Ribar v. State of Nevada Department of Corrections et al
Filing
38
ORDER - It is therefore ordered that the Carson City Defendants must file a response to this order to show cause by December 2, 2024. It is further ordered that Plaintiff may file a response by December 12, 2024. Signed by District Judge Anne R. Traum on 11/22/2024. (Copies have been distributed pursuant to the NEF - GA)
1
2
3
UNITED STATES DISTRICT COURT
4
DISTRICT OF NEVADA
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
DREW J. RIBAR,
v.
Case No. 3:24-cv-00103-ART-CLB
Plaintiff,
ORDER TO SHOW CAUSE WHY
REMOVAL WAS PROPER
STATE OF NEVADA EX. REL.
NEVADA DEPARTMENT OF
CORRECTIONS, CARSON CITY AND
ITS SHERIFFS OFFICE, CARSON
CITY DISTRICT ATTORNEYS OFFICE,
CARSON CITY MANAGERS OFFICE,
FERNANDEIS FRAZAIER IN HIS
OFFICIAL CAPACITY AS WARDEN OF
NORTHERN NEVADA
CORRECTIONAL, AARON RYDER IN
HIS OFFICIAL CAPACITY AS AN
OFFICER OF NEVADA DEPARTMENT
OF CORRECTIONS, ROBERT SMITH
IN HIS OFFICIAL CAPACITY AS AN
OFFICER OF NEVADA DEPARTMENT
OF CORRECTIONS, JASON BUENO
IN HIS OFFICIAL CAPACITY AS AN
OFFICER OF CARSON CITY
SHERIFF, SEAN PALAMAR RYDER IN
HIS OFFICIAL CAPACITY AS AN
OFFICER OF CARSON CITY
SHERIFF, TYSON DARIN LEAGUE
RYDER IN HIS OFFICIAL CAPACITY
AS AN OFFICER OF CARSON CITY
DISTRICT ATTORNEY, JAMES
DZURENDA (DIRECTOR NEVADA
DEPARTMENT OF CORRECTIONS),
JASON D. WOODBURY (CARSON
CITY DISTRICT ATTORNEY),
KENNETH T. FURLONG IN HIS
CAPACITY AS SHERIFF CARSON
CITY, NV, OFFICER/DEPUTY/J. DOE
1-99,
Defendants.
26
On January 29, 2024, Plaintiff Drew J. Ribar filed the instant case in the
27
First Judicial District Court of Nevada, alleging several federal constitutional and
28
state law claims (ECF No 1-1.) Carson City Defendants timely filed a petition for
1
1
removal in the District of Nevada on February 29, 2024. (ECF No. 1.)
2
Under 28 U.S. § 1446(a)(2)(A), “When a civil action is removed solely under
3
section 1441(a), all defendants who have been properly joined and served must
4
join in or consent to the removal of the action.” 28 U.S. § 1441(a) permits removal
5
based on original subject matter jurisdiction of the federal courts. “The defendant
6
always has the burden of establishing that removal is proper,” Hunter v. Philip
7
Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). Federal courts must consider
8
sua sponte issues that concern subject-matter jurisdiction. Kwai Fun Wong v.
9
Beebe, 732 F.3d 1030, 1035–36 (9th Cir. 2013).
10
Carson City Defendants’ petition for removal cites 28 U.S.C. § 1441(a) as
11
the basis for removal, as there is federal question jurisdiction over plaintiff’s
12
constitutional claims under 28 U.S.C. § 1331. (ECF No. 1 at 2.) Thus, the
13
requirement under 28 U.S. § 1446(a)(2)(A) that all properly joined and served
14
defendants join or consent to removal applies.
15
Here, it appears that Carson City Defendants removed this action without
16
several of the other Defendants listed in the state court complaint (ECF Nos. 1;
17
1-1.) It does not appear that those Defendants were served with the petition for
18
removal. (Id. at 4.) In the statement of removal, Carson City Defendants state that
19
they “are not aware that any of the other Defendants were served prior to the
20
Defendants’ filing of the Petition for Removal.” (ECF No. 6 at 3.) However, Plaintiff
21
has submitted an affidavit alleging service of Defendants State of Nevada
22
Department of Corrections, Smith, and Dzurenda on February 13, 2024. (ECF
23
Nos. 18; 23; 28.) This calls into question whether removal without these
24
Defendants was proper under § 1446(a)(2)(A).
25
As the removing defendant bears the burden of establishing that removal
26
is proper, the Court orders Carson City Defendants to show cause why removal
27
in this action without the joinder or consent of all other Defendants in the state
28
court action was proper.
2
It is therefore ordered that the Carson City Defendants must file a response
1
2
to this order to show cause by December 2, 2024.
It is further ordered that Plaintiff may file a response by December 12,
3
4
2024.
5
6
Dated this 22nd day of November, 2024.
7
8
9
10
ANNE R. TRAUM
UNITED STATES DISTRICT JUDGE
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?