. 17), and a supplement to their response (ECF No. 25). Plaintiffs
filed a reply in support of their Motion (ECF No. 19) and a reply to Defendants’ supplement
(ECF No. 26).

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II.

BACKGROUND

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On September 10, 2018, Decedent was driving westbound on I-80. (ECF No. 17-

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1 at 5.) Plaintiff Kyle was a passenger in Decedent’s car. (Id.) A second vehicle was

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driving in the wrong direction and struck Decedent’s car, causing his car to go into the

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right shoulder of the freeway. (Id.) Plaintiffs allege that Defendant Wilson, who was also

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driving westbound on I-80, “failed to maintain his lane or stop for the collision.” (Id. at 6.)

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Wilson’s truck entered the right shoulder and collided into Decedent’s car, causing

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Decedent’s death and Plaintiff Kyle’s injuries. (Id.) Decedent’s widow and sons filed the

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Complaint, individually and on behalf of Decedent, in the Eighth Judicial District in and for

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Clark County. (Id. at 3.)

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Plaintiffs assert the following claims in the Complaint: (1) wrongful death under

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NRS § 41.085; (2) negligence/negligence per se as to Defendant Wilson; (3) negligent

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hiring, training, and supervision as to Defendant Kentucky Western; and (4) negligent

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entrustment as to Defendant Kentucky Western. (Id. at 6-10.) Defendants previously

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removed this case, but United States District Judge Jennifer A. Dorsey remanded it

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because Defendants failed to show that the amount-in-controversy exceeded the $75,000

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threshold. See Yahn, et al., v. Kentucky Western Co., et al., Case No. 2:20-cv-01701-

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JAD-EJY, ECF No. 17 (D. Nev. Nov. 24, 2020) (“Yahn I”).

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Defendants then removed this case a second time, on May 6, 2021. (ECF No. 1.)

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After Defendants filed their second petition for removal to the Southern Division of the

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District of Nevada (Las Vegas), United States District Judge Gloria M. Navarro ordered

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the case transferred to the Northern Division (Reno) because the accident occurred in

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Elko County. (ECF No. 7.) This case was subsequently reassigned to the undersigned.

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(ECF No. 8.) The Motion followed shortly thereafter.

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III.

LEGAL STANDARD

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Federal courts are courts of limited jurisdiction, having subject-matter jurisdiction

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only over matters authorized by the Constitution and Congress. See U.S. Const. art. III,

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§ 2, cl. 1; Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A suit
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filed in state court may be removed to federal court if the federal court would have had

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original jurisdiction over the suit at commencement of the action. See 28 U.S.C. § 1441(a).

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The party seeking removal bears the burden of establishing federal jurisdiction. See

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Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006).

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To establish subject matter jurisdiction pursuant to diversity of citizenship under §

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1332(a), the party asserting jurisdiction must show: (1) complete diversity of citizenship

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among opposing parties and (2) an amount in controversy exceeding $75,000. See 28

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U.S.C. § 1332(a). The Court may consider “facts presented in the removal petition as well

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as any ‘summary-judgment-type evidence relevant to the amount in controversy at the

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time of removal.’” Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th

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Cir. 2003) (citations omitted).

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IV.

DISCUSSION

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The Court first addresses the parties’ arguments regarding the amount in

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controversy, then addresses the timeliness of Defendants’ second removal petition, and

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finally addresses Plaintiffs’ request for attorney’s fees. Because Plaintiffs do not request

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a specific damages amount in the Complaint and instead allege general, special, and

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punitive damages “in excess of $15,000,” Defendants must prove, by a preponderance

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of the evidence, that the amount in controversy requirement is satisfied. 3 (ECF No. 17-1

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at 11.) See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004) (citations

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omitted). Because Defendants have failed to make this showing and failed to timely file

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their removal petition, the Court will grant Plaintiff’s Motion.

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A.

Amount in Controversy

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A second removal after remand is disfavored and generally impermissible unless

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Defendants can show that “subsequent pleadings or events reveal a new and different

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ground for removal.” Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 789 (9th Cir.

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2018) (citations omitted). The only “new and different ground for removal” Defendants

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3Plaintiffs

do not dispute that complete diversity of citizenship exists. (ECF No. 10.)
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provide in response to Plaintiff’s Motion are their own offers of judgment and Plaintiffs’

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failure to respond to the offers. 4 (ECF No. 1 at 4.) Settlement offers are only “relevant

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evidence of the amount in controversy if [they] appear[] to reflect a reasonable estimate

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of the plaintiff’s claim.” Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002) (citations

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omitted). Notably, they are not dispositive or determinative, by themselves, of the amount

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in controversy. See id. Defendants provide no basis for, or evidence to support, their

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chosen offer amount of $75,001, conveniently $1 over the $75,000 jurisdictional

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threshold. (ECF No. 1 at 4.) The paucity of supporting evidence suggests that Defendants

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manufactured the $75,001 figure to establish federal jurisdiction and that their offer does

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not reflect a reasonable estimate of Plaintiffs’ claims. See Boatright v. Ford Motor Co.,

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Case No. 18-cv-03157-BLF, 2018 WL 4488762, at *3 (N.D. Cal. Sept. 17, 2018) (finding

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defendant’s lack of evidence to “ground” their $75,001 settlement offer and the monetary

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figure itself indicated they “simply manufactured the number out of whole cloth”).

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Further, Plaintiffs’ failure to accept Defendants’ offers is not a concession that the

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amount in controversy exceeds $75,000. (ECF No. 17 at 12.) While this question is not

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definitively settled, most district courts that have considered similar circumstances have

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found that “a plaintiff’s failure to accept a settlement offer does not prove the amount of

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[sic] controversy requirement is satisfied.” Franklin v. FCA US, LLC, Case No. EDCV 20-

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343-MWF, 2020 WL 2787624, at *4 (C.D. Cal. May 29, 2020); see also Boatright, 2018

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WL 4488762, at *3 (declining to find that plaintiff’s rejection “reasonably serve[d] as

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evidence of the amount in controversy”); Burrowes v. Swift Transp. Co., Inc., Case No.

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10-00138-CG-N, 2010 WL 2976102, at *6-*7 (S.D. Ala. June 29, 2010) (finding “no

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adverse inference may reasonably be drawn from plaintiffs’ failure to accept [defendants’]

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offer, even if it were deemed to have been intentional”); Jackson v. Metro. Prop. & Cas.

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4Defendants

also argue in their response that Plaintiff Kyle’s $30,679.51 in medical
expenses and Plaintiffs’ two prelitigation demand letters demonstrate that the amount in
controversy exceeds $75,000. (ECF No. 17 at 12-13.) However, Defendants already
raised these arguments in response to the first remand motion, and Judge Dorsey ruled
that Defendants failed to establish that the amount in controversy exceeded $75,000. See
Yahn I, ECF Nos. 9 at 6-7, 17 at 1. They would therefore not qualify as a “new or different
ground” for removal. See Fritsch, 899 F.3d at 789 (citations omitted).
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Ins. Co., Case No. 6:09-CV-604-ORL-31GJK, 2009 WL 1456439, at *2 (M.D. Fla. May

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22, 2009) (finding plaintiff’s silence or rejection of the settlement offer “did not alter the

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amount in controversy”). The Court agrees with these other district courts and finds that

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Plaintiffs’ nonresponse to Defendants’ offers of judgment is not evidence that the amount

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in controversy is satisfied. Moreover, the Court must reject jurisdiction if “there is any

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doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564,

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566 (9th Cir. 1992) (emphasis added, citation omitted). Defendants’ second bite at the

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apple is therefore unpersuasive. Defendants have failed to sufficiently show that the

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amount in controversy requirement is satisfied here.

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B.

Timeliness of Removal and Attorney’s Fees

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Alternatively, the Court finds that Defendants’ second notice of removal is

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untimely. 5 Under 28 U.S.C. § 1446(b)(3), “if the initial pleading does not indicate that the

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case is removable,” Defendants may file their notice of removal within 30 days after they

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receive “a copy of an amended pleading, motion, order or other paper from which

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removability may first be ascertained.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d

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876, 885 (9th Cir. 2010) (citing 28 U.S.C. § 1446(b)(3)) (quotations omitted); see also

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Durham, 445 F.3d at 1251 (stating courts do not charge defendants “with notice of

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removability until they’ve received a paper that gives them enough information to

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remove”). “If the notice of removal was untimely, a plaintiff may move to remand the case

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back to state court.” Carvalho, 629 F.3d at 885. Here, Plaintiffs’ Complaint does not clearly

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indicate that the case is removable. (ECF No. 17-1.) Defendants accordingly must have

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removed within 30 days of the receipt of some other pleading or paper.

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Defendants’ own offers of judgment to Plaintiffs, 6 each in the amount of $75,001,

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indicate they had sufficient notice of removability to trigger the 30-day time limit. (ECF

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Nos. 17-6, 17-7.) The two offers of judgment were dated and served on March 21, 2021.

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5Plaintiffs

also moved to remand because Defendants’ removal petition was not
timely filed. (ECF No. 10 at 7-8.)
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§ 1446(b)(3).

without deciding these can be considered “other paper.” See 28 U.S.C.
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(ECF Nos. 17-6 at 2, 4, 17-7 at 2, 4.) Defendants’ second petition for removal was not

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filed with this Court until May 6, 2021, which exceeds the 30-day removal deadline. (ECF

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No. 1.) The Court alternatively grants Plaintiffs’ Motion on this basis. See Things

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Remembered, Inc. v. Petrarca, 516 U.S. 124, 128 (1995) (stating that remand based on

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untimely removal is “precisely the type of removal defect contemplated by § 1447(c)”);

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Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir.1980) (stating that “a timely

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objection to a late petition will defeat removal”); Beck v. Nationstar Mortg., Case No. 3:19-

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cv-00545-MMD-WGC, 2019 WL 5839311, at *2 (D. Nev. Nov. 6, 2019) (granting the

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plaintiff’s motion to remand because defendants’ removal was untimely).

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In their Motion, Plaintiffs also request attorney’s fees, costs, and other expenses

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upon remand. (ECF No. 10 at 8-9.) However, Plaintiffs failed to comply with the Local

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Rule governing requests for attorney’s fees. LR 54-14 expressly provides that a motion

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for attorney’s fees must adhere to specific formalities and include an attorney affidavit

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authenticating the information in the motion. And LR 54-14(c) warns that non-compliance

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“may be deemed a consent [by the party] to the denial of the motion.” See id. Because

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Plaintiffs did not include the required information in their Motion or file a separate motion

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for attorney’s fees, the Court denies their request.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of the

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Motion before the Court.

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It is therefore ordered that Plaintiffs’ motion to remand (ECF No. 10) is granted.

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It is further ordered that Plaintiffs’ request for attorney’s fees, costs, and actual

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expenses is denied. (ECF No. 10 at 8-9.)
It is further ordered that this case is remanded to the Eighth Judicial District Court

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of Clark County.

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The Clerk of Court is directed to close this case.

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DATED THIS 25th Day of October 2021.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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