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UNITED STATES DISTRICT COURT 8

DISTRICT OF NEVADA 9

10 MARK R. GUZY and SHANNON GUZY, Case No. 3:21-cv-00258-HDM-WGC

11 Plaintiffs, v. ORDER 12

TIMOTHY W. NELSON, TIMOTHY W. 13 NELSON, CPA and EVANS NELSON & COMPANY, CPAS, et al., 14

Defendants. 15

16 Before the court is the plaintiffs’ motion to remand (ECF No. 17 6). The defendants have opposed (ECF No. 9), and plaintiffs have 18 replied (ECF No. 13). 19 The plaintiffs, citizens of Texas, filed their complaint in 20 this action in state court on September 10, 2020. On June 7, 2021, 21 the defendants, citizens of Nevada, removed this action to federal 22 court on the basis of diversity jurisdiction.

. 23 Although this action had been pending in state court for nearly 24 nine months, the defendants asserted that they only recently 25 received notice that the amount in controversy requirement is met. 26 The plaintiffs move to remand, arguing that the defendants’ removal 27 of this action violated the forum defendant rule,

1441(b)(2), and was untimely. 1 Section 1441(b)(2) provides that “an action otherwise 2 removable solely on the basis of the jurisdiction under section 3 1332(a) of this title may not be removed if any of the parties in 4 interest properly joined and served as defendants is a citizen of 5 the State in which such action is brought.” This rule, known as 6 the forum defendant rule, is procedural, and thus waivable, if the 7 plaintiff fails to timely move to remand on that basis. See Lively 8 v. Wild Oats Markets, Inc.,

(9th Cir. 2006); 9 Raizada v. Blum,

, at *2 (C.D. Cal. May 14, 2019) 10 (unpublished disposition); SWC Inc. v. Elite Promo Inc.,

Supp. 3d 1018, 1022–23 (N.D. Cal. 2017). Because the plaintiffs 12 have timely moved to remand in this case, the rule has not been 13 waived.1 14 To the extent the defendants suggest that the court has 15 discretion to not enforce the rule, that argument is without merit. 16 The caselaw is clear that in this context, the plaintiff controls 17 the choice of whether to remain in federal court or to have the 18 action remanded to state court. See Lively,

(“[T]he 19 forum defendant rule allows the plaintiff to regain some control 20 over forum selection by requesting that the case be remanded to 21 state court.”); see also Tradewind Consulting, LLC v. Morrison, 22

, at *2 (C.D. Cal. Aug. 29, 2011) (unpublished 23 disposition) (“It is not the Court that waives the forum defendant 24 rule, but the opposing party.”). 25

26 1 Several district courts have also held the rule may be waived if the plaintiff engages in affirmative conduct suggesting a waiver 27 of the right to remand, see, e.g., Raizada,

, at *2; SWC Inc., 234 F. Supp. 3d at 1022–23, but the defendants make 28 no argument that the plaintiffs have done so here. 1 Because the removal violates the forum defendant rule and the matter shall be remanded on that basis, the court declines to address the parties’ remaining arguments. 4 In accordance with the foregoing, IT IS THEREFORE ORDERED 5|| that the plaintiffs’ motion to remand (ECF No. 6) is GRANTED. This action is therefore REMANDED to the Second Judicial District Court 7\| of the State of Nevada in and for the County of Washoe. 8 IT IS SO ORDERED. 9 DATED: This 29th day of July, 2021. 10 4 burn 9 tt thr 42 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28