Hester v. Horowitz et al

Filing 47

ORDER REMANDING ACTION TO THE THIRD CIRCUIT COURT OF THE STATE OF HAWAII. Signed by JUDGE J. MICHAEL SEABRIGHT on 1/7/2015. Excerpt of Conclusion: "[T]he Clerk of Court shall remand the action forthwith to the Third Circuit Court of the State of Hawaii. All pending Motions in this case are deemed MOOT in this court." Motions terminated: 17 MOTION to Dismiss Counterclaims filed on September 1 8, 2014 filed by Jason Hester 35 MOTION for Injunctive Relief from Commercial Defamation and Robbery by Organized Crime [LR10.2(g); FRCP 65(a)(2); 15 U.S.C. § 1125(c)(1)] filed by Leonard G. Horowitz, Sherri Kane 38 MOTI ON to Seal Document Public Disclosure of Private Facts Videos "A" thru "C" and defamatory DVD "E" [FRCP 26(c)(1)(A)(B)] - filed by Defendants Leonard G. Horowitz and Sherri Kane (afc) < hr>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. A certified copy of the instant order will be served this date by first class mail to the State of Hawaii Third Circuit Court - Puna Division.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

JASON HESTER,

)
)
Plaintiff,
)
)
vs.
)
)
LEONARD G. HOROWITZ, ET
)
AL.,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 14-00413 JMS-RLP
ORDER REMANDING ACTION TO
THE THIRD CIRCUIT COURT OF
THE STATE OF HAWAII

ORDER REMANDING ACTION TO THE THIRD CIRCUIT COURT OF
THE STATE OF HAWAII
Based on the following, this action is REMANDED forthwith to the
Third Circuit Court of the State of Hawaii (the “State Court”).
I. INTRODUCTION
The Complaint in this action alleges no federal causes of action, and
after it was removed from the State Court, the court questioned whether it
otherwise has federal subject matter jurisdiction over the action. See Doc. No. 6
(Order to Show Cause Why Action Should Not be Remanded to the Third Circuit
Court of the State of Hawaii). In a prior Order to Show Cause (“OSC”), the court
gave Defendants the opportunity to meet their burden to demonstrate a basis for
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federal jurisdiction. See id.; Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)
(holding that a defendant who has removed a case bears the burden of proving the
propriety of removal, including federal jurisdiction). The court allowed the action
to proceed only after Defendants Horowitz and Kane asserted complete diversity
of citizenship, claiming domicile in California (with Plaintiff being a citizen of
Hawaii).1 See Doc. Nos. 15, 16.
Nevertheless, the court has a “continuing obligation to assess its own
subject-matter jurisdiction, even if the issues is neglected by the parties[.]” United
States v. Ceja-Prado, 333 F.3d 1046, 1049 (9th Cir. 2003) (emphasis added). It is
an “obligation to investigate and ensure [its] own jurisdiction[.]” Id. See also,
e.g., Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999) (reiterating that a
federal court has an independent obligation to address sua sponte whether it has
subject matter jurisdiction). Given this continuing obligation, and based on
information not previously known to the court, the court now confirms that it lacks
subject matter jurisdiction and that the action must be remanded to State Court
forthwith.

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For a natural person to be a citizen of a state under 28 U.S.C. § 1332(a)(1), that person
must be a United States citizen and “domiciled” in that state. Lew v. Moss, 797 F.2d 747, 749
(9th Cir. 1986); Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (“[A] natural
person’s state citizenship is . . . determined by [his or] her state of domicile[.]”).
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II. DISCUSSION
Reviewing various court records in this and related actions, it is
obvious that this case is simply a continuation of a long-running dispute that is
and has been the subject of several prior and pending actions in federal and state
court.2 See, e.g., Hester v. Horowitz, No. 3RC14-1-000466 (Haw. Cir. Ct. 2014),
(available at hoohiki2.courts.state.hi.us/jud/Hoohiki/main.htm); Horowitz v. Sulla,
Civ. No. 13-00500 HG-BMK (D. Haw. 2013).3 (Indeed, it appears that this action
is a duplicative action, raising similar if not identical questions that are or were at
issue in other actions.) In particular, the court has reviewed certain filings in
Horowitz v. Sulla, Civ. No. 13-00500 HG-BMK, which was dismissed on March
14, 2014 by U.S. District Judge Helen Gillmor for (in part) lack of diversity of
citizenship. In that action, Judge Gillmor found that “Plaintiff Horowitz is
domiciled in Pahoa, Hawaii.” Horowitz v. Sulla, Civ. No. 13-00500 HG-BMK,
Doc. No. 64, Order Granting Motions to Dismiss for Lack of Subject Matter

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The court “may take notice of proceedings in other courts, both within and without the
federal judicial system, if those proceedings have a direct relation to matters at issue.” United
States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.
1992).
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The actions in federal court have consisted of voluminous confusing pleadings, with
scattered allegations regarding the Central Intelligence Agency, the National Security Agency,
organized crime, copyright infringement, and antitrust violations. See, e.g., Doc. No. 42 (striking
filing that was fanciful, bearing no relation to the original complaint for quiet title, summary
possession, and ejectment).
3

Jurisdiction, at 10. This conclusion was based on Horowitz’ October 1, 2013
Verified Complaint in that action, submitted under penalty of perjury, that
Horowitz “has lived at 13-3775 Kalapana Highway, Pahoa, HI, 96778, as his
primary residence since 2004.” Id., Doc. No. 1-2, Compl. at 10. He asserted that
he contracted to purchase the property in June 2003 for his ministry, the Royal
Bloodline of David. Id. at 5. Horowitz also affirmed to be “residing and working
in the State of Hawaii at 13-3775 Kalapana Highway, Pahoa, HI, 96788,” in a
different suit. See Horowitz v. Softlayer Techs., Inc., Civ. No. 12-00205 HGBMK, Doc. No. 19-2, Pls.’ Reply at 2.
In the present action, Horowitz claimed (citing to a divorce record)
that his “primary domicile [is] in California, at 880 Cliff Drive, Laguna Beach,
where he lived with KANE and his children as late as June, 2011.” Hester v.
Horowitz, Civ. No. 14-00413 JMS-RLP, Doc. No. 13, Reply to OSC at 3.
Horowitz claimed that “it is Defendants’ intention to return home to California as
soon as possible, pending resolution of this legal dispute[.]” Id. at 5 (emphasis
omitted). Horowitz also claimed that he “maintained a second domicile in Idaho,
and was compelled by ‘precipitating events’ to move to Hawaii (thereby
establishing a temporary residence in Hawaii) between 2009 and 2010 to defend
his ministerial calling, Property investments, and right of Mortgage Release
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(following payment in full on the original Note in February, 2009).” Id.
(emphases omitted).
These representations in the present case plainly conflict with
Horowitz’ prior statements upon which Judge Gillmor relied in Horowitz v. Sulla,
Civ. No. 13-00500 HG-BMK -- statements indicating a permanent residence in
Hawaii. They are also inconsistent with positions taken by Horowitz in that and
other cases. In an Order to Show Cause in Horowitz v. Sulla, Judge Gillmor
informed the parties that “[d]iversity [of citizenship] is not present in this case
based on the allegations in the Complaint. At a minimum, Plaintiff Horowitz and
Defendants Sulla, Hester, Herbert Ritke, Ronn Ritke, and Carey are all citizens of
Hawaii.” Horowitz v. Sulla, Civ. No. 13-00500 HG-BMK, Doc. No. 18, at 2.
Horowitz did not respond in November 2013 to this statement by asserting that his
domicile was actually California (which could have established diversity of
citizenship under 28 U.S.C. § 1332) -- instead he focused on arguing that he is a
“public minister,” and that federal question jurisdiction existed under 28 U.S.C.
§ 1331. See id., Doc. No. 24.
Similarly, in another case, Sulla v. Horowitz, Civ. No. 12-00449
SOM-KSC, Chief Judge Susan Oki Mollway remanded an action removed by
Horowitz, indicating that “[n]othing in the complaint suggests that there is
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diversity of citizenship.” Id., Doc. No. 30. Judge Mollway’s October 4, 2012
Order remanding that action reasoned in part that “[t]he responses to the order to
show cause did not challenge the lack of diversity jurisdiction, but instead asserted
federal question jurisdiction.” Id., Doc. No. 37 at 3. That is, Horowitz again did
not claim his domicile was California when responding to an OSC.4
“Although residence alone is not the equivalent of citizenship, ‘the
place of residence is prima facie the domicile.’” Martin v. Ampco Sys. Parking,
2013 WL 5781311, at *6 (D. Haw. Oct. 24, 2013) (quoting State Farm Mut. Auto.
Ins. Co. v. Dyer, 19 F.3d 514, 520 (10th Cir. 1994)). See also Mondragon, 736
F.3d at 886 (recognizing that “numerous courts treat a person’s residence as prima
facie evidence of the person’s domicile”) (citing Anderson v. Watts, 138 U.S. 694,
706 (1891) (“The place where a person lives is taken to be his domicile until facts
adduced establish the contrary[.]”) (other citations omitted)). Here, the record
establishes that Horowitz’ residence has been in Hawaii since 2004, and, in
reliance on that representation by Horowitz, Judge Gillmor indicated in 2014 that
his domicile is Hawaii.

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Horowitz has not asserted that his domicile has changed from Hawaii to California.
And there is a “presumption of continuing domicile, which provides that, once established, a
person’s state of domicile continues unless rebutted with sufficient evidence of change.”
Mondragon v. Capital One Auto Fin., 736 F.3d 880, 885 (9th Cir. 2013).
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Although Horowitz now declares that his domicile is California, this
statement is treated with skepticism when federal jurisdiction is at issue. See 13E
Charles Alan Wright, et al., Federal Practice & Procedure § 3612 at 549 (2009)
(“Federal Practice & Procedure”) (“A party’s own declarations concerning the
identity of his domicile, particularly with regard to an intent to retain or establish
one, as is true of any self-serving statement, are subject to judicial skepticism.”);
Lew, 792 F.2d at 750 (“[S]tatements of intent [as to domicile] are entitled to little
weight when in conflict with facts.”) (citations omitted); Washington v. Hovensa
LLC, 652 F.3d 340, 346 (3d Cir. 2011) (reiterating that “[o]ne’s testimony as to his
intention to establish a domicile, while entitled to full and fair consideration, is
subject to the infirmity of any self-serving declaration, and it cannot prevail to
establish domicile when it is contradicted or negatived by an inconsistent course
of conduct”) (quoting Korn v. Korn, 398 F.2d 689, 691 (3d Cir. 1968)). “A related
principle estops a party from pleading domicile differently in subsequent actions
on unchanged facts.” 13E Federal Practice & Procedure § 3612 at 551-52 (citing
cases). And as for Horowitz’ assertion that his “primary” domicile is California
and that he had a “second” domicile in Idaho, “[n]umerous judicial opinions, at all
levels of the federal courts . . . establish that a person has only one domicile for
diversity purposes at a particular time.” Id. at 528 (noting numerous cases).
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When a case is removed to federal court, there is a strong
presumption against removal. See Gaus, 980 F.2d at 566. A defendant who has
removed a case bears the burden of proving the propriety of removal, including
jurisdiction. See id. “If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.” 28
U.S.C. § 1447(c).
Thus, given the evidence in this case and prior records and orders in
related cases, and taking into account Horowitz’ inconsistent statements regarding
his domicile, it is obvious that Defendants have simply failed to meet their burden
of proving the propriety of their removal of this action. Gaus, 980 F.2d at 566.
Given this failure, diversity of citizenship is lacking (and there is no other basis of
federal jurisdiction). Defendants have had an opportunity to demonstrate
jurisdiction and it is still “[apparent] that the district court lacks subject matter
jurisdiction [such that] the case shall be remanded.” 28 U.S.C. § 1447(c). And
because this Order remanding for lack of subject matter jurisdiction “is not
reviewable on appeal or otherwise,” 28 U.S.C. § 1447(d), it is not subject to
reconsideration. See Seedman v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 837 F.2d
413, 414 (9th Cir. 1988) (concluding that once a district court certifies a remand
order based on § 1447(c), it is divested of jurisdiction and can take no further
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action).
III. CONCLUSION
Accordingly, the Clerk of Court shall remand the action forthwith to
the Third Circuit Court of the State of Hawaii. All pending Motions in this case
are deemed MOOT in this court.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 7, 2015.

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

Hester v. Horowitz et al., Civ. No. 14-00413 JMS-RLP, Order Remanding Action to the Third
Circuit Court of the State of Hawaii

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