Hawaii, County of v. Lui et al re: 3RC11-1-131K

Filing 46

ORDER REMANDING CASES - CIV NO 11-00396 ACK-RLP and CIV NO 11-00614 ACK-RLP. Signed by JUDGE ALAN C KAY on 11/4/11. (eps) -- Because the Court is remanding these cases, it issues no ruling on the "(Non)-Hearing Motion for T.R.O. Restraining Order against Ed Olson Trust and Associates" or the "Motion for Preliminary Injunction on Defendants' Defective Title in Execution of Sub-Grant Request to Pass USFWS Funds to Acquire Fee Title." (ECF Nos. 22 and [23 ].) The Olson Trust's Motion for Sanctions is DENIED. CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
Edmund C. OLSON, Trustee of the )
Edmund C. Olson Trust No. 2, u/a)
)
dated August 21, 1985,
)
Plaintiff, )
)
)
vs.
)
)
Abel LUI, et al.,
)
Defendants. )
)
)
)
)
)
)
Plaintiff, )
)
)
)
)
)
Defendants. )
)

Civ. No. 11-00396 ACK-RLP

COUNTY OF HAWAI#I, a municipal
corporation of the State of
Hawai#i,

vs.
Abel LUI, et al.,

Civ. No. 11-00614 ACK-RLP

ORDER REMANDING CASES
I. FACTUAL AND PROCEDURAL BACKGROUND1/
These removal actions involve land on the Island of
Hawai#i.

Plaintiffs each filed ejectment actions against

1/

The facts as recited in this order are for the purpose of
disposing of this motion and are not to be construed as findings
of fact or conclusions of law that the parties may rely on in
future proceedings.
-1-

Defendants in the District Court of the Third Circuit, State of
Hawai#i.

That court granted summary judgment in favor of each of

the Plaintiffs and against Defendants.
of appeal.

Defendants filed notices

After that, Defendants filed a notice of removal in

this Court.

(ECF No. 1).

The notice of removal was filed on

June 20, 2011.
Defendants allege that they have resided on the land at
issue for more than twenty years, and claim to have inherited
ownership rights in the land from their ancestor, Timoteo Keawe.
Both Plaintiffs claim to own their respective parcels of land.
The Olson Trust intends to convey its land to the County so the
County can create a public park.

The transaction between the

Olson Trust and the County is currently set to close at the end
of this month.
The land at issue has been the subject of several
previous actions.

In 1986, Rhoda and Eliza Simeona, relatives of

certain of the Defendants, filed a complaint in this district
court, claiming title to the land at issue.
Civ. No. 86-1083.

The case number was

The complaint was dismissed for lack of

prosecution in May 1987, but the plaintiffs nonetheless declared
themselves victorious, and filed a $2.5 million judgment lien in
their favor with the State of Hawai#i’s Bureau of Conveyances.2/

2/

That judgment lien is one of several items that the Olson
Trust has sought to expunge in another action pending before this
(continued...)
-2-

In 1988, Thomas M. Okuna, the predecessor in interest
to both Plaintiffs, obtained a Decree Quieting Title in his
favor.

(Olson Am. Mot. Ex. 1.)3/

The decision in that case

“Ordered, Adjudged and Decreed” that Okuna “is the owner in fee
simple absolute” of several parcels of land, including those
involved with these actions.

(Id.)

In 2002, Okuna obtained a Judgment of Ejectment against
Defendant Abel Lui, among others, and the state court issued a
Writ of Possession in Okuna’s favor.

(Id. Exs. 2–3.)

For

whatever reason, this writ was never executed, and Defendants
remained on the land.

At one point, Lui was convicted for

criminal trespass on the land, and his conviction was affirmed on
appeal to the Intermediate Court of Appeals.
These actions followed.

(Id. Ex. 4.)

The Olson Trust’s ejectment

action was numbered 3RC11-1-195K in the state court, and is
numbered 11-00396 ACK-RLP in this Court.

Lui was served with the

complaint in the Olson Trust action on March 22, 2011.
6.)

(Id. Ex.

The County’s ejectment action was numbered 3RC11-1-131K in

the state court, and is numbered 11-00614 ACK-RLP in this Court.
Lui was served on March 7, 2011, in that action.

(County Mot.

2/

(...continued)
Court, Civ. No. 10-00691 ACK-RLP.
3/

Many copies of the documents described in this section
have been filed in this matter. The parties should ascribe no
meaning to the Court’s citation of the copies that happen to be
attached to the Olson Trust’s motion.
-3-

Ex. H.)

Both plaintiffs’ motions for summary judgment were

granted on June 15, 2011.
F.)

(Olson Am. Mot. Ex. 8; County Mot. Ex.

The basis for the grant of summary judgment was that the

plaintiffs’ rights in the land, and Defendants’ lack of interest
in the land, had been conclusively established by previous
decisions, including the 1998 Decree Quieting Title and the 2002
Judgment of Ejectment.

(Id. at 3–4.)

Defendants filed notices of appeal in the state actions
the day after summary judgment was granted.
9; County Mot. Ex. H.)

(Olson Am. Mot. Ex.

Defendants then filed a single notice of

removal in this Court four days later, on June 20, 2011.
No. 1.)4/

(ECF

Although the certificate of service attached to that

notice indicated that a copy had been mailed to the state court,
no notice of removal appears on either the state district court’s
or the ICA’s docket.
The Olson Trust obtained a writ of possession based on
the summary judgment in its favor on July 11, 2011.
Mot. Ex. 12.)

(Olson Am.

The writ has not yet been executed, and the Olson

Trust has indicated that it has no plans to attempt to have the
writ executed before the transaction between the Olson Trust and
the County closes.

The County has also indicated that it will

4/

The notice of removal incorrectly attempted to remove the
two separate state ejectment actions into a single federal
action, and also incorrectly captioned Defendants as Plaintiffs.
The Court corrected these errors in a Case Management Order.
(ECF No. 39.)
-4-

not seek to have Defendants ejected until after the transaction
closes; it has not yet obtained a writ of possession.
Defendants did not attempt to obtain supersedeas bonds
pending the appeals from the summary judgments against them, but
they did file a separate notice of appeal from the grant of the
writ of possession.

That notice was filed in the state ICA on

August 25, 2011, months after Defendants filed a notice of
removal in this Court.

(Id. Ex. 14.)5/

In this action, the Olson Trust filed a Motion to
Dismiss for Improvident Removal and for Sanctions on September
20, 2011.

(ECF No. 18.)

In that motion, among other things, the

Olson Trust argued that Defendants’ removal of the case was
untimely under 28 U.S.C. § 1446(b).

The Olson Trust also argued

that the Court may not have subject matter jurisdiction over the
matter.
19.)

The motion was set for hearing in January.

(ECF No.

Because of the questions raised concerning the Court’s

jurisdiction, Magistrate Judge Puglisi stayed the case pending
resolution of the Trust’s motion.

(ECF Nos. 21, 24.)

On the same day that the case was stayed (after the
conference at which Judge Puglisi told the parties that the case
was stayed but before he issued his written order), Abel Lui and
Han Phua filed a “Motion for Preliminary Injunction on

5/

The caption on the second notice of appeal references the
state district court, but the notice is stamped as having been
filed in the ICA.
-5-

Defendants’ Defective Title in Execution of Sub-Grant Request to
Pass USFWS Funds to Acquire Fee Title,” seeking immediate
relief.6/

(ECF Nos. 22.)

On the same day, Shelley Stephens

filed a “(Non)-Hearing Motion for T.R.O. Restraining Order
against Ed Olson Trust and Associates.”

(ECF No. 23.)

Although

these documents were arguably filed in violation of the stay, the
Court issued an order setting a hearing date of October 13, 2011,
since they both requested immediate relief.

(ECF No. 32.)

In

that order, the Court gave both the Olson Trust and the County an
opportunity to respond to the documents and asked that all
parties be prepared to address certain matters at the hearing.
(Id.)
On October 11, 2011, before the hearing on Defendants’
motion, the Olson Trust filed an Amended Motion to Dismiss for
Improvident Removal and for Sanctions.

(ECF No. 34.)

In this

motion, the Olson Trust presented additional grounds for remand.
On the same day, the County filed a Memorandum in Opposition to
Plaintiffs’ Motion for Preliminary Injunction and Restraining
Order.

(ECF No. 36.)
At the hearing, with the agreement of all parties, the

Court decided to construe both the Olson Trust’s and the County’s

6/

At the time Defendants filed this motion, the case
caption had not yet been corrected, and so Defendants considered
themselves as plaintiffs and considered the Olson Trust a
defendant.
-6-

filings as motions to dismiss, or in the alternative, to remand
the cases to state court.

The Court also informed the parties of

its inclination to deny the motions for injunctive relief, but
stated that it would not issue a ruling on those motions until
after it determined whether the cases had been properly removed.
The Court advanced the hearing on the Olson Trust’s previously
filed motion and set that motion, along with the new motions, for
hearing on October 25, 2011, giving Defendants seven days to file
any additional opposition.

By advancing the hearing, the Court

ensured that if it had jurisdiction, and if the cases had been
properly removed, then it could act on the motions for injunctive
relief before the transaction between the Olson Trust and the
County closed.
II. DISCUSSION
As discussed in more detail below, the Court will
remand both cases to the state court.

The Court lacks subject

matter jurisdiction over the County ejectment action.

The Court

has diversity jurisdiction over the Olson Trust action, but
nonetheless remands the case because, inter alia, the notice of
removal was untimely under 28 U.S.C. § 1446(b), and the case is
unremovable under the forum defendant rule set forth in 28 U.S.C.
§ 1441(b).
A.

Subject Matter Jurisdiction
1.

Federal Question Jurisdiction
-7-

Under the “well-pleaded complaint” rule, there is no
federal question jurisdiction over a complaint “unless the
plaintiff’s complaint establishes that the case ‘arises under’
federal law.”

Franchise Tax Bd. v. Constr. Laborers Vacation

Trust for Southern California, 463 U.S. 1, 10 (1983).

“The

well-pleaded complaint rule applies to the original jurisdiction
of the district courts as well as to their removal jurisdiction.”
Id. at 10 n.9.
The state ejectment actions involve state law property
rights.

There is no federal question raised in either complaint.

(See ECF Nos. 34-8, 36-6.)

The actions therefore do not arise

under federal law, and this Court lacks federal question subject
matter jurisdiction over them under 28 U.S.C. § 1331.
To the extent that Defendants have attempted to raise
questions of federal law that apply to these cases, those
questions are in the nature of defenses.

The complaints

themselves are state actions governed by state law, and do not
arise under federal law.
2.

Diversity Jurisdiction

The analysis of this question differs between the two
state-court ejectment actions.

For a Court to have diversity

jurisdiction under 28 U.S.C. § 1332, there must be complete
diversity between the parties.

The Court lacks diversity

jurisdiction over the County ejectment action because both the

-8-

County and Defendants are citizens of Hawai#i.

The Court must

therefore remand the County ejectment action.

See 28 U.S.C.

§ 1447(c) (“If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case
shall be remanded.”).

The County ejectment action, which is Civ.

No. 11-00614 ACK-RLP in this Court and No. 3RC11-1-131K in the
state court, is REMANDED.7/
On the other hand, it appears that the Court does have
diversity jurisdiction over the Olson Trust ejectment action.
The Olson Trust is correct that the notice of removal as filed
does not allege the parties’ citizenship or the amount in
controversy, but this defect could be cured with a simple
amendment.

That the parties are diverse, and the amount in

controversy sufficient, seems evident.

Indeed, in another case

pending before this Court, Olson v. Lui, Civ. No. 10-00691 ACK-

7/

The Court recognizes that the lack of a filing of a copy
of the notice of removal with the state court casts doubt over
whether removal of the cases to this Court has ever been
completely effected. The Court nonetheless presumes that it has
the power to remand a case even before a copy is filed in state
court. Otherwise, a court might occasionally be unable to
fulfill its sua sponte duty under § 1447(c) to remand cases over
which it lacks subject matter jurisdiction. Cf. Koerner v. Aetna
U.S. Healthcare, Inc., 92 F. App’x 394, 395 (9th Cir. 2003)
(unpublished) (“Procedural requirements for removal, such as the
timely filing of the notice of removal, are ‘formal and modal’
not jurisdictional.”) (quoting Fristoe v. Reynolds Metals Co.,
615 F.2d 1209, 1212 (9th Cir. 1980)); Jackson v. City of New
Orleans, Civ. A. No. 95-1340, 1995 WL 599046, at *1 (E.D. La.
Oct. 10, 1995) (remanding where the defendant had failed to
provide notice of removal to the state court).
-9-

RLP, which involves the same parties and the same land, the Olson
Trust has asserted that the Court has diversity jurisdiction.
3.

Rooker-Feldman

The Olson Trust has suggested that the Court lacks
subject matter jurisdiction over this case pursuant to the
Rooker-Feldman doctrine.

In 2005, the Supreme Court discussed

the boundaries of that doctrine, stating as follows: “The RookerFeldman doctrine, we hold today, is confined to cases of the kind
from which the doctrine acquired its name: cases brought by
state-court losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of
those judgments.”

Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 284 (2005).

The Court noted that “in the lower

courts, the doctrine has sometimes been construed to extend far
beyond the contours of the Rooker and Feldman cases, overriding
Congress; conferral of federal-court jurisdiction concurrent with
jurisdiction exercised by state courts, and superseding the
ordinary application of preclusion law pursuant to 28 U.S.C.
§ 1738.”

Id. at 283.

The Court remarked that it had only

invoked the doctrine twice, namely in Rooker and Feldman.

Id.

The Supreme Court in Exxon emphasized the “narrow
ground occupied by Rooker-Feldman.”

Id.

In both Rooker and

Feldman, “the losing party in state court filed suit in federal

-10-

court after the state proceedings ended, complaining of an injury
caused by the state-court judgment and seeking review and
rejection of that judgment.’”

Id. at 291.

In contrast, the

instant cases involve the removal to this Court of two state
court ejectment actions; which removal, in effect, attacks the
summary judgments entered in those actions.
There appears to be no question that the Olson Trust
could have originally brought its ejectment action in this Court
under the Court’s diversity jurisdiction; in any event, it would
not have been barred by Rooker-Feldman.

Likewise, it does not

appear that the Rooker-Feldman question would ever have arisen in
this case had Defendants filed a timely notice of removal before
summary judgment had been entered against them.
The question becomes whether Rooker-Feldman should
apply now, even if it would not have applied if Defendants had
given a timely notice of removal prior to the state court
judgment.
While this Court reads Exxon to confine the RookerFeldman doctrine to cases filed in federal court in which the
complaint, in effect, attacks a state court judgment (as occurred
in Feldman and Rooker); it acknowledges that Exxon did not
address that specific question.

And a number of courts

(including the Ninth Circuit, albeit in an unpublished decision,
and the Seventh and Eleventh Circuits) have indicated that the

-11-

doctrine might also apply to removal cases.

On the other hand,

the Court has not found any decisions supporting its narrow
reading of Exxon.
The Olson Trust cites Foster v. KNTV Television, Inc.,
No. 10-15031, 2011 WL 2836286 (9th Cir. July 19, 2011)
(unpublished), but in that case the plaintiff attempted to remove
her own case from state court to federal court.

Id. at *1.

“Foster, as the plaintiff in the state court action, was
completely barred from removing the action to federal court.”
Id.

As a second reason for dismissal, the court stated that

Foster “sought to bring a de facto Rooker-Feldman appeal . . . .”
Id.

But the court’s discussion of Rooker-Feldman was unnecessary

to its decision, given that Foster was barred from removing the
case no matter whether Rooker-Feldman applied.

Moreover, the

discussion of Rooker-Feldman in Foster cited only cases that
predated the Supreme Court’s clarification of the doctrine in
Exxon, and Foster expressly states that it “is not precedent.”
Id.
The Seventh Circuit, in Bergquist v. Mann Bracken, 592
F.3d 816 (7th Cir. 2010), a class action suit removed from state
court, ruled that Bergquist, who was not the party who removed
the case, “seeks relief on behalf of persons who lost in state
court when judges confirmed arbitral awards adverse to their
interests.

Bergquist wants those decisions vacated, which would

-12-

indeed be incompatible with the Rooker-Feldman doctrine.”
819.

Id. at

The court concluded that Bergquist did not have a claim

typical of such state-court losers and that the class should be
re-defined to eliminate them and thus avoid any Rooker-Feldman
problem and resulting need for a partial remand.
The Eleventh Circuit, in Brown v. R.J. Reynolds Tobacco
Co., 611 F.3d 1324, in an appeal from an order that applied to
3,200 cases removed from state court and another 661 cases
originally filed in federal court, held that the Rooker-Feldman
doctrine was not applicable since it only applies when the
federal plaintiff is the “state-court loser.”

Id. at 1330 n.5.

The Court is aware of some other removal cases that
have mentioned Rooker-Feldman as a ground for remand, but in most
of those cases, like Foster, the Rooker-Feldman discussion
appears to have been unnecessary to the decisions.8/

8/

See, e.g., Switzer v. Bosserman, No. 5:11-cv-00002, 2011
WL 134683, at *1 (W.D. Va. Jan. 14, 2011) (order remanding a case
that was untimely removed) (“To the extent that Switzer intended
his filing to constitute a complaint in a separate action for
relief, he is barred from bringing such a claim by the RookerFeldman doctrine.”); Landeron, LLC v. Campos, No. 1:11-cv-00475
LJO JLT, 2011 WL 2038625, at *2 (E.D. Cal. May 24, 2011) (F&R to
remand in a case that appears to have been untimely removed and
over which both federal question jurisdiction and diversity
jurisdiction appear to have been lacking) (“Defendants assert the
state court proceedings were improper, and seek relief from the
judgment entered by the state court . . . . Thus, Defendants
seek federal court review of the state court judgment.”);
Richardson v. Richardson, Civ. Action No. 08-1671, 2008 WL
2355050, at *3 (E.D. La. June 5, 2008) (order remanding in a case
where there was no federal question jurisdiction) (“[I]n reading
(continued...)
-13-

If the Court were to retain this case, it would be
required to adopt the state-court’s summary judgment as its own.
See Jenkins v. Commonwealth Land Title Ins. Co., 95 F.3d 791, 795
(9th Cir. 1996) (“The longstanding principle is that ‘[a]fter
removal, the federal court takes the case up where the State
court left it off.’”) (quoting Granny Goose Foods, Inc. v. Bhd.
of Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cnty.,
415 U.S. 423, 436 (1974)); see also Butner v. Neustadter, 324
F.2d 783, 785–86 (9th Cir. 1963) (“The federal court takes the
case as it finds it on removal and treats everything that
occurred in the state court as if it had taken place in federal
court.

Therefore, this default judgment should be treated as

though it had been validly rendered in the federal proceeding.”)
(footnotes omitted); cf. also Resolution Trust Corp. v. Bayside
Developers, 43 F.3d 1230, 1238 (9th Cir. 1994) (“[I]mmediately
after removal the district court would adopt the state court
judgment as its own.”) (alteration in original).9/

8/

(...continued)
Plaintiff’s Notice, the Court finds that, in essence, Plaintiff
is seeking review of the state court’s consent judgment by way of
removal. The Rooker-Feldman doctrine precludes such review.”).
9/

As the Court has previously indicated, it is aware that
the type of removal involved in Resolution Trust is distinct from
removal under 28 U.S.C. § 1441. The Court nonetheless finds
Resolution Trust instructive, both as to how a district court
might handle a case that was removed, without a timely objection,
after summary judgment had already been granted in a state-court
case; and as to whether the Rooker-Feldman doctrine would apply
(continued...)
-14-

In any event, as will be discussed in the following
section, the Court is going to remand the case because the
removal was untimely and because of the forum defendant rule,
and, in the alternative, will remand the case based on RookerFeldman given the uncertainty whether the Rooker-Feldman doctrine
applies to removal cases such as this one.
Removability

B.

The Court now turns to other grounds asserted in the
Olson Trust’s motions.

The Court must first evaluate whether

Olson’s objections to removal are timely.
1.

The Thirty-Day Deadline for Objecting to
Removal

“A motion to remand the case on the basis of any defect
other than lack of subject matter jurisdiction must be made
within 30 days after the filing of the notice of removal under
section 1446(a).”

28 U.S.C. § 1447(c).

of removal was filed on June 20, 2011.

In this case, the notice
(ECF No. 1.)

The Olson

Trust filed no objection to the removal until it filed its
“Motion to Dismiss for Improvident Removal” on September 20,
2011, well after the thirty-day deadline had passed.
18.)

(ECF No.

The Olson Trust raised objections on additional grounds in

its “Amended Motion to Dismiss for Improvident Removal,” filed on
October 11, 2011.

(ECF No. 34.)

9/

(...continued)
to such a case.
-15-

The thirty-day deadline is not absolute.

For example,

if defendants fail to provide notice of the removal to the
adverse parties as required under 28 U.S.C. § 1446(d), that
failure tolls the deadline for objecting to defects in the
removal.

See, e.g., Byfield v. Niaz, No. 00 Civ. 6572(AGS)(FM),

2001 WL 25705 (S.D.N.Y. Jan. 10, 2001) (tolling the § 1447(c)
deadline because of the removing party’s failure to provide
notice); Doyle v. Staples, No. 99-CV-6062(JG), 2000 WL 194685
(E.D.N.Y. Feb. 18, 2000) (“It would be patently unfair for a
defendant to challenge as untimely a motion to remand, whose
untimeliness was directly attributable to the defendant’s failure
to provide plaintiff with statutorily required notice of
removal.”); see also United States v. Locke, 471 U.S. 84, 94 n.10
(1985) (“Statutory filing deadlines are generally subject to the
defenses of waiver, estoppel, and equitable tolling.”).
According to the certificate of service filed attached
to it, the notice of removal was not served on the Olson Trust.
(ECF No. 1 at 3 (indicating that the notice of removal was mailed
to the state court, and filed in the federal court, but not
indicating that it was provided to Plaintiffs).)

This deficiency

was noted by Magistrate Judge Puglisi in an order issued on
September 19, 2011.

(ECF No. 16.)10/

10/

Defendants have nonetheless

As defendants note, Judge Puglisi’s order gave them an
opportunity to correctly effect service of the notice on the
(continued...)
-16-

argued that they were “diligent in serving [the Olson Trust],”
and that they did so twice on August 8, 2011, and then again on
August 22, 2011, and September 1, 2011.11/

(“Motion of Memorandum

to Support Motion Order Setting Hearing Date” at 3, ECF No. 35.)
On August 8, Han Phua filed a document in this Court
styled “Defendant Han Kamakani Phua’s Submission of Copies of
Process, Pleadings and Orders in Related Cases 3RC11-1-195K and
3RC1-1-131K.”

(ECF No. 11.)

Phua has filed a Declaration

indicating that he sent a copy of that filing to the Olson Trust
via certified mail.

(ECF No. 15.)

Attached to the declaration

was a signed receipt for a piece of certified mail delivered to
the Olson Trust’s attorneys on August 8.

(Id. Ex. A.)

The

documents filed in the August 8 submission to the Court include
nearly seven hundred pages, but none of those documents was a
copy of the Notice of Removal.12/

10/

(...continued)
plaintiffs within thirty days of that order.

(ECF No. 16.)

11/

The latter two dates are less than thirty days before
September 20, the date that the Olson Trust filed its initial
motion. So if the thirty-day period began running on one of
those dates, the Olson Trust’s initial motion was timely.
12/

According to the certificate of service, Defendants
served only the two-page document titled “Submission of Copies of
Process, Pleadings and Orders in Related Cases 3RC11-1-195K and
3RC1-1-131K” on the Olson Trust. The certificate of service
states that “the process, pleadings and Orders were not served as
[the] attorneys have them in their files.”
-17-

The Olson Trust’s attorneys claim that they can find no
record of the August 8, 2011, filing having been served upon
them, and that they cannot find their copy of the filing.

But

they have acknowledged that the signature on the certified mail
receipt is genuine.

The Court cannot be absolutely sure of what

mailing was associated with that receipt, but there is no
evidence to contradict Phua’s declaration that it was the same
document that was filed in this Court on August 8, 2011.

The

Court must assume, for purposes of this Order, that the Olson
Trust’s attorneys received the two-page document titled
“Submission of Copies of Process, Pleadings and Orders in Related
Cases 3RC11-1-195K and 3RC1-1-131K.”
The question before the Court, then, is whether that
document provided adequate notice of the removal to the Olson
Trust.

If so, then as of August 8, 2011, equitable tolling no

longer applied, and the thirty-day period under § 1447(c) began
running.

And if the thirty-day period began running on August 8,

2011, then the nonjurisdictional objections to removal raised in
the Motion to Dismiss filed on September 20, 2011, were untimely
(as were the nonjurisdictional objections raised in the Amended
Motion to Dismiss filed on October 11, 2011).
Four things about the document could possibly have put
the Olson Trust on notice that a notice of removal had been filed
in this Court.

First, the caption provided a case name of “Heirs

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of Timoteo Keawe, Plaintiff, vs. Edmund C. Olson Trust II, et
al.”

That case name was different than the names of the other

pending cases involving Defendants and the Olson Trust.

Second,

the case number on the document was “Civil No. 11-00396 ACK-RLP,”
a number that was likewise different than the numbers of the
other pending cases.

Third, in the first paragraph, the filing

refers to “Han Kamakani Phua, who filed, as Plaintiff, a notice
to federal court for removal of this case.”

And fourth, in the

second paragraph, the filing states that “Removal is allowed by
way of Title 28 U.S.C. Section 1441 and Subsection 1446 of this
title in regard to 3RC11-1-195K [and] 3RC1-1-131K.”
On the other hand, there are reasons to determine that
the two-page “Submission of Copies of Process, Pleadings and
Orders in Related Cases 3RC11-1-195K and 3RC1-1-131K” was not
sufficient to satisfy Defendants’ obligation to “[p]romptly after
the filing of [a] notice of removal . . . give written notice
thereof to all adverse parties.”

28 U.S.C. § 1446(d).

Foremost,

the notice of removal itself was not attached to the submission,
as stated in both the certificate of service attached to the
submission and in Phua’s declaration.
Second, as discussed above, Magistrate Judge Puglisi
found on September 19, 2011, that “[i]t does not appear that
[the] Ed Olson Trust was served,” and ordered Defendants to serve

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a copy of the notice of removal within thirty days.13/

Defendants

did not actually serve a copy of the notice of removal on the
Olson Trust, as far as the Court can discern, until October 15,
2011.

(See “Motion in Response to Deficiency Notice and Order

Regarding Service to Defendants,” ECF No. 42.)
Third, the first document attached to the August 8,
2011, filing in this Court was the notice of appeal filed in the
state court.

At the very least, the pendency of an ongoing

state-court appeal alongside the pendency of an ongoing removal
action in the same case tends to create confusion.

And that

confusion could not have been alleviated by examining the statecourt dockets.

To this day, it does not appear that a copy of

the notice of removal has ever been filed in any state court,
despite the certificate of service attached to the notice of
removal.
Finally, the notice of removal was filed so late—after
summary judgment had already been granted and a notice of appeal
already filed—that there would have been little reason for the
Olson Trust to expect that Defendants would attempt to remove the
case.

13/

Judge Puglisi issued the order pursuant
§ 1447(a), which authorizes a district court to
necessary orders and process to bring before it
parties whether served by process issued by the
otherwise.”
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to 28 U.S.C.
“issue all
all proper
State court or

In sum, the Court finds that the two-page “Submission
of Copies of Process, Pleadings and Orders in Related Cases
3RC11-1-195K and 3RC1-1-131K” was not sufficient to make the
thirty-day deadline begin running.
The Court now turns to the other dates on which
Defendants assert that they notified the Olson Trust of the
removal.

First, Abel Lui filed his own collection of documents

on August 25, 2011, which the Court presumes is what Defendants
mean when they refer to an attempt to serve the Olson Trust on
August 22.

(ECF No. 14.)

This filing also is insufficient to

make the thirty-day period begin to run, for the same reasons
that the Phua filing was insufficient.
Second, as far as the Court can discern, Defendants
have not substantiated their claim of having served the Olson
Trust with anything on September 1, 2011.

But as mentioned

above, the Olson Trust’s initial motion was timely even if the
thirty-day period for filing objections began running on
September 1.
The Olson Trust has acknowledged becoming aware of this
action “when it received a letter from Han, dated September 13,
2011, informing [it] about a Rule 16 Scheduling Conference
scheduled for September 26, 2011.”

(ECF No. 18-1 at 1 n.1).

The

Court therefore finds that the thirty-day deadline under 28
U.S.C. § 1447(c) was equitably tolled until at least September

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13, 2011.

See Byfield, 2001 WL 25705, at *2; Doyle, 2000 WL

194685, at *2.

As that date was within thirty days of the

filings of both the Motion to Dismiss and the Amended Motion to
Dismiss, the Court need not determine for purposes of this order
whether the § 1447(c) deadline should be tolled beyond that date,
such as until Defendants finally effected service of the notice
of removal.

Given the tolling of the deadline, the objections

raised in the Olson Trusts two motions are timely.
2.

Grounds for Removal

The argument raised in the Olson Trust’s original
motion to dismiss was that the notice of removal was untimely
under 28 U.S.C. § 1446(b), which provides:
The notice of removal of a civil action or
proceeding shall be filed within thirty days
after the receipt by the defendant, through
service or otherwise, of a copy of the
initial pleading setting forth the claim for
relief upon which such action or proceeding
is based, or within thirty days after the
service of summons upon the defendant if such
initial pleading has then been filed in court
and is not required to be served on the
defendant, whichever period is shorter.
Id.

The complaint in the Olson Trust ejectment case was served

on Abel Lui on March 22, 2011.

(Olson Am. Mot. Ex. 6.)

notice of removal was not filed until June 20, 2011.

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The

(ECF No.

1.)

The notice of removal was filed months too late, and removal

was therefore untimely.14/
In its amended motion, the Olson Trust added an
additional argument, which also prevails.

Not all diversity

cases are removable:
Any civil action of which the district courts
have original jurisdiction founded on a claim
or right arising under the Constitution,
treaties or laws of the United States shall
be removable without regard to the
citizenship or residence of the parties. Any
other such action shall be removable only if
none of the parties in interest properly
joined and served as defendants is a citizen
of the State in which such action is brought.
28 U.S.C. § 1441(b).

This statute is known as the “forum

defendant rule,” and “is a procedural, or non-jurisdictional,
rule.”

Lively v. Wild Oats Market, Inc., 456 F.3d 933, 939 (9th

Cir. 2006).

The Court has determined that the Olson Trust’s

objection on the basis of this rule is timely, and as Defendants
are citizens of Hawai#i, the forum defendant rule precludes them
from removing the case to this court.
In sum, for at least the preceding reasons of untimely
removal and violation of the forum defendant rule, as well as, in

14/

Phua was identified as a defendant on May 13, 2011.
(Olson Am. Mot. Ex. 10.) But even assuming that he did not
received a copy of the complaint, by pleading or otherwise, until
that date, the notice of removal was still untimely on June 20.
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the alternative, based on the Rooker-Feldman doctrine, the Olson
Trust action will also be REMANDED to the state court.15/
C.

Attorneys’ Fees
According to 28 U.S.C. § 1447(c), “[a]n order remanding

the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the
removal.”

The Olson Trust has requested that the make an award

under that section because “[r]emoval in this case was clearly
improper.”

(Am. Mot. Mem. at 20.)

any award under this section.

The County has not requested

The Olson Trust’s motion for

sanctions addresses only attorneys fees, and does not describe
any costs or expenses that were incurred.
The Supreme Court has held that “[a]bsent unusual
circumstances, courts may award attorney’s fees under § 1447(c)
only where the removing party lacked an objectively reasonable
basis for seeking removal.”

Martin v. Franklin Capital Corp.,

546 U.S. 132, 141 (2005) (emphasis added).

Particularly in light

of their status as pro se litigants, the Court cannot conclude
that Defendants lacked an objectively reasonable basis for
seeking removal.
As the Supreme Court recognized, “there is no reason to
suppose Congress meant to confer a right to remove, while at the

15/

In view of the foregoing ruling, the Court need not
address the Olson Trust’s argument concerning whether all
defendants consented to removal.
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same time discouraging its exercise in all but obvious cases.”
Id. at 140.

The remand of this case depends on the procedural

complications involved in effecting removal, along with esoteric
topics such as the well-pleaded complaint rule and the forum
defendant rule, as well as the unclear contours of the RookerFeldman doctrine.

These are not “obvious” problems.

Moreover,

“the Ninth Circuit has cautioned that ‘removal is not objectively
unreasonable solely because the removing party’s arguments lack
merit, or else attorney’s fees would always be awarded whenever
remand is granted.’”

Landeron, 2011 WL 2038625, at *3 (quoting

Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th
Cir. 2008)).

It appears to the Court that Defendants, rather

than seeking to “prolong[] litigation and impos[e] costs on the
opposing party,” were making a good-faith attempt to exercise the
“right to remove as a general matter.”

Martin, 546 U.S. at 140.

In sum, because no party has requested costs, and
because the Court does not find that Defendants lacked an
objectively reasonable basis for seeking removal such that an
award of fees would be justified, the Olson Trust’s motion for
sanctions is DENIED.
III. CONCLUSION
For the foregoing reasons, to the extent that
Defendants have effected removal in the first place, the Court

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REMANDS each of the above-captioned cases to the state court
system.
Because the Court is remanding these cases, it issues
no ruling on the “(Non)-Hearing Motion for T.R.O. Restraining
Order against Ed Olson Trust and Associates” or the “Motion for
Preliminary Injunction on Defendants’ Defective Title in
Execution of Sub-Grant Request to Pass USFWS Funds to Acquire Fee
Title.”

(ECF Nos. 22 and 23.)
The Olson Trust’s Motion for Sanctions is DENIED.
IT IS SO ORDERED.
DATED:

Honolulu, Hawai#i, November 4, 2011.

________________________________
Alan C. Kay
Sr. United States District Judge

Olson v. Lui, Civ. No. 11-00396 ACK-RLP; & County of Hawai#i v. Lui, Civ. No.
11-00614 ACK-RLP: Order Remanding Cases

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