Opinion
Case No.: 2:18-cv-002393-JAD-CWH
02-25-2019
Keith Martinez, Plaintiff v. Royal Links Golf Club, Defendant
Remand Order
[ECF Nos. 7, 11, 13]
Plaintiff Keith Martinez filed this civil action for violations of the Fair and Accurate Credit Transactions Act (FACTA) and NRS Chapter 598 in Nevada's Eighth Judicial District Court. Defendant Royal Links Golf Club removed the case to federal court based on the federal question presented by the FACTA claim and then promptly moved to dismiss that FACTA claim based on the plaintiff's lack of Article III standing. Plaintiff does not take a position on whether Article III standing exists, and defendant argues that "Plaintiff has failed to state a claim that would establish Article III standing" because his "alleged injury is entirely speculative." The burden to establish removal jurisdiction is on the defendant, as the removing party here. Because the defendant has not met that burden but instead argued that this court lacks the power to hear this case because of a lack of Article III standing, it appears that this court lacks subject-matter jurisdiction, and I remand this case under 28 U.S.C. § 1447(c). So, I deny the motion to dismiss and instead grant the plaintiff's countermotion to remand. But because the plaintiff did not comply with Local Rule 54-1 in requesting attorney fees, I deny its motion for fees.
ECF No. 1 at 9 (complaint).
ECF No. 1 at 2.
ECF No. 7.
See ECF No. 11 at 7, n.3.
ECF No. 7 at 5.
See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) ("The 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.).
See, e.g., Barnes v. ARYZTA, LLC, 288 F. Supp. 3d 834, 839 (N.D. Ill. 2017), appeal dismissed, 2018 WL 3583218 (7th Cir. Feb. 8, 2018); Katz v. Six Flags Great Adventure, LLC, 2018 WL 3831337, at *7 (D.N.J. Aug. 13, 2018) (remanding removed FACTA case based on lack of Article III standing); see also Polo v. Innoventions Int'l., LLC, 833 F.3d 1193, 1196 (9th Cir. 2016).
In so holding, I do not determine whether plaintiff can establish that he suffered an injury in fact; I merely hold that the defendant has failed to meet its burden to show that federal jurisdiction exists. And because I cannot find that I have jurisdiction, I do not reach the defendants' remaining dismissal arguments.
Reyes v. Checksmart Fin., LLC, 701 F. App'x 655, 659 (9th Cir. 2017) (citing Polo, 833 F.3d at 1196, and 28 U.S.C. §1447(c) and noting, "When a plaintiff lacks Article III standing for an entire removed case, the district court must remand the entire case, not dismiss it.").
See L.R. 54-14(d) (providing that the failure to supply an attorney affidavit, an itemization and description of the work performed, and other information in support of motion for attorney's fees "may be deemed a consent to the denial of the motion").
For these reasons and those stated on the record at today's hearing, IT IS HEREBY ORDERED that
• Plaintiff's motion to remand [ECF No. 11] is GRANTED;
• Defendant's motion to dismiss [ECF No. 7] and plaintiff's motion for attorney fees [ECF No. 13] are DENIED; and
• The Clerk of Court is directed to REMAND this case back to the Eighth Judicial District Court for Clark County, Nevada, Case No. A-18-781628-C and CLOSE THIS CASE.
Dated: February 25, 2019
/s/_________
U.S. District Judge Jennifer A. Dorsey