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)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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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.

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On January 29, 2024, Plaintiff Drew J. Ribar filed the instant case in the

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First Judicial District Court of Nevada, alleging several federal constitutional and

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state law claims (ECF No 1-1.) Carson City Defendants timely filed a petition for

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removal in the District of Nevada on February 29, 2024. (ECF No. 1.)

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Under 28 U.S. § 1446(a)(2)(A), “When a civil action is removed solely under

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section 1441(a), all defendants who have been properly joined and served must

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join in or consent to the removal of the action.” 28 U.S. § 1441(a) permits removal

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based on original subject matter jurisdiction of the federal courts. “The defendant

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always has the burden of establishing that removal is proper,” Hunter v. Philip

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Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). Federal courts must consider

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sua sponte issues that concern subject-matter jurisdiction. Kwai Fun Wong v.

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Beebe, 732 F.3d 1030, 1035–36 (9th Cir. 2013).

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Carson City Defendants’ petition for removal cites 28 U.S.C. § 1441(a) as

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the basis for removal, as there is federal question jurisdiction over plaintiff’s

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constitutional claims under 28 U.S.C. § 1331. (ECF No. 1 at 2.) Thus, the

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requirement under 28 U.S. § 1446(a)(2)(A) that all properly joined and served

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defendants join or consent to removal applies.

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Here, it appears that Carson City Defendants removed this action without

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several of the other Defendants listed in the state court complaint (ECF Nos. 1;

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1-1.) It does not appear that those Defendants were served with the petition for

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removal. (Id. at 4.) In the statement of removal, Carson City Defendants state that

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they “are not aware that any of the other Defendants were served prior to the

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Defendants’ filing of the Petition for Removal.” (ECF No. 6 at 3.) However, Plaintiff

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has submitted an affidavit alleging service of Defendants State of Nevada

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Department of Corrections, Smith, and Dzurenda on February 13, 2024. (ECF

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Nos. 18; 23; 28.) This calls into question whether removal without these

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Defendants was proper under § 1446(a)(2)(A).

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As the removing defendant bears the burden of establishing that removal

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is proper, the Court orders Carson City Defendants to show cause why removal

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in this action without the joinder or consent of all other Defendants in the state

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court action was proper.

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It is therefore ordered that the Carson City Defendants must file a response

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to this order to show cause by December 2, 2024.
It is further ordered that Plaintiff may file a response by December 12,

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2024.

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Dated this 22nd day of November, 2024.

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ANNE R. TRAUM
UNITED STATES DISTRICT JUDGE

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