Salem v. Arakawa

Filing 47

ORDER: (1) DENYING PLAINTIFF'S MOTION TO REMAND 12 ; AND (2) GRANTING THE MOTION TO DISMISS AND/OR FOR PARTIAL SUMMARY JUDGMENT FILED BY DEFENDANTS DEPARTMENT OF THE CORPORATION COUNSEL, DEPARTMENT OF PUBLIC WORKS, DEPARTMENT OF PLANNING, AND DEPARTMENT OF FINANCE 5 . Signed by JUDGE LESLIE E. KOBAYASHI on 12/30/2015. (afc)Plaintiff's claims against Defendants Department of the Corporation Counsel, Department of Public Works, Department of Planning, and Department of Finance are DISMISSED WITH PREJUDICE. "[T]he Court DIRECTS the Clerk's Office to enter final judgment and close the case as to these defendants on January 20, 2016, unless Plaintiff files a motion for recons ideration of this Order by January 18, 2016."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). All participants are registered to receive electronic notifications.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
)
ALAN ARAKAWA, individually
and in his official capacity )
as MAYOR OF THE COUNTY OF
)
MAUI; et al.,
)
)
Defendants.
)
_____________________________ )
CHRISTOPHER SALEM,

CIVIL 15-00384 LEK-KSC

ORDER: (1) DENYING PLAINTIFF’S MOTION TO REMAND;
AND (2) GRANTING THE MOTION TO DISMISS AND/OR FOR
PARTIAL SUMMARY JUDGMENT FILED BY DEFENDANTS DEPARTMENT
OF THE CORPORATION COUNSEL, DEPARTMENT OF PUBLIC WORKS,
DEPARTMENT OF PLANNING, AND DEPARTMENT OF FINANCE
On September 18, 2015, Plaintiff Christopher Salem
(“Plaintiff”) filed a Complaint in Circuit Court of the Second
Circuit, State of Hawai`i.

[Dkt. no. 1, Exh. A - Part 1.]

On

September 28, 2015, Defendants County of Maui; Alan Arakawa
(“A. Arakawa”), in his official capacity as Mayor of the County
of Maui; Department of Public Works; Department of Planning;
Department of Finance; Patrick Wong (“Wong”), in his official
capacity as Corporation Counsel for the County of Maui;
Keith Regan (“Regan”), in his official capacity as former
Director of the Department of Finance, County of Maui;
David Goode (“Goode”), in his official capacity as Director of
Public Works, County of Maui; Milton Arakawa (“M. Arakawa”), in

his official capacity as former Director of Public Works, County
of Maui; William Spence (“Spence”), in his official capacity as
Director of Planning, County of Maui; John Minn (“Minn”), in his
official capacity as former director of the Department of
Planning County of Maui; and Jeffrey Hunt (“Hunt”), in his
official capacity as former Director of the Department of
Planning, County of Maui (collectively “County Defendants”) filed
a Notice of Removal (“9/28/15 Notice”).

[Dkt. no. 1.]

On

October 28, 2015, Plaintiff filed a Motion to Remand, and on
October 29, 2015, Plaintiff filed an errata to the Motion to
Remand (“Errata”).

[Dkt. nos. 12, 13.]

On November 23, 2015,

the County Defendants filed a memorandum in opposition to the
Motion to Remand and the Errata, and Plaintiff filed a reply on
December 4, 2015.

[Dkt. nos. 21, 27.]

On September 29, 2015, Defendants Department of the
Corporation Counsel, Department of Public Works, Department of
Planning, and Department of Finance (collectively “County
Departments”) filed a Motion to Dismiss and/or for Partial
Summary Judgment (“County Departments’ Motion”).

[Dkt. no. 5.]

Plaintiff did not file a memorandum in opposition.

The Motion to

Remand, Errata, and the County Departments’ Motion were all
originally set for hearing on December 14, 2015.

In an Entering

Order filed on December 8, 2015 (“12/8/15 EO”), the Court, inter
alia, vacated the hearing and found these matters suitable for

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disposition without a hearing pursuant to Rule 7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i.

[Dkt. no. 31.]

On November 30, 2015, Defendants A. Arakawa, Wong,
Regan, Goode, M. Arakawa, Spence, Minn, and Hunt, in their
individual capacities (“Individual Defendants”), filed a
substantive joinder to the County Defendants’ opposition to the
Motion to Remand and the Errata.

[Dkt. no. 23.]

Then, on

December 7, 2015, the Individual Defendants filed a Formal
Joinder to Defendants’ Notice of Removal Filed on September 28,
2015 (“12/7/15 Joinder”).

[Dkt. no. 30.]

The Court was

concerned whether the removal was proper, and directed all
parties to submit briefs addressing the issue.

[12/8/15 EO at

2.]
On December 15, 2015, Defendants Wong, Goode,
M. Arakawa, Minn, and Hunt, in their individual capacities
(“Unserved Individual Defendants”), filed a Notice of Removal
(“12/15/15 Notice”).

[Dkt. no. 33.]

Also on December 15, 2015,

the Individual Defendants and the County Defendants filed briefs
responding to the 12/8/15 EO (“Individual Defendants’ Suppl.
Brief” and “County Defendants’ Suppl. Brief”).
35.]

[Dkt. nos. 34,

Finally, on December 22, 2015, Plaintiff filed his response

to the 12/8/15 EO (“Plaintiff’s Suppl. Brief”).

[Dkt. no. 43.]

After careful consideration of the motions, memoranda,

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and the relevant legal authority, Plaintiff’s Motion to Remand is
DENIED and the County Departments’ Motion is GRANTED for the
reasons set forth below.
DISCUSSION
I.

Motion to Remand
28 U.S.C. § 1447(c) states, in relevant 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).”
Here, Plaintiff filed what appears to be a partial draft of the
Motion to Remand on October 28, 2015 – thirty days after the
9/28/15 Notice was filed.

Plaintiff did not submit the completed

motion until he filed the Errata on October 29, 2015.

In the

Errata, Plaintiff’s counsel explains that he was “attempting to
upload and to file his Motion to Remand when his word processing
program froze-up and subsequently all the changes he had saved to
his document were lost and hours of work were gone.”
2.]

[Errata at

While the Court is sympathetic to Plaintiff’s computer

issues, § 1447(c) is clear and Plaintiff’s completed motion to
remand is untimely.

Therefore, Plaintiff’s Motion to Remand and

the Errata must be DENIED.
The Court notes, however, that Plaintiff’s Motion to
Remand was not without merit.

It is undisputed that the Court

has jurisdiction in this case pursuant to 28 U.S.C. § 1331.
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See

9/28/15 Notice at ¶ 4 (“This Court has original jurisdiction of
this action pursuant to 28 U.S.C. § 1331”); Reply at 81 (“Salem
acknowledges that while the Federal District Court may have
original and supplemental jurisdiction over the case . . . .”).
Under 28 U.S.C. § 1331, “[t]he district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”

28 U.S.C.

§ 1441(a) allows for removal to federal court of “any civil
action brought in a State court of which the district courts of
the United States have original jurisdiction.”

28 U.S.C.

§ 1446(2)(A) states 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.”

“The removing party has the burden of affirmatively

explaining the absence of any co-defendants in the event that
fewer than all co-defendants have joined in a removal action.”
Hafiz v. Greenpoint Mortg. Funding, Inc., 652 F. Supp. 2d 1050,
1052 (N. D. Cal. July 16, 2009).
It is clear to the Court that 9/28/15 Notice did not
include the consent of the Individual Defendants.

See 9/28/15

Notice at 2-3 (naming only the County Defendants as parties to
the removal).

Further, while the 12/15/15 Notice states that

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The Reply is not consecutively paginated, and the pages
numbers used here refer to the page numbers in the district
court’s electronic case filing system.
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some of the Individual Defendants were never properly served,
A. Arakawa, Regan, and Spence (“Served Individual Defendants”)
were served when the County Defendants filed the 9/28/15 Notice.
[County Defendants’ Suppl. Brief at 1-2; 12/15/15 Notice at ¶¶ 67.]

The 9/28/15 Notice, filed by the County Defendants, does not

explain the absence of Served Individual Defendants, and the
12/7/15 Joinder did not cure this procedural defect.

See, e.g.,

Walker v. Cal. Dep’t of Corr., No. 2:09-cv-0569-KJN P, 2010 WL
1006417, at *3 (E.D. Cal. Mar. 17, 2010) (“[T]he belated consent
to removal by defendants (more than 30 days after service of the
complaint upon them) does not cure the unanimity deficiency.”),
report and recommendation adopted sub nom., Walker v. Cal. Dep’t
of Corr., No. 2:09-cv-0569 WBS KJN (PC), 2010 WL 2089351 (E.D.
Cal. May 21, 2010).
This Court, however, has denied Plaintiff’s Motion to
Remand as untimely and may not remand this case sua sponte.
Kelton Arms Condo. Owners Ass’n, Inc. v. Homestead Ins. Co., 346
F.3d 1190, 1192 (9th Cir. 2003) (“[F]ive other circuits have
addressed the question.

Each has held that the district courts

have no authority to remand a case sua sponte for procedural
defects.

We recognize that procedural rules are best applied

uniformly, and we decline to create a circuit split.” (internal
citations omitted)).

This Court also notes that “the rule of

unanimity [does] not require defendants who were not served or

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did not make any appearance in state court to consent to
removal.”

See Tacey Goss P.S. v. Barnhart, No. C13-800MJP, 2013

WL 4761024, at *3 (W. D. Wash. Sept. 4, 2013) (citing Destfino v.
Reiswig, 630 F.3d 952, 957 (9th Cir. 2011)).

The Unserved

Individual Defendants, therefore, did not need to consent to the
9/28/15 Notice.

On November 30, 2015, however, all of the

Individual Defendants, including the Unserved Individual
Defendants, filed a Motion for Partial Dismissal of Claims in
Plaintiff’s Complaint Filed on September 18, 2015, and for a More
Definite Statement as to Certain Claims (“Individual Defendants’
Motion”),2 [dkt. no. 22,] thus waiving the Unserved Individual
Defendants’ defense of insufficient service of process.

See Fed.

R. Civ. P. 12(h)(1)(A) (explaining that the defense of
insufficient service of process is waived if it is not raised in
an unserved party’s first motion filed pursuant to Rule 12).
The 12/15/15 Notice was filed within thirty days of the
Unserved Individual Defendants’ waiver of service of process.
See 28 U.S.C. § 1446(b) (“The notice of removal of a civil action
or proceeding shall be filed within 30 days after the receipt by
the defendant, through service or otherwise, of a copy of the
initial pleading.”).

In Addition, the 12/15/15 Notice submits

that the County Defendants and the Served Individual Defendants

2

The Individual Defendants’ Motion is set for hearing on
January 11, 2016 at 10:30 a.m.
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all join in and consent to removal.

[12/15/15 Notice at ¶¶ 5-6.]

Thus, all defendants have consented to removal.

The court

therefore FINDS that any procedural defect that existed has been
cured.

Cf. Destfino, 630 F.3d at 957 (“[T]he district court may

allow the removing defendants to cure the defect by obtaining
joinder of all defendants prior to the entry of judgment.”
(citation omitted)).
In short, Plaintiff’s Motion to Remand is untimely, the
9/28/15 Notice is defective and therefore not a proper removal of
this action, the 12/7/15 Joinder does not cure the defect, and
the 12/15/15 Notice is a proper removal of the action.

The Court

INFORMS Plaintiff that, if he plans to file a motion to remand in
response to the 12/15/15 Notice, he must do so within the time
provided by statute.
II.

See 28 U.S.C. § 1447(c).

County Departments’ Motion
The Court now turns to the County Departments’ Motion,

which seeks the dismissal of the County Departments because they
“are controlled by the mayor, and are under the supervision and
management of the executive branch” and because the departments
are not “identified by any statute, by charter, or by ordinance
as an independent or separate legal entity from the County of
Maui.”

[Mem. in Supp. of County Departments’ Motion at 4-5

(emphases omitted).]

While the Court has denied Plaintiff’s

Motion to Remand as untimely, the Court notes that in the Errata,

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Plaintiff stated “it was never [Plaintiff’s] intention to name
departments as parties, only to refer to them each in reference
to their particular responsibilities and obligations pursuant to
the Maui County Charter.”

[Errata at 1 n.1.]

Moreover,

Plaintiff did not file any memorandum in opposition to the County
Departments’ Motion.
The Court has previously ruled that “[s]ince [the
Honolulu Police Department (“HPD”)] is not a distinct legal
entity from the City and County of Honolulu, the Court finds that
Plaintiff’s suit against HPD fails to ‘state a claim upon which
relief can be granted.’”

Phillips v. Honolulu Police Dep’t,

Civil No. 11-00248 LEK-RLP, 2011 WL 2531260, at *2 (D. Hawai`i
June 23, 2011) (emphasis omitted) (quoting Fed. R. Civ. P.
12(b)(6)).

Similarly, the Department of the Corporation Counsel,

Department of Public Works, Department of Planning, and
Department of Finance are not distinct legal entities.

See

County Departments’ Concise Statement, filed 9/29/15 (dkt. no.
6), at ¶¶ 4-7 (showing that the County of Maui Charter calls for
the creation of each of the County Departments as part of the
County of Maui corporate entity).

The Court FINDS that

Plaintiff’s claims as to these departments do not state a claim
for which relief can be granted, and the departments are
DISMISSED WITH PREJUDICE because the defect in these claims
cannot be cured by amendment.

See, e.g., Cook, Perkiss & Liehe,

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Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th
Cir. 1990) (“We have held that in dismissals for failure to state
a claim, a district court should grant leave to amend if no
request to amend the pleading was made, unless it determines that
the pleading could not possibly be cured by the allegation of
other facts.” (citation omitted)).
CONCLUSION
On the basis of the foregoing, Plaintiff Christopher
Salem’s Motion to Remand, filed on October 28, 2015, and Errata,
filed on October 29, 2015, are HEREBY DENIED, and the Motion to
Dismiss and/or for Partial Summary Judgment, filed by Defendants
Department of the Corporation Counsel, Department of Public
Works, Department of Planning, and Department of Finance, is
HEREBY GRANTED and Plaintiff’s claims against those defendants
are DISMISSED WITH PREJUDICE.
There being no remaining claims against the Department
of the Corporation Counsel, Department of Public Works,
Department of Planning, and Department of Finance, the Court
DIRECTS the Clerk’s Office to enter final judgment and close the
case as to these defendants on January 20, 2016, unless Plaintiff
files a motion for reconsideration of this Order by January 18,
2016.
The hearing on the Individual Defendants’ Motion will
proceed as scheduled.
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IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 30, 2015.

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

CHRISTOPHER SALEM, ET AL. VS. ALAN ARAKAWA, ET AL; CV 15-00384
LEK-KSC; ORDER: (1) DENYING PLAINTIFF’S MOTION TO REMAND; AND (2)
GRANTING THE MOTION TO DISMISS AND/OR FOR PARTIAL SUMMARY
JUDGMENT FILED BY DEFENDANTS DEPARTMENT OF THE CORPORATION
COUNSEL, DEPARTMENT OF PUBLIC WORKS, DEPARTMENT OF PLANNING, AND
DEPARTMENT OF FINANCE

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