Robinson v. First Hawaiian Bank

Filing 35

ORDER ADOPTING THE MAY 12, 2017 FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF'S MOTION TO REMAND PURSUANT TO 28 U.S.C. § 1447 re 27 - Signed by JUDGE DERRICK K. WATSON on 8/24/2017. "The Court hereby ADOPTS the May 12, 2017 F&R, OVERRULES FHB's related objections, and GRANTS Robinson's Motion to Remand." (emt, )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

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII

LINDA ROBINSON, INDIVIDUALLY
AND ON BEHALF OF A CLASS OF
ALL PERSONS SIMILARLY
SITUATED,
Plaintiff,

vs.

CIV. NO. 17-00105 DKW-RLP

ORDER ADOPTING THE MAY 12,
2017 FINDINGS AND
RECOMMENDATION TO GRANT
PLAINTIFF’S MOTION TO
REMAND PURSUANT TO 28
U.S.C. § 1447

FIRST HAWAIIAN BANK, DOE
DEFENDANTS 1-50,
Defendants.

ORDER ADOPTING THE MAY 12, 2017 FINDINGS AND
RECOMMENDATION TO GRANT PLAINTIFF’S
MOTION TO REMAND PURSUANT TO 28 U.S.C. § 1447
Plaintiff Linda Robinson filed this action, on behalf of herself and an
unidentified class of persons similarly situated, in Hawai‘i state court against her
debit card provider, First Hawaiian Bank (“FHB”), and Doe Defendants 1–50. See
Notice of Removal, Ex. A, Compl., CV-17-1-0167-01 KTN (filed Jan. 27, 2017),
ECF No. 1-2. FHB subsequently removed the action to this Court (ECF No. 1),
and Robinson filed a motion to remand (ECF No. 20). On May 12, 2017, the
Magistrate Judge entered his Findings and Recommendation to Grant Plaintiff’s

Motion to Remand Pursuant to 28 U.S.C. § 1447 (“F&R”). ECF No. 27. For the
reasons stated below, the Court ADOPTS the F&R and GRANTS Robinson’s
Motion to Remand.
BACKGROUND
Robinson is an FHB debit card holder who takes issue with the overdraftrelated charges on her FHB bank account, which she contends were assessed in
contravention of various common law principles and laws codified in the Hawai‘i
Revised Statutes (“HRS”).
On June 15, 2016, Robinson filed a class action lawsuit against FHB in the
Circuit Court for the First Circuit, State of Hawai‘i .1 In the Complaint, Robinson
challenges FHB’s banking practices of imposing initial overdraft fees on debit card
transactions approved and deducted on a “sufficient available balance,” and the
imposition of a continuous overdraft fee, which is assessed for each seven-day
period that a customer’s account has a negative balance. Compl. ¶¶ 1–15, 22–55,
59–64. As a result of these practices, the Complaint asserts that FHB is liable for:
(1) violating Hawaii’s Uniform Deceptive Trade Practice Act, HRS § 480-2(a)
(declaring unlawful “unfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce”) (Compl. ¶¶ 81–86); (2)
1

Robinson cites Rule 23 of the Hawaii Rules of Civil Procedure, although the papers before this
Court do not reflect that any individual class members have yet been identified. See Compl.
¶ 73, ECF No. 1-2 (noting that the identity of thousands of potential class members “is within the
knowledge of and can be ascertained only by resort to FHB’s records”).

2

conversion of funds via the “wrongful[] collecti[on] [of] overdraft fees from
Plaintiff and the members of the Class” (Compl. ¶¶ 87–98); (3) unjust enrichment
“from the imposition of overdraft fees . . . in an unfair, unconscionable, and
oppressive manner” (Compl. ¶¶ 99–107); and (4) violating Hawaii’s interest and
usury laws, codified in HRS Chapter 478, by “knowingly charg[ing] and
collect[ing] Continuous [Overdraft] Fees . . . that far exceeded the legal rate”
permitted by HRS § 478-2” (Compl. ¶¶ 108–21).
FHB removed Robinson’s action to federal court on March 6, 2017. ECF
No. 1. FHB’s removal petition is based on its assertion that Section 521 of the
Depository Institution Deregulation and Monetary Control Act (“DIDA”), codified
at 12 U.S.C. § 1831(d), completely preempts Robinson’s fourth, state-law
usury/interest claim. Notice of Removal ¶¶ 12, 14, ECF No. 1 (“State law usury
claims are completely preempted by federal banking laws, including DIDA and the
National Bank Act.”). Specifically, FHB alleges that Robinson’s legal arguments
rest on her theory equating “continuous overdraft fees” by FHB to “interest” that is
usurious under Hawaii state law. Notice of Removal ¶ 14. As such, FHB argues,
removal to federal court is proper because “that inquiry is properly a matter of
federal law and the subject of complete preemption.” Notice of Removal ¶ 14.
On April 4, 2017, Robinson filed her Motion to Remand Pursuant to 28
U.S.C. § 1447 (ECF No. 20), asserting that removal was improper because
3

Robinson’s state-law usury claim is not preempted by DIDA; thus, under the
“well-pleaded complaint rule,” no federal question appeared on the face of the
Complaint, no exception to that rule applies, and federal jurisdiction would be
inappropriate. See Mem. in Supp. of Mot., ECF No. 20-1 [hereinafter Remand
Mem.]. FHB filed its Memorandum in Opposition to Robinson’s Motion to
Remand (ECF No. 24) on April 18, 2017.
On May 12, 2017, the Magistrate Judge entered the F&R (ECF No. 27),
finding that “DIDA does not completely preempt state-law usury claims and does
not establish the federal question jurisdiction necessary for removal of this action.”
F&R at 7. The Magistrate Judge therefore recommended that Robinson’s Motion
to Remand be granted. F&R at 13.
Before the Court are FHB’s objections to the F&R, which urge the Court to:
(1)

Reject the Magistrate Judge’s Findings that:
[a]

this case was not properly removed to federal
court, F&R at 2;

[b]

DIDA does not completely preempt state-law
usury claims and does not establish the federal
question jurisdiction necessary for removal of this
action, F&R at 7;

[c]

the language contained in Section 521 of DIDA
does not completely preempt state usury law and
therefore, DIDA does not provide the basis for
federal question jurisdiction or removal[;]

4

(2)

Reject the Magistrate Judge’s Recommendation that this
Court grant Plaintiff’s Motion to Remand Pursuant to 28
U.S.C. § 1447 (ECF No. 20) (the “Remand Motion”),
F&R at 2, 13; and

(3)

Deny the Remand Motion.

Def.’s Obj. to F&R 3, ECF No. 28 [hereinafter Objections Memorandum or Obj.
Mem.] (emphasis removed) (formatting altered). Robinson responded to these
objections on June 9, 2017. See Pl.’s Resp. to Def.’s Obj. to F&R, ECF No. 29.
For the reasons stated below, the Court ADOPTS the F&R and GRANTS
Robinson’s Motion to Remand.
STANDARD OF REVIEW
A motion to remand is a case dispositive motion that requires the issuance of
findings and recommendations if initially reviewed by a magistrate judge. See
Flam v. Flam, 788 F.3d 1043, 1047 (9th Cir. 2015) (citing Williams v. Beemiller,
Inc., 527 F.3d 259, 266 (2d Cir. 2008)); Keown v. Tudor Ins. Co., 621 F. Supp. 2d
1025, 1029 (D. Haw. 2008). 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).

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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). Although the district court
need not hold a de novo hearing, it is the Court’s obligation to arrive at its own
independent conclusion about those portions of the magistrate judge’s findings or
recommendations to which a party objects. United States v. Remsing, 874 F.2d
614, 618 (9th Cir. 1989).
DISCUSSION
Because Robinson’s Complaint is based upon Hawaii state law and does not
allege any federal cause of action, this Court lacks subject matter jurisdiction over
the dispute. Therefore, FHB’s removal to this Court was improper, its objections
to the F&R are meritless, and the case is REMANDED to State Court.
Removal of an action from state to federal court is proper if the federal court
would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). Federal
district courts “have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Generally,
an action is deemed to “arise under” federal law where it is a “federal law [that]
creates the cause of action” that the plaintiff has asserted. Gunn v. Minton, 133
S. Ct. 1059, 1064 (2013); see also Ultramar Am. Ltd. v. Dwelle, 900 F.2d 1412,
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1414 (9th Cir. 1990) (“The plaintiff is the ‘master’ of his complaint; where he may
pursue state and federal law claims, he is free to pursue either or both, so long as
fraud is not involved.”) (quoting Savelson v. W. States Bankcard Ass’n, 731 F.2d
1423, 1426–27 (9th Cir. 1984)).
There is, however, a narrow exception to the general rule that allows a
complaint purporting to rest on state law to be recharacterized as one “arising
under” federal law if the complaint is governed exclusively by federal law.
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003); see Hawaii ex rel Louie v.
HSBC Bank Nevada, N.A., 761 F.3d 1027, 1034 (9th Cir. 2014) (citing Metro. Life
Ins. Co. v. Taylor, 481 U.S. 58, 64 (1987)). Under this so-called “complete
preemption doctrine,” a plaintiff’s state cause of action may be recast as a federal
claim for relief, making defendant’s removal of the action proper on the basis of
federal question jurisdiction. Id.; see also Wright & Miller, 14B Fed. Prac. &
Proc. Juris. § 3722.1, 511 (4th ed. 2017)).
Based on its assertion that DIDA completely preempts Robinson’s state law,
usury cause of action under HRS § 478, FHB relies on the complete preemption
exception to the well-pleaded complaint rule and asserts federal question
jurisdiction under 28 U.S.C. § 1441 as the basis of removal in this case. Notice of
Removal ¶ 8. “Federal jurisdiction,” however, “must be rejected if there is any
doubt as to the right of removal in the first instance,” and a defendant who invokes
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the federal court’s removal jurisdiction “always has the burden of establishing that
removal is proper.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)
(citations omitted) (noting that there is a “strong presumption” against removal
jurisdiction); accord Washington v. Chimei Innolux Corp., 659 F.3d 842, 847 (9th
Cir. 2011).
Pursuant to the discussion below, the Court finds that FHB has not met its
burden in the instant case.
A.

Conditional language apparent on the face of the statute demonstrates
that Congress did not intend Section 521 of the DIDA to completely
preempt state usury laws.

FHB contends that Section 521 of the DIDA completely preempts claims of
usury against federally insured, state-chartered banks. There is conflicting
authority on the question. The Third and Fourth Circuits have each found that
complete preemption exists, In re Cmty. Bank of N. Va., 418 F.3d 277, 295 (3d Cir.
2005); see Discover Bank v. Vaden, 489 F.3d 594, 605 (4th Cir. 2007), rev’d on
other grounds, 556 U.S. 49 (2009), called into question by Cmty. State Bank v.
Knox, 523 F. App’x 925, 929 (4th Cir. 2013) (questioning whether the Circuit’s
2007 holding in Vaden on this issue “remains intact after the Supreme Court’s
reversal”),2 while the Eighth Circuit has found that it does not, Thomas v. U.S.

2

Although FHB’s papers assert that “[t]he First, Third, and Fourth Circuits hold that” DIDA
completely preempts state usury laws, the Court notes that the First Circuit case cited did not, in
fact, consider the same issue presented here. See Greenwood Trust Co. v. Comm. of Mass., 971

8

Bank Nat’l Ass’n ND, 575 F.3d 794, 797, 798 (8th Cir. 2009) (rejecting bankdefendant’s argument that “the similarity in language between DIDA and the
National Banking Act (“NBA”) compelled the conclusion that DIDA, like the
NBA, created the exclusive federal remedy for usury claims against federallyinsured, state-chartered banks”), cert. denied, 130 S. Ct. 3504 (2010). Neither the
Supreme Court of the United States nor the Ninth Circuit Court of Appeals has
weighed in on the issue,3 while this Court’s most recent decision on the subject is
consistent with that of the Eighth Circuit, see Robinson v. Bank of Hawaii, CIV.
NO. 17-00072, 2017 WL 2901333, at *3–5 (D. Haw. July 7, 2017) (considering
the same issue the Court is presented with here and holding that complete
preemption does not apply).4

F.2d 818, 824 (1st Cir. 1992) (examining whether DIDA expressly preempts a specific state
statute, and finding that it does, without addressing the issue of the DIDA’s complete
preemption), cert. denied, 113 S. Ct. 974 (1993). The Court also notes that the Fifth Circuit has
adopted (without analysis) one party’s unopposed argument “that the same preemption analysis
applies for both the NBA and DIDA,” but at the same time held that the claims were not usury in
nature and therefore preemption did not apply. Hood ex. rel. Mississippi v. JP Morgan Chase &
Co., 737 F.3d 78, 84 n.1 (5th Cir. 2013).
3

Although the Ninth Circuit once suggested in dicta that complete preemption might be
warranted in this context, the court explicitly stated that it was not deciding that question. CrossCountry Bank v. Klussman, 74 F. App’x 796, 797 (9th Cir. 2003).
4

The Court notes that the Ninth Circuit did not affirm the analysis or conclusion of a prior
Hawaii District Court, which found that DIDA completely preempted the plaintiff’s state usury
claims, Hawaii ex rel. Louie v. JP Morgan Chase & Co., 907 F. Supp. 2d 1188, 1213–14 (D.
Haw. 2012), rev’d, 761 F.3d 1027 (9th Cir. 2014). Rather, the appellate court reversed the lower
court’s decision after finding that the plaintiffs were not asserting claims regarding interest at all,
so complete preemption was inapplicable. Id. at 1037–38 (“We conclude that the Attorney
General did not plead a completely preempted claim and that the district court therefore erred in
finding federal question jurisdiction.”).

9

Section 521 of the DIDA governs interest rates charged by federally insured,
but state-chartered banks. See 12 U.S.C. § 1831d (entitled, “State-chartered
insured depository institutions and insured branches of foreign banks”).
Subsection (a) of the provision establishes the maximum interest rates allowed on
loans made by these state-chartered institutions:
In order to prevent discrimination against State-chartered
insured depository institutions . . . with respect to interest rates,
if the applicable rate prescribed in this subsection exceeds the
rate such State bank . . . would be permitted to charge in the
absence of this subsection, such State bank . . . may,
notwithstanding any State constitution or statute which is
hereby preempted for the purposes of this section, take, receive,
reserve, and charge on any loan or discount made, or upon any
. . . other evidence of debt, interest at a rate of not more than 1
per centum in excess of the discount rate on ninety-day
commercial paper in effect at the Federal Reserve bank in the
Federal Reserve district where such State bank . . . is located or
at the rate allowed by the laws of the State . . . where the bank
is located, whichever may be greater.
12 U.S.C. § 1831d(a) (emphasis added). The language emphasized above limits
application of the DIDA to situations in which the permissible federal interest rate
exceeds that prescribed by an individual state’s law. Id. Thus, on its face, Section
521(a) plainly has no effect where a state’s law allows state-chartered banks to
charge a higher rate of interest than the federal statute. Id. Moreover, Section
521(a) expressly states that it only preempts “any State constitution or statute . . .
for purposes of this section.” Id. “In other words, conflicting state constitutions or
statutes are not preempted for every and all purposes, but only for purposes of ‘this
10

section.’” Thomas, 575 F.3d at 797–98 (rejecting bank-defendant’s argument that
“the similarity in language between DIDA and the NBA compelled the conclusion
that DIDA, like the NBA, created the exclusive federal remedy for usury claims
against federally-insured, state-chartered banks”).
Section 521(b) of the DIDA mirrors the limiting language in subsection (a)
and sets forth the available remedies for violations of that section:
If the rate prescribed in subsection (a) of this section exceeds
the rate such State bank . . . would be permitted to charge in the
absence of this section, and such State fixed rate is thereby
preempted by the rate described in subsection (a) of this
section, the taking, receiving, reserving, or charging a greater
rate of interest than is allowed by subsection (a) of this section,
when knowingly done, shall be deemed a forfeiture of the entire
interest which the note, bill, or other evidence of debt carries
with it, or which has been agreed to be paid thereon. If such
greater rate of interest has been paid, the person who paid it
may recover in a civil action commenced in a court of
appropriate jurisdiction not later than two years after the date of
such payment, an amount equal to twice the amount of the
interest paid from such State bank . . . taking, receiving,
reserving, or charging such interest.
12 U.S.C. § 1831d(b). Notably, Section 521(b) expressly states that its remedies
are only available “[i]f the rate prescribed in subsection (a) of this section”—i.e.,
the federal interest rate—“exceeds the rate such State bank . . . would be permitted
to charge in the absence of this section”—i.e., under the state’s own usury laws.
Id. As with subsection (a), the Court finds that Congress expressly limited the
applicability of the DIDA, thereby demonstrating that it did not intend the DIDA to
11

completely preempt state usury law. Accord Thomas, 575 F.3d at 797 (“[A] close
examination of the statutory language indicates Congress very clearly intended the
preemptive scope of DIDA to be limited to particular circumstances.”).
In arguing that the Court should hold that Section 521 of the DIDA
completely preempts all state usury laws regarding state-chartered banks, FHB
highlights the Supreme Court’s determination that Sections 85 and 86 of the NBA
completely preempt claims of usury against federally chartered banks, see
Anderson, 539 U.S. at 9–11, and argues that Section 521 of the DIDA
“incorporates the operative language” of those provisions. Opp’n to Remand 6–7,
ECF No. 24. As such, FHB asserts, this Court should extend the Supreme Court’s
NBA rule, just as the “[t]he First, Third, and Fourth Circuits” have done, and hold
that the DIDA also “provides precisely the same preemption protection to statechartered banks.” Opp’n to Remand 7, 11 n.5. The Court declines to do so.
In contrast to Section 521’s plainly conditional language, neither Section 85
of the NBA, which places “substantive limits on the rates of interest that national
banks may charge,” nor Section 86, which “sets forth the elements of a usury claim
against a national bank, provides for a 2-year statute of limitations for such a
claim, and prescribes the remedies available to borrowers who are charged higher
rates and the procedures governing such a claim,” Anderson, 539 U.S. at 9,
contains similar limiting language. Rather, the general applicability of those NBA
12

sections demonstrates that “Congress intended the [National Bank Act] to provide
the exclusive cause of action for usury claims against national banks[.]” Id.
(emphasis added). Thus, FHB’s analogy to the NBA preemption case law is
unconvincing. Thomas, 575 F.3d at 797–98 (“[T]he language of DIDA, unlike the
NBA, does not reflect Congress’ intent to provide the exclusive cause of action for
a usury claim against a federally-insured state-chartered bank.”). FHB has
therefore failed to meet its burden of establishing that complete preemption applies
in this case. Gaus, 980 F.2d at 566; see also Robinson v. Bank of Hawaii, 2017
WL 2901333, at *3–6 (considering parallel issues to this case in the first instance,
rather than reviewing an F&R, and holding that Section 521 of the DIDA’s plain
language evinces a congressional intent not to completely preempt state usury law
in the same way that Sections 85 and 86 of the NBA do). The Court ADOPTS the
F&R’s conclusion to the same effect.
B.

The Court agrees with the F&R, notwithstanding any specific
objections FHB has raised to its reasoning and analysis.

In addition to challenging the Magistrate Judge’s ultimate conclusion
regarding preemption, FHB specifically objects to three aspects of the F&R. First,
FHB argues that “the F&R fails to consider DIDA’s legislative history,” which
FHB “cited extensively” in its Opposition Memorandum. Obj. Mem. 6 (citing the
F&R’s statement that it “carefully consider[ed] the statutory text, the relevant
authority, and the arguments of the parties”). Second, FHB asserts that “the F&R
13

fails to consider the practical implications of its finding and recommendation.”
Obj. Mem. 8. That is, the Magistrate Judge allegedly erred by not considering
“that state-chartered banks would be subject to drastically different legal standards
and penalties for violations compared to national banks if DIDA did not
completely preempt state law usury claims.” Obj. Mem. 3. And third, FHB takes
issue with the F&R for “disregard[ing] the weight of authority supporting DIDA
preemption.” Obj. Mem. 10. The Court OVERRULES each of these objections.
1.

Conditional language on the face of the statute clearly
evidences congressional intent regarding preemption,
notwithstanding whatever legislative history may exist.

According to FHB, the Magistrate Judge erred by failing to explicitly
discuss DIDA’s legislative history before determining whether Congress intended
DIDA to completely preempt state usury laws. Obj. Mem. 6. This objection is
meritless.
In the F&R, the Magistrate Judge found that DIDA does not completely
preempt state law usury claims “[a]fter carefully considering the statutory text, the
relevant authority, and the arguments of the parties.” F&R at 7. Although the
F&R does not explain its exclusion of any legislative history from its analysis, the
Court presumes that the reason was based on the rule that courts do not consider
legislative history when congressional intent is evident from the plain language of
the statute. See United States v. Turner, 689 F.3d 1117, 1119 (9th Cir. 2012). In
14

other words, “[t]he starting point in interpreting a statute is its language, for if the
intent of Congress is clear, that is the end of the matter.” Id. (quoting Good
Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) (internal quotation marks
and brackets omitted)); see also In re U.S. for an Order Authorizing Roving
Interception of Oral Commc’ns, 349 F.3d 1132, 1144 (9th Cir. 2003) (“We may
not read the legislative history to limit a statute’s unmistakable directive.”) (citing
United States v. Hagberg, 207 F.3d 569, 574 (9th Cir. 2000); Or. Nat. Res.
Council, Inc. v. Kantor, 99 F.3d 334, 339 (9th Cir. 1996)); cf. Crosby v. Nat’l
Foreign Trace Council, 530 U.S. 363, 390 (2000) (Scalia, J., concurring in the
judgment) (“[N]either statements of individual Members of Congress (ordinarily
addressed to a virtually empty floor), nor Executive statements and letters
addressed to congressional committees, nor the nonenactment of other proposed
legislation, is a reliable indication of what a majority of both Houses of Congress
intended when they voted for the statute[.]”).
As noted above, the Court agrees with the F&R’s determination that
complete preemption does not exist because the statutory language on which the
parties rely evinces a contingency—i.e., state law is preempted only if and when a
specific interest rate comparison test is met. Since the language is unmistakably
conditional, the F&R correctly concluded that Congressional intent could not have
been to completely preempt the field. See In re U.S., 349 F.3d at 1144; Thomas,
15

575 F.3d at 797. Thus, Congressional intent is evident from the face of the statute,
and there was no reason to separately consider legislative history. E.g., Brown v.
Gardner, 513 U.S. 115, 120 (1994) (“[T]he text and reasonable inferences from it
give a clear answer against the Government, and that, as we have said, is ‘the end
of the matter.’”) (quoting Shalala, 508 U.S. at 409).
2.

FHB has not demonstrated that a preemption analysis should
involve equitable considerations.

Next, FHB asserts that the Magistrate Judge’s reading would place FHB in a
fundamentally unfair position relative to national banks because FHB and other
state-chartered banks remain subject to different sets of interest rules, while
national banks must comply only with federal law, given the completely
preemptive effect of the NBA. Obj. Mem. 3, 8. FHB never explains, however,
why the Court should consider unfairness or equity when evaluating the
preemptive effect of a statute. Unfairness, it seems, is an issue best addressed by
the legislative branch, rather than by the judiciary—at least in the instant context.
Here, where Congressional intent is evident from the face of the statute, a separate,
detailed policy discussion would be superfluous.
3.

The Court’s conclusion is in line with all binding precedent.

Third, FHB criticizes the F&R’s disregard of what it considers to be the
“weight of authority.” Obj. Mem. 10. The objection, however, is inapposite.

16

As noted above, there is conflicting authority on the question of whether
Section 521 of the DIDA completely preempts plaintiff’s state usury claim against
state-chartered banks, in the same way that the Supreme Court has found such
complete preemption under the National Banking Act to exist when similar claims
were asserted against federally chartered banks. Compare, e.g., Thomas, 575 F.3d
at 797 (8th Circuit determining no complete preemption); with In re Cmty. Bank of
N. Va., 418 F.3d at 295 (3rd Circuit holding complete preemption applies). None
of that authority, however, is binding on this Court. See Szajer v. City of Los
Angeles, 632 F.3d 607, 612 (9th Cir. 2011) (“We decline to take up the Szajers’
invitation to follow the Seventh Circuit’s approach because this Court must follow
its own precedent.”) (citing United States v. Vasquez–Ramos, 531 F.3d 987, 991
(9th Cir. 2008) (per curiam)); Vasquez-Ramos, supra (“We are bound by circuit
precedent unless there has been a substantial change in relevant circumstances, or a
subsequent en banc or Supreme Court decision that is clearly irreconcilable with
our prior holding.” (internal citations omitted)). Moreover, as the F&R points out
(F&R at 11–12), the First Circuit has only found preemption as to a specific state
statute, rather than complete preemption of every statute, Greenwood Trust, 971
F.2d at 824, and the Fourth Circuit has questioned whether its previous finding of
complete preemption remained in effect after the Supreme Court reversed its
holding on other grounds, Knox, 523 F. App’x at 929. Thus, the “weight of the
17

authority” is far from obvious. Based on its own review, the Court agrees that the
contingency evident on the face of Section 521demonstrates that Congress could
not have intended to completely preempt the field of state usury laws with respect
to state chartered banks. Thus, the complete preemption exception to the wellpleaded complaint rule does not apply.
In sum, FHB has failed to meet its burden of demonstrating that this action
“arises under” federal law for purposes of conferring subject matter jurisdiction on
this Court under 28 U.S.C. § 1331. See Washington, 659 F.3d at 847; Gaus, 980
F.2d at 566. As a result, FHB improperly removed this case under 28 U.S.C.
§ 1441(a).
CONCLUSION
The Court hereby ADOPTS the May 12, 2017 F&R, OVERRULES FHB’s
related objections, and GRANTS Robinson’s Motion to Remand.
IT IS SO ORDERED.
DATED: August 24, 2017 at Honolulu, Hawai‘i.

/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge

Linda Robinson, Individually And On Behalf Of A Class Of All Persons Similarly Situated v. First
Hawaiian Bank, Doe Defendants 1-50, CIV. NO. 17-00105 DKW-RLP, ORDER ADOPTING THE
MAY 12, 2017 FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF’S MOTION TO
REMAND PURSUANT TO 28 U.S.C. § 1447

18