Welsh v. Wilcox Memorial Hospital et al

Filing 13

ORDER DENYING PLAINTIFF'S OBJECTIONS TO MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO REMAND ACTION TO STATE COURT 12 AND ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION 9 . Signed by JUDGE LESLIE E. KOBAYASHI on 12/ 4/2012. ~ "This Court ORDERS the Clerk's Office to remand the case to the State of Hawai'i Circuit Court of the Fifth Circuit." ~ (afc)CERTIFICATE OF SERVICEParticipants registered to receive ele ctronic 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 will be served by first class mail on December 5, 2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOHN THOMAS WELSH,

)
)
Plaintiff,
)
)
vs.
)
)
WILCOX MEMORIAL HOSPITAL;
)
ERIC J. SCHUMACHER;
)
(UNIDENTIFIED) MATRON,
)
)
)
Defendants.
_____________________________ )

CIVIL NO. 12-00609 LEK-KSC

ORDER DENYING PLAINTIFF’S OBJECTIONS TO MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION TO REMAND ACTION TO STATE COURT
AND ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION
On November 15, 2012, the magistrate judge issued his
Findings and Recommendation to Remand Action to State Court
(“F&R”).

Pro se Plaintiff John Thomas Welsh filed his objections

to the F&R on November 26, 2012 (“Objections”).

The Court finds

this matter 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 (“Local
Rules”).

After careful consideration of the F&R, Objections, and

the relevant legal authority, Plaintiff’s Objections are HEREBY
DENIED, and the magistrate judge’s F&R is HEREBY ADOPTED for the
reasons set forth below.
BACKGROUND
Plaintiff filed his Complaint in the Circuit Court of

the Fifth Circuit, State of Hawai`i, on October 8, 2012.
Plaintiff filed a Notice of Removal on November 13, 2012,
apparently arguing that the defendants’ motion to dismiss
violated his right to due process under the United States
Constitution.

Plaintiff also filed an Amended Notice of Removal

on November 14, 2012.
In the F&R, the magistrate judge concluded that the
plain language of 28 U.S.C. § 1441(a) precluded the removal of
the instant case because the right of removal is limited to
defendants.

[F&R at 2-3 (citing American Int’l Underwriters,

(Philippines), Inc. v. Continental Ins. Co., 843 F.2d 1253, 1260
(9th Cir. 1988)).]

The magistrate judge therefore recommended

that this Court remand the instant case to the state court based
on the lack of jurisdiction.

[Id. at 3.]

In his Objections, Plaintiff raises a number of
rhetorical questions, but essentially argues that, remanding this
action to the state court would violate his right to due process
pursuant to the Fifth and Fourteenth Amendments of the United
States Constitution and pursuant to United States Supreme Court
case law.
DISCUSSION
Any party may file objections to a magistrate judge’s
findings and recommendation regarding a case dispositive matter.
28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b); Local Rule LR74.2.

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A judge of the court shall make a de novo
determination of those portions of the report or
specified proposed findings or recommendations to
which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part,
the findings or recommendations made by the
magistrate judge. . . .
§ 636(b)(1).

Pursuant to Local Rule 74.2, the objecting party

must “specifically identify the portions of the order, findings,
or recommendations to which objection is made and the basis for
such objections.”
Although pro se litigants are held to less stringent
standards than those of their legal counterparts, see Haines v.
Kerner, 404 U.S. 519, 520 (1972) (per curiam); Jackson v. Carey,
353 F.3d 750, 757 (9th Cir. 2003), a litigant’s pro se status
cannot excuse him from complying with the procedural or
substantive rules of the court.

See King v. Atiyeh, 814 F.2d

565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same
rules of procedure that govern other litigants.” (citations
omitted)), rev’d on other grounds, Lacey v. Maricopa Cnty., 693
F.3d 896 (9th Cir. 2012).

Plaintiff has failed to comply with

the requirement in Local Rule 74.2 that he specifically identify
the portions of the F&R that he objects to, nor has Plaintiff
specifically identified the basis for his objections.

In

particular, Plaintiff has failed to identify any legal authority
contrary to the magistrate judge’s conclusion that this district
court lacks jurisdiction over the instant case because only a

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defendant may remove an action to federal court.
Further, upon an independent review of the applicable
law, this Court agrees with the magistrate judge’s reasoning in
the F&R and HEREBY ADOPTS the F&R as the order of this Court.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Objections
to Magistrate Judge’s Findings and Recommendation to Remand
Action to State Court, filed November 26, 2012, are HEREBY
DENIED, and this Court HEREBY ADOPTS the magistrate judge’s
Findings and Recommendation to Remand Action to State Court,
filed November 15, 2012.
This Court ORDERS the Clerk’s Office to remand the case
to the State of Hawai`i Circuit Court of the Fifth Circuit.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 4, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JOHN THOMAS WELSH V. WILCOX MEMORIAL HOSPITAL, ET AL; CIVIL NO.
12-00609 LEK-KSC; ORDER DENYING PLAINTIFF’S OBJECTIONS TO
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO REMAND ACTION
TO STATE COURT AND ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION

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