Hyland v. County of Hawaii et al

Filing 46

ORDER DENYING PLAINTIFF'S MOTION TO REMAND TO HAWAI'I 3RD CIRCUIT COURT re 37 Motion to Remand. Signed by JUDGE LESLIE E. KOBAYASHI on 03/08/2016. (eps )CERTIFICATE OF SERVICEParticipants re gistered 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 served by first class mail on March 9, 2016

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LANRIC HYLAND,

)
)
Plaintiff,
)
)
vs.
)
)
OFFICE OF HOUSING & COMMUNITY )
DEVELOPMENT, ET AL.,
)
)
Defendants.
)
_____________________________ )

CIVIL 15-00504 LEK-RLP

ORDER DENYING PLAINTIFF’S MOTION TO
REMAND TO HAWAI`I 3RD CIRCUIT COURT
Before the Court is pro se Plaintiff Lanric Hyland’s
(“Plaintiff”) Motion to Remand to Hawai`i 3rd Circuit Court
(“Motion to Remand”), filed on February 1, 2016.

[Dkt. no. 37.]

Defendants Office of Housing & Community Development and the
County of Hawaii (“the County Defendants”) filed their memorandum
in opposition on February 26, 2016.

[Dkt. no. 41.]

On

February 29, 2016, Defendant Ainakea Senior Residences LLLP
(“Ainakea”) and Defendant Hawaii Affordable Properties, Inc.
(“HAPI”) each filed a joinder in the memorandum in opposition.
[Dkt. nos. 42, 43.]

Plaintiff filed his reply on March 7, 2016.

[Dkt. no. 45.]
The Court finds this matter suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).

The hearing on the Motion to Remand,

currently scheduled for March 21, 2016, at 9:45 a.m., is
therefore VACATED.

After careful consideration of the motion,

supporting and opposing memoranda, and the relevant legal
authority, Plaintiff’s Motion to Remand is HEREBY DENIED for the
reasons set forth below.
BACKGROUND
On August 11, 2015, Plaintiff filed his “Verified
Complaint of Lanric Hyland; Complaint for Complaint for [sic]
Declaratory & Injunctive Relief; Appeal from Declaratory
Petition” (“Complaint”) in the Circuit Court of the Third
Circuit, State of Hawai`i (“Third Circuit Court”).1

[Notice of

Removal, filed 12/9/15 (dkt. no. 1), Decl. of Melody Parker,
Exh. A.]

The County Defendants removed the case to this district

court based on federal question jurisdiction, pursuant to 28
U.S.C. §§ 1331 and 1441.

[Notice of Removal at ¶ 4.]

According

to the County Defendants, at the time of removal, HAPI and
Ainakea had not been properly served.

[Id. at ¶ 9.]

In the Motion to Remand, Plaintiff first argues that
removal was improper because the County Defendants, Ainakea, and

1

On December 14, 2015, the County Defendants filed a motion
to dismiss the Compliant (“Motion to Dismiss”), and, on
December 18, 2015, HAPI filed a joinder in the Motion to Dismiss
(“Dismissal Joinder”). [Dkt. nos. 4, 9.] On February 18, 2016,
this Court issued an entering order reserving ruling on the
Motion to Dismiss and the Dismissal Joinder until it ruled on the
Motion to Remand. [Dkt. no. 40.] This Court will issue a
separate order ruling on the Motion to Dismiss and the Dismissal
Joinder.
2

HAPI (collectively “Defendants”) were all served on December 5,
2015, and the County Defendants failed to obtain Ainakea’s and
HAPI’s consent to the removal.

Plaintiff also argues that he

filed a First Amended Complaint in the Third Circuit Court on
January 5, 2016, and it does not assert claims based on the
United States Constitution.

He therefore asserts that this Court

no longer has federal question jurisdiction over the case.
Finally, he argues that this Court should remand the case because
he cannot afford to make appearances in Honolulu, and he cannot
participate in court proceedings by telephone because of a
hearing disability that he incurred during his military service.
STANDARD
The County Defendants removed this case pursuant to
§ 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
remanded. . . .

3

This district court has stated:
“Removal and subject matter jurisdiction statutes
are ‘strictly construed,’ and a ‘defendant seeking
removal has the burden to establish that removal
is proper and any doubt is resolved against
removability.’” Hawaii ex rel. Louie v. HSBC Bank
Nev., N.A., 761 F.3d 1027, 1034 (9th Cir. 2014)
(quoting Luther v. Countrywide Home Loans
Servicing LP, 533 F.3d 1031, 1034 (9th Cir.
2008)). Thus, “‘[i]t is to be presumed that a
cause lies outside [the] limited jurisdiction [of
the federal courts] and the burden of establishing
the contrary rests upon the party asserting
jurisdiction.’” Hunter v. Philip Morris USA, 582
F.3d 1039, 1042 (9th Cir. 2009) (quoting Abrego
Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th
Cir. 2006)) (alterations in original). This
“‘strong presumption against removal jurisdiction
means that the defendant always has the burden of
establishing that removal is proper,’ and that the
court resolves all ambiguity in favor of remand to
state court.” Id. (quoting Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir. 1992) (per curiam)).
U.S. Bank, Nat’l Ass’n v. Mizukami, CIVIL NO. 15-00523 JMS-BMK,
2016 WL 632195, at *2 (D. Hawai`i Feb. 17, 2016) (alterations in
U.S. Bank).
However, a plaintiff waives his objection 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).
DISCUSSION
I.

Unanimity Defect
Plaintiff first argues that this Court should remand

the case because Ainakea and HAPI did not consent to the removal.
28 U.S.C. § 1446(b)(2)(A) requires that, “[w]hen a civil action
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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 can be
cured prior to the entry of judgment.

See Destfino v. Reiswig,

630 F.3d 952, 956-57 (9th Cir. 2011) (“If this is not true when
the notice of removal is filed, the district court may allow the
removing defendants to cure the defect by obtaining joinder of
all defendants prior to the entry of judgment.” (citing Soliman
v. Philip Morris Inc., 311 F.3d 966, 970 (9th Cir. 2002) (“[A]
procedural defect existing at the time of removal but cured prior
to entry of judgment does not warrant reversal and remand of the
matter to state court.” (alteration in original and internal
quotation marks omitted)))).
Ainakea’s joinder in the County Defendants’ memorandum
in opposition to the Motion to Remand is also a joinder in the
Notice of Removal.

Further, in its joinder to the memorandum in

opposition, HAPI confirmed that it consented to the removal.
Thus, even assuming, arguendo, that the removal was defective
because the County Defendants failed to obtain either the joinder
or consent of both Ainakea and HAPI, Defendants have cured that
defect.

To the extent that the Motion for Remand asks this Court

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to remand the instant case based on the alleged unanimity defect,
the Motion for Remand is DENIED.2
II.

Removal of Federal Claims
Plaintiff next argues that federal question

jurisdiction no longer exists because, on January 5, 2016, he
filed a First Amended Complaint, which nullifies the Complaint
and does not contain any references to the United States
Constitution.

It is true that, as a general rule, “when a

plaintiff files an amended complaint, the amended complaint
supercedes the original, the latter being treated thereafter as
non-existent.”

Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir.

2010) (brackets, internal quotation marks, and citation omitted).
Plaintiff, however, filed the First Amended Complaint in the
Third Circuit Court.

He submitted a copy of the First Amended

Complaint to this district court, but he verbally informed the
Clerk’s Office that he was merely notifying the district court
that he had filed an amended complaint in the Third Circuit
Court.

[Dkt. no. 28.]

Thus, the First Amended Complaint has not

been filed in this case, and Plaintiff’s original Complaint
remains the operative pleading before this Court.

2

In light of this Court’s ruling, it does not need to
address the issues of whether: 1) whether either Ainakea or HAPI
had been properly served at the time of removal; or 2) if Ainakea
and/or HAPI had been properly served, whether the County
Defendants knew or should have known about such service.
6

To the extent that the Motion for Remand asks this
Court to remand the instant case because the purported First
Amended Complaint does not contain a federal question, the Motion
for Remand is DENIED.
III. Inability to Litigate Case in this District Court
Finally, Plaintiff argues that this Court should remand
the case because Plaintiff cannot afford to appear at court
proceedings in Honolulu, and his service-connected hearing loss
prevents him from effectively participating by telephone.

This

Court recognizes that it will be more difficult for Plaintiff to
litigate this case in this district than it would be for him to
litigate this case in the Third Circuit Court.

However, there is

no legal authority that would allow this Court to remand this
case on that basis alone.

See, e.g., Doran v. City of

Clearwater, 814 F. Supp. 1077, 1078 (M.D. Fla. 1993) (“Plaintiffs
argue that this Court should decide this matter using the
doctrine of forum non conveniens.

The application of the

doctrine of forum non conveniens . . . to remand to State court
would be improper.”).3

3

This district court has noted that, under the doctrine of
forum non conveniens, it “‘has discretion to decline to exercise
jurisdiction in a case where litigation in a foreign forum would
be more convenient for the parties.’” Hawaii Island Air, Inc. v.
Merlot Aero Ltd., Civ. No. 14-00466 BMK, 2015 WL 675512, at *12
(D. Hawai`i Jan. 30, 2015) (quoting Lueck v. Sundstrand Corp.,
236 F.3d 1137, 1142 (9th Cir. 2001)).
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To the extent that the Motion for Remand asks this
Court to remand the instant case because of Plaintiff’s alleged
inability to litigate in this district court, the Motion for
Remand is DENIED.

This Court, however, assures Plaintiff that

the judges and staff of this district court will make all
possible accommodations to ensure that his disability does not
prevent him from participating in court proceedings for this
case.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion to
Remand to Hawai`i 3rd Circuit Court, filed on February 1, 2016,
is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 8, 2016.

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

LANRIC HYLAND VS. OFFICE OF HOUSING & COMMUNITY DEVELOPMENT, ET
AL; CIVIL 15-00504 LEK-RLP; ORDER DENYING PLAINTIFF’S MOTION TO
REMAND TO HAWAI`I 3RD CIRCUIT COURT

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