Javier et al v. State of Hawaii et al
Filing
58
ORDER DENYING AS MOOT DEFENDANTS' 12 , 35 MOTION TO DISMISS AND DENYING PLAINTIFF'S 16 MOTION FOR WRIT OF MANDAMUS: "On the basis of the foregoing, this action is HEREBY DISMISSED FOR LACK OF JURISDICTION. The Court therefore D ENIES AS MOOT CPB's Motion to Dismiss for Failure to State a Claim upon which Relief Can Be Granted, filed May 23, 2012, and the BoA Defendants' Motion to Dismiss Complaint, filed August 10, 2012. The Court also DENIES Plaintiffs motion for writ of mandamus, filed May 30, 2012. IT IS SO ORDERED.". Signed by JUDGE LESLIE E. KOBAYASHI on September 17, 2012. (bbb, )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
)
)
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
STATE OF HAWAII; COURT OF THE )
)
SECOND CIRCUIT, WAILUKU
)
DIVISION; J P MORGAN CHASE
BANK, NATIONALS ASSOCIATION; )
)
CENTRAL PACIFIC BANK; BANK
HOME LOANS SERVICING LP; R.K. )
)
ARNOLD MORTGAGE ELECTRONIC
)
REGISTRATION SYSTEMS, INC.;
GARY Y. OKUDA; KARYN A. DOI; )
ANYA Y. PEREZ; JOHN AND JANE )
)
DOES 1-100,
)
)
Defendants.
_____________________________ )
SEVERINO-JAVIER, EXECUTOR OF
NAHINU-RESPICIO TRUST ESTATE;
MARK EDWARD OF THE HILL
ESTATE, DULY AUTHORIZED
ADMINISTRATOR FOR NAHINURESPICIO TRUST ESTATE,
CIVIL 12-00145 LEK-BMK
ORDER DENYING AS MOOT DEFENDANTS’ MOTION TO DISMISS
AND DENYING PLAINTIFF’S MOTION FOR WRIT OF MANDAMUS
Before the Court are: 1) Defendant Central Pacific
Bank’s (“CPB”) Motion to Dismiss for Failure to State a Claim
upon which Relief Can Be Granted (“CPB Motion”), filed on May 23,
2012; 2) the May 30, 2012 filing titled Writ of Mandamus by
Plaintiffs Severino-Javier, Executor of Nahinu-Respicio Trust
Estate, and Mark-Edward, of the Hill Estate, Duly Authorized
Administrator for Nahinu-Respicio Trust Estate (collectively
“Plaintiffs”), which this Court construes as a motion for a writ
of mandamus (“Plaintiffs’ Motion”); and 3) the Motion to Dismiss
Complaint (“BoA Motion”) filed on August 10, 2012 by Defendants
Bank of America, N.A. (as successor-by-merger to BAC Home Loans
Servicing, LP (erroneously sued as “Bank Home Loans Servicing
LP”)), Mortgage Electronic Registration Systems, Inc.
(erroneously sued as “R.K. Arnold Mortgage Electronic
Registration Systems, Inc.”) (“MERS”), and JPMorgan Chase Bank,
National Association (“JPMorgan”, all collectively “BoA
Defendants”).
[Dkt. nos. 12, 16, 35.]
Plaintiffs filed their
memorandum in opposition to the CPB Motion on June 14, 2012,
[dkt. no. 26,] but did not file a response to the BoA Motion.
CPB and the BoA Defendants filed their memoranda in opposition to
Plaintiffs’ Motion on August 30, 2012 and August 31, 2012,
respectively.
[Dkt. nos. 42, 47.]
CPB also filed a statement of
no opposition to the BoA Motion on August 30, 2012.
43.]
[Dkt. no.
Plaintiffs filed a reply in support of Plaintiffs’ Motion
on September 4, 2012.
[Dkt. no. 51.]
On September 7, 2012, this Court entered an order
finding these matters suitable for disposition without a hearing
pursuant to Rule LR7.2(d) of the Local Rules of Practice of the
United States District Court for the District of Hawai`i.
no. 53.]
[Dkt.
After careful consideration of the motions, supporting
and opposing memoranda, and the relevant legal authority, the CPB
Motion and the BoA Motion are HEREBY DENIED AS MOOT, and
2
Plaintiffs’ Motion is HEREBY DENIED for the reasons set forth
below.
BACKGROUND
The instant case originated with a foreclosureejectment action in the Circuit Court of the Second Circuit,
State of Hawai`i (“state court”), JPMorgan Chase Bank, National
Ass’n v. Severino J. Nahinu-Respicio, et al., Civil No. 11-10601(2) (“Ejectment Action”).
Ejectment Action.
CPB was not a named party in the
[Mem. in Supp. of CPB Motion at 2.]
JPMorgan
brought the Ejectment Action seeking to enforce a non-judicial
foreclosure of a mortgage lien on 328A South Alu Road, Wailuku,
Hawai`i 96793.
[Id. at 2-3 (citing JPMorgan’s Motion for Summary
Judgment and for Writ of Ejectment Against Severino J. NahinuRespicio in the Ejectment Action (“Ejectment Summary Judgment
Motion”)).1]
CPB was the original lender and MERS was the
mortgagee under the Mortgage.
The Mortgage secured a promissory
note by Severino J. Nahinu-Respicio in favor of CPB for
$544,000.00.
[BoA Motion, Decl. of Patricia J. McHenry, Exh. B
(Mortgage by Severino J. Nahinu-Respicio) at 1.]
Plaintiffs filed their Notice of Removal on March 12,
2012 based on federal question jurisdiction.
at ¶ 3.]
[Notice of Removal
The purported pleading attached to the Notice of
1
The Ejectment Summary Judgment Motion is attached to
Plaintiffs’ Notice of Removal as Exhibit B.
3
Removal is titled “Libel of Review in Article III” and Plaintiffs
describe it as a “Verified Complaint Counterclaim in Admiralty”
(“Counterclaim”).
The Counterclaim, however, apparently was not
filed in the Ejectment Action.
In fact, the caption states “IN
THE UNITED STATES DISTRICT COURT DISTRICT OF HAWAII”.
[Counterclaim at 1.]
According to state court records, Severino J. NahinuRespicio filed the Notice of Removal in the Ejectment Action on
March 13, 2012.
At the March 14, 2012 hearing on the Ejectment
Summary Judgment Motion, the state court treated the Notice of
Removal as a response to the Ejectment Summary Judgment Motion.
The state court therefore granted the motion and instructed
JPMorgan’s counsel to prepare the order granting the motion.
As
of the date of this Order, however, no order granting the
Ejectment Summary Judgment Motion has been filed.
On March 19,
2012, Severino J. Nahinu-Respicio filed a notice of appeal to the
Intermediate Court of Appeals of the State of Hawai`i.
DISCUSSION
Before this Court can consider the merits of the
pending motions, it must determine whether it has jurisdiction
over this action in the first instance.
See United Investors
Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir.
2004) (noting that “the district court had a duty to establish
subject matter jurisdiction over the removed action sua sponte,
4
whether the parties raised the issue or not” (citation omitted)).
28 U.S.C. § 1441(a) provides:
Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State
court of which the district courts of the United
States have original jurisdiction, may be removed
by the defendant or the defendants, to the
district court of the United States for the
district and division embracing the place where
such action is pending.
Plaintiffs acknowledge that the complaint in the Ejectment Action
did not assert a federal claim, and Plaintiffs contend that the
Counterclaim provides the basis for federal question jurisdiction
because it asserts a claim under the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692 et seq.
[Notice of Removal at
¶ 1.]
First, the Court notes that it is well established that
a federal question in a defense or a counterclaim does not
establish federal question jurisdiction for removal purposes.
Caterpillar Inc. v. Williams, 482 U.S. 386, 399 (1987) (“a
defendant cannot, merely by injecting a federal question into an
action that asserts what is plainly a state-law claim, transform
the action into one arising under federal law, thereby selecting
the forum in which the claim shall be litigated” (emphasis and
footnote omitted)); Takeda v. Nw. Nat’l Life Ins. Co., 765 F.2d
815, 821-22 (9th Cir. 1985) (removal may not be based on a
federal question raised by a defendant in a counterclaim).
5
Further, even if Plaintiffs’ Counterclaim were
removable, it would be the counterclaim defendants who are
entitled to removal.
28 U.S.C. § 1446 states, in pertinent part:
(a) Generally.--A defendant or defendants desiring
to remove any civil action from a State court
shall file in the district court of the United
States for the district and division within which
such action is pending a notice of removal signed
pursuant to Rule 11 of the Federal Rules of Civil
Procedure and containing a short and plain
statement of the grounds for removal, together
with a copy of all process, pleadings, and orders
served upon such defendant or defendants in such
action.
(b) Requirements; generally.--(1) The notice of
removal of a civil action or proceeding shall be
filed within 30 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 30 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.
(Emphases added.)
Plaintiffs acknowledge that there is no
federal question in the complaint in the Ejectment Action; the
only purported basis of federal jurisdiction is in the
Counterclaim.
This Court therefore CONCLUDES that, even assuming
arguendo that the Counterclaim was properly filed in the
Ejectment Action, Plaintiffs improperly removed the Counterclaim.
Further, this Court CONCLUDES that it lacks jurisdiction over the
instant case.
6
CONCLUSION
On the basis of the foregoing, this action is HEREBY
DISMISSED FOR LACK OF JURISDICTION.
The Court therefore DENIES
AS MOOT CPB’s Motion to Dismiss for Failure to State a Claim upon
which Relief Can Be Granted, filed May 23, 2012, and the BoA
Defendants’ Motion to Dismiss Complaint, filed August 10, 2012.
The Court also DENIES Plaintiffs’ motion for writ of mandamus,
filed May 30, 2012.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 17, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
SEVERINO-JAVIER, ET AL. V. STATE OF HAWAII, ET AL; CIVIL NO. 1200145 LEK-BMK; ORDER DENYING AS MOOT DEFENDANTS’ MOTION TO
DISMISS AND DENYING PLAINTIFF’S MOTION FOR WRIT OF MANDAMUS
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?