Young v. Kraus et al

Filing 46

ORDER DENYING "VERIFICATION OF PLAINTIFF'S OBJECTION TO JUDGES FAILIAR TO ADDRESS THE RULE 4 VIOLATIONS OF THE DEFENDANTS COUNTY'S COUNSEL IN THE REMOVAL ON 9/28/2015" re 34 . Signed by JUDGE LESLIE E. KOBAYASHI on 04/ 19/2016. This Court ORDERS Plaintiff to respond to the 3/14/16 Motion to Dismiss by May 16, 2016. Any other party that wishes to file a statement regarding the 3/14/16 Motion to Dismiss must do so by May 16, 2016. The Count y Defendants' optional reply is due by May 23, 2016. This Court will take the 3/14/16 Motion to Dismiss under advisement thereafter and will consider it as a non-hearing motion pursuant to Local Rule 7.2(d). (eps )< 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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
Plaintiff,
)
vs.
)
)
)
MICHAEL M. KRAUS, Owner of
)
Tree Works Inc., COUNTY OF
)
HAWAII, POLICE DEPARTMENT,
PATRICK T. KIHARA as a Police )
)
Officer in the County of
Hawaii, State of Hawaii, JOHN )
)
DOES 1-10, JANE DOES 1-10,
)
DOE CORPORATIONS 1-10, DOE
)
PARTNERSHIPS 1-10, AND DOE
)
GOVERNMENT ENTITIES 1-10,
)
)
Defendants.
_____________________________ )
CHRISTOPHER YOUNG,

CIVIL 15-00383 LEK-KSC

ORDER DENYING “VERIFICATION OF PLAINTIFF’S OBJECTION TO
JUDGES FAILIAR TO ADDRESS THE RULE 4 VIOLATIONS OF THE
DEFENDANTS COUNTY’S COUNSEL IN THE REMOVAL ON 9/28/2015”
On January 29, 2016, this Court issued its Order
Granting in Part and Denying in Part Defendants the County of
Hawai`i and the County of Hawai`i Police Department’s Motion to
Dismiss; and Granting in Part and Denying in Part Defendant
Patrick T. Kihara’s Motion to Dismiss (“1/29/16 Order”).
no. 32.]

[Dkt.

On March 4, 2016, pro se Plaintiff Christopher Young

(“Plaintiff”) filed a document titled “Verification of
Plaintiff’s Objection to Judges Failiar to Address the Rule 4
Violations of the Defendants County’s Counsel in the Removal on
9/28/2015” (“3/4/16 Filing”).

[Dkt. no. 34.]

On March 8, 2016,

this Court issued an entering order construing the 3/4/16 Filing

as a Motion for Remand and a motion for reconsideration of the
1/29/16 Order (“Motion for Reconsideration”).

[Dkt. no. 36.]

On March 23, 2016, Defendants the County of Hawai`i
(“the County”), the County of Hawai`i Police Department (“the
Police Department”), and Patrick T. Kihara (“Kihara”, all
collectively, “the County Defendants”) filed their memorandum in
opposition to the Motion for Remand/Motion for Reconsideration.
[Dkt. no. 42.]

Plaintiff filed his reply on April 11, 2016.

[Dkt. no. 43.]

The Court has considered the instant motions as

non-hearing matters pursuant to Rule LR7.2(d) and (e) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).

After careful

consideration of the motions, supporting and opposing memoranda,
and the relevant legal authority, Plaintiff’s Motion for Remand
and Motion for Reconsideration are HEREBY DENIED for the reasons
set forth below.
BACKGROUND
Plaintiff filed his Complaint on July 21, 2015 in state
court.

The Police Department removed the case to this district

court pursuant to federal question jurisdiction.
Removal, filed 9/28/15 (dkt. no. 1), at ¶ 4.]

[Notice of

The case arises

from a motor vehicle accident that occurred in Hilo, Hawai`i on
July 25, 2013.

Plaintiff and Defendant Michael M. Kraus

(“Kraus”) were the drivers of the vehicles involved in the

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accident, and Kihara, an officer with the Police Department,
responded to the scene.

Plaintiff alleges, among other things,

that Kihara failed to issue a criminal citation to Kraus, and
Kihara failed to include information in his report about the
injury that Plaintiff suffered during the accident.
The County and the Police Department (collectively
“County Entities”) filed a motion to dismiss the Complaint
(“County Motion to Dismiss”) on October 7, 2015, and Kihara filed
a motion to dismiss the Complaint (“Kihara Motion to Dismiss”) on
October 30, 2015.

[Dkt. nos. 5, 10.]

In the 1/29/16 Order, this

Court granted both motions in part and denied them in part.
Specifically, this Court:
-dismissed Plaintiff’s claims against Kihara for lack of proper
service; [1/29/16 Order at 6-8;]
-rejected the County Entities’ argument that all of Plaintiff’s
claims against them fail because Kihara owed no duty to
Plaintiff to issue a criminal citation to Kraus; [id. at
11;]
-dismissed Count I – fraudulent misrepresentation – because the
claim was not sufficiently pled; [id. at 11-14;]
-dismissed the intentional infliction of emotional distress claim
and the negligent infliction of emotional distress claim in
Count II because those claims were not sufficiently pled;
[id. at 14-17;]
-dismissed Plaintiff’s interference with chattels claim against
the County Entities (“Count IIA”) because, based on the
allegations of the Complaint, Plaintiff’s property losses
were caused by Kraus during the accident; [id. at 17-18;]
-dismissed Plaintiff’s 42 U.S.C. § 1983 claim for civil rights
torts in Count III because it was unclear what specific
civil right tort Plaintiff was alleging; [id. at 19;]
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-dismissed Plaintiff’s § 1983 claims against the County Entities
in Counts IV and V because the Complaint did not allege a
basis for imposing liability against them for Kihara’s
alleged actions and omissions; [id. at 19-21;]
-dismissed Plaintiff’s § 1983 claims against Kihara in Counts IV
and V because they were insufficiently pled; [id. at 21-22;]
-dismissed Plaintiff’s claim for punitive damages against the
County Entities in Count VII because municipal defendants
cannot be held liable for punitive damages; [id. at 25-26;]
and
-dismissed Plaintiff’s claim for punitive damages against Kihara
and Kraus in Count VII and his claim for fees and costs
against all Defendants in Count VI because those are
remedies, not independent causes of action [id.].
Except for the dismissal of the punitive damages claim against
the County, which was dismissed with prejudice, all of the
dismissals were without prejudice.1

This Court gave Plaintiff

until March 2, 2016 to file his amended complaint.2

[Id. at 26-

27.]
In the Motion to Remand, Plaintiff states that, when
his process server served the Complaint on a county attorney, the

1

The dismissal of the punitive damages claim against Kihara
and Kraus, and the claim for fees and costs against all
Defendants, was without prejudice to the extent that this Court
stated that Plaintiff could include a request for punitive
damages against Kihara and Kraus and a request for fees and costs
against all Defendants in the amended complaint. [1/29/16 Order
at 26.]
2

On March 4, 2016, simultaneously with the Motion to
Remand/Motion for Reconsideration, Plaintiff filed his “Amendment
of Complaint.” [Dkt. no. 35.] The County Defendants filed a
motion to dismiss the amended complaint on March 14, 2016
(“3/14/16 Motion to Dismiss”), but this Court has concluded that
the 3/14/15 Motion to Dismiss is premature until it rules on the
Motion for Reconsideration. [Dkt. nos. 38, 41.]
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attorney only accepted service on behalf of the Police Department
and refused service on behalf of the County and Kihara.
Plaintiff contends that he was therefore entitled to default in
the state court against the County and Kihara, and therefore the
removal was not proper.

In the alternative, Plaintiff argues

that this Court should remand the case because the Police
Department did not obtain the County’s or Kihara’s consent to the
removal.

In the Motion for Reconsideration, Plaintiff argues

that this Court should vacate the 1/29/16 Order because the
County Motion to Dismiss and the Kihara Motion to Dismiss are
moot in light of the remand to the state court.

See Reply at 2.

DISCUSSION
I.

Motion to Remand
The Police Department removed this case pursuant to 28

U.S.C. § 1441(a), which states:
Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State
court of which the district courts of the United
States have original jurisdiction, may be removed
by the defendant or the defendants, to the
district court of the United States for the
district and division embracing the place where
such action is pending.
28 U.S.C. § 1447(c) states, in pertinent part:
A motion to remand the case on the basis of any
defect other than lack of subject matter
jurisdiction must be made within 30 days after the
filing of the notice of removal under section
1446(a). If at any time before final judgment it
appears that the district court lacks subject
matter jurisdiction, the case shall be
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remanded. . . .
However, a plaintiff waives his right to object to nonjurisdictional removal defects if he fails to file a timely
motion to remand.

Vasquez v. N. Cty. Transit Dist., 292 F.3d

1049, 1062 (9th Cir. 2002).
First, as to Plaintiff’s argument that the removal was
improper because the County and Kihara were in default in the
state court, Plaintiff is mistaken.

This Court has reviewed the

state court’s docket sheet, and Plaintiff did not obtain an entry
of default against either the County or Kihara prior to the
filing of the Notice of Removal.

This Court therefore does not

need to address Plaintiff’s argument about how an entry of
default or a default judgment affects a notice of removal.
Plaintiff also argues that the removal was improper
because there is no evidence that the County and Kihara consented
to removal.

See Reply at 2.

28 U.S.C. § 1446(b)(2)(A) requires

that, “[w]hen a civil action is removed solely under section
1441(a), all defendants who have been properly joined and served
must join in or consent to the removal of the action.”

However,

the failure to obtain all defendants’ joinder or consent is a
procedural defect that is waived if the plaintiff fails to file a
timely motion for remand.

See Vasquez, 292 F.3d at 1060 n.5

(“Even though some Defendants failed to join the notice of
removal in this case, no party made a timely motion to remand,

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thus waiving any potential defect.” (citing 28 U.S.C. § 1447(c)
(providing that defects in removal procedure are waived if no
motion to remand is made within 30 days))).
Plaintiff did not file the Motion to Remand until
March 4, 2016, well beyond the thirty-day period after the filing
of the Notice of Removal on September 28, 2015.

This Court

therefore CONCLUDES that Plaintiff waived any objection to the
Police Department’s alleged failure to obtain the County’s and
Kihara’s consent to removal.

In light of Plaintiff’s waiver,

this Court does not need to address either Plaintiff’s factual
arguments about his attempt to serve the County and Kihara or the
issue of whether the Police Department was required to obtain the
County’s and Kihara’s consent prior to removal.
This Court therefore DENIES the Motion to Remand.
II.

Motion for Reconsideration
To the extent that Plaintiff seeks reconsideration of

the 1/29/16 Order on the ground that a remand would have rendered
the order, the County Motion to Dismiss, and the Kihara Motion to
Dismiss moot, the Motion for Reconsideration is DENIED.

In

addition, this Court notes that:
This district court recognizes three circumstances
where it is proper to grant reconsideration of an
order: “(1) when there has been an intervening
change of controlling law; (2) new evidence has
come to light; or (3) when necessary to correct a
clear error or prevent manifest injustice.”
Tierney v. Alo, Civ. No. 12-00059 SOM/KSC, 2013 WL
1858585, at *1 (D. Hawaii May 1, 2013) (citing
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School District No. 1J v. ACandS, Inc., 5 F.3d
1255, 1262 (9th Cir. 1993)).
Riley v. Nat’l Ass’n of Marine Surveyors, Inc., Civil No. 1400135 LEK-RLP, 2014 WL 4794003, at *1 (D. Hawai`i Sept. 25,
2014).

To the extent that Plaintiff’s Motion for Reconsideration

raises any challenges to the 1/29/16 Order other than his
argument for reconsideration based upon the requested remand to
state court, this Court CONCLUDES that Plaintiff has not
established any ground that warrants reconsideration of the
1/29/16 Order.

Plaintiff has not established that there has been

a change in the controlling law since this Court issued the
1/29/16 Order, nor has he identified any newly discovered
evidence that would require this Court to change its rulings in
the order.

Finally, Plaintiff has not established that this

Court committed a clear error in the 1/29/16 Order or that
reconsideration of the order is necessary to prevent manifest
injustice.

Plaintiff’s Motion for Reconsideration is therefore

DENIED in its entirety.
CONCLUSION
On the basis of the foregoing, the March 4, 2016
“Verification of Plaintiff’s Objection to Judges Failiar to
Address the Rule 4 Violations of the Defendants County’s Counsel
in the Removal on 9/28/2015” – which this Court has construed as
a Motion for Remand and a Motion for Reconsideration of the
1/29/16 Order – is HEREBY DENIED.
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In light of the denial of the Motion for
Reconsideration, this Court ORDERS Plaintiff to respond to the
3/14/16 Motion to Dismiss by May 16, 2016.

Any other party that

wishes to file a statement regarding the 3/14/16 Motion to
Dismiss must do so by May 16, 2016.

The County Defendants’

optional reply is due by May 23, 2016.

This Court will take the

3/14/16 Motion to Dismiss under advisement thereafter and will
consider it as a non-hearing motion pursuant to Local Rule
7.2(d).
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 19, 2016.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

CHRISTOPHER YOUNG VS. MICHAEL KRAUS, ET AL; CIVIL 15-00383 LEKKSC; ORDER DENYING “VERIFICATION OF PLAINTIFF’S OBJECTION TO
JUDGES FAILIAR TO ADDRESS THE RULE 4 VIOLATIONS OF THE DEFENDANTS
COUNTY’S COUNSEL IN THE REMOVAL ON 9/28/2015

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