Ames et al v. Ames, No. 2:2018cv00361 - Document 15 (E.D. Wash. 2019)
Court Description: ORDER GRANTING PLAINTIFFS MOTION TO REMAND. Plaintiffs Stanley Ames and Wesley Ames Motion to Remand ECF No. 3 is GRANTED. Case remanded to Stevens County Superior Court. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy) (Service of Notice on parties not registered as users of the Court CM/ECF system accomplished via USPS mail.)
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Ames et al v. Ames Doc. 15 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Mar 18, 2019 SEAN F. MCAVOY, CLERK 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 WESLEY B. AMES and STANLEY R. AMES, Plaintiffs, 9 10 11 NO. 2:18-CV-0361-TOR ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND v. RANDALL S. AMES and CALEB AMES, 12 Defendants. 13 14 BEFORE THE COURT is Plaintiffs Stanley Ames and Wesley Ames’ 15 Motion to Remand (ECF No. 3) and Defendant Caleb and Randall Ames’s 16 (Second) Motion for Extension of Time to File Response (ECF No. 8), and 17 corresponding Motion to Expedite (ECF Nos. 10; 14 (amended)). The Motion to 18 Remand was filed on December 21, 2018, without a request for oral argument. On 19 January 22, 2019, Defendants Randall Ames and Caleb Ames requested an 20 extension of time to respond to the Motion. ECF No. 4. In open Court on January ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 1 Dockets.Justia.com 1 28, 2019, the Court granted the request, giving Defendants until February 22, 2019 2 to file their Response. ECF Nos. 4; 6. Defendants submitted a belated Motion to 3 Extend (ECF No. 8) on March 13, 2019 along with a Motion to Expedite (ECF 4 Nos. 10; 14 (amended motion)). Defendants submitted a Response to the Motion 5 to Remand on March 15, 2018. ECF No. 12. The Court has reviewed the record 6 and files herein, and is fully informed. For the reasons discussed below, the 7 Motion to Remand (ECF No. 3) is granted and the Motion for Extension of Time 8 (ECF No. 8) and corresponding Motion to Expedite (ECF Nos. 10; 14 (amended 9 motion)) are denied as moot. 10 BACKGROUND 11 This case is one of many brought before this Court involving the Ames 12 brothers—Stanley, Wesley, and Randall. In short, Randall and his family moved 13 in with the Ames brothers’ parents (Roy and Rubye Ames), who held a life estate 14 in property located on Haverland Meadows Rd., Valley, Washington (the “farm”). 15 Stanley and Wesley Ames held the remaining interest in the property. Sometime 16 around the time Randall moved in with his parents, the family became entangled in 17 multiple suits involving the ownership of the farm, alleged theft and failure to 18 maintain property on the farm, and general allegations of inter-familial 19 wrongdoing—pitting Wesley, Stanley, and their sister Merita Dysart against 20 Randall. ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 2 1 Roy Ames passed away in March 2016. Case No. 2:13-cv-0261-TOR, ECF 2 No. 42 at 8, ¶ 27. Rubye Ames passed away in June 2018, vesting Stanley and 3 Wesley with the remaining rights to the property. However, Randall and his 4 family allegedly concealed the death of Rubye Ames for a period of time. See 5 ECF No. 3 at 23-28. Although the property vested at the time of Rubye’s death, 6 Randall and his family did not immediately leave the farm; when they eventually 7 left, they allegedly took property belonging to Stanley and Wesley (and their sister 8 Merita) along with them. This latter action is the basis for this suit. On July 3, 2018, Stanley and Wesley brought suit in the Superior Court of 9 10 the State of Washington for the County of Stevens, alleging claims for conversion 11 and timber waste based on Defendants alleged theft, and requesting the Court 12 enjoin Defendants from entering or removing property from the farm. See ECF 13 No. 1 at 49-52. On July 8, 2018, Merita attempted to serve Defendants at the farm 14 at Wesley’s request. ECF No. 3 at 70, ¶ 1. The Parties dispute what happened that 15 day, but the dispute is irrelevant for this Motion. Plaintiffs mailed the First 16 Amended Complaint (ECF No. 1 at 36-44) to Defendants on August 24, 2018. 17 ECF No. 3 at 14. On November 23, 2018, Defendants removed the case to this 18 Court. ECF No. 1. Plaintiffs now challenge the legitimacy of the removal and ask 19 the Court to remand the case back to state court. 20 // ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 3 1 2 GOVERNING LAW A defendant may remove a civil action filed in state court to federal court so 3 long as the district court could have exercised original jurisdiction over the matter 4 and the notice of removal is timely filed. 28 U.S.C. § 1441(a); 28 U.S.C. § 5 1446(b). “[W]hen diversity of citizenship is the basis of removal, diversity must 6 exist not only at the time the action was filed in the state court, but also at the time 7 the case is removed to federal court.” Removal Based on Diversity of Citizenship 8 and Alienage Jurisdiction, 14C Fed. Prac. & Proc. Juris. § 3723 (Rev. 4th ed.). 9 The notice of removal must be “filed within 30 days after the receipt by the 10 defendant, through service or otherwise, of a copy of the initial pleading setting 11 forth the claim for relief upon which such action or proceeding is based, or within 12 30 days after the service of summons upon the defendant if such initial pleading 13 has then been filed in court and is not required to be served on the defendant, 14 whichever period is shorter.” 28 U.S.C. § 1446(b)(1). Otherwise, “if the case 15 stated by the initial pleading is not removable, a notice of removal may be within 16 thirty days after receipt by the defendant, through service or otherwise, of a copy 17 of an amended pleading, motion, order or other paper from which it may first be 18 ascertained that the case is one which is or has become removable.” 28 U.S.C. § 19 1446(b)(1). Because Section 1446(b) provides for receipt through service or 20 otherwise, actual receipt, regardless of whether service was proper under the ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 4 1 Federal Rules, triggers the 30-day timeline. See Anderson v. State Farm Mut. 2 Auto. Ins. Co., ___ F.3d ___, 2019 WL 1086998, at *2 (9th Cir. Mar. 8, 2019) 3 (holding 30 day timeline begins when defendant receives the pleadings). 4 The removal statute, 28 U.S.C. § 1441(a), is strictly construed against 5 removal jurisdiction, and “[f]ederal jurisdiction must be rejected if there is any 6 doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 7 564, 566 (9th Cir. 1992) (citation omitted). Indeed, there is a “strong presumption” 8 against removal jurisdiction, which “means that the defendant always has the 9 burden of establishing that removal is proper.” Id. (citations omitted). “An order 10 remanding a case to the state court which was removed under [28 U.S.C. § 11 1441(b)] is not reviewable on appeal or otherwise.” Libhart v. Santa Monica 12 Dairy Co., 592 F.2d 1062, 1065 (9th Cir. 1979) (citing 28 U.S.C. § 1447(d)). 13 “Like plaintiffs pleading subject-matter jurisdiction under Rule 8(a)(1), a 14 defendant seeking to remove an action may not offer mere legal conclusions; it 15 must allege the underlying facts supporting each of the requirements for removal 16 jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1122 (9th Cir. 2014) (citing 17 Gaus, 980 F.2d at 567). “A plaintiff who contests the existence of removal 18 jurisdiction may file a motion to remand, see 28 U.S.C. § 1447(c), the functional 19 equivalent of a defendant’s motion to dismiss for lack of subject-matter jurisdiction 20 under Rule 12(b)(1).” Id. at 1122. “Challenges to the existence of removal ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 5 1 jurisdiction should be resolved within this same framework” as a challenge to 2 jurisdiction under Rule 12(b)(1) “given the parallel nature of the inquiry.” Id. 3 (recognizing “[t]he statute governing removal of civil actions tracks the language 4 of Rule 8(a)(1), requiring the defendant to provide ‘a short and plain statement of 5 the grounds for removal.’” (quoting 28 U.S.C. § 1446(a)). 6 “As under Rule 12(b)(1), a plaintiff’s motion to remand may raise either a 7 facial attack or a factual attack on the defendant’s jurisdictional allegations . . . .” 8 Id. In the context of a motion to remand, a “facial” attack is one where the 9 challenger argues that, even if true, the defendant’s allegations “are insufficient on 10 their face to invoke federal jurisdiction.” See id. at 1121-22 (quoting Safe Air for 11 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). “The district court 12 resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): 13 Accepting the plaintiff’s allegations as true and drawing all reasonable inferences 14 in the plaintiff’s favor, the court determines whether the allegations are sufficient 15 as a legal matter to invoke the court’s jurisdiction.” Id. at 1121 (citing Pride v. 16 Correa, 719 F.3d 1130, 1133 (9th Cir. 2013)). 17 A “factual” attack, on the other hand, “contests the truth of the [defendant’s] 18 factual allegations, usually by introducing evidence outside the pleadings.” Leite, 19 749 F.3d 1117, 1121-22 (9th Cir. 2014) (citing Safe Air for Everyone, 373 F.3d at 20 1039; Thornhill Publ’g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 6 1 1979)). When the challenger raises a “factual” attack in a motion to remand, the 2 defendant “must support her jurisdictional allegations with ‘competent 3 proof,’ [citation omitted] under the same evidentiary standard that governs in the 4 summary judgment context. See Leite, 749 F.3d 1117, 1121 (9th Cir. 2014) 5 (quoting Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010); other citations 6 omitted). “Once the moving party has converted the motion to dismiss into a 7 factual motion by presenting affidavits or other evidence properly brought before 8 the court, the party opposing the motion must furnish affidavits or other evidence 9 necessary to satisfy its burden of establishing subject matter jurisdiction.” Safe Air 10 for Everyone, 373 F.3d at 1039-40 (quoting Savage v. Glendale Union High 11 School, 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)). “In ruling on a challenge to subject matter jurisdiction, the district court is 12 13 ordinarily free to hear evidence regarding jurisdiction and to rule on that issue prior 14 to trial, resolving factual disputes where necessary.” Augustine v. United States, 15 704 F.2d 1074, 1077 (9th Cir. 1983) (citation omitted). “In such circumstances, 16 ‘[n]o presumptive truthfulness attaches to plaintiff’s allegations, and the existence 17 of disputed material facts will not preclude the trial court from evaluating for itself 18 the merits of jurisdictional claims.’” Id. (quoting Thornhill Publishing, 594 F.2d at 19 733). 20 // ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 7 1 DISCUSSION 2 Plaintiffs Wesley and Stanley Ames request the Court remand the case back 3 to state court. ECF No. 3. Plaintiffs argue (1) the Defendants’ notice of removal 4 was not timely and (2) the court does not have diversity jurisdiction. ECF No. 3. 5 The Court finds the Defendants failed to timely remove the case. According to Plaintiffs, Defendants filed a notice of removal with the state 6 7 court on November 23, 2018, although the notice itself is dated November 15, 8 2018. ECF No. 3 at 11. Plaintiffs argue the 30-day timeline began to run on July 9 8, 2018, when Merita performed “drop service”, but the Court observes that the 10 Complaint did not allege facts that clearly demonstrated the amount in controversy 11 exceeded $75,000 to implicate potential federal diversity jurisdiction at that time. 12 See ECF No. 1 at 51 (Complaint limited to theft/conversion of unquantified timber 13 and hay). 14 Plaintiffs also argue the 30-day timeline began to run on August 27, 2018, 15 three days after Plaintiff mailed the First Amended Complaint (ECF No. 1 at 36- 16 43) to Defendants. ECF No. 3 at 14. The Court agrees. Plaintiffs expressly 17 alleged over $75,000 in damages in their First Amended Complaint. See ECF No. 18 1 at 42-43. Defendants do not address whether they were citizens of Idaho at the 19 time the suit was filed, only that they were citizens of Idaho on November 15, 20 2018. ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 8 1 “Under the common law mailbox rule, proper and timely mailing of a 2 document raises a rebuttable presumption that it is received by the addressee.” 3 Anderson v. United States, 966 F.2d 487, 491 (9th Cir. 1992) (citing Rosenthal v. 4 Walker, 111 U.S. 185, 193-94 (1884); other citation omitted). Plaintiff’s sworn 5 statement that he mailed the First Amended Complaint to Defendants raises the 6 presumption of receipt, to which Defendants have not rebutted. See ECF No. 12. 7 On this record, the Court finds that Defendants received the Complaint and failed 8 to file a notice of removal within 30 days from the date of actual receipt. 9 Accordingly, the Court will remand the case back to state court for failure 10 to timely file the notice of removal. 28 U.S.C. § 1446(b). 11 ACCORDINGLY, IT IS HEREBY ORDERED: 12 13 14 15 16 17 1. Plaintiffs Stanley Ames and Wesley Ames’ Motion to Remand (ECF No. 3) is GRANTED. 2. Defendants Caleb and Randall Ames’s (Second) Motion for Extension of Time to File Response (ECF No. 8) is DENIED AS MOOT. 3. Defendants Caleb and Randall Ames’ Motion to Expedite (ECF Nos. 10; 14 (amended)) is DENIED AS MOOT. 18 4. This case is hereby REMANDED to the Stevens County Superior Court for 19 all further proceedings (former Stevens County Superior Court No. 2018-2- 20 00309-33). ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 9 1 The District Court Executive is directed to enter this Order, furnish copies to 2 counsel, mail a certified copy to the Clerk of the Stevens County Superior Court, 3 and CLOSE the file. All deadlines and hearings are VACATED. Each party to 4 bear its own costs and expenses. 5 DATED March 18, 2019. 6 7 THOMAS O. RICE Chief United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND ~ 10
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