Junttonen v. The Rehabilitation Hospital of the Pacific et al

Filing 43

ORDER TO REMAND - Signed by JUDGE HELEN GILLMOR on 6/21/2018. The Court lacks subject-matter jurisdiction in this case. Defendant's Motion for Summary Judgment may not be considered by the Court. The case is REMANDED to the Circuit Court of the First Circuit, State of Hawaii for further proceedings. The Clerk of Court is directed to transfer this case and all files herein to the Circuit Court of the First Circuit, State of Hawaii, for further proceedings. Motion terminated: 32 MOTION for Summary Judgment filed by Faye Miyamoto, Audrey Torres, Laleine Lanier, The Rehabilitation Hospital of the Pacific. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
THE REHABILITATION HOSPITAL
)
OF THE PACIFIC; AUDREY
)
TORRES; LALEINE LANIER; FAYE )
MIYAMOTO; and DOES 1-15,
)
)
Defendants.
)
_____________________________________)
GREG JUNTTONEN,

CIVIL NO. 17-00119 HG-KSC

ORDER TO REMAND
Plaintiff Greg Junttonen filed a lawsuit against Defendants
in Hawaii State Court.
causes of action.

Plaintiff alleged four Hawaii state law

Defendants argue that Plaintiff has engaged in

artful pleading to avoid federal question jurisdiction.

None of

Plaintiff’s claims raise a substantial federal question.
This case is remanded to state court for lack of subjectmatter jurisdiction.
PROCEDURAL HISTORY
On February 23, 2017, Plaintiff filed a Complaint in the
Circuit Court for the First Circuit of the State of Hawaii in the
matter styled Greg Junttonen v. The Rehabilitation Hospital of
the Pacific; Audrey Torres; Laleine Lanier; Faye Miyamoto; and
Does 1-15, Civil No. 17-1-0300-02 GWBC.

(ECF No. 1-4).

On March 15, 2017, Defendants filed a Notice of Removal to

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this Court.

(ECF No. 1).

On March 14, 2018, Defendants filed a Motion for Summary
Judgment.

(ECF No. 32).

Also, on March 14, 2018, Defendants filed a Concise
Statement of Material Facts in Support of Their Motion for
Summary Judgment.

(ECF No. 33).

On March 27, 2018, Plaintiff filed an Opposition.

(ECF No.

36).
Also, on March 27, 2018, Plaintiff filed a Concise Statement
of Facts in Opposition to Defendant’s Motion for Summary
Judgment.

(ECF No. 35).

On April 12, 2018, Defendants filed a Reply.
On May 15, 2018, the Court held a hearing.

(ECF No. 39).
The Court found

a lack of subject-matter jurisdiction and ordered this case to be
remanded.

This order constitutes the written decision of the

oral ruling.

(ECF No. 42).
BACKGROUND

Plaintiff Greg Junttonen is a resident of the City and
County of Honolulu, Hawaii.

(Complaint at p. 1, attached as

Exhibit C to Defendant's Notice of Removal, ECF No. 1-4).
Defendant Rehabilitation Hospital of the Pacific is
incorporated in Hawaii, and is doing business in Hawaii.

(Id.)

Defendants Audrey Torres, Laleine Lanier, and Faye Miyamoto
are residents of the City and County of Honolulu, Hawaii.

(Id.)

Plaintiff alleges that he was employed by Defendant
Rehabilitation Hospital of the Pacific from November 1993 through
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February of 2015.

(Id. at pp. 2-3).

On or around February 3, 2015, Plaintiff states that he
reported to Defendant Rehabilitation Hospital of the Pacific the
use of an unqualified nurse’s assistant to transfer patients in
violation of federal functional independent measures regulations,
as well as other federal and state laws and regulations.

(Id. at

p.3)
On or about February 25, 2015, Plaintiff was discharged by
Defendant Rehabilitation Hospital of the Pacific.

(Id.)

Plaintiff alleges that his termination caused him to
experience extreme emotional distress.

(Id. at p. 4).

Plaintiff also alleges that in late February and early March
of 2015, Defendants Torres, Lanier, and Miyamoto defamed him by
stating that he practiced medicine without a license and engaged
in other negligent or unprofessional conduct.

(Id.)

On or about November 19, 2015, Plaintiff filed a Charge of
Discrimination with the U.S. Equal Employment Opportunity
Commission (“EEOC”) alleging that he was discriminated and
retaliated against due to his race and color in violation of
Title VII of the Civil Rights Act of 1964.
p.2, ECF No. 1).

(Notice of Removal at

On or about January 17, 2017, the EEOC issued

Plaintiff a Dismissal and Notice of Right to Sue.

(Id.)

On February 23, 2017, Plaintiff filed a Complaint in Hawaii
State Court, alleging four state law causes of action.
(Complaint at p. 1, attached as Exhibit C to Defendant's Notice
of Removal, ECF No. 1-4).

Defendant removed Plaintiff’s
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Complaint to this Court on March 15, 2017.
STANDARD OF REVIEW
Removal of a civil action from state court to the
appropriate federal district court is permissible only if the
federal district court has original jurisdiction over the action.
28 U.S.C. § 1441.

Federal district courts have original

jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.

28 U.S.C.

§ 1331.
There is a strong presumption against removal.
Miles, Inc. 980 F.2d 564, 566 (9th Cir. 1992).

Gaus v.

The statute

authorizing removal is strictly construed, and the removing party
has the burden of establishing that removal was proper.

Moore-

Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir.
2009).
Absent diversity jurisdiction, removal is proper if a
federal question is apparent on the face of the plaintiff’s wellpleaded complaint.
392 (1987).

Caterpillar Inc. v. Williams, 482 U.S. 386,

The well-pleaded complaint rule makes the plaintiff

the master of the claim, able to avoid federal jurisdiction by
relying exclusively on state law.

Id.

The federal court may remand the removed case on motion of
either party or sua sponte.

Fed. R. Civ. P. 12(b)(1); Fed. R.

Civ. P. 12(h)(3); Emrich v. Touche Ross & Co., 846 F.2d 1190,
1194 n.2 (9th Cir. 1988) (stating, “[i]t is elementary that the
subject matter jurisdiction of the district court is not a
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waivable matter and may be raised at anytime by one of the
parties, by motion or in the responsive pleadings, or sua sponte
by the trial or reviewing court”).

Lingering doubts about the

validity of a case's removal are resolved in favor of remanding
the case to state court.

Gaus, 980 F.2d at 566.
ANALYSIS

Federal question jurisdiction, under 28 U.S.C. § 1331,
exists when a plaintiff’s well-pleaded complaint establishes
either (1) that federal law creates the cause of action or (2)
that a state law claim “necessarily raises a stated federal
issue, actually disputed and substantial, which a federal forum
may entertain without disturbing any congressionally-approved
balance of federal and state judicial responsibilities.”
Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d
1083, 1086-87 (9th Cir. 2009) (quoting Grable & Sons Metal Prod.,
Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005)).
The well-pleaded complaint rule states that federal question
jurisdiction exists only when a federal question is presented on
the face of the plaintiff’s properly pleaded complaint.
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).

A

plaintiff, as master of his complaint, may avoid federal
jurisdiction by exclusive reliance on state law.

Easton v.

Crossland Mortgage Corp., 114 F.3d 979, 982 (9th Cir. 1997).

A

plaintiff may not avoid federal jurisdiction by omitting federal
law essential to his claim, or by casting in state law terms a

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claim that can be made only under federal law.

Id.

Plaintiff’s Complaint appears to only bring state law causes
of action.

On its face, Plaintiff’s Complaint contains four

claims: (1) violation of the Hawaii Whistleblower Protection Act,
(2) a state law wrongful termination in violation of public
policy claim, (3) a state law defamation claim, and (4) a state
law intentional infliction of emotional distress claim.
(Complaint, attached as Exhibit C to Defendant’s Notice of
Removal, ECF No. 1-4).

The Court finds no federal question

presented on the face of the Complaint.
I. Plaintiff’s Complaint Does Not Cite Any Federal Cause of
Action or Implicate a Substantial Federal Issue
There is no basis to find that the Plaintiff has engaged in
artful pleading.

The artful pleading doctrine allows the court

to delve beyond the face of the complaint to find federal
question jurisdiction by recharacterizing a plaintiff’s state law
claim as a federal question claim.

Lippitt v. Raymond James Fin.

Servs., Inc., 340 F.3d 1033, 1041 (9th Cir. 2003).

Courts apply

the artful pleading doctrine in either complete preemption cases
or substantial federal question cases.

Id.

Substantial federal

questions arise where the claim is (1) necessarily federal in
character or (2) where the right to relief depends on the
resolution of a substantial, disputed federal question.
1042.

Id. at

Courts should only invoke the question of artful pleading

in limited circumstances.

Id. at 1041.

Defendants argue that Plaintiff’s Hawaii Whistleblower
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Protection Act claim and wrongful termination in violation of
public policy claim raise substantial federal issues related to
Title VII of the Civil Rights Act of 1964 and an alleged
violation of a federal “Functional Independent Measure”
regulation.

(Notice of Removal at pp. 2-3, ECF No. 1).

Defendants contend that Plaintiff’s Charge of Discrimination
filed with the United States Equal Employment Opportunity
Commission in November 2015 characterized his claim as
discrimination under Title VII.

Defendants point out that

characterization was based on the same factual allegations
supporting Plaintiff’s whistleblower and wrongful termination
claims.
The same factual allegations may support federal claims as
well as state claims.

State autonomy would be impacted if

defendants were able to remove state claims to federal court
merely because the plaintiff could have asserted a federal claim
using the same set of underlying facts.

Redwood Theatres, Inc.

v. Festival Enterprises, Inc., 908 F.2d 477, 483 (9th Cir.
1990)(citing Federated Dept. Stores, Inc. v. Moitie, 452 U.S.
394, 407 (1981)(Brennan, J. dissenting)).
A. Preemption
Preemption is not at issue in this suit.

Title VII of the

Civil Rights Act of 1964 only preempts inconsistent state law.
California Federal Sav. and Loan Ass’n v. Guerra, 479 U.S. 272,
292 (1987).

Defendants have not identified any other federal

statutes that provide exclusive causes of action for any of the
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claims asserted.

Lippitt, 340 F.3d at 1041.

No other federal

statutes have been identified that set forth procedures and
remedies governing Plaintiff’s causes of action.

Id.

As preemption does not apply, the Court must only determine
whether substantial federal questions have been raised by
Plaintiff’s Hawaii Whistleblower Protection Act or wrongful
discharge in violation of public policy claims.
B. Alternative Theories of Liability Based on State Laws and
Regulations
Where a Plaintiff has pled alternative grounds for relief,
which do not rely on federal law, assertion of federal
jurisdiction is improper.

Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 810 (1988); Rains v. Criterion Systems,
Inc., 80 F.3d 339, 345-46 (9th Cir. 1996).

When a claim may be

supported by alternative and independent theories, one of which
is a state law theory and one of which is a federal law theory,
federal question jurisdiction does not attach because federal law
is not a necessary element of the claim.

Rains, 80 F.3d at 1043.

Plaintiff’s state wrongful termination in violation of
public policy claim alleges that:
On or about February 25, 2015, Plaintiff was discharged
from employment with Rehabilitation, because he
reported Rehabilitation’s violations, and/or because
Junttonen followed federal, and state laws,
regulations, and rules, which is a violation of the
Hawaii state whistleblower law, and violation of public
policy.
(Complaint at p. 3, attached as Exhibit C to Notice of Removal,
ECF No. 1-4)
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Plaintiff’s Whistleblower Protection Act claim alleges that:
On or about February 3, 2015 Plaintiff reported to
Rehabilitation that it used an unqualified nurse’s
assistant to transfer patients in violation of United
States federal functional independent measures
regulations, and/or other federal and/or state law and
regulations requirements.
(Id.)
1. Wrongful Termination in Violation of Public Policy
Hawaii common law provides a cause of action for at-will
employees who are wrongfully discharged in violation of a "clear
mandate of public policy."

Parnar v. Americana Hotels, Inc., 652

P.2d 625, 631 (Haw. 1982).

Such claims are often called "Parnar

claims."

An employee's termination raises a colorable Parnar

claim when the employer's conduct conflicts with the text or
purpose of a constitutional,
or scheme.

statutory, or regulatory provision

Id.

The Ninth Circuit Court of Appeals interpreted Hawaii's
jurisprudence for a wrongful termination claim under Parnar in
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1067 (9th
Cir. 2002).

The Villiarimo case was an appeal from a grant of

summary judgment of a Hawaii wrongful termination claim in
violation of public policy.

The appellate court held that there

are three requirements for bringing an actionable Parnar claim.
First, the employee's discharge must violate a clear mandate of
public policy.

Second, the cause of action is limited to certain

protected activities.

Such activities include refusing to commit

an unlawful act, performing an important public obligation, or

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exercising a statutory right or privilege.

Third, there must be

evidence of a causal connection between the termination and the
protected action.

Id. at 1067.

In a similar case to the present suit, the Ninth Circuit
Court of Appeals considered whether a plaintiff’s claim for
wrongful termination in violation of public policy under the
California Constitution, the California Fair Employment and
Housing Act, and Title VII of the Civil Rights Act of 1964
conferred federal question jurisdiction.

Rains v. Criterion

Systems, Inc., 80 F.3d 339 (9th Cir. 1996).

In Rains the Court

of Appeals found that state, not federal, law created the cause
of action for wrongful discharge in violation of public policy.
Id. at 343-44 (citing Gantt v. Sentry Ins., 824 P.2d 680, 636
(Cal. 1992); Foley v. Interactive Data Corp., 765 P.2d 373 (Cal.
1988); Tameny v. Atlantic Richfield Co., 610 P.2d 1330 (Cal.
1980).

The Court of Appeals reasoned that even though the same

facts could have been the basis for a Title VII claim, it did not
turn plaintiff’s state wrongful termination claim into a federal
cause of action.

Id.

The Rains plaintiff was entitled to bring

a state claim rather than a Title VII claim.

Id. (citing Pan

American Petro. Corp. v. Superior Court, 366 U.S. 656, 663-64
(1961)).
If a plaintiff may sue on state or federal grounds, a
plaintiff may avoid removal by relying exclusively on his state
law claim.

Id. (citing Ethridge v. Harbor House Restaurant, 861

F.2d 1389, 1395 (9th Cir. 1988)).
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In Rains, the Court concluded

that the plaintiff had not raised a substantial federal question
in his complaint.

Id. at 345.

The Rains plaintiff’s alternative

state law theories of liability would allow the plaintiff to
establish a violation of public policy without interpreting
federal law.

Id.

Rains is directly applicable to this case.

The elements of

a wrongful termination in violation of public policy claim are
similar in both Hawaii and California.

Paras v. Delta Dental Of

California, 2012 WL 629997, at *6 (Cal. Ct. App. Feb. 27, 2012);
Villiarimo, 281 F.3d at 1067.
Here, unlike in Rains, Plaintiff has not cited to Title VII
of the Civil Rights Act of 1964 in his Complaint.

Defendant

argues that Plaintiff’s wrongful termination claim is actually a
Title VII claim because at some point Plaintiff filed a charge
with the United States Equal Employment Opportunity Commission.
(Reply at pp. 3-4, ECF No. 39).

Plaintiff, as master of his

complaint, may file a Title VII charge with the United States
Equal Employment Opportunity Commission and then choose not to
file a Title VII claim in court.
Caterpillar, 482 U.S. at 392.

Rains, 80 F.3d at 344;

Plaintiff has also plead

alternative state law theories of liability and may establish his
Parnar claim without the interpretation of federal law.

Rains,

80 F.3d at 345.
Plaintiff has not engaged in artful pleading with respect to
his claim for wrongful termination in violation of public policy.
The Court lacks subject-matter jurisdiction to consider it.
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2. Hawaii Whistleblower Protection Act
Plaintiff’s alleged whistleblower activity involved both
federal laws and regulations, as well as state laws and
regulations.

(Complaint at p. 3, attached as Exhibit C to Notice

of Removal, ECF No. 1-4).
Plaintiff’s whistleblower cause of action may require
interpretation of a federal functional independent measure
regulation or Title VII of the Civil Rights Act of 1964, but
still not confer federal question jurisdiction as Plaintiff also
plead that he reported violations of state laws and regulations.
Rains, 80 F.3d at 345.
Plaintiff has not engaged in artful pleading with respect to
his Hawaii Whistleblower Protection Act claim and the Court lacks
subject-matter jurisdiction to consider it.
C. The Correctness of a Report Under the Hawaii
Whistleblower Protection Act is Irrelevant
A Hawaii Whistleblower Protection Act claim, under Haw. Rev.
Stat. § 378-62, contains three elements.

First, an employee must

have "engaged in protected conduct" as defined by Haw. Rev. Stat.
§ 378-62(1).

Griffin v. JTSI, Inc., 654 F.Supp. 2d 1122, 1131

(D. Haw. 2008) (citing Crosby v. State Dept. of Budget & Fin.,
876 P.2d 1300, 1310 (Haw. 1994)).

Second, the employer must take

some "adverse action" against the employee.

Id.

Third, there

must be a causal connection between the alleged retaliation and
the act of whistleblowing.

Id.

To meet the causal connection

requirement, an employer's retaliatory act must have been taken
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because the employee engaged in protected conduct.

Id.

An employee’s act or reporting is a protected activity as
long as the employee reasonably believes he is reporting unlawful
conduct, regardless of whether the underlying conduct was
actually unlawful.

Onodera v. Kuhio Motors Inc., No. CIV.

13-00044 DKW, 2014 WL 1031039, at *5 (D. Haw. Mar. 13,
2014)(interpreting Haw. Rev. Stat. § 378-62) (citing Little v.
Windermere Relocation, Inc ., 301 F.3d 958, 969 (9th Cir. 2001);
Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d
493, 506 (9th Cir. 2000); Moyo v. Gomez, 40 F.3d 982, 985 (9th
Cir. 1994)).

It is the act of reporting that is a protected

activity, not the correctness of the report.

See Ragasa v. Cnty.

of Kaua'i, No. CV 14-00309 DKW-BMK, 2016 WL 543118, at *22 (D.
Haw. Feb. 8, 2016).
The correctness of Plaintiff’s report to Defendant
Rehabilitation is not a necessary element of Plaintiff’s
whistleblower claim.

Onodera, 2014 WL 1031039, at *5.

Plaintiff’s whistleblower claim does not depend on the resolution
of a substantial disputed question of federal law or require
interpretation of Title VII or a federal functional independent
measure regulation.

Lippitt, 340 F.3d at 1042.

The fact that

Plaintiff’s report involved a federal functional independent
measure regulation does not confer subject-matter jurisdiction to
this Court for Plaintiff’s whistleblower claim.
II. Defendant’s Timeliness Objection
Pursuant to 28 U.S.C. § 1447(c), a case shall be remanded if
13

at any time before final judgment it appears that the district
court lacks subject-matter jurisdiction.

Int'l Primate Prot.

League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 87
(1991).

Defendants’ argument that Plaintiff failed to timely

object to removal is unavailing.

(Reply at pp. 4-5, ECF No. 39).

The time limits for motions to remand only apply to procedural
defects, not jurisdictional defects.

Smith v. Mylan Inc., 761

F.3d 1042, 1044 (9th Cir. 2014)
CONCLUSION
The Court lacks subject-matter jurisdiction in this case.
Defendant’s Motion for Summary Judgment may not be considered by
the Court.
The case is REMANDED to the Circuit Court of the First
Circuit, State of Hawaii for further proceedings.
The Clerk of Court is directed to transfer this case and all
files herein to the Circuit Court of the First Circuit, State of
Hawaii, for further proceedings.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, June 21, 2018.

Greg Junttonen v. The Rehabilitation Hospital of the Pacific;
Audrey Torres; Laleine Lanier; Faye Miyamoto; and Does 1-15, Cv
No. 17-00119 HG-KSC; ORDER TO REMAND
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