Ogeone v. United States of America

Filing 137

ORDER REGARDING PARTIES' REMAND DISCUSSION - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/23/2015. "The court will enter an order remanding this case to state court if a corrected Declaration is filed within 4 cale ndar days of entry of this order and if, within 7 calendar days of entry of this order, it receives no written notice from either party that the party objects to the entry of an order remanding this case to state court." "Becaus e the court is not being actually presented with a motion by any party, this court is not treating the procedure described in this minute order as a "motion to remand the case on the basis of any defect other than lack of subject matter juri sdiction" that, under 28 U.S.C. § 1447(c), must be made within 30 days of the filing of the notice of removal under 28 U.S.C. § 1446(a)." (emt, )CERTIFICATE OF SERVICEParticipants reg istered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Galina Ogeone shall be served by first class mail at the address of record on January 26, 2015.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GALINA OGEONE,

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)
Plaintiff,
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vs.
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UNITED STATES OF AMERICA,
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)
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Defendant.
_____________________________ )

CIVIL NO. 13-00166 SOM/RLP
ORDER REGARDING PARTIES'
REMAND DISCUSSION

ORDER REGARDING PARTIES' REMAND DISCUSSION
The Government has submitted for the court's review a
draft Declaration of Thomas A. Helper that it proposes to file,
along with an unfiled Stipulation To Remand Case signed only by
the Government's counsel.

These documents appear to follow

discussions between the parties.
The court's understanding from the draft Declaration is
that Plaintiff hopes this court will order this action remanded.
The court suggests that the Declaration correct the reference to
"the removal of this case to state court" to be a reference to
"the removal of this case to federal court" in the first sentence
of Paragraph 4.

The court suggests that Paragraph 4 be further

amended to delete the words "there was no longer a basis for
federal court jurisdiction over the case," to delete the words
"Based on this analysis," and to delete footnote 1, and that the
following be inserted at the end of the second sentence of
Paragraph 4 after the comma following “to remain”:

"the exercise

of federal jurisdiction over the remaining claim became a matter

of the court's discretion pursuant to 28 U.S.C. § 1367, which
addresses supplemental jurisdiction."

Once those changes are

made, the court suggests that the Declaration be filed.
The court does not think the stipulation should be
filed, as Plaintiff has not signed it, and as it is not accurate
in stating that this court lacks jurisdiction.

This court's

position is that its subject matter jurisdiction must be measured
as of the time of the removal.

The court does not lose

jurisdiction even if the claim giving rise to subject matter
jurisdiction is dismissed.

Instead, the dismissal renders the

subsequent exercise of jurisdiction discretionary.

See Allen v.

FDIC, 710 F.3d 978, 984 (9th Cir. 2013)(measuring federal
jurisdiction at the time of removal); Shaw v. Hughes Aircraft
Co., 114 F.3d 1195 (9th Cir. 1997).
Notwithstanding this court's conclusion that it
continues to have the discretion to exercise discretion, if the
parties are in agreement that this matter should be addressed by
the state court, this court has no reason to insist on exercising
its discretion to retain this case.

The court will enter an

order remanding this case to state court if a corrected
Declaration is filed within 4 calendar days of entry of this
order and if, within 7 calendar days of entry of this order, it
receives no written notice from either party that the party
objects to the entry of an order remanding this case to state

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court.

In that event, the court will conclude that the

Declaration indicates the Government's agreement to a remand and
correctly represents Plaintiff's position on remand, which is
consistent with Plaintiff's earlier repeated statements in the
record to that effect.
Because the court is not being actually presented with
a motion by any party, this court is not treating the procedure
described in this minute order as a "motion to remand the case on
the basis of any defect other than lack of subject matter
jurisdiction" that, under 28 U.S.C. § 1447(c), must be made
within 30 days of the filing of the notice of removal under 28
U.S.C. § 1446(a).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 23, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Ogeone v. USA, Civil No. 13-00166 SOM/RLP, ORDER REGARDING
PARTIES' REMAND DISCUSSION

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