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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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

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