Ogeone v. United States of America

Filing 38

ORDER ADOPTING FINDINGS AND RECOMMENDATION re 32 , 36 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/19/13. (emt, )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). Galina Ogeone shall be served by first class mail at the address of record on July 22, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CIVIL NO. 13-00166 SOM/RLP

GALINA OGEONE,

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

ORDER ADOPTING FINDINGS AND
RECOMMENDATION

ORDER ADOPTING FINDINGS AND RECOMMENDATION
Before the court is Plaintiff Galina Ogeone’s
“Objection to Judge Puglisi’s Findings and Recommendation to Deny
Plaintiff’s Objection to Notice of Removal of Civil Action and
Deny Plaintiff’s Motion To Remand.”

ECF No. 36.

This court,

having conducted a de novo review of Ogeone’s objection and the
record in this case, concurs with and adopts Magistrate Judge
Richard Puglisi’s Findings and Recommendation (“F&R”).
I.

BACKGROUND
Ogeone, proceeding pro se, commenced this action in

state court.

The sole Defendant named by Ogeone was “Dentist W.

Ruth Yang.”

Ogeone’s Complaint alleges that Ogeone went to Yang

for a crown on an upper tooth, and a four-crown bridge on her
lower teeth.

According to Ogeone, Yang failed to notice that

Ogeone’s upper tooth was so long that it could not be properly
aligned with the lower crowns.

Having allegedly paid Yang $3450,

Ogeone says that she asked for a refund, that Yang’s supervisor
agreed to the refund, but that only $2000 was refunded.

The

Complaint prays for an additional refund of $1450, payment of
$5025 for dental work by a dentist who allegedly redid Yang’s
work, and punitive damages of $8000.

ECF No. 1.

On April 8, 2013, the United States removed this
action, asserting that Yang was providing dental services within
the scope of her employment at Kalihi Palama Health Center, a
federally funded community health center.

The United States said

that it “was provided” with a copy of the Complaint on or about
April 4, 2013.

Id.

On April 10, 2013, the United States filed

its “Notice of Substitution of United States as Defendant,”
stating that Yang was employed by the United States, certifying
that Yang had acted within the scope of her employment at the
time of the actions out of which the Complaint arose, and
replacing Yang as Defendant with the United States.

ECF No. 3.

Ogeone sought to have her case remanded to state court.
ECF Nos. 5, 10, 16.
First, Ogeone argued that this court lacked federal
question jurisdiction over this action, which Ogeone
characterized as an action sounding solely in contract.

Ogeone

said that Yang had breached an agreement to refund everything
Ogeone paid.
Second, Ogeone additionally argued that the removal had
been untimely, because (1) the case had not been removed within
thirty days of service of the Complaint on Defendant, as required

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by 28 U.S.C. § 1446(b), and (2) the Federal Tort Claims Act, at
28 U.S.C. § 2679(d)(2), allows removal “at any time before trial”
but trial allegedly occurred before removal.

ECF Nos. 5, 16, 20,

26.
Besides asserting that Ogeone had paid only $2000 and
had been refunded all that she actually paid, the United States
responded that Ogeone’s Complaint included a negligence claim
governed by the Federal Tort Claims Act.

ECF Nos. 18, 24.

The

United States also contended that the United States had never
been properly served with the Complaint, that service on Yang did
not constitute proper service, and that the United States had
removed the case within days of learning of Ogeone’s lawsuit
through the United States Department of Health and Human
Services.

ECF No. 18-1.
Magistrate Judge Puglisi, noting that the Complaint

sought punitive damages not usually recoverable for a breach of
contract, read the Complaint as including a negligence claim and
therefore falling under the Federal Tort Claims Act.

He also

noted that, because the United States was the proper Defendant
under the Federal Tort Claims Act and had not been properly
served, removal was timely under 28 U.S.C. § 1446(b).

The

Magistrate Judge noted that trial had not occurred in the state
court at all and recommended that the motion to remand be denied.

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II.

STANDARD OF REVIEW
Congress has empowered magistrate judges, upon referral

of dispositive pretrial motions by district judges, to conduct
hearings and issue findings and recommendations regarding
dispositive pretrial motions.

See 28 U.S.C. § 636(b)(1)(B); see

also Fed. R. Civ. P. 72(b) (promulgating rule).
A district judge may accept, reject, or modify, in
whole or in part, the findings and recommendation made by a
magistrate judge.

Fed. R. Civ. P. 72(b).

If a party timely

objects to portions of the findings and recommendation, the
district judge reviews those portions of the findings and
recommendation de novo.
74.2.

Fed. R. Civ. P. 72(b)(3); Local Rule

The district judge may consider the record developed

before the magistrate judge.

Local Rule 74.2.

The de novo standard requires the district court to
consider a matter anew and arrive at its own independent
conclusions, but a de novo hearing is not ordinarily required.
United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989);
United States v. Boulware, 350 F. Supp. 2d 837, 841 (D. Haw.
2004); Local Rule 74.2.
A district judge may accept the portions of the
findings and recommendation to which the parties have not
objected as long as the judge is satisfied that there is no clear
error on the face of the record.

See United States v. Bright,

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Civ. No. 07-00311 ACK/KSC, 2009 WL 5064355, at *3 (D. Haw. Dec.
23, 2009); Stow v. Murashige, 288 F. Supp. 2d 1122, 1127 (D. Haw.
2003); Fed. R. Civ. P. 72(b) advisory committee’s note.
III.

ANALYSIS
The court agrees with the Magistrate Judge that the

Complaint does include a tort claim.

If Ogeone were only

asserting a breach of contract, she would not be seeking damages
beyond those flowing from Yang’s alleged failure to keep what
Ogeone says was Yang’s promise to refund $3450.

Ogeone presents

no argument or authority supporting her punitive damage claim as
an adjunct to a breach of contract, and her Complaint contains no
factual allegations tying any breach of contract to the punitive
damage claim.

Nor does her Complaint include any factual

allegation suggesting that it was Yang’s alleged failure to
provide a full refund that gave rise to the need for Ogeone to
incur an additional $5025 to have dental work redone.

In praying

for relief that includes the additional $5025, the Complaint
appears to be relying on the assertion that Yang was negligent,
and that the additional $5025 was incurred to rectify the alleged
negligent dentistry, not to rectify Yang’s alleged breach of a
promise to provide a full refund.

The prayer for relief can be

squared with the allegations in the Complaint only if Ogeone is
asserting a tort claim, although she does also appear to be
asserting a contract claim.

A case that includes both a federal

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question, such as a Federal Tort Claims Act claim, and a state
law claim, such as a contract claim, may be removed in its
entirety.

28 U.S.C. § 1441 (c)(1)(when a case includes both a

federal claim and a state claim, “the entire action may be
removed if the action would be removable without the inclusion”
of the nonfederal claim).
As to the issue of the timeliness of the removal, this
court agrees with the Magistrate Judge that the United States,
the proper party for a tort claim against a federal employee, was
never properly served and so did not violate the thirty-day
deadline for removal.
Moreover, as the Magistrate Judge noted, removal was
not barred under 28 U.S.C. § 2679(d)(2), which refers to removal
“at any time before trial.”

This court issued a Writ of

Certiorari to the First Circuit Court, State of Hawaii, seeking
the state court records in connection with the removal of the
case to this court.

ECF No. 9.

In response, the court received

state court documents that included a computerized index of state
court proceedings.

ECF No. 25.

That index indicates that,

before removal, Ogeone had the Complaint served on Yang, Yang
answered the Complaint, Ogeone obtained entry of default and
moved for default judgment, Yang moved to set aside the entry of
default, and the state court granted Yang’s motion to set aside
the entry of default.

Three days after the state court set aside

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the entry of default against Yang, the case was removed to this
court.

The day after the case was removed, Ogeone filed an

appeal to the Hawaii Intermediate Court of Appeals.

Ogeone

appears to believe that the filing of an appeal somehow
establishes that a trial occurred.

She is mistaken.

Nothing in

the state court records the court has before it suggest that a
trial occurred.

Removal was therefore not barred by the

reference to removal “at any time before trial” in 28 U.S.C.
§ 2697(d)(2).
IV.

CONCLUSION
Having reviewed the remand issue de novo, this court

adopts the well-reasoned F&R.

The motion to remand is denied,

and the case may proceed in this court.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 19, 2013.

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

Ogeone v. United States; CIVIL NO. 13-00166 SOM/RLP, ORDER
ADOPTING FINDINGS AND RECOMMENDATION

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