Kealoha v. Totto

Filing 39

FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFFS' MOTION TO REMAND re: 13 . Signed by MAGISTRATE JUDGE KEVIN S.C. CHANG on 3/13/2017. (afc) WRITTEN ORDER follows hearing held March 10, 2017 on M/ Remand. Minutes of hearing: doc. no. 38 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
LOUIS M. KEALOHA; KATHERINE
E. KEALOHA; KRISTINA
KEALOHA, a minor child, by
her next friend KATHERINE E.
KEALOHA,
Plaintiffs,
vs.
CHARLES W. TOTTO,
individually and as
Executive Director and Legal
Counsel of the Honolulu
Ethics Commission; LETHA
A.S. DECAIRES, individually
and as investigator for the
Honolulu Ethics Commission;
HONOLULU ETHICS COMMISSION;
THE CITY AND COUNTY OF
HONOLULU,
Defendants.
____________________________

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CIVIL NO. 16-00682 JMS-KSC

FINDINGS AND RECOMMENDATION TO
GRANT IN PART AND DENY IN PART
PLAINTIFFS’ MOTION TO REMAND

FINDINGS AND RECOMMENDATION TO GRANT IN PART
AND DENY IN PART PLAINTIFFS’ MOTION TO REMAND
Before the Court is Plaintiffs Louis, Katherine, and
Kristina Kealoha’s Motion to Remand, filed January 10, 2017.
On February 17, 2017, Defendant Charles Totto (“Totto”) filed
an Opposition and Defendants Honolulu Ethics Commission
(“HEC”) and City and County of Honolulu (“the City”) filed a
Substantive Joinder in the Opposition.

Defendant Letha

DeCaires (“DeCaires”) filed a Substantive Joinder on February
21, 2017.

Plaintiffs filed a Reply on February 24, 2017.

This matter came on for hearing on March 10, 2017.
Sumida, Esq., appeared on behalf of Plaintiffs.

Kevin

Joachim Cox,

Esq., and Kamala Haake, Esq., appeared on behalf of Totto;
Nicholas Monlux, Esq., appeared on behalf of DeCaires; and
Richard Nakamura, Esq., appeared on behalf of the City and
HEC.
After careful consideration of the parties’
submissions, the applicable law, and the arguments of counsel,
the Court HEREBY RECOMMENDS that the Motion be GRANTED IN PART
AND DENIED IN PART for the reasons set forth below.
BACKGROUND
Plaintiffs commenced this action on June 17, 2016 in
the Circuit Court of the First Circuit, State of Hawaii.
The Complaint did not enumerate specific causes of action, but
alleged, in pertinent part, that:
16. As a result, the processes and procedures
of the Ethics Commission have been so corrupted
so that the instigation, handling, and
dispositions of Ethics Commission investigations
and prosecutions have for years been conducted
in violation of the law, and in violation of
required due process and proper procedures.
. . . .
80. In her unlawful zeal to create any ethic
violation whether real or manufactured, and as
evidence of her conflict of interest and
improper motives, and with the full approval of
and ratification by Totto, DeCaires violated the
rights of HPD officers, witnesses and the
2

plaintiffs, provided false and defamatory
information to witnesses and others, violated
Garrity rights of witnesses and plaintiffs,
violated the laws and procedures of the Ethics
Commission, shared confidential as well as
fabricated information with others, and
improperly caused the adult plaintiffs to be
involved in other proceedings and
investigations, all while continuing to benefit
from the continued renewal of her 89 day
contracts.1
. . . .
99. These illegal and improper investigations
resulted in no discovery of any violation of the
Standards of Conduct. . . . . But in the course
of these illegal investigations:2
. . . .
l) Totto and/or DeCaires deliberately,
improperly and illegally shared with other
state and law enforcement agencies
information provided by plaintiffs, by
witnesses, by HPD officers, and by other
County employees, in violation of their
Garrity and other rights. The violations
were so systematic and egregious that, in
an unprecedented move, the State Of Hawaii
Organization of Police Officers (“SHOPO”)
filed a formal union grievance, stating
that HPD officers were being compelled to
appear before the Ethics Commission “to
answer questions without being informed of
the allegations made against them or being
afforded the opportunity to view the
complaint,” and were “not being afforded
any Garrity Rights prior to being compelled
to answer questions.” The police union
expressly found that “the Ethics

1

Plaintiffs mis-cited this as paragraph 84.

2

Plaintiff mis-cited this as paragraph 90.
3

Commission, a department of the City and
County of Honolulu is in violation of [the
Collective Bargaining Agreement],” . . . ;
m) Totto and/or DeCaires deliberately,
improperly and illegally shared with third
parties, including the attorney for Gerard
Puana, information provided plaintiffs, by
witnesses, by HPD officers, and by other
county employees, in violation of their
Garrity and other rights.
Notice of Removal, Ex. 1.
Defendants were served on June 20, 2016.

Mot., Exs.

A-D.
On July 11, 2016, the City and HEC (joined by
DeCaires and Totto on September 20 and 21, 2016,
respectively), filed a motion for more definite statement and
motion to strike.

Doc. No. 15-10, 15-22 & 15-24.

The state

court entered minutes granting the motion for more definite
statement on November 21, 2016, and directed Plaintiffs to
file a more definite statement separately identifying their
claims against Defendants.

Notice of Removal, Ex. 2.

The

formal orders memorializing the rulings issued on December 6
and 16, 2016.

Doc. No. 15-44, 15-45.

On December 20, 2016, Plaintiff Kristina Kealoha and
Plaintiffs Louis and Katherine Kealoha filed More Definite
Statements (“MDS”) against each Defendant.

Opp’n, Exs. 2-3.

Plaintiffs Louis and Katherine Kealoha asserted the following

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claims against Totto:

1) wrongful investigation/negligence;

2) interference with contractual relations/prospective
economic advantage; 3) violation of civil rights (42 U.S.C.
§ 1983); 4) intentional infliction of emotional distress;
5) negligent infliction of emotional distress; 6) defamation;
7) abuse of process/malicious prosecution; and 8) Uyemura v.
Wick (attorneys’ fees).

Id., Ex. 3.

On December 30, 2016, Totto filed a Notice of
Removal (“Notice”), pursuant to 28 U.S.C. § 1441(a), in view
of Plaintiffs Louis and Katherine Kealoha’s § 1983 claim for
civil rights violations.

DeCaires, the City, and HEC

consented to the removal.
On January 10, 2017, Plaintiffs filed this Motion.
LEGAL STANDARD
Section 1441(a) authorizes removal of an action by a
defendant and provides:
(a) Generally.--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. § 1441(a).

District courts “have original

jurisdiction of all civil actions arising under the

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Constitution, laws, or treaties of the United States.”
U.S.C. § 1331.

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There is a strong presumption against removal

jurisdiction, which “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.”

Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th

Cir. 2009) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566
(9th Cir. 1992) (per curiam)); Durham v. Lockheed Martin
Corp., 445 F.3d 1247, 1252 (9th Cir. 2006) (Section 1441 is
strictly construed against removal and courts resolve any
doubts about the propriety of removal in favor of remanding
the case to state court).
The party seeking to remove the case bears the
burden of establishing the existence of federal jurisdiction.
See California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831,
838 (9th Cir. 2004), cert. denied, 544 U.S. 974 (2005).
Courts should presume that a case lies outside the limited
jurisdiction of the federal courts.

Hunter, 582 F.3d at 1042.

ANALYSIS
Plaintiffs move to remand this action on the basis
that the removal was untimely, having been effectuated more
than 30 days after Defendants were served with the Complaint.
Defendants contend that they timely removed this action within

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30 days after Plaintiffs filed their MDS, which is the first
paper providing notice that Plaintiffs are asserting a federal
claim.
A.

Defendants Untimely Removed This Action
The timing of removal is governed by § 1446(b),

which provides:
(1) 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
setting forth the claim for relief upon which
such action or proceeding is based . . . .
. . . .
(3) Except as provided in subsection (c), if the
case stated by the initial pleading is not
removable, a notice of removal may be filed
within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an
amended pleading, motion, order or other paper
from which it may first be ascertained that the
case is one which is or has become removable.
28 U.S.C. § 1446(b).

Section 1446 affords two thirty-day

windows during which a defendant may remove an action.

The

Ninth Circuit has held that “the first thirty-day period for
removal in 28 U.S.C. § 1446(b) only applies if the case stated
by the initial pleading is removable on its face.”

Harris v.

Bankers Life and Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005);
Durham, 445 F.3d at 1252.

Indeed, “the ground for removal

must be revealed affirmatively in the initial pleading in

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order for the first thirty-day clock under § 1446(b) to
begin.”

Harris, 425 F.3d at 695; Kerr v. Delaware N.

Companies, Inc., No. 116CV01797LJOSAB, 2017 WL 880409, at *1
(E.D. Cal. Mar. 6, 2017) (citation omitted) (“If there is no
basis for removal evident within the ‘four corners’ of a
pleading, it is not removable and the 30 day time limit does
not begin to run.”).
Section “1446(b)(3) applies only where a ‘voluntary’
act of the plaintiff brings about a change that renders the
case removable.”

Busch v. Jakov Dulcich & Sons LLC, No.

15-CV-00384-LHK, 2015 WL 3792898, at *4 (N.D. Cal. June 17,
2015) (quoting Self v. Gen. Motors Corp., 588 F.2d 655, 657-58
(9th Cir. 1978)) (internal quotation omitted).

Section

1446(b)(3) “requires a paper that shows a ground for removal
that was previously unknowable or unavailable.”

Chan

Healthcare Grp., PS v. Liberty Mut. Fire Ins. Co., 844 F.3d
1133, 1142 (9th Cir. 2017) (citing 14C Charles Alan Wright et
al., Federal Practice and Procedure § 3731 (4th ed. 2016)).
Defendants submit that Plaintiffs’ vague references
to due process and Garrity3 violations in the Complaint were
insufficient to put them on notice that Plaintiffs were

3

This is a reference to Garrity v. New Jersey, 385 U.S.
493 (1967).
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asserting a federal claim.

Whether or not federal question

jurisdiction exists is determined by the well-pleaded
complaint rule, which “‘provides that federal jurisdiction
exists only when a federal question is presented on the face
of the plaintiff’s properly pleaded complaint.’”

Hunter, 582

F.3d at 1042 (quoting Fisher v. NOS Commc’ns, 495 F.3d 1052,
1057 (9th Cir. 2007)); Kerr, 2017 WL 880409, at *1; Takeda v.
Northwestern Nat’l Life Ins. Co., 765 F.2d 815, 821 (9th Cir.
1985) (citations omitted) (“A case ‘arises under’ federal law
only if the federal question appears on the face of the
plaintiff’s well-pleaded complaint.”).

Thus, “removal based

on federal question jurisdiction is improper unless a federal
claim appears on the face of a well-pleaded complaint.”
Redwood Theatres, Inc. v. Festival Enters., Inc., 908 F.2d
477, 479 (9th Cir. 1990) (citing Franchise Tax Bd. v. Constr.
Laborers Vacation Trust, 463 U.S. 1, 10 (1983); Gully v. First
Nat’l Bank, 299 U.S. 109, 113 (1936)).

The federal question

may not be aided by the answer or by the petition for removal.
Takeda, 765 F.2d at 822 (citation omitted).
Though verbose and less than artfully pled, the
Complaint includes the following allegations that are relevant

9

to the Court’s evaluation of the well-pleaded complaint rule:4
1) “[T]he processes and procedures of the Ethics
Commission have been corrupted so that the
instigation, handling, and dispositions of the
Ethics Commission investigations and prosecutions
have for years been conducted in violation of the
law, and in violation of required due process and
proper procedures.” Notice, Ex. 1 at ¶ 16.
2) “In her unlawful zeal to create any ethic
violation whether real or manufactured, and as
evidence of her conflict of interest and improper
motives, and with the full approval of and
ratification by Totto, DeCaires violated the rights
of HPD officers, witnesses and the plaintiffs,
provided false and defamatory information to
witnesses and others, violated Garrity rights of
witnesses and plaintiffs. . . .” Id. at ¶ 80.
3) “Totto and/or DeCaires deliberately, improperly
and illegally shared with other state and law
enforcement agencies information provided by
plaintiffs . . . in violation of their Garrity and
other rights.” Id. at ¶ 99(l).
4) “Totto and/or DeCaires deliberately, improperly
and illegally shared with third parties, including
the attorney for Gerard Puana, information provided
plaintiffs, by witnesses, by HPD officers, and by
other County employees, in violation of their
Garrity and other rights.” Id. at ¶ 99(m).
With respect to ¶ 16 of the Complaint, the Court finds that it
did not put Defendants on notice of a federal claim and
trigger removability.

A due process violation does not

necessarily implicate federal law, as it can be a state

4

At the hearing, the parties discussed Exhibit 41 to the
Complaint. The Court has not relied upon Exhibit 41 in making
its determination.
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constitutional claim.

The Court therefore finds that the “due

process” reference does not buttress Plaintiffs’ position and
would not have alone triggered the first 30-day period for
removal.
At issue then is whether the references to Garrity
violations revealed that the case was removable.

Defendants

cite a handful of out-of-district cases to support the
proposition that passing and vague references to violations of
Garrity rights are insufficient to support removal based on
federal questions jurisdiction.5

In Garrity, the Supreme

5

These cases do not support the retention of
jurisdiction, as they are distinguishable from the instant
case. Notably, the below cases involved pro se plaintiffs.
Vague (and often inapplicable) references to federal law or
standalone citations to federal law by pro se plaintiffs cause
far greater uncertainty about whether a federal claim is
presented. Plaintiffs here are represented by experienced
counsel. The repeated reference to Garrity violations cannot
be disregarded as insignificant.
In Hemmelgarn v. City of Seattle, No. C13-02188 RSM, 2014
WL 996483, at *1 (W.D. Wash. Mar. 13, 2014), the court denied
the plaintiff’s motion to remand, finding that the defendant
timely removed the action pursuant to § 1446(b)(3) after
plaintiff revealed, at his deposition, that he intended to
assert § 1983 and other claims under the U.S. Constitution.
Id. at **1-2. The plaintiff’s complaint included a single
reference to federal law - that the defendant’s actions caused
him to suffer “deprivation of his liberty and property as
protected by State and federal law” - but his enumerated
causes of action related solely to Washington statutory or
common law. Id. at *1.
In Shelley’s Total Body Works v. City of Auburn, No.
C07-126P, 2007 WL 765205, at *1 (W.D. Wash. Mar. 9, 2007), the
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Court held that incriminatory statements made by an employee
under the threat of termination cannot be used in a subsequent
criminal proceeding.

Garrity, 385 U.S. at 493; Peck v.

Hinchey, No. CV-12-01371-PHX-JAT, 2014 WL 3721195, at *1 n.2
(D. Ariz. July 28, 2014) (“Garrity-protected interviews
generally contain statements made by an officer at a
department disciplinary proceeding or as part of an internal
affairs investigation.

Those statements are then prohibited

from being used against the officer in a subsequent criminal
prosecution.”).
Unlike the cases where a plaintiff makes passing
reference to violations of “federal law” or the U.S.
Constitution, Plaintiffs identified Garrity violations, which
implicate the Fifth Amendment right against self-

court found that it lacked subject matter jurisdiction over
the case because the plaintiff’s “vague and passing references
to federal law” in the complaint were insufficient to support
removal based on federal question jurisdiction. Id. at *3.
The court also relied on the fact that the defendant’s notice
of removal displayed uncertainty as to whether the complaint
presented a federal claim. Id. at *2. The defendant cited
two paragraphs to support removal, one that included the text
of the Ninth and Fourteenth Amendments and one that stated:
“Civil Liability: The state of being legally obligated for
civil damages: cite as 134 Wash.2d 947, 954 p.2d 250: any
intrerference [sic] with the issuance of a building permit
when a property owner is entitled to that building permit
gives a right to a claim under the State and Federal law.”
Id. at *2.

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incrimination, and necessarily require application of federal
law for adjudication.

Aguilera v. Baca, 510 F.3d 1161, 1171

(9th Cir. 2007) (identifying Garrity as involving Fifth
Amendment rights); Orozco v. Cty. of Monterey, 941 F. Supp.
930, 939 (N.D. Cal. 1996) (discussing Garrity in the context
of the Fifth Amendment right against self-incrimination).

The

Court accordingly finds that the Complaint presents a federal
claim on its face.
Defendants argue that Plaintiffs did not allege the
requisite facts to support a § 1983 action based on Garrity
right violations and that it was not until the filing of the
MDS that Plaintiffs affirmatively asserted a § 1983 claim.
For the purpose of removal, the existence of a federal claim
does not rest on whether Plaintiffs’ claims could survive a
motion to dismiss or meet Federal Rule of Civil Procedure 8’s
pleading standards.6

Plaintiffs’ assertion of Garrity

violations sufficiently notified Defendants of the existence
of federal claims, and did not require express reference to
§ 1983.

Indeed, the mere assignment of a § 1983 label to the

Garrity violations in the MDS did not transform the Garrity
violations from non-federal claims to federal claims.

6

The

Nothing in this Findings and Recommendation is intended
to express an opinion on the merits or sufficiency of the
claims.
13

nature and character of the Garrity allegations were federal
at the outset and, if anything, the MDS confirmed that.

The

Court declines to give credence to Defendants’ contention that
a federal constitutional claim cannot be found on the face of
a complaint unless a plaintiff expressly identifies the claim
as one pursuant to § 1983.7

Cf. Johnson v. City of Shelby,

Miss., __ U.S. __, 135 S. Ct. 346, 347 (2014) (per curiam)
(“In particular, no heightened pleading rule requires
plaintiffs seeking damages for violations of constitutional

7

Courts regularly construe federal constitutional claims
as § 1983 claims. Orozco, 941 F. Supp. at 934 (construing two
of the plaintiff’s causes of action for constitutional
violations as § 1983 claims even though the plaintiff brought
them directly under the U.S. Constitution and not under the
umbrella of § 1983); Ryder v. Booth, No. 16-00065 HG-KSC, 2016
WL 2745809, at *4 (D. Haw. May 11, 2016) (“Plaintiffs’
Complaint does not reference 42 U.S.C. § 1983. The Court
construes Plaintiffs’ claim that the Defendant County’s police
officers violated the United States Constitution as a claim
pursuant to Section 1983.”); Stone v. Conrad Preby’s, No.
12-CV-2031-IEG BLM, 2013 WL 139939, at *2 (S.D. Cal. Jan. 10,
2013) (“Although Plaintiff does not specifically state that
his claims are being brought under § 1983, the Court affords
Plaintiff the benefit of any doubt . . . and construes these
Constitutional claims as being brought under § 1983.”);
Hardman v. Gov’t of Guam, No. CIV. 10-00010, 2011 WL 4901162,
at *3 (D. Guam Oct. 14, 2011) (“When plaintiffs run afoul of
[the rule that violations of a constitutional right should be
brought under § 1983], courts generally re-frame the direct
constitutional claims as § 1983 claims.”).
These cases illustrate that a § 1983 label is unnecessary
for the identification of a federal claim on the face of a
complaint. The reference to and application of § 1983 become
relevant when challenges are made to the sufficiency of the
pleadings and/or merits of the claims.
14

rights to invoke § 1983 expressly in order to state a
claim.’”).
For the reasons articulated above, the presentation
of Garrity claims in the Complaint triggered § 1446(b)(1) and
required Defendants to remove the action within 30 days after
service of the Complaint, or by July 20, 2016.

Given that

Totto filed the Notice on December 30, 2016, removal was
untimely and the action must be remanded to state court.
B.

Plaintiffs are not Entitled to Fees and Costs Pursuant to
§ 1447(c)
Plaintiffs request their fees and costs incurred in

connection with the removal.

Defendants argue that an award

of fees would not be justified because it was reasonable for
them to defer removal until they had clarity regarding
Plaintiffs’ claims.
When a federal court remands a case, it “may require
payment of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal.”
U.S.C. § 1447(c).
that:

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The United States Supreme Court has stated

“Absent unusual circumstances, courts may award

attorney’s fees under § 1447(c) only where the removing party
lacked an objectively reasonable basis for seeking removal.
Conversely, when an objectively reasonable basis exists, fees
should be denied.”

Martin v. Franklin Capital Corp., 546 U.S.
15

132, 141 (2005) (citations omitted).

The district court

retains discretion to determine whether a given case presents
unusual circumstances that warrant a departure from this rule.
Id.

The Martin Court also instructed that
The appropriate test for awarding fees under
§ 1447(c) should recognize the desire to deter
removals sought for the purpose of prolonging
litigation and imposing costs on the opposing
party, while not undermining Congress’ basic
decision to afford defendants a right to remove
as a general matter, when the statutory criteria
are satisfied.

Id.

Under the circumstances of this case, the Court declines

to award attorneys’ fees and costs under § 1447(c) because
Defendants did not lack an objectively reasonable basis for
seeking removal within the second 30-day window authorized by
§ 1446(b)(3).

Although the Court has concluded that

Defendants were required to remove the case within § 1446(b)’s
first 30-day window because the Complaint presents a federal
claim, Defendants’ concerns regarding premature removal based
on inarticulately asserted claims were reasonable.

The Court

therefore recommends that Plaintiffs’ request for fees and
costs be DENIED.
CONCLUSION
In accordance with the foregoing, the Court HEREBY
RECOMMENDS that Plaintiffs’ Motion to Remand, filed January
10, 2017, be GRANTED IN PART AND DENIED IN PART.
16

The Court

recommends that the Motion be GRANTED to the extent Plaintiffs
seek remand and recommends that this action be REMANDED to the
Circuit Court of the First Circuit, State of Hawaii.

The

Court recommends that the Motion be DENIED to the extent
Plaintiffs request fees and costs pursuant to § 1447(c).
IT IS SO FOUND AND RECOMMENDED.
DATED:

Honolulu, Hawaii, March 13, 2017.

_____________________________
Kevin S.C. Chang
United States Magistrate Judge

CIVIL NO. 16-00682 JMS-KSC; KEALOHA, ET AL. V. TOTTO, ET AL.; FINDINGS AND
RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFFS’ MOTION TO REMAND

17