Hester v. Horowitz
AMENDED ORDER ADOPTING FINDINGS AND RECOMMENDATIONS re 19 re 15 Findings and Recommendations. re 18 Motion for Declaratory Judgment. Signed by JUDGE LESLIE E. KOBAYASHI on 02/17/2017. Defendant's Motio n for Declaratory Judgment as Alternative to Remand, filed February 10, 2017 which this Court CONSTRUES as his objections to the magistrate judge's January 27, 2017 Findings and Recommendation to Remand Action to State Court is HEREBY DENIED. This Court HEREBY ADOPTS the magistrate judge's findings and recommendation as the opinion and order of this Court.This Court DIRECTS the Clerk's Office to effectuate the remand of this case on March 10, 2017, unless a motion for reconsi deration of this Order is filed by March 6, 2017. (eps, )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 served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LEONARD G. HOROWITZ,
CIVIL 17-00014 LEK-KSC
AMENDED ORDER ADOPTING MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION
On January 27, 2017, the magistrate judge issued his
Findings and Recommendation to Remand Action to State Court
[Dkt. no. 15.]
On February 10, 2017, pro se Defendant
Leonard G. Horowitz (“Defendant”) filed document titled “Motion
for Declaratory Judgment as Alternative to Remand.”
This Court CONSTRUES Defendant’s filing as his objections
to the F&R (“Objections”).1
The Court has considered the F&R and
Objections as non-hearing matters pursuant to Rule LR7.2(e) of
the Local Rules of Practice of the United States District Court
Because Plaintiff is proceeding pro se, this Court must
liberally construe his filings. See, e.g., Pregana v.
CitiMortgage, Inc., Civil No. 14-00226 DKW-KSC, 2015 WL 1966671,
at *2 (D. Hawai`i Apr. 30, 2015) (“The Court liberally construes
the [plaintiffs’] filings because they are proceeding pro se.”
(citing Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987))).
Defendant states that “[r]econsideration is requested.”
[Objections at 2.] However, reading the document as a whole, it
appears that Defendant wants this Court to review the magistrate
judge’s rulings. This Court does not construe Defendant’s filing
as asking the magistrate judge to reconsider the F&R.
for the District of Hawai`i (“Local Rules”).
consideration of the F&R, Objections, and the relevant legal
authority, Defendant’s Objections are HEREBY DENIED, and the F&R
is ADOPTED as the opinion and order of this Court, for the
reasons set forth below.2
This Court reviews a magistrate judge’s findings and
recommendations under the following standard:
When a party objects to a magistrate judge’s
findings or recommendations, the district court
must review de novo those portions to which the
objections are made and “may accept, reject, or
modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1); see also United States v.
Raddatz, 447 U.S. 667, 673 (1980); United States
v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (“[T]he district judge must review
the magistrate judge’s findings and
recommendations de novo if objection is made, but
Under a de novo standard, this Court reviews
“the matter anew, the same as if it had not been
heard before, and as if no decision previously had
been rendered.” Freeman v. DirecTV, Inc., 457
F.3d 1001, 1004 (9th Cir. 2006); United States v.
Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The
district court need not hold a de novo hearing;
however, it is the court’s obligation to arrive at
its own independent conclusion about those
portions of the magistrate judge’s findings or
recommendation to which a party objects. United
States v. Remsing, 874 F.2d 614, 616 (9th Cir.
The instant Order supersedes the Order Adopting Magistrate
Judge’s Findings and Recommendation issued on February 15, 2017.
[Dkt. no. 19.]
Muegge v. Aqua Hotels & Resorts, Inc., Civil 09-00614 LEK-BMK,
2015 WL 4041313, at *2 (D. Hawai`i June 30, 2015) (alteration in
Muegge) (some citations omitted).
As noted in the F&R, the operative pleading in this
case is a Petition to Expunge Documents Recorded in the Bureau of
Conveyances of the State of Hawaii (“Petition”), which Plaintiff
Jason Hester (“Plaintiff”) filed in the State of Hawai`i First
Circuit Court on July 26, 2016.3
[Removal of Case Civ. No. 16-1-
1442-07 VLC (“Notice of Removal”), filed 1/11/17 (dkt. no. 1),
Exh. 1 (Petition).]
In light of Defendant’s Objections, this
Court must review the issue of whether the case should be
remanded de novo.
See Reyna–Tapia, 328 F.3d at 1121.
Defendant cites three cases as support for his position
that there is federal jurisdiction over the instant case: Ocwen
Loan Servicing, LLC v. Lum, Civil No. 13-00497 LEK-KSC, 2015 WL
1808955 (D. Hawai`i Apr. 20, 2015); The Club at Hokuli`a, Inc. v.
American Motorists Insurance Co., Civil No. 10-00241 JMS-LEK,
2010 WL 3465278 (D. Hawai`i Sept. 3, 2010), report and
recommendation adopted sub nom., 2010 WL 4386741 (Oct. 26, 2010);
and Federal Home Loan Mortgage Corp. v. Griep, CIVIL 15-00003
Although Jason Hester and Leonard G. Horowitz were
designated as Petitioner and Respondent in the state court
proceedings, they are designated as Plaintiff and Defendant in
the instant case.
LEK-KSC, 2015 WL 7274034 (D. Hawai`i Nov. 18, 2015).
Ocwen Loan does not support Defendant’s position because
there was diversity jurisdiction in that case.
2015 WL 1808955, at *1.
See Ocwen Loan,
In the instant case, diversity
jurisdiction does not exist because both Plaintiff and Defendant
are Hawai`i residents.4
See Petition at ¶¶ 2-3.
not support Defendant’s position because that case was remanded
to the state court because one of the defendants did not consent
to the removal.
See 2010 WL 3465278, at *14.
Federal Home Loan
does not support Defendant’s position because “[t]he United
States District Courts have original jurisdiction over all civil
actions which Freddie Mac is a party pursuant to 12 U.S.C.
[Federal Home Loan, Complaint for: (1) Cancellation
of Written Instrument; (2) Slander of Title; and (3) Quiet Title,
filed 1/6/15 (dkt. no. 1), at ¶ 4.]
Thus, both Hokuli`a and
Federal Home Loan are factually distinguishable from this case.
This Court has reviewed the Petition anew, without considering
the magistrate judge’s F&R, see Freeman, 457 F.3d at 1004, and
this Court CONCLUDES that the Petition does not present a federal
A district court has diversity jurisdiction over a civil
action “where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is between –
(1) citizens of different States[.]” 28 U.S.C. § 1332(a).
28 U.S.C. § 1331, titled “Federal question,” states: “The
Defendant’s Objections appear to suggest that there is
federal question jurisdiction in the instant case because he is
entitled to a declaratory judgment pursuant to 28 U.S.C. § 2201.
However, the existence of removal jurisdiction is generally
determined at the time the notice of removal is filed,
irrespective of subsequent events.
See, e.g., Allen v. F.D.I.C.,
710 F.3d 978, 984 (9th Cir. 2013).
Thus, even if Defendant
intends to bring a counterclaim for declaratory relief against
Plaintiff, and even if the counterclaim raises a federal
question, Defendant’s anticipated counterclaim cannot create
See Vaden v. Discover Bank, 559 U.S. 49,
This Court emphasizes that this Order does not
prevent Defendant from attempting to bring a counterclaim for a
declaratory judgment in state court after remand.
After a de novo review, this Court CONCLUDES that
federal jurisdiction did not exist at the time Defendant filed
his Notice of Removal.
This case must therefore be REMANDED to
the state court.
district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the
Vaden was superseded by statute on other grounds, as
stated in Vermont v. MPHJ Tech. Investments, LLC, 803 F.3d 635,
643 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 1658, and, 136 S.
Ct. 1660 (2016).
On the basis of the foregoing, Defendant’s Motion for
Declaratory Judgment as Alternative to Remand, filed February 10,
2017 – which this Court CONSTRUES as his objections to the
magistrate judge’s January 27, 2017 Findings and Recommendation
to Remand Action to State Court – is HEREBY DENIED.
HEREBY ADOPTS the magistrate judge’s findings and recommendation
as the opinion and order of this Court.
This Court DIRECTS the Clerk’s Office to effectuate the
remand of this case on March 10, 2017, unless a motion for
reconsideration of this Order is filed by March 6, 2017.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 17, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
JASON HESTER VS. LEONARD G. HOROWITZ; CIVIL 17-00014 LEK-KSC;
AMENDED ORDER ADOPTING MAGISTRATE JUDGE’S FINDINGS AND
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