Kalamau v. Kaloi et al

Filing 21

ORDER ADOPTING FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION TO REMAND WITH COSTS AND REASONABLE FEES re 16 . Signed by JUDGE J. MICHAEL SEABRIGHT on 6/27/13. (gls, )CERTIFICATE OF SE RVICEParticipants 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
GLORIA KALAMAU,

)
)
Plaintiff,
)
)
vs.
)
)
MYRLEEN K. KALOI, JNEEL
)
KALOI, HAWAII COUNTY MASS )
TRANSIT AGENCY, TOM
)
BROWN, TIFFANY KAI, HAWAII )
COUNTY DEPARTMENT OF
)
HUMAN RESOURCES, TERI
)
SPINOLA-CAMPBELL,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 13-00200 JMS-KSC
ORDER ADOPTING FINDINGS
AND RECOMMENDATION TO
GRANT IN PART AND DENY IN
PART PLAINTIFF’S MOTION TO
REMAND WITH COSTS AND
REASONABLE FEES

ORDER ADOPTING FINDINGS AND RECOMMENDATION TO GRANT
IN PART AND DENY IN PART PLAINTIFF’S MOTION TO REMAND
WITH COSTS AND REASONABLE FEES
I. INTRODUCTION
On March 27, 2013, Plaintiff Gloria Kalamau (“Plaintiff”) filed a
Complaint in the Third Circuit Court of the State of Hawaii, asserting claims for
damages based on alleged harassment and bullying by a co-worker, lack of
employer response following Plaintiff’s complaints, a subsequent physical
altercation, and the false accusation that Plaintiff was the aggressor.

On April 26, 2013, Defendants Hawaii County Mass Transit Agency;
Tom Brown; Tiffany Kai; Hawaii County Department of Human Resources; and
Teri Spinola-Campbell (collectively, “Defendants”),1 removed this action to federal
court on the basis of federal question jurisdiction. Doc. No. 1, Defs.’ Notice of
Removal. On May 2, 2013, Plaintiff filed a Motion to Remand, seeking a remand
to state court and an award of costs and reasonable attorney fees incurred as a
result of the removal. Doc. No. 5. On June 12, 2013, Magistrate Judge Kevin S.C.
Chang entered his Findings and Recommendation (“June 12 F&R”) that this court
remand the action to state court and deny the request for fees and costs incurred in
securing remand. Doc. No. 16.
On June 25, 2013, Plaintiff filed her Objections to the June 12 F&R,
in which she challenges only the denial of fees and costs “incurred in responding to
the filing of the Notice of Removal.” Doc. No. 19, Pl.’s Objs. at 1. On June 27,
2013, Defendants filed a Response. Doc. No. 20. Based on the following, the
court ADOPTS the June 12 F&R.
///
///

1

Myrleen K. Kaloi and Jneel Kaloi, also named as Defendants, see Doc. No. 1-2, Pl.’s
Compl. ¶¶ 2-3, are not represented by counsel for the Hawaii County Defendants, but agreed to
the removal of this case. See Doc. No. 1, Defs.’ Notice of Removal ¶ 5.
2

II. BACKGROUND
Plaintiff is a seventy-three year old Hawaiian woman who worked “in
the Hilo Ironworks Building office of Mass Transit.” See Doc. No. 1-2, Compl. ¶¶
1, 9. The Complaint alleges that Defendant Myrleen Kaloi, who worked for the
same agency, began mistreating Plaintiff. Id. ¶¶ 10-16. Plaintiff contends that
Defendant Kaloi’s conduct constitutes “harassment prohibited by County of
Hawaii policy and State and Federal law[,]” and “caused Plaintiff to experience a
hostile work environment.” Id. ¶¶ 17-18. Plaintiff complained about Defendant
Kaloi’s conduct to her employers and filed a complaint with the Equal Opportunity
Officer for Human Resources for the Hawaii County Department of Human
Resources, but “upon information and belief” no action resulted. Id.
¶¶ 8, 19-28. Thereafter, Defendant Kaloi and her daughter, Defendant Jneel Kaloi
(collectively, “the Kaloi Defendants”) allegedly assaulted Plaintiff, causing serious
injury. Id. ¶¶ 3, 29-39. Following accusations by the Kaloi Defendants that
Plaintiff was the aggressor, Plaintiff was charged with two counts of criminal
assault, tried, and ultimately acquitted of those charges. Id. ¶¶ 40-45. The
Complaint seeks damages for, among other things, the “violation of civil rights
incurred by plaintiff.” Id. at 13.

3

Defendants removed this action contending that the Complaint raises a
federal question. See Doc. No. 1, Defs.’ Notice of Removal ¶ 2. During a June 12,
2013 hearing before Magistrate Judge Chang, Plaintiff represented that she “did
not intend to, nor will [s]he pursue, any federal causes of action[,]” and Defendants
agreed to “stipulate to remand[.]” Doc. No. 16, F&R at 2. Accordingly,
Magistrate Judge Change directed the parties to submit a stipulation to that effect
and recommended that this court grant the Motion to Remand, to the extent it
sought remand. Id.
Magistrate Judge Chang further recommended that the Motion to
Remand be denied to the extent it sought an award of fees and costs incurred as a
result of the removal, finding that Defendants “had an objectively reasonable basis
for seeking removal.” Id. at 3. This single point is now on appeal to this court.
Plaintiff filed Objections on June 25, 2013. Doc. No. 1. On June 27, 2013,
Defendants filed a Response. Doc. No. 20. Pursuant to Local Rule 7.2(d), the
court determines Plaintiff’s Objections without a hearing.
III. STANDARD OF REVIEW
When a party objects to a magistrate judge’s findings or
recommendations, the district court must review de novo those portions to which
the objections are made and “may accept, reject, or modify, in whole or in part, the
4

findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he
district judge must review the magistrate judge’s findings and recommendations de
novo if objection is made, but not otherwise.”).
Under a de novo standard, this court reviews “the matter anew, the
same as if it had not been heard before, and as if no decision previously had been
rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); United
States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district court need not
hold a de novo hearing; however, it is the court’s obligation to arrive at its own
independent conclusion about those portions of the magistrate judge’s findings or
recommendation to which a party objects. United States v. Remsing, 874 F.2d 614,
616 (9th Cir. 1989).
IV. DISCUSSION
When remanding a case, the court “may require payment of just costs
and any actual expenses, including attorney fees, incurred as a result of the
removal.” 28 U.S.C. § 1447(c). “[T]he standard for awarding fees should turn on
the reasonableness of the removal. Absent unusual circumstances, courts may
award attorney’s fees under § 1447(c) only where the removing party lacked an
5

objectively reasonable basis for seeking removal. Conversely, when an objectively
reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp.,
546 U.S. 132, 141 (2005).
The Complaint explicitly alleged that Defendant Kaloi’s conduct
violated county, state, and federal law, and sought damages for violation of civil
rights. See Doc. No. 1-2, Compl. ¶ 17 and at 13. Plaintiff contends that basing
removal on “a word or two that reference[s] federal law” is not sufficient to
establish proper grounds for federal jurisdiction. Doc. No. 17, Pl.’s Objs. at 2-3.
Plaintiff is mistaken.
Whether Defendants met their burden of establishing federal
jurisdiction is not the issue. Rather, this court must determine whether Defendants
had an objectively reasonable basis for seeking removal. The Complaint includes
an explicit reference to violation of federal law. See Doc. No. 1-2, Compl. ¶ 17.
Additionally, the Complaint requested damages, albeit in a vague, ambiguous
manner, that could reasonably be construed as based on violation of federal civil
rights law. See id. at 13.
These references to violations of federal law are sufficient to provide
an objectively reasonable basis for seeking removal. See Campbell v. Amer. Tours
Int’l, 2013 WL 894797, at *3 (N.D. Cal. Mar. 8, 2013) (denying fees following
6

remand because “references to a ‘nationwide class’ and the ‘federal law’ in the
introductory portions of the complaint provided reasonable grounds on which to
base removal”); see also Culannay v. Freddie Mac Fixed to Floating Rate Non
Cumulative Perpetual Preferred Stock, 2012 WL 5499927, at *1, 4 (N.D. Cal.
Nov. 13, 2012) (finding basis for unsuccessful removal to be objectively
reasonable where the defendant relied on the plaintiff’s passing references to
violations of federal law in the complaint); Briggs v. First Nat’l Lending Servs.,
2010 WL 962955, at *1-3 (finding basis for unsuccessful removal to be objectively
reasonable when based on the plaintiffs’ reference to violations of federal statues in
the complaint).
Plaintiff is the master of her Complaint and chose to refer to
violation of federal law in that Complaint. Accordingly, the court finds
Defendants’ reliance on the plain language of the Complaint to be objectively
reasonable and DENIES Plaintiff’s Motion to the extent it seeks an award of
attorney’s fees and costs.
///
///
///
///
7

V. CONCLUSION
Based on the above, the court ADOPTS the June 12 Findings and
Recommendation to Grant in Part and Deny in Part Plaintiff’s Motion to Remand
with Costs and Reasonable Fees.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 27, 2013.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Kalamau v. Kaloi, et al., Civil No. 13-00200 JMS-KSC, Order Adopting Findings and
Recommendation to Grant in Part and Deny in Part Plaintiff’s Motion to Remand with Costs and
Reasonable Fees

8