Brown v. City and County of Honolulu et al
Filing
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ORDER ADOPTING, AS MODIFIED, MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF'S MOTION FOR ORDER REMANDING ACTION TO STATE COURT (ECF No. 15 ) and DENYING DEFENDANTS CITY AND COUNTY OF HONOLULU AND JEFFREY HE BERT'S OBJECTIONS TO FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF'S MOTION FOR ORDER REMANDING ACTION TO STATE COURT (ECFNo. 17 ). Signed by JUDGE HELEN GILLMOR on 4/7/2015. ~ Pursuant to 28 U.S.C. § 636( b)(1)(C) and Local Rule 74.2, the Findings and Recommendation to Grant Plaintiff's Motion For Order Remanding Action To State Court (ECF No. 15) is ADOPTED, AS MODIFIED, AS THE OPINION AND ORDER OF THIS COURT. The Court modifies line 2 of Footnote 1 on page 7 of the Magistrate Judge's Findings and Recommendation (ECF No. 15) and replaces "conflict" with "complete." Defendants City and County of Honolulu and Jeffrey Hebert's Objections to Findings an d Recommendation to Grant Plaintiff's Motion for Order Remanding Action to State Court (ECF No. 17 ) are DENIED. The case and all files herein are REMANDED to the Circuit Court of the First Circuit, State of Hawaii for further proceed ings. (ecs, )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
AMBERLY BROWN,
)
)
Plaintiff,
)
)
vs.
)
)
CITY AND COUNTY OF HONOLULU;
)
JEFFREY HEBERT; JOHN DOES 1-10; )
JANE DOES 1-10; DOE
)
CORPORATIONS 1-10; DOE
)
PARTNERSHIPS 1-10; DOE NON)
PROFIT ENTITIES 1-10; DOE
)
GOVERNMENTAL ENTITIES 1-10,
)
)
Defendants.
)
______________________________ )
CV NO. 14-00354 HG-KSC
ORDER ADOPTING, AS MODIFIED, MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION TO GRANT PLAINTIFF’S MOTION FOR ORDER REMANDING
ACTION TO STATE COURT (ECF No. 15)
and
DENYING DEFENDANTS CITY AND COUNTY OF HONOLULU AND JEFFREY
HEBERT’S OBJECTIONS TO FINDINGS AND RECOMMENDATION TO GRANT
PLAINTIFF’S MOTION FOR ORDER REMANDING ACTION TO STATE COURT (ECF
No. 17)
The action arises from a skydiving accident that occurred on
November 5, 2013, that resulted in injuries to Plaintiff Amberly
Brown.
Plaintiff claims that while she was descending during a
skydive, a Honolulu Police Department helicopter flew beneath her
and disrupted the airflow to her parachute, causing her to
1
quickly lose altitude and fall to the ground.
Plaintiff filed a Complaint in state court that was removed
to this Court by Defendant City and County of Honolulu.
Plaintiff filed a Motion requesting the Court remand proceedings
to state court.
On February 26, 2015, the Magistrate Judge entered a
Findings and Recommendation to Grant Plaintiff’s Motion for Order
Remanding Action to State Court.
(ECF No. 15).
Defendants City
and County of Honolulu and Jeffrey Hebert object to the Findings
and Recommendation.
(ECF No. 17).
The Court ADOPTS, AS MODIFIED, the Magistrate Judge’s
February 26, 2015 Findings and Recommendation (ECF No. 15).
Defendants’ Objections (ECF No. 17) are DENIED.
PROCEDURAL HISTORY
On March 6, 2014, Plaintiff Amberly Brown filed a Complaint
in the Circuit Court of the First Circuit, State of Hawaii.
(Def.’s Notice of Removal at ¶ 1, ECF No. 1).
On July 8, 2014, Plaintiff filed a First Amended Complaint.
(First Amended Complaint, attached as Ex. A to Def.’s Notice of
Removal, ECF No. 1-1).
On August 7, 2014, Defendant City and County of Honolulu
removed the state court action to the federal district court.
(ECF No. 1).
On December 24, 2014, Plaintiff filed PLAINTIFF’S MOTION FOR
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ORDER REMANDING ACTION TO STATE COURT.
(ECF No. 7).
On February 3, 2015, Defendants City and County of Honolulu
and Jeffrey Hebert filed an Opposition to Plaintiff’s Motion for
Order Remanding Action to State Court.
(ECF No. 11).
On February 10, 2015, Plaintiff filed a Reply.
(ECF No.
12).
On February 19, 2015, Defendants submitted a filing of
previously uncited authority in support of their Opposition.
(ECF No. 13).
On February 24, 2015, the Magistrate Judge held a hearing on
Plaintiff’s Motion for Order Remanding Action to State Court.
(ECF No. 14).
On February 26, 2015, the Magistrate Judge issued Findings
and Recommendation to Grant Plaintiff’s Motion for Order
Remanding Action to State Court.
(ECF No. 15).
On March 12, 2015, Defendants filed DEFENDANTS CITY AND
COUNTY OF HONOLULU AND JEFFREY HEBERT’S OBJECTIONS TO FINDINGS
AND RECOMMENDATION TO GRANT PLAINTIFF’S MOTION FOR ORDER
REMANDING ACTION TO STATE COURT.
(ECF No. 17).
On March 26, 2015, Plaintiff filed PLAINTIFF AMBERLY BROWN’S
RESPONSE TO DEFENDANTS CITY AND COUNTY OF HONOLULU AND JEFFREY
HEBERT’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS OF MAGISTRATE
FILED 3/12/15.
(ECF No. 19).
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STANDARD OF REVIEW
Objections to a Magistrate Judge’s Findings and Recommendation
A magistrate judge may be assigned to prepare findings and
recommendations for a district judge on a pretrial matter that is
dispositive of a claim.
636(b)(1)(B).
Fed. R. Civ. P. 72(b); 28 U.S.C. §
Any party may object to a magistrate judge’s
findings and recommendations, pursuant to United States District
of Hawaii Local Rule 74.2.
If a party objects to the magistrate judge’s findings or
recommendations, the district court must review de novo those
portions to which objection is made.
United States v. Raddatz,
447 U.S. 667, 673 (1980); Fed. R. Civ. P. 72(b).
The district
court may accept, reject, or modify, in whole or in part, the
findings and recommendations made by the magistrate judge, or
recommit the matter to the magistrate judge.
28 U.S.C. §
636(b)(1)(C).
De novo review means the district court must consider the
matter anew, as if it had not been heard before and as if no
decision previously had been rendered.
F.3d 930, 933 (9th Cir. 2009).
Dawson v. Marshall, 561
The district court must arrive at
its own independent conclusion about those portions to which
objections are made, but a de novo hearing is not required.
United States v. Remsing, 874 F.2d 614, 617-18 (9th Cir. 1989).
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Motion to Remand
A motion to remand may be brought to challenge the removal
of an action from state to federal court.
28 U.S.C. § 1447(c).
Removal of a civil action from state court to the appropriate
federal district court is permissible only if the federal
district court has original jurisdiction over the action.
U.S.C. § 1441.
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Federal district courts have original
jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.”
28 U.S.C.
§ 1331.
There is a strong presumption against removal.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
Gaus v.
The statute
authorizing removal is strictly construed, and the removing party
has the burden of establishing that removal was proper.
Moore-
Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir.
2009).
Absent diversity jurisdiction, removal is proper if a
federal question is apparent on the face of the plaintiff’s wellpleaded complaint.
392 (1987).
Caterpillar, Inc. v. Williams, 482 U.S. 386,
The well-pleaded complaint rule makes the plaintiff
the master of the claim, able to avoid federal jurisdiction by
relying exclusively on state law.
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Id.
ANALYSIS
I.
Plaintiff’s First Amended Complaint Alleges Only State Law
Causes of Action
Plaintiff Amberly Brown’s First Amended Complaint contains
allegations that on November 5, 2013, she was descending during a
skydive when a Honolulu Police Department helicopter flew beneath
her, interrupted her descent, and caused her to quickly fall to
the ground.
(First Amended Complaint at ¶¶ 11-12, attached as
Ex. A to Defendant’s Notice of Removal, ECF No. 1-1).
The Magistrate Judge construed Plaintiff’s Complaint as
stating state law causes of action for negligence, negligent
hiring/retention, and negligent training/supervision.
(Findings
and Recommendation at p. 2, ECF No. 15).
Defendants object to the Magistrate Judge’s characterization
of Plaintiff’s claims as “state law claims.”
Defendants argue
that the allegations in Plaintiff’s First Amended Complaint
contain federal questions.
Federal question jurisdiction, pursuant to 28 U.S.C. § 1331,
exists when a plaintiff’s well-pleaded complaint establishes
either (1) that federal law creates the cause of action or (2)
that a state law claim “necessarily raises a stated federal
issue, actually disputed and substantial, which a federal forum
may entertain without disturbing any congressionally-approved
balance of federal and state judicial responsibilities.”
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Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d
1083, 1086-87 (9th Cir. 2009) (quoting Grable & Sons Metal Prod.,
Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005)).
A.
Plaintiff’s Complaint Does Not Cite Any Federal Cause
of Action or Implicate a Substantial Federal Issue
Plaintiff’s First Amended Complaint does not cite any
federal law.
Plaintiff cites only state law causes of action.
Defendants contend that although the First Amended Complaint
does not identify particular laws or regulations, the factual
allegations implicate the Federal Aviation Act, 49 U.S.C. § 40101
et seq. and its regulations.
(Objections at p. 7, ECF No. 17).
The use of a federal statute as a predicate for a state law
cause of action does not necessarily transform that cause of
action into a federal claim.
Nevada v. Bank of America Corp, 672
F.3d 661, 675 (9th Cir. 2012).
The United States Supreme Court, in Merrell Dow Pharm. Inc.
v. Thompson, 478 U.S. 804, 814-17 (1986), found there was no
federal question jurisdiction, despite the reference to federal
law within the state law negligence cause of action.
The Supreme
Court held that a complaint alleging a violation of a federal
statute as an element of a state cause of action, when Congress
has determined that there should be no private, federal cause of
action for the violation, does not provide federal question
jurisdiction.
Id. at 817.
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The Federal Aviation Act does not provide a federal cause of
action for personal injury suits.
Martin v. Midwest Express
Holdings, Inc., 555 F.3d 806, 808 (9th Cir. 2009).
A mere
reference to the Federal Aviation Act is insufficient to confer
federal question jurisdiction.
Federal District Courts within the jurisdiction of the Ninth
Circuit Court of Appeals have consistently held that state law
actions that reference violations of the Federal Aviation Act and
its regulations do not confer federal question jurisdiction.
S.M.N. ex rel. Martins v. Hageland Aviation Servs., 2011 WL
87366, *1-*3 (D. Alaska Jan. 11, 2011); Estate of Sesay v. Hawker
Beechcraft Corp., 2011 WL 7501887, *4 (C.D. Cal. Dec. 9, 2011).
B.
Plaintiff’s Citation to Federal Law in Her Settlement
Demand Letter Does Not Confer Federal Question
Jurisdiction
The Defendants assert that Plaintiff’s First Amended
Complaint provides federal question jurisdiction because
Plaintiff sent a settlement demand letter dated November 3, 2014,
which alleges violations of the Federal Aviation Act and Federal
Aviation Act Advisory Circulars.
(Objections at p. 8, ECF No.
17; Letter dated November 3, 2014 from Ian L. Mattoch to Calvin
Young, attached as Ex. C to Defendants’ Opposition to Plaintiff’s
Motion to Remand, ECF No. 11-4).
Defendants argue that the
Plaintiff’s settlement demand letter should be considered as
8
“other paper” in conjunction with her First Amended Complaint,
pursuant to 28 U.S.C. § 1446(b)(3).
Even if the Court considers Plaintiff’s Settlement Demand
Letter as “other paper” for purposes of removal, the references
to federal law in the November 3, 2014 Settlement Demand Letter
do not confer this Court with federal question jurisdiction.
The
Federal Aviation Act does not provide a federal cause of action
for personal injury claims and an allegation that the federal
statute is an element of Plaintiff’s negligence claim does not
state a federal question.
Merrell Dow Pharm. Inc., 478 U.S. at
817; Martin, 555 F.3d at 808.
The Magistrate Judge properly determined that Plaintiff’s
well-pleaded First Amended Complaint alleges only state law
causes of action.
II.
Plaintiff’s State Law Causes of Action Are Not Completely
Preempted by the Federal Aviation Act
The complete preemption doctrine provides an exception to
the well-pleaded complaint rule.
In certain cases, the
preemptive force of federal law displaces any state law cause of
action, and leaves room only for a federal claim for purposes of
the well-pleaded complaint rule.
Metro. Life Ins. Co. v. Taylor,
481 U.S. 58, 63-64 (1987).
Complete preemption re-characterizes a state law claim as a
federal claim and operates to confer original federal subject
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matter jurisdiction, notwithstanding the absence of a federal
cause of action on the face of the complaint.
Franchise Tax Bd.
of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S.
1, 23-24 (1983); Dennis v. Hart, 724 F.3d 1249, 1254 (9th Cir.
2013).
Complete federal preemption occurs when (1) Congress enacts
a statute that explicitly preempts state law; (2) state law
actually conflicts with federal law; or (3) federal law occupies
a legislative field to such an extent that it is reasonable to
conclude that Congress left no room for state regulation in that
field.
Chae v. SLM Corp., 593 F.3d 936, 941 (9th Cir. 2010).
Defendants object to the Magistrate Judge’s Findings and
Recommendation and argue that complete field preemption applies
in this case.
Defendants assert that the Federal Aviation Act
and its regulations occupy the entire field of airspace
management, aviation safety, and skydiving such that federal law
displaces Plaintiff’s state law causes of action.
(Objections at
p. 14, ECF No. 17).
The reasons stated in the Magistrate Judge’s Findings and
Recommendation are sound.
Complete field preemption does not
apply in this case.
A.
Plaintiff’s Claims Are Not Subject to Complete Field
Preemption
The Magistrate Judge correctly determined that Plaintiff’s
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state law causes of action are not completely preempted by
federal law.
The Ninth Circuit Court of Appeals has found in several
instances that the Federal Aviation Act and its regulations do
not completely preempt the field such that a plaintiff may not
bring a state law personal injury claim.
See Gilstrap v. United
Air Lines, Inc., 709 F.3d 995, 1004 (9th Cir. 2013).
In Martin v. Midwest Express Holdings, Inc., 555 F.3d 806,
808 (9th Cir. 2009), the Ninth Circuit Court of Appeals held that
Congress did not intend to preempt all state law personal injury
suits in the field of air travel.
The appeals court found that
the plaintiff’s personal injury suit was not completely preempted
because the Federal Aviation Act expressly preserves state
remedies and contemplates tort suits for personal injury brought
pursuant to state law.
Id.
In a 2013 unpublished decision, the Ninth Circuit Court of
Appeals directly addressed the issue of removal based on complete
preemption pursuant to the Federal Aviation Act.
Webb v. Desert
Bermuda Dev. Co., 518 Fed. Appx. 521, 522 (9th Cir. May 9,
2013).1
The appeals court held that the Federal Aviation Act
does not create a federal cause of action for personal injury
suits and “[c]onsequently, the complete preemption doctrine is
1
The Magistrate Judge did not err by relying on the Webb
decision pursuant to Fed. R. App. P., which allows citation of
unpublished judicial decisions issued after January 1, 2007.
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inapplicable here and does not provide a basis for removal.”
Id.
The Magistrate Judge also properly relied on the Ninth
Circuit Court of Appeals’ decision in Gilstrap v. United Air
Lines in finding that there is no complete field preemption in
this case.
709 F.3d at 1004.
In Gilstrap, the appellate court
held that the plaintiff’s state law personal injury causes of
action, including negligence, were not completely preempted by
the Federal Aviation Act and its subsequent amendments.
Id.
The
appeals court found that the Federal Aviation Act may, in fact,
establish the applicable standards of care in the field of
aviation safety, but held that the plaintiff’s state law claims
were not completely preempted.
Id. at 1006.
The Gilstap court
explained that the Federal Aviation Act expressly preserves state
remedies and state law damages actions will remain, even when
state substantive standards are displaced.
Id.
Defendants’ Objections rely heavily on the decision in
Ventress v. Japan Airlines, 747 F.3d 716, 722 (9th Cir. 2014).
In Ventress, the Ninth Circuit Court of Appeals found that the
plaintiff’s claims for retaliation and constructive termination
were preempted because they encroached upon the pervasiveness of
federal regulations regarding pilot qualifications and medical
fitness.
Id. at 722-23.
The appeals court found preemption
applied as to the plaintiff’s claims but acknowledged that state
causes of action may remain available for claims involving the
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Federal Aviation Act.
Id. at 723 n.4.
The Magistrate Judge properly distinguished the holding in
Ventress. (Findings and Recommendation at pp. 11-12, ECF No. 15).
The Magistrate Judge recognized that Ventress did not involve a
personal injury claim and did not reach the issue of whether a
negligence claim involving aviation safety is completely
preempted.
Ventress did not involve a motion to remand and the
decision did not acknowledge the prior holding in Gilstrap.
Defendants’ reliance on a non-binding, out-of-circuit
decision in Curtin v. Port Authority of New York, 183 F.Supp.2d
664, 672 (S.D.N.Y. 2002) as grounds for their Objections is not
persuasive.
The Magistrate Judge properly determined that complete
preemption did not apply and found there was not a basis for
removal of Plaintiff’s First Amended Complaint to federal court.
B.
Ordinary Preemption Does Not Provide A Basis for
Removal
A defense of federal preemption to a state law claim is
known as “ordinary preemption.”
Ordinary preemption does not
confer federal subject matter jurisdiction.
F.3d at 1244.
Moore-Thomas, 553
Ordinary preemption is distinct from complete
preemption in that it is a defense and is not a basis for
removal.
Id.; Metro. Life Ins. Co., 481 U.S. at 65.
The Magistrate Judge stated that ordinary preemption may
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apply in this case, but correctly found that ordinary preemption
does not provide a basis for removal.
(Findings and
Recommendation at pp. 4-5, 14, ECF No. 15).
The Magistrate Judge’s Findings and Recommendation states
that “Defendants appear to conflate ordinary preemption with
conflict preemption.”
n.1).
(Findings and Recommendation at p. 7,
The Defendant’s objection to this finding.
As the
Plaintiff points out in her Response, it is clear from the
context that the Magistrate Judge intended to state: “Defendants
appear to conflate ordinary preemption with complete preemption.”
(Response at p. 7 n.1, ECF No. 19).
The Court modifies the Magistrate Judge’s Findings and
Recommendation (ECF No. 15) and replaces “conflict” in line 2 of
Footnote 1 on page 7 with “complete.”
The Findings and Recommendation to Grant Plaintiff’s Motion
for an Order Remanding Action to State Court (ECF No. 15) is
ADOPTED, AS MODIFIED.
CONCLUSION
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Local Rule 74.2,
the “Findings and Recommendation to Grant Plaintiff’s Motion For
Order Remanding Action To State Court” (ECF No. 15) is ADOPTED,
AS MODIFIED, AS THE OPINION AND ORDER OF THIS COURT.
The Court
modifies line 2 of Footnote 1 on page 7 of the Magistrate Judge’s
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Findings and Recommendation (ECF No. 15) and replaces “conflict”
with “complete.”
Defendants City and County of Honolulu and Jeffrey Hebert’s
Objections to Findings and Recommendation to Grant Plaintiff’s
Motion for Order Remanding Action to State Court (ECF No. 17) are
DENIED.
The case and all files herein are REMANDED to the Circuit
Court of the First Circuit, State of Hawaii for further
proceedings.
IT IS SO ORDERED.
DATED: April 7, 2015, Honolulu, Hawaii.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
Amberly Brown v. City and County of Honolulu; Jeffrey Hebert;
John Does 1-10; Jane Does 1-10, Doe Corporations 1-10; Doe
Partnerships 1-10; Doe Non-Profit Entities 1-10; Doe Governmental
Entities 1-10, Civ. No. 14-00354 HG-KSC; ORDER ADOPTING, AS
MODIFIED, MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO GRANT
PLAINTIFF’S MOTION FOR ORDER REMANDING ACTION TO STATE COURT (ECF
No. 15) and DENYING DEFENDANTS CITY AND COUNTY OF HONOLULU AND
JEFFREY HEBERT’S OBJECTIONS TO FINDINGS AND RECOMMENDATION TO
GRANT PLAINTIFF’S MOTION FOR ORDER REMANDING ACTION TO STATE
COURT (ECF No. 17)
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