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Abdel Salameh v. City and County of Honolulu

July 25, 2012

ABDEL SALAMEH,
PLAINTIFF,
v.
CITY AND COUNTY OF HONOLULU, A MUNICIPAL CORPORATION; ERIC HOKAMA, INDIVIDUALLY AND AS A OFFICER OF THE CITY AND COUNTY OF HONOLULU; DOE DEFENDANTS 1-50, DEFENDANTS.



The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT AND FOR REMAND OF CASE

Before the Court is Plaintiff Abdel Salameh's ("Plaintiff") Motion for Leave to File First Amended Complaint and for Remand of Case ("Motion"), filed on April 26, 2012. Defendant City and County of Honolulu ("the City") filed its memorandum in opposition to the portion of Plaintiff's Motion requesting Leave to Amend ("Memorandum in Opposition to Amend") on May 22, 2012.*fn1 The City filed its memorandum in opposition to the portion of Plaintiff's Motion requesting remand ("Memorandum in Opposition to Remand") on June 4, 2012. Plaintiff did not file a reply. This matter came on for hearing on July 20, 2012. Appearing on behalf of Plaintiff was Myles Breiner, Esq., and appearing on behalf of the City was Laura Yoshida, Esq. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Plaintiff's Motion is HEREBY GRANTED for the reasons set forth below.

BACKGROUND

Plaintiff filed his original Complaint on November 21, 2011 against the City and Defendant Eric Hokama, individually and as a police officer of the City and County of Honolulu ("Hokama,"*fn2 collectively "Defendants") in the Circuit Court of the First Circuit, State of Hawai'i. On February 6, 2012, the City removed the action to this district court based on federal question jurisdiction. [Notice of Removal at 3.]

The instant case arises from injuries Plaintiff allegedly sustained during his arrest on January 15, 2010, when Hokama and other Honolulu Police Department ("HPD") officers arrived at Plaintiff's residence to investigate an earlier harassment complaint made against him. [Complaint at ¶ 6.]

Plaintiff alleges the following causes of action: (1) a 42 U.S.C. § 1983 claim against the City and Hokama (Count I); (2) assault and battery against Hokama (Count II); (3) a negligence claim against the City and Hokama, including negligent failure to train, supervise, hire, and/or discipline (Count III); (4) an intentional infliction of emotional distress ("IIED") claim against the City and Hokama (Count IV); (5) a negligent infliction of emotional distress ("NIED") claim against the City and Hokama (Count V); (6) a respondeat superior claim against the City (Count VI); and (7) a punitive damages claim against Hokama (Count VII). [Id. at ¶¶ 15-32.]

On February 8, 2012, the City moved to dismiss the original Complaint on the grounds that Plaintiff's causes of action failed to state a claim and that the allegations in the original Complaint were legal conclusions which were not entitled to a presumption of truth. [Dkt. no. 6.] On March 30, 2012, this Court issued its order granting in part and denying in part the City's motion to dismiss ("March 30, 2012 Order"). [Dkt. no. 14.] Plaintiff was given until April 30, 2012 to file an amended complaint which cured the deficiencies noted in the March 30, 2012 Order. [Id. at 9.] Plaintiff filed the instant Motion instead of filing an amended complaint.

I. Plaintiff's Motion

In the instant Motion, Plaintiff seeks to add a negligence claim against Hokama and to amend the negligence claim against the City. Plaintiff's proposed First Amended Complaint also omits the § 1983 claim, which was the sole federal claim and the only basis for the City's removal. Plaintiff is therefore seeking remand pursuant to 28 U.S.C. § 1367(c).

II. The City's Memoranda in Opposition

In the City's Memorandum in Opposition to Amend, the City argues that allowing Plaintiff to amend his pleading would be futile because Plaintiff's proposed First Amended Complaint does not correct the defects this Court identified in the March 30, 2012 Order. Additionally, in the City's Memorandum in Opposition to Remand, the City argues that Plaintiff elected to file an amended complaint that "conspicuously fails to assert any federal claims in an effort to defeat this Court's subject matter jurisdiction." [Mem. in Opp. to Remand at 3 (citation omitted).] In addition the City argues that "the present case is before [the] federal court by Plaintiff's own election, and this court lacks jurisdiction (either supplemental or original), [therefore] dismissal rather than remand is proper under FRCP, Rule 12(b)(1)." [Id.]

DISCUSSION

I. Leave to File First Amended Complaint

Under Fed. R. Civ. P. 15(a)(1)(A), a party may amend its pleading once as a matter of course within twenty one days after serving it. In the instant case, more than twenty one days has passed, therefore plaintiff must obtain leave of court. See Fed. R. Civ. P. 15(a)(2). "The court should freely give leave when justice so requires." Id. The determination whether a party should be allowed to amend a pleading is left ...


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