Pule et al v. Macomber et al
ORDER REMANDING ACTION TO STATE CIRCUIT COURT FOR LACK OF SUBJECT MATTER JURISDICTION - Signed by JUDGE DERRICK K. WATSON on 9/8/2021. For the reasons set forth herein, this case is REMANDED to the Third Circuit Court for the State of Hawai'i, pursuant to Section 1447(c) of Title 28. The Clerk is instructed to mail a certified copy of this Order to the clerk of the Third Circuit Court and then CLOSE this case. (emt, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
CHARMAYNE PULE., et al.,
BOBBY L. MACOMBER, et al.,
Case No. 17-cv-00193-DKW-KJM
ORDER REMANDING ACTION
TO STATE CIRCUIT COURT FOR
LACK OF SUBJECT MATTER
This matter comes before the Court following briefing on matters related to
the Court’s jurisdiction over both certain claims alleged by the parties and this case
generally. Having reviewed the same, as well as the other filings in this case, the
Court finds that original jurisdiction did not exist over this case when it was
removed because there was and is substantial doubt as to whether the thenoperative complaint raised a question of federal law, the sole basis cited in support
of removal. Therefore, as more fully explained below, this case is REMANDED
to the Third Circuit Court for the State of Hawai‘i.
Pursuant to Section 1441(a) of Title 28, any civil action brought in a State
court may be removed to federal court by a defendant provided that the federal
court would have original jurisdiction over the action. As pertinent here, pursuant
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to Section 1331 of Title 28, this Court has original jurisdiction over all civil actions
involving federal law, such as civil rights statutes like Section 1983 of Title 42.1
“As a general rule, ‘[t]he presence or absence of federal-question jurisdiction
is governed 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.’” ARCO Envtl. Remediation, L.L.C. v.
Dep’t of Health and Envtl. Quality of the State of Mont., 213 F.3d 1108, 1113 (9th
Cir. 2000) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987))
(internal quotation omitted). Further, the existence of removal jurisdiction based
upon a federal question is judged as of the time the removal petition is filed.
Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir. 1979).
Pursuant to Section 1447(c) of Title 28, “[i]f at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case
shall be remanded.” 28 U.S.C. § 1447(c). The burden of establishing this
Court’s subject matter jurisdiction “rests upon the party asserting jurisdiction[.]”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation
Pursuant to Section 1332(a)(1) of Title 28, this Court also has original jurisdiction over civil
actions involving an amount in controversy in excess of $75,000 and citizens of different States.
For good reason, however, no party here has ever contended that the Court’s diversity
jurisdiction is at play.
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omitted). “[A]ny doubt about the right of removal requires resolution in favor of
remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir.
RELEVANT PROCEDURAL BACKGROUND
On April 27, 2017, Defendants County of Hawai‘i and Darren Cho
(collectively, “County Defendants”) removed this action from the Third Circuit
Court, pursuant to 28 U.S.C. Section 1441. Dkt. No. 1. At that time, the Second
Amended Complaint (SAC) was the operative complaint in the case. Dkt. No. 12. In their notice of removal, the County Defendants asserted that this Court had
jurisdiction under Section 1441 because the case involved “a claim of rights under
the United States Constitution.” Dkt. No. 1 at 3. More specifically, the County
Defendants asserted that damages were sought “for violations of Plaintiff[s]’
‘protected civil rights,’ which if proven would constitute a violation of the United
States Constitution.” Id.
On May 12, 2017, a status conference was held before the Court. Dkt. No.
15. At said conference:
The court questioned whether the [SAC] was properly removed to this
court (that is, whether the SAC conferred federal-question
jurisdiction). Counsel for Plaintiff represented that the SAC was
intended to raise a claim under 42 U.S.C. section 1983 under a theory
of conspiracy between state actors and non-state actors. Given that the
SAC is not clear in this regard, and given the different pleading
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standards in state and federal court (in federal court a complaint must
comply with Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662 (2009)), the court and the parties
agreed that the Plaintiffs should be given leave to file a Third
Amended Complaint (TAC). The TAC may not add new parties or
causes of action, but may clarify the claims, including that one or
more claims are brought under section 1983 and how the non-state
actors can be liable under section 1983 under a conspiracy theory.
Id. (case italics added). 2
On January 24, 2018, this action was stayed by the Court. Dkt. No. 57.3
After various attempts at settlement failed, the stay was lifted on July 27, 2021 and
the Court directed briefing on whether supplemental jurisdiction existed over
certain claims. Dkt. No. 81. On August 13, 2021, the parties filed their
supplemental jurisdiction briefing. Dkt. Nos. 82-83. Thereafter, the Court
directed further briefing on whether removal jurisdiction existed over this case.
Dkt. No. 84. On August 31, 2021, the Court received the parties’ briefing on
removal jurisdiction. Dkt. Nos. 86-87. This Order follows.
In answering whether federal question, and, by extension, removal
jurisdiction, existed here at the time of the notice of removal, the Court begins and
On the same day, but after the status conference, this case was re-assigned to the undersigned.
Dkt. No. 16.
By that time, in fact, within a month of removing this case, the County Defendants had been
voluntarily dismissed from the action with prejudice. Dkt. No. 17.
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ends, as it must, with the SAC−the operative complaint at that time. Review of
the SAC reflects that there is no federal question presented on its face, at least not
one without substantial doubt. In summary, the SAC reflects the following
claims: (1) intentional and/or negligent interference with the right to peaceable
worship; (2) intentional and/or negligent interference with the right to visit
ancestral grave sites and to enjoy the benefits and honor as elected officials; (3)
intentional and/or negligent interference with plaintiffs’ ability to fulfill duties and
obligations to Church as officers and enjoy benefits and honor as elected officers;
(4) conversion and/or misappropriation of insurance proceeds; and (5) civil
conspiracy. On their face, none of these claims present a federal question.
Rather, they all involve state law issues of alleged tortious or fraudulent conduct. 4
Perhaps understanding the lack of an asserted federal claim on the face of
the SAC, Plaintiffs, in their removal briefing, contend that, under pleading
standards in Hawai‘i, they are not required to state a cause of action. See Dkt. No.
87 at 3-5. Instead, Plaintiffs contend that, in state court, they are only required to
provide “notice” of their claims. See id. Accepting those premises as true for
In Hawai‘i, civil conspiracy is not a standalone claim. Weinberg v. Mauch, 890 P.2d 277, 286
(Haw. 1995). Instead, such a “claim” must set forth an actionable underlying cause of action.
Id. Here, the purportedly actionable claims alleged to involve a civil conspiracy were the same
as the first four claims set forth above, e.g., “rights to perform their duties, and to enjoy the
benefits, honor, and privileges as the elected Officers….” SAC at ¶ 110, Dkt. No. 1-2.
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purposes of the instant analysis, Plaintiffs ignore the fundamental problem that
remains unresolved no matter the pleading standard used: the SAC does not
provide “notice” of a federal claim. The headings Plaintiffs chose for their own
claims do not. Moreover, not once, anywhere, does the SAC mention a federal
law or the U.S. Constitution, including the law upon which Plaintiffs now insist a
claim is brought, Section 1983. In fact, the only authority mentioned as the basis
for the claims alleged in the SAC is state law and state rules of civil procedure.
SAC at ¶ 116, Dkt. No. 1-2.
As important, while the underlying allegations in the SAC involve alleged
“protected civil rights,” such as the right to fulfill the duties of a Church officer
and to visit ancestral grave sites, Plaintiffs provide no support that such rights
necessarily implicate federal law. 5 These alleged civil rights could as easily
concern the Hawai‘i State Constitution as the U.S. Constitution. Even the civil
conspiracy claim, upon which Plaintiffs now place all of their emphasis, could as
easily concern state law as it could Section 1983. Put simply, however liberally
That being said, Defendants’ argument that the decision on whether to remand this case “rests”
on the “viability” of any alleged federal claims is simply incorrect. See Dkt. No. 86 at 1-4.
The “viability” of Plaintiffs’ claims would be tested by way of a dispositive motion, but only if
this Court had jurisdiction to hear such a merits-based challenge. See Libhart, 592 F.2d at 106566. Here, the issue is whether the Court has such jurisdiction, which requires the Court to
consider whether the SAC presents a federal question, not the viability of any such question.
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the Court may construe Plaintiffs’ counseled SAC, it is simply not possible to find
that doubts do not exist about the propriety of removal.
Plaintiffs’ remaining arguments offer no help. They argue that the SAC
must include a federal claim because a State court judge directed them to include
one. Dkt. No. 87 at 2-3. To the extent relevant, that assertion is untrue. There is
no such direction reflected in the State court’s order referenced by Plaintiffs.
Rather, the order directs Plaintiffs to identify certain defendants by amendment.
Dkt. No. 87-1, Exh. A, at 3. More importantly, even if the State court directed the
assertion of a federal claim, that is of no import if the SAC−the only document of
any relevance in this analysis−failed to do so. And, here, as discussed, at the very
least, the SAC does not do so with any clarity.
Plaintiffs also argue that this Court has already resolved whether the SAC
alleged a federal claim. The Court has not. Rather, the Entering Order to which
Plaintiffs cite reflects that the judge who entered said Order found the SAC to “not
[be] clear” with respect to whether a federal claim had been asserted. See Dkt.
No. 15. As discussed, when there is doubt or the operative complaint is “not
clear[,]” remand is required. See Moore-Thomas, 553 F.3d at 1244. Further,
even if the Court and the parties had reached some past resolution on this subject, a
federal court’s subject matter jurisdiction cannot be obtained by consent. See
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Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d
1376, 1380 (9th Cir. 1988); In re Consol. Meridian Funds, 511 B.R. 140, 145
(W.D. Wa. 2014).
For the reasons set forth herein, this case is REMANDED to the Third
Circuit Court for the State of Hawai‘i, pursuant to Section 1447(c) of Title 28.
The Clerk is instructed to mail a certified copy of this Order to the clerk of the
Third Circuit Court and then CLOSE this case.6
IT IS SO ORDERED.
Dated: September 8, 2021 at Honolulu, Hawai‘i.
United States District Judge
Charmayne Pule, et al v. Bobby L. Macomber, et al; Civil No. 17-00193 DKWKJM; ORDER REMANDING ACTION TO STATE CIRCUIT COURT FOR
LACK OF SUBJECT MATTER JURISDICTION
Because the Court finds that removal jurisdiction did not exist in this case, the question of
whether supplemental jurisdiction existed over certain claims is moot and, therefore, not
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